EXECUTION COPY
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Exhibit 10.1
$350,000,000
CREDIT AGREEMENT
DATED AS OF FEBRUARY 11, 2005,
AMONG
BUILDERS FIRSTSOURCE, INC.
AS BORROWER,
JLL BUILDING PRODUCTS, LLC
AND
THE GUARANTORS PARTY HERETO,
AS GUARANTORS,
THE LENDERS PARTY HERETO
AND
UBS SECURITIES LLC,
AS JOINT ARRANGER AND JOINT BOOK RUNNER,
AND
UBS LOAN FINANCE LLC,
AS SWING LINE LENDER
AND
UBS AG, STAMFORD BRANCH,
AS ISSUING BANK, ADMINISTRATIVE AGENT AND COLLATERAL TRUSTEE,
AND
DEUTSCHE BANK SECURITIES INC,
AS JOINT ARRANGER, JOINT BOOK RUNNER AND SYNDICATION AGENT
AND
GENERAL ELECTRIC CAPITAL CORPORATION AND LASALLE BANK NATIONAL
ASSOCIATION,
AS CO-DOCUMENTATION AGENTS
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, 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 ....................... 35
Section 1.03 Terms Generally .............................................. 36
Section 1.04 Accounting Terms; GAAP ....................................... 36
Section 1.05 Resolution of Drafting Ambiguities ........................... 36
ARTICLE II.
THE CREDITS
Section 2.01 Commitments .................................................. 36
Section 2.02 Loans ........................................................ 37
Section 2.03 Borrowing Procedure .......................................... 38
Section 2.04 Evidence of Debt; Repayment of Loans ......................... 38
Section 2.05 Fees ......................................................... 39
Section 2.06 Interest on Loans ............................................ 40
Section 2.07 Termination and Reduction of Commitments;
Return and Reduction of Credit-Linked Deposits ............ 41
Section 2.08 Interest Elections ........................................... 42
Section 2.09 Amortization of Term Borrowings .............................. 43
Section 2.10 Optional and Mandatory Prepayments ........................... 44
Section 2.11 Alternate Rate of Interest ................................... 48
Section 2.12 Increased Costs .............................................. 48
Section 2.13 Breakage Payments ............................................ 49
Section 2.14 Payments Generally; Pro Rata Treatment; Sharing of Setoffs ... 50
Section 2.15 Taxes ........................................................ 51
Section 2.16 Mitigation Obligations; Replacement of Lenders ............... 53
Section 2.17 Swingline Loans .............................................. 53
Section 2.18 Letters of Credit ............................................ 54
Section 2.19 Credit-Linked Deposit Account. ............................... 61
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
Section 3.01 Organization; Powers ......................................... 62
Section 3.02 Authorization; Enforceability ................................ 62
Section 3.03 No Conflicts ................................................. 62
Section 3.04 Financial Statements; Projections ............................ 63
Section 3.05 Properties ................................................... 63
Section 3.06 Intellectual Property ........................................ 64
Section 3.07 Equity Interests and Subsidiaries ............................ 65
Section 3.08 Litigation; Compliance with Laws ............................. 65
Section 3.09 Agreements ................................................... 66
Section 3.10 Federal Reserve Regulations .................................. 66
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Section Page
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Section 3.11 Investment Company Act; Public Utility Holding Company Act ... 66
Section 3.12 Use of Proceeds .............................................. 66
Section 3.13 Taxes ........................................................ 67
Section 3.14 No Material Misstatements .................................... 67
Section 3.15 Labor Matters ................................................ 67
Section 3.16 Solvency ..................................................... 67
Section 3.17 Employee Benefit Plans ....................................... 68
Section 3.18 Environmental Matters ........................................ 68
Section 3.19 Insurance .................................................... 70
Section 3.20 Security Documents ........................................... 70
Section 3.21 Anti-Terrorism Law ........................................... 71
ARTICLE IV.
CONDITIONS TO CREDIT EXTENSIONS
Section 4.01 Conditions to Initial Credit Extension ....................... 71
Section 4.02 Conditions to All Credit Extensions .......................... 76
ARTICLE V.
AFFIRMATIVE COVENANTS
Section 5.01 Financial Statements, Reports, etc. .......................... 77
Section 5.02 Litigation and Other Notices ................................. 79
Section 5.03 Existence; Businesses and Properties ......................... 79
Section 5.04 Insurance .................................................... 80
Section 5.05 Obligations and Taxes ........................................ 81
Section 5.06 Employee Benefits ............................................ 81
Section 5.07 Maintaining Records; Access to Properties and Inspections;
Annual Meetings ........................................... 82
Section 5.08 Use of Proceeds .............................................. 82
Section 5.09 Compliance with Environmental Laws; Environmental Reports .... 82
Section 5.10 Interest Rate Protection ..................................... 83
Section 5.11 Additional Collateral; Additional Guarantors ................. 83
Section 5.12 Security Interests; Further Assurances ....................... 85
Section 5.13 Information Regarding Collateral ............................. 85
Section 5.14 Post-Closing Matters ......................................... 86
Section 5.15 Ratings ...................................................... 86
Section 5.16 Fountain, Colorado and Keller, Texas Properties .............. 86
ARTICLE VI.
NEGATIVE COVENANTS
Section 6.01 Indebtedness ................................................. 87
Section 6.02 Liens ........................................................ 88
Section 6.03 Sale and Leaseback Transactions .............................. 90
Section 6.04 Investment, Loan and Advances ................................ 90
Section 6.05 Mergers and Consolidations ................................... 91
Section 6.06 Asset Sales .................................................. 92
Section 6.07 Acquisitions ................................................. 92
Section 6.08 Dividends .................................................... 93
Section 6.09 Transactions with Affiliates ................................. 93
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Section Page
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Section 6.10 Financial Covenants. ......................................... 94
Section 6.11 Prepayments of Other Indebtedness; Modifications of
Organizational Documents and Other Documents, etc. ........ 96
Section 6.12 Limitation on Certain Restrictions on Subsidiaries ........... 96
Section 6.13 Limitation on Issuance of Capital Stock ...................... 96
Section 6.14 Limitation on Creation of Subsidiaries ....................... 97
Section 6.15 Business ..................................................... 97
Section 6.16 Limitation on Accounting Changes ............................. 98
Section 6.17 Fiscal Year .................................................. 98
Section 6.18 Embargoed Person ............................................. 98
Section 6.19 No Further Negative Pledge ................................... 98
Section 6.20 Anti-Terrorism Law; Anti-Money Laundering .................... 98
ARTICLE VII.
GUARANTEE
Section 7.01 The Guarantee ................................................ 99
Section 7.02 Obligations Unconditional .................................... 99
Section 7.03 Reinstatement ................................................ 100
Section 7.04 Subrogation; Subordination ................................... 100
Section 7.05 Remedies ..................................................... 100
Section 7.06 Instrument for the Payment of Money .......................... 101
Section 7.07 Continuing Guarantee ......................................... 101
Section 7.08 General Limitation on Guarantee Obligations .................. 101
Section 7.09 Release of Guarantors ........................................ 101
Section 7.10 Contribution ................................................. 101
ARTICLE VIII.
EVENTS OF DEFAULT
Section 8.01 Events of Default ............................................ 102
ARTICLE IX.
COLLATERAL ACCOUNT; APPLICATION OF COLLATERAL PROCEEDS
Section 9.01 Collateral Account ........................................... 104
Section 9.02 Proceeds of Destruction, Taking and Collateral Dispositions .. 105
Section 9.03 Application of Proceeds ...................................... 105
ARTICLE X.
THE ADMINISTRATIVE AGENT AND THE COLLATERAL TRUSTEE
Section 10.01 Appointment .................................................. 106
Section 10.02 Agent in Its Individual Capacity ............................. 106
Section 10.03 Exculpatory Provisions ....................................... 107
Section 10.04 Reliance by Agent ............................................ 107
Section 10.05 Delegation of Duties ......................................... 107
Section 10.06 Successor Agent .............................................. 107
Section 10.07 Non-Reliance on Agent and Other Lenders ...................... 108
Section 10.08 Name Agents .................................................. 108
Section 10.09 Indemnification .............................................. 108
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Section Page
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ARTICLE XI.
MISCELLANEOUS
Section 11.01 Notices ...................................................... 109
Section 11.02 Waivers; Amendment ........................................... 109
Section 11.03 Expenses; Indemnity .......................................... 112
Section 11.04 Successors and Assigns ....................................... 113
Section 11.05 Survival of Agreement ........................................ 116
Section 11.06 Counterparts; Integration; Effectiveness ..................... 116
Section 11.07 Severability ................................................. 116
Section 11.08 Right of Setoff .............................................. 117
Section 11.09 Governing Law; Jurisdiction; Consent to Service of Process ... 117
Section 11.10 Waiver of Jury Trial ......................................... 117
Section 11.11 Headings ..................................................... 118
Section 11.12 Confidentiality .............................................. 118
Section 11.13 Interest Rate Limitation ..................................... 118
Section 11.14 Lender Addendum .............................................. 119
Section 11.15 Obligations Absolute ......................................... 119
ANNEXES
Annex I Amortization Table
Annex II Consolidated EBITDA
SCHEDULES
Schedule 1.01(a) Existing Letters of Credit
Schedule 1.01(b) Mortgaged Property
Schedule 1.01(c) Refinancing Indebtedness to Be Repaid
Schedule 3.03 Governmental Approvals; Compliance with Laws
Schedule 3.05(b) Real Property
Schedule 3.05(c) Flood Zone Real Property
Schedule 3.06(c) Violations or Proceedings
Schedule 3.07(a) Subsidiaries
Schedule 3.07(c) Corporate Organizational Chart
Schedule 3.09(c) Material Agreements
Schedule 3.17 ERISA Matters
Schedule 3.18 Environmental Matters
Schedule 3.19 Insurance
Schedule 3.20 Filing Offices and Non-UCC Security Agreement Collateral
Schedule 4.01(n) Landlord Access Agreements
Schedule 5.14 Post-Closing Collateral Matters
Schedule 6.01(b) Existing Indebtedness
Schedule 6.02(c) Existing Liens
Schedule 6.04(a) Existing Investments
Schedule 6.06(h) Real Property to be Sold
Schedule 6.15(d) CCWP, Inc. Owned Real Property
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EXHIBITS
Exhibit A Form of Administrative Questionnaire
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Borrowing Request
Exhibit D Form of Compliance Certificate
Exhibit E Form of Interest Election Request
Exhibit F Form of Subsidiary Joinder Agreement
Exhibit G Form of Landlord Access Agreement
Exhibit H Form of LC Request
Exhibit I Form of Lender Addendum
Exhibit J Form of Mortgage
Exhibit K-1 Form of Term Note
Exhibit K-2 Form of Revolving Note
Exhibit K-3 Form of Swingline Note
Exhibit L-1 Form of Perfection Certificate
Exhibit L-2 Form of Perfection Certificate Supplement
Exhibit M-1 Form of Security Agreement
Exhibit M-2 Form of JBP Pledge Agreement
Exhibit N Form of Opinion of Company Counsel
Exhibit O Form of Solvency Certificate
Exhibit P Form of Intercompany Note
Exhibit Q Form of Non-Bank Certificate
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CREDIT AGREEMENT
This CREDIT AGREEMENT (this "AGREEMENT") dated as of February 11,
2005, among BUILDERS FIRSTSOURCE, INC., a Delaware corporation ("BORROWER"), JLL
BUILDING PRODUCTS, LLC ("JBP"), the Guarantors (such term and each other
capitalized term used but not defined herein having the meaning given to it in
Article I), the Lenders, UBS SECURITIES LLC ("UBSS"), as joint arranger and
joint book runner, DEUTSCHE BANK SECURITIES INC., as joint arranger and joint
book runner (together with UBSS in such capacities, the "ARRANGERS") and as
syndication agent (in such capacity, the "SYNDICATION AGENT"), UBS LOAN FINANCE
LLC, as swingline lender (in such capacity, "SWINGLINE LENDER"), UBS AG,
STAMFORD BRANCH, as issuing bank (in such capacity, "ISSUING BANK"), as
administrative agent (in such capacity, "ADMINISTRATIVE AGENT") for the Lenders,
as collateral trustee (in such capacity, "COLLATERAL TRUSTEE") for the Secured
Parties and the Issuing Bank, and GENERAL ELECTRIC CAPITAL CORPORATION and
LASALLE BANK NATIONAL ASSOCIATION, as co-documentation agents (in such
capacities, each a "DOCUMENTATION AGENT" and collectively, the "DOCUMENTATION
AGENTS").
WITNESSETH:
WHEREAS, Borrower has requested the Lenders to extend credit in the
form of (a) Term Loans on the Closing Date, in an aggregate principal amount of
$225.0 million, (b) Revolving Loans at any time and from time to time prior to
the Revolving Maturity Date, in an aggregate principal amount at any time
outstanding not in excess of $110.0 million, none of which will be drawn on the
Closing Date and (c) a funded letter of credit facility to be available at any
time and from time to time prior to the Funded LC Maturity Date, in an aggregate
face amount at any time outstanding not in excess of $15.0 million.
WHEREAS, Borrower has requested the Swingline Lender to make Swingline
Loans, at any time and from time to time prior to the Revolving Maturity Date,
in an aggregate principal amount at any time outstanding not in excess of $10.0
million.
WHEREAS, Borrower has requested the Issuing Bank to issue (a) letters
of credit under the Revolving Commitments in an aggregate face amount at any
time outstanding not in excess of $25.0 million and (b) funded letters of credit
under the Funded LC Commitments in an aggregate face amount at any time
outstanding not in excess of $15.0 million, in each case to support payment
obligations incurred in the ordinary course of business by Borrower and its
Subsidiaries.
WHEREAS, Borrower desires to secure all of the Obligations hereunder
and under the other Loan Documents.
WHEREAS, JBP has agreed to pledge its Equity Interests in the Borrower
to secure the Obligations hereunder and under the other Loan Documents, and all
of the Guarantors have agreed to guarantee and secure the Obligations hereunder
and under the other Loan Documents.
WHEREAS, the proceeds of the Loans are to be used in accordance with
Section 3.12.
NOW, THEREFORE, the Lenders are willing to extend such credit to
Borrower and the Issuing Bank is willing to issue letters of credit for the
account of Borrower on 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:
"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 ABR Term Loan or ABR Revolving Loan.
"ABR REVOLVING LOAN" shall mean any Revolving Loan bearing interest at
a rate determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"ABR TERM LOAN" shall mean any Term 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 Borrower or any of its
Subsidiaries in exchange for, or as part of, or in connection with, any
Permitted Acquisition, whether paid in cash or by exchange of Equity Interests
or of 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 Borrower or any of its
Subsidiaries.
"ADDITIONAL EQUITY PARTNERS" shall have the meaning set forth in the
definition of "Qualified Contribution Transaction."
"ADJUSTED LIBOR RATE" means for each Interest Period, a rate of
interest determined by the Administrative Agent equal to:
(a) the offered rate for deposits in United States Dollars for the
applicable Interest Period that appears on Telerate Page 3750 as of 11:00 a.m.
(London time), on the second full Business Day next preceding the first day of
such Interest Period (unless such date is not a Business Day, in which event the
next succeeding Business Day will be used); divided by
(b) a number equal to 1.0 minus the aggregate (but without
duplication) of the rates (expressed as a decimal fraction) of reserve
requirements in effect on the day that is two (2) Business Days prior to the
beginning of such Interest Period (including basic, supplemental, marginal and
emergency reserves under any regulations of the Federal Reserve Board or other
Governmental Authority having jurisdiction with respect thereto, as now and from
time to time in effect) for Eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of the Federal Reserve Board) that
are required to be maintained by a member bank of the Federal Reserve System.
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If such interest rates shall cease to be available from Telerate News
Service, the Adjusted LIBOR Rate shall be determined from such financial
reporting service or other information as shall be available to the
Administrative Agent.
"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(b).
"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 common 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 Arrangers, the Syndication Agent, the
Documentation Agents, the Administrative Agent and the Collateral Trustee; and
"AGENT" shall mean any of them.
"AGREEMENT" shall have the meaning assigned to such term in the
preamble hereto, as it may be amended, restated, supplemented or otherwise
modified.
"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 3.21.
"APPLICABLE REVOLVING LETTER OF CREDIT MARGIN" shall mean (i) with
respect to any Revolving Letter of Credit that is a Standby Letter of Credit, a
rate equal to the Applicable Margin from time to time used to determine the
interest rate on Eurodollar Revolving Loans pursuant to Section 2.06, and (ii)
with respect to any Revolving Letter of Credit that is a Commercial Letter of
Credit, a rate of 50% of the Applicable Margin from time to time used to
determine the interest rate on Eurodollar Revolving Loans pursuant to Section
2.06.
"APPLICABLE MARGIN" shall mean, for any day, with respect to any
Revolving Loan or Term Loan, as the case may be, the applicable percentage set
forth in the table below under the appropriate caption:
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EURODOLLAR ABR
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REVOLVING LOANS... 2.50% 1.50%
TERM LOANS........ 2.50% 1.50%
provided, however, that, with respect to Revolving Loans and Revolving Letters
of Credit only, after the date on which Borrower shall have delivered financial
statements for the fiscal quarter ending at least six months after the Closing
Date, the Applicable Margin shall mean the applicable percentage set forth in
the table below under the appropriate caption:
REVOLVING LOANS
TOTAL LEVERAGE -----------------
RATIO EURODOLLAR ABR
-------------- ---------- ----
LEVEL I 2.50% 1.50%
> or =3.25:1.0
LEVEL II
<3.25:1.0 BUT 2.25% 1.25%
> or =2.75:1.0
LEVEL III
<2.75:1.0 BUT 2.00% 1.00%
> or =2.25:1.0
LEVEL IV 1.75% 0.75%
<2.25:1.0
Each change in the Applicable Margin resulting from a change in the
Total Leverage Ratio shall be effective with respect to all Revolving Loans and
Revolving Letters of Credit outstanding on and after the date of delivery to the
Administrative Agent of the financial statements and certificates required by
Section 5.01(a) or (b) and Section 5.01(d), respectively, indicating such change
until the date immediately preceding the next date of delivery of such financial
statements and certificates indicating another such change. Notwithstanding the
foregoing, the Total Leverage Ratio shall be deemed to be in Level I (i) from
the Closing Date to the date of delivery to the Administrative Agent of the
financial statements and certificates required by Section 5.01(a) or (b) and
Section 5.01(d) for the fiscal period ended at least six months after the
Closing Date, (ii) at any time during which Borrower has failed to deliver the
financial statements and certificates required by Section 5.01(a) or (b) and
Section 5.01(d), respectively, and (iii) at any time during the existence of an
Event of Default.
"ARRANGERS" shall have the meaning assigned to such term in the
preamble hereto.
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"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 (i) sales of inventory and dispositions of cash equivalents, in each
case, in the ordinary course of business, by JBP (prior to an IPO), Borrower or
any of Borrower's Subsidiaries, (ii) the deemed sale, transfer or sale-leaseback
of Borrower's facility located in Port St. Lucie, Florida, in connection with
the construction and subsequent lease of such facility, and (iii) sales of the
Real Property described on Schedule 6.06(h), and (b) any issuance or sale of any
Equity Interests of any Subsidiary of Borrower, in each case, to any person
other than (i) Borrower, (ii) any Guarantor or (iii) 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.
"BENEFICIAL OWNER" has the meaning assigned to such term in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial
ownership of any particular "person" (as that term is used in Section 13(d)(3)
of the Exchange Act), such "person" will be deemed to have beneficial ownership
of all securities that such "person' has the right to acquire by conversion or
exercise of other securities, whether such right is currently exercisable or is
exercisable only after the passage of time. The terms "Beneficially Owns" and
"Beneficially Owned" have a corresponding meaning.
"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, Builders FirstSource, Inc., a Delaware corporation.
"BORROWING" shall mean (a) Loans of the same Class and 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, or (b) a Swingline Loan.
"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
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with a Eurodollar Loan, the term "Business Day" shall also exclude any day on
which banks in the City of London are not generally open for interbank.
"CAPITAL EXPENDITURES" shall mean, for any period, capital
expenditures, as determined in accordance with GAAP, of Borrower 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 Lender or 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 comprised 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, 2005, Cash Interest
Expense shall be deemed to equal the product of (a) Cash Interest
Expense for the one month ended March 31, 2005; as determined in
accordance with the preceding paragraph of this definition of
"Cash Interest Expense," multiplied by (b) 3 (the product
thereof, the "DEEMED Q-1 CASH INTEREST EXPENSE");
(ii) for the four fiscal quarters ended March 31, 2005, Cash Interest
Expense shall be deemed to equal the product of (a) the Deemed
Q-1 Cash Interest Expense, multiplied by (b) 4;
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(iii) for the four fiscal quarters ended June 30, 2005, 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, 2005,
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;
(iv) for the four fiscal quarters ended September 30, 2005, 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, 2005, 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
(v) for the four fiscal quarters ended December 31, 2005, Cash
Interest Expense shall be deemed to equal the sum of (x) Cash
Interest Expense for the three quarters ended December 31, 2005,
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 JBP (prior to an IPO), Borrower 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) 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 Borrower representing a majority of the voting power of the
total outstanding Voting Stock of Borrower or (ii) the Permitted Holders
cease to own Equity Interests representing a majority of the total economic
interests of the Equity Interests of Borrower;
(b) following an IPO, the consummation of any transaction (including,
without limitation, any merger or consolidation), the result of which is
that any "person" (as that term is used in Section 13(d) of the Exchange
Act), other than one or more Permitted Holders, is or becomes the
Beneficial Owner, directly or indirectly, of more than 50% of the Voting
Stock of Borrower, measured by voting power rather than number of shares;
(c) following an IPO, during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors of Borrower (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 Borrower,
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 Borrower, as applicable;
or
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(d) at any time a change of control occurs under the Senior Secured
Note Documents.
"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 Issuing Bank (or for purposes of Section 2.12(b), by
any lending office of such Lender or by such Lender's or Issuing Bank'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.
"CLASS," when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Term Loans, or Swingline Loans and, when used in reference to any Commitment,
refers to whether such Commitment is a Revolving Commitment, Term Loan
Commitment, Swingline Commitment or Credit-Linked Deposit, in each case, under
this Agreement as originally in effect, of which such Loan, Borrowing or
Commitment shall be a part.
"CLOSING DATE" shall mean February 11, 2005.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"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 ACCOUNT" shall mean a collateral account or sub-account
established and maintained by the Collateral Trustee for the benefit of the
Secured Parties, in accordance with the provisions of Section 9.01.
"COLLATERAL TRUST AGREEMENT" shall mean that certain Collateral Trust
Agreement dated as of the date hereof by and among the Administrative Agent, the
Collateral Trustee, the Senior Secured Notes Trustee, the Companies and the
Collateral Trustee.
"COLLATERAL TRUSTEE" 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.
"COMMERCIAL LETTER OF CREDIT" shall mean any letter of credit or
similar instrument issued for the purpose of providing credit support in
connection with the purchase of materials, goods or services by Borrower or any
of its Subsidiaries in the ordinary course of their businesses.
"COMMITMENT" shall mean, with respect to any Lender, such Lender's
Revolving Commitment, Term Loan Commitment, Swingline Commitment or
Credit-Linked Deposit.
"COMMITMENT FEE" shall have the meaning assigned to such term in
Section 2.05(a).
"COMMITMENT FEE PERCENTAGE" shall mean, for any day, with respect to
any Commitment, 0.50%; provided, however, that after the date on which Borrower
shall have delivered financial statements for the fiscal quarter ending at least
six months of the Closing Date, the Commitment Fee Percentage shall mean the
applicable percentage set forth in the table below under the appropriate
caption:
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TOTAL COMMITMENT FEE
LEVERAGE RATIO PERCENTAGE
-------------- --------------
LEVEL I
> or =3.25:1.0 0.5%
LEVEL II
<3.25:1.0 0.375%
Each change in the Commitment Fee Percentage resulting from a change in the
Total Leverage Ratio shall be effective with respect to all unused commitment
amounts of Revolving Loans on and after the date of delivery to the
Administrative Agent of the financial statements and certificates required by
Section 5.01(a) or (b) and Section 5.01(d), respectively, indicating such change
until the date immediately preceding the next date of delivery of such financial
statements and certificates indicating another such change. Notwithstanding the
foregoing, the Total Leverage Ratio shall be deemed to be in Level I (i) from
the Closing Date to the date of delivery to the Administrative Agent of the
financial statements and certificates required by Section 5.01(a) or (b) and
Section 5.01(d) for the fiscal period ended at least six months after the
Closing Date, (ii) at any time during which Borrower has failed to deliver the
financial statements and certificates required by Section 5.01(a) or (b) and
Section 5.01(d), respectively, and (iii) at any time during the existence of an
Event of Default.
"COMPANIES" shall mean Borrower and its Subsidiaries; and "COMPANY"
shall mean any one of them.
"COMPANY RETIREMENT PLAN" shall have the meaning assigned to such term
in Section 3.17.
"COMPLIANCE CERTIFICATE" shall mean a certificate of a Financial
Officer substantially in the form of Exhibit D.
"CONFIDENTIAL INFORMATION MEMORANDUM" shall mean that certain
confidential information memorandum dated as of January 25, 2005.
"CONSOLIDATED AMORTIZATION EXPENSE" shall mean, for any period, the
amortization expense of Borrower 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 Borrower and its Subsidiaries which may
properly be classified as current assets on a consolidated balance sheet of
Borrower and its Subsidiaries in accordance with GAAP.
"CONSOLIDATED CURRENT LIABILITIES" shall mean, as at any date of
determination, the total liabilities of Borrower and its Subsidiaries which may
properly be classified as current liabilities (other than the current portion of
any Loans) on a consolidated balance sheet of Borrower and its Subsidiaries in
accordance with GAAP.
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"CONSOLIDATED DEPRECIATION EXPENSE" shall mean, for any period, the
depreciation expense of Borrower 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 Borrower only if a corresponding amount would
be permitted at the date of determination to be distributed to Borrower 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, including, without limitation, payments to option holders in
connection with the Special Distribution,
(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, and
(g) all other reasonable non-recurring cash items reducing the
Consolidated Net Income for such period.
(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 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.
Notwithstanding the foregoing, for each of the fiscal quarters ended
June 30, 2004, September 30, 2004 and December 31, 2004, Consolidated EBITDA
shall be deemed to have been the respective amounts set forth on Annex II hereto
under the heading "Consolidated EBITDA" and opposite the date such fiscal
quarter ended.
"CONSOLIDATED INDEBTEDNESS" shall mean, as 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,
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and (iv) all LC Exposure, in each case, of Borrower 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 Borrower and its Subsidiaries (net of interest
income) for such period determined on a consolidated basis in accordance with
GAAP plus, without duplication:
(a) imputed interest on Capital Lease Obligations and the interest
component of all lease obligations with respect to Sale and Leaseback
Transactions of Borrower 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 Borrower
or any of its Subsidiaries with respect to letters of credit securing
financial obligations, bankers' acceptance financing and receivables
financings for such period;
(c) amortization of debt issuance costs, debt discount or premium and
other financing fees and expenses incurred by Borrower or any of its
Subsidiaries for such period;
(d) cash contributions to any employee stock ownership plan or similar
trust made by Borrower 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 Borrower 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 Borrower or any of its Subsidiaries for such period,
(f) the interest portion of any deferred payment obligations of
Borrower or any of its Subsidiaries for such period;
(g) all interest on any Indebtedness of Borrower 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.
-11-
"CONSOLIDATED NET INCOME" shall mean, for any period, the consolidated
net income (or loss) of Borrower 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
Borrower) in which any person other than Borrower 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 Borrower or (subject to
clause (b) below) any of its Subsidiaries during such period;
(b) the net income of any Subsidiary of Borrower 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 Borrower's 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 Borrower or any of its Subsidiaries upon any Asset Sale (other
than any dispositions in the ordinary course of business) by Borrower or
any of its Subsidiaries;
(d) earnings or losses resulting from any reappraisal, revaluation,
write-up or write-down of assets;
(e) unrealized gains and losses with respect to Hedging Obligations
for such period; and
(f) 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 Borrower or any of its Subsidiaries during
such period.
"CONSOLIDATED TAX EXPENSE" shall mean, for any period, the tax expense
of Borrower 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.
-12-
"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, 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 Borrower or other portfolio companies.
"CREDIT EXTENSION" shall mean, as the context may require, (i) the
making of a Loan by a Lender, (ii) the issuance of any Letter of Credit, or the
amendment, extension or renewal of any existing Letter of Credit, by the Issuing
Bank or (iii) the making of a Credit-Linked Deposit.
"CREDIT-LINKED DEPOSIT" shall mean, with respect to each Lender, the
cash deposit, if any, made by such Lender pursuant to Section 2.18(d)(ii), as
the same may be (a) reduced from time to time pursuant to Sections 2.07(b),
2.07(d) or 2.18(e)(iii) or (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 11.04.
"CREDIT-LINKED DEPOSIT ACCOUNT" shall mean, collectively, one or more
operating and/or investment accounts of, and established by, the Administrative
Agent under its sole and exclusive control and maintained at the office of the
Administrative Agent, in any such case that shall be used for the purposes set
forth in Article II.
"CREDIT-LINKED DEPOSIT FEE" shall have the meaning assigned to such
term in Section 2.19(b).
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"DEBT ISSUANCE" shall mean the incurrence by Borrower or any of its
Subsidiaries of any Indebtedness after the Closing 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).
"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 Final 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
Final 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 consideration 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.
"DOCUMENTATION AGENTS" shall have the meaning assigned to such term in
the preamble hereto.
"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 Total Leverage
Ratio as of the last day of such fiscal year:
Total Leverage Ratio Applicable Percentage
-------------------- ---------------------
>3.0:1.0........................ 75%
>2.0:1.0 and < or =3.0:1.0...... 50%
< or =2.0:1.0................... 25%
"EMBARGOED PERSON" shall have the meaning assigned to such term in
Section 6.18.
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"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
(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 Closing Date, but excluding debt securities
convertible or exchangeable into such equity.
"EQUITY INVESTORS" shall mean Sponsor, its Controlled Investment
Affiliates and any one or more investors in Borrower that have acquired their
Equity Interests otherwise in compliance with Section 6.13 hereof.
"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(b), (c), (m) or (o) 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 Loan Party 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 Loan Party or any of
-15-
its ERISA Affiliates of any liability under Title IV of ERISA with respect to
the termination of any Plan; (f) the receipt by any Loan Party 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 Loan Party 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 Loan
Party 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; (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 material liability to any Loan Party,
including any failure by any Loan Party to make timely deposits of employee
contributions to a Company Retirement Plan; or (l) the failure of a Company
Retirement Plan to qualify under Section 401(a) of the Code or the loss of such
qualification.
"EURODOLLAR BORROWING" shall mean a Borrowing comprised of Eurodollar
Loans.
"EURODOLLAR LOAN" shall mean any Eurodollar Revolving Loan or
Eurodollar Term Loan.
"EURODOLLAR REVOLVING BORROWING" shall mean a Borrowing comprised of
Eurodollar Revolving Loans.
"EURODOLLAR REVOLVING LOAN" shall mean any Revolving Loan bearing
interest at a rate determined by reference to the Adjusted LIBOR Rate in
accordance with the provisions of Article II.
"EURODOLLAR TERM LOAN" shall mean any Term 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, plus
(b) decreases (increases) to Net Working Capital for such period
(other than to the extent attributable to deferred taxes and/or Hedging
Agreements), provided that the amount of any prepayment required by Section
2.10(f) shall not be increased by this clause (b) by more than $5.0 million
for any period, minus
(c) 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 Borrower and its Subsidiaries during such period,
minus
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(d) permanent repayments and prepayments of Indebtedness by Borrower
and its Subsidiaries during such period (except to the extent such
repayments or prepayments were made in connection with a refinancing),
minus
(e) Capital Expenditures made in cash in accordance with Section
6.10(c) during such period (other than Capital Expenditures funded by
Excluded Issuances), minus
(f) aggregate amount of Investments made in cash during such period
pursuant to Sections 6.04(d), (h) and (i) (other than Investments made with
Excluded Issuances), minus
(g) taxes of Borrower and its Subsidiaries that were paid in cash
during such period or will be paid within six months after the end of such
period for which reserves have been established, plus
(h) to the extent not included in the calculation of Consolidated
EBITDA, cash received with respect to deferred taxes and under Hedging
Agreements, plus
(i) 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, to the extent that cash is
actually received and is available,
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 period taken as one
accounting period from April 1, 2005 and ending on December 31, 2005 and (ii)
each fiscal year of Borrower thereafter.
"EXCESS CREDIT-LINKED DEPOSITS" shall mean, at any time, the excess,
if any, of the Total Credit-Linked Deposit over the aggregate Funded LC Exposure
at such time.
"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 Borrower to the Equity Investors or the receipt of a capital
contribution by Borrower from JBP, to the extent such Qualified Capital Stock is
used, or the Net Cash Proceeds thereof or such capital contribution shall be,
within 45 days of the consummation of such issuance and sale or the receipt of
such capital contributon, used, without duplication, 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, the Issuing Bank 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 by the United States, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located, and (b) 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
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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 3.21.
"EXISTING CREDIT AGREEMENT" means that certain Amended and Restated
Credit Agreement, dated as of March 17, 2004, by and among Borrower, JBP, the
Guarantors, the Lenders, Administrative Agent, and certain other financial
institutions party thereto.
"EXISTING LETTER OF CREDIT" means each letter of credit issued under
the Existing Credit Agreement and set forth on Schedule 1.01(a).
"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 January 18,
2005, among Borrower, UBS Loan Finance LLC, UBS Securities LLC, Deutsche Bank
Securities Inc. and Deutsche Bank Trust Company Americas.
"FEES" shall mean the Commitment Fee, the Administrative Agent Fee,
the LC Participation Fee, the Fronting Fee and the Credit-Linked Deposit Fee.
"FINAL MATURITY DATE" shall mean the latest of the Revolving Maturity
Date, the Term Loan Maturity Date and the Funded LC Maturity Date.
"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.
"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 a jurisdiction other than the United States or any state thereof or
the District of Columbia.
"FRONTING FEE" shall have the meaning assigned to such term in Section
2.05(c).
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"FUNDED LC COMMITMENT" shall mean the commitment of the Issuing Bank
to issue Funded Letters of Credit pursuant to Section 2.18.
"FUNDED LC DISBURSEMENT" shall mean a payment or disbursement made by
the Issuing Bank pursuant to a Funded Letter of Credit.
"FUNDED LC EXPOSURE" shall mean at any time the sum of (a) the
aggregate undrawn amount of all outstanding Funded Letters of Credit at such
time plus (b) the aggregate principal amount of all Funded LC Reimbursement
Obligations outstanding at such time. The Funded LC Exposure of any Funded LC
Lender at any time shall mean its Pro Rata Percentage of the aggregate Funded LC
Exposure at such time.
"FUNDED LC LENDER" shall mean a Lender with a Credit-Linked Deposit.
"FUNDED LC MATURITY DATE" shall mean the date which is six and one
half years after the Closing Date or, if such date is not a Business Day, the
first Business Day thereafter.
"FUNDED LC PARTICIPATION FEE" shall have the meaning assigned to such
term in Section 2.05(d).
"FUNDED LC REIMBURSEMENT OBLIGATIONS" shall mean Borrower's
obligations under Section 2.18(e) to reimburse Funded LC Disbursements.
"FUNDED LETTER OF CREDIT" shall mean any Standby Letter of Credit or
Commercial Letter of Credit that has been designated by Borrower (or deemed
designated) as a Funded Letter of Credit in accordance with the provisions of
Section 2.18(b).
"FUNDED LETTER OF CREDIT AVAILABILITY PERIOD" shall mean the period
from and including the Closing Date to but excluding the earlier of the
fifteenth day prior to the Funded LC Maturity Date and the date on which all
Credit-Linked Deposits are returned to the Funded LC Lenders.
"GAAP" shall mean generally accepted accounting principles in the
United States applied on a consistent basis.
"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 the Guarantors.
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"GUARANTOR" shall mean each Subsidiary that is a party to this
Agreement on the Closing Date or becomes a party to this Agreement after the
date hereof pursuant to Section 5.11.
"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.
"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
secured 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 (excluding the attributable debt
related to the deemed sale or transfer of Borrower's facility located in Port
St. Lucie, Florida, in connection with the construction and subsequent lease of
such facility); (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.
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"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 NOTE" shall mean a promissory note substantially in the
form of Exhibit P.
"INTEREST ELECTION REQUEST" shall mean a request by Borrower to
convert or continue a Revolving Borrowing or Term 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
(including Swingline Loans), 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,
(c) with respect to any Revolving Loan or Swingline Loan, the Revolving Maturity
Date or such earlier date on which the Revolving Commitments are terminated and
(d) with respect to any Term Loan, the Term Loan Maturity Date.
"INTEREST PERIOD" shall mean, (a) 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 (or nine or twelve months, if available to all Lenders) thereafter,
as Borrower may elect and (b) with respect to the Credit-Linked Deposits, each
period commencing on the date the Credit-Linked Deposits are made or on the last
day of the preceding Interest Period applicable thereto, as the case may be, and
ending on the numerically corresponding day in the calendar month that is three
months thereafter; provided that (i) a single Interest Period shall at all times
apply to all Credit-Linked Deposits, (ii) 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 (iii) 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 Borrower of
its Equity Interests after the Closing Date pursuant to a registration statement
filed with the Securities and Exchange Commission in accordance with the
Securities Act.
"ISSUING BANK" shall mean, as the context may require, (a) UBS AG,
Stamford Branch, with respect to Letters of Credit issued by it; (b) any other
Lender that may become an Issuing Bank pursuant
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to Sections 2.18(j) and (k) with respect to Letters of Credit issued by such
Lender; or (c) collectively, all of the foregoing.
"JBP" means JLL Building Products, LLC, a Delaware limited liability
company.
"JBP PLEDGE AGREEMENT" shall mean the Pledge Agreement substantially
in the form of Exhibit M-2 among JBP, any Additional Equity Partner and the
Collateral Trustee for the benefit of the Secured Parties.
"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.
"LC DISBURSEMENT" shall mean a Revolving LC Disbursement or a Funded
LC Disbursement, as the context requires.
"LC EXPOSURE" shall mean the Revolving LC Exposure or the Funded LC
Exposure, as the context requires.
"LC PARTICIPATION FEE" shall mean the Revolving LC Participation Fee
or the Funded LC Participation Fee, as the context requires.
"LC REIMBURSEMENT OBLIGATIONS" shall mean Revolving LC Reimbursement
Obligations or Funded LC Reimbursement Obligations, as the context requires.
"LC REQUEST" shall mean a request by Borrower in accordance with the
terms of Section 2.18(b) and substantially in the form of Exhibit H, or such
other form as shall be approved by the Administrative Agent.
"LC SUB-ACCOUNT" shall have the meaning assigned to such term in
Section 9.01(d).
"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 Closing
Date, a lender addendum in the form of Exhibit I, to be executed and delivered
by such Lender on the Closing 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. Unless the context clearly indicates otherwise, the term "Lenders"
shall include the Swingline Lender.
"LETTER OF CREDIT" shall mean a Revolving Letter of Credit or a Funded
Letter of Credit, as the context requires.
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"LETTER OF CREDIT EXPIRATION DATE" shall mean (a) with respect to a
Revolving Letter of Credit, the date that is fifteen days prior to the Revolving
Maturity Date, and (b) with respect to a Funded Letter of Credit, the date that
is fifteen days prior to the Funded LC Maturity Date.
"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, any filing of any
financing statement under the UCC prior to the Closing Date, any filing of any
financing statement under the UCC after the Closing Date which has been
authorized by any Loan Party, 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 Letters of Credit, the
Notes (if any), the Security Documents, the Collateral Trust Agreement, each
Hedging Obligation relating to the Loans or the Senior Secured Floating Rate
Notes 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 Borrower, each Guarantor and each of their
respective Subsidiaries.
"LOANS" shall mean, as the context may require, a Revolving Loan, a
Term Loan or a Swingline Loan (and shall include any Replacement Term Loans (as
defined in Section 11.02(d)).
"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 Trustee under any Loan Document; or (d) a material
adverse effect on the Collateral or the Liens in favor of the Collateral Trustee
(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).
"MATERIAL MORTGAGED PROPERTY" shall have the meaning assigned to such
term in Section 4.01(o)(iii).
"MAXIMUM RATE" shall have the meaning assigned to such term in Section
11.13.
"MOODY'S" means ▇▇▇▇▇'▇ Investor Services Inc. or any successor
thereto.
"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
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substantially in the form of Exhibit J or other form reasonably satisfactory to
the Collateral Trustee, in each case, 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.
"MORTGAGED PROPERTY" shall mean (a) each Real Property identified on
Schedule 1.01(b) hereto and (b) each Real Property, if any, which shall be
subject to a Mortgage delivered after the Closing 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 Loan Party or any ERISA
Affiliate is then making or accruing an obligation to make contributions; (b) to
which any Loan Party or any ERISA Affiliate has within the preceding five plan
years made contributions; or (c) with respect to which any Loan Party 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 JBP (prior to an IPO),
Borrower or any of Borrower's Subsidiaries (including cash proceeds
subsequently received (as and when received by Borrower 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 JBP (prior to an IPO), Borrower or any of
Borrower's 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 by JBP (prior to an IPO),
Borrower 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.
"NET WORKING CAPITAL" shall mean, at any time, Consolidated Current
Assets at such time minus Consolidated Current Liabilities at such time.
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"NOTES" shall mean any notes evidencing the Term Loans, Revolving
Loans or Swingline Loans issued pursuant to this Agreement, if any,
substantially in the form of Exhibit K-1, K-2 or K-3.
"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) each payment required to be made by Borrower and the other Loan
Parties under this Agreement in respect of any Letter of Credit, when and as
due, including payments in respect of LC Reimbursement Obligations, interest
thereon and obligations to provide cash collateral and (iii) 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, (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,
(c) the due and punctual payment and performance of all obligations of Borrower
and the other Loan Parties under each Hedging Agreement relating to the Loans or
the Senior Secured Floating Rate Notes entered into with any counterparty that
was a Lender or Affiliate of a Lender at the time such Hedging Agreement was
entered into and (d) the due and punctual payment and performance of all
obligations in respect of overdrafts and related liabilities owed to any Lender,
any Affiliate of a Lender, the Administrative Agent or the Collateral Trustee
arising from treasury, depositary and cash management services or in connection
with any automated clearinghouse transfer of funds.
"OFAC" shall have the meaning assigned to such term in Section 3.21.
"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.
"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.
"OVERDRAFT OBLIGATIONS" shall mean the obligations described in clause
(d) of the definition of "Obligations."
"PARTICIPANT" shall have the meaning assigned to such term in Section
11.04(e).
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"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
"PERFECTION CERTIFICATE" shall mean a certificate in the form of
Exhibit L-1 or any other form approved by the Collateral Trustee, 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 L-2 or any other form approved by the
Collateral Trustee.
"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 exists or would result therefrom;
(ii) after giving effect to such transaction on a Pro Forma Basis, the
Companies shall be in compliance with the covenants set forth in
Section 6.10(a) and Section 6.10(b) 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 Loan Party shall, in connection with any such transaction, assume
or remain liable with respect to any Indebtedness or other liability
(including any material tax or material 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 Loan Party 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 $20.0 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
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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
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
(A) Excluded Issuances, (B) issuances of Qualified Stock by Borrower
to any Person that is the seller in connection with any Permitted
Acquisition or to any other Person that holds Equity Interests,
directly or indirectly, in such Person, in all cases otherwise in
compliance with Section 6.13 hereof and (C) reinvestments of Asset
Sale proceeds permitted under Section 2.10(c)) for such acquisition
shall not exceed $40.0 million and the aggregate amount of the
Acquisition Consideration (exclusive of any amounts financed by (A)
Excluded Issuances, (B) issuances of Qualified Stock by Borrower to
any Person that is the seller in connection with any Permitted
Acquisition or to any other Person that holds Equity Interests,
directly or indirectly, in such Person, in all cases otherwise in
compliance with Section 6.13 hereof and (C) reinvestments of Asset
Sale proceeds permitted under Section 2.10(c)) for all Permitted
Acquisitions since the Closing Date shall not exceed $75.0 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 Final 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), (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), (l) and (m) of Section
6.02; provided, however upon the Closing Date or 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.
"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.
"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
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is maintained or contributed to by any Loan Party or its ERISA Affiliate or with
respect to which any Loan Party could incur liability (including under Section
4069 of ERISA).
"PREMISES" shall have the meaning assigned thereto in the applicable
Mortgage.
"PRO FORMA BASIS" shall mean on a basis in accordance with GAAP and
Regulation S-X and otherwise reasonably satisfactory to the Administrative
Agent.
"PRO RATA PERCENTAGE" (a) of any Revolving Lender at any time shall
mean the percentage of the total Revolving Commitments of all Revolving Lenders
represented by such Lender's Revolving Commitment and (b) of any Funded LC
Lender at any time shall mean the percentage of the Total Credit-Linked Deposit
represented by such Funded LC Lender's Credit-Linked Deposit.
"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 Borrower of Equity Interests in Borrower to a person (an "ADDITIONAL EQUITY
PARTNER"), if each of the following conditions is met:
(a) the Equity Interests issued or sold are Qualified Capital Stock;
(b) the Additional Equity Partner shall be a U.S. citizen or 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;
(c) 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
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Partner, the Loan Party which will be issuing or selling the Equity
Interests and setting forth the contribution to be received;
(d) contemporaneously with its acquisition of such Equity Interests
(if such acquisition occurs prior to an IPO), the Additional Equity Partner
shall duly execute a joinder agreement (in form and substance reasonably
satisfactory to the Collateral Trustee) to the JBP Pledge Agreement in
accordance with Section 5.11(d) and take all other actions set forth
therein; and
(e) upon the consummation of such sale or issuance (if such sale or
issuance occurs prior to an IPO), Borrower shall deliver to the
Administrative Agent an opinion of counsel (in form and substance
satisfactory to Administrative Agent), 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 Borrower or any of its Subsidiaries listed on Schedule 1.01(c).
"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, 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.
"RELATED HEDGING OBLIGATIONS" shall mean the obligations described in
clause (c) of the definition of "Obligations."
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"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.
"REPLACEMENT TERM LOANS" shall have the meaning assigned to such term
in Section 11.02(d).
"REQUIRED LENDERS" shall mean, at any time, Lenders having Loans,
Revolving LC Exposure, Funded LC Exposure, unused Revolving Commitments and
Excess Credit-Linked Deposits representing more than 50% of the sum of all Loans
outstanding, Revolving LC Exposure, Funded LC Exposure, unused Revolving
Commitments and Excess Credit-Linked Deposits 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.
"REVOLVING AVAILABILITY PERIOD" shall mean the period from and
including the Closing Date to but excluding the earlier of (i) the Business Day
preceding the Revolving Maturity Date and (ii) the date of termination of the
Revolving Commitments.
"REVOLVING BORROWING" shall mean a Borrowing comprised of Revolving
Loans.
"REVOLVING COMMITMENT" shall mean, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Loans hereunder up to the
amount set forth on Schedule I to the Lender Addendum executed and delivered by
such Lender or in the Assignment and Acceptance pursuant to which such Lender
assumed its Revolving Commitment, as applicable, as the same may be (a) reduced
from time to time pursuant to Section 2.07 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section
11.04. The aggregate amount of the Lenders' Revolving Commitments on the Closing
Date is $110.0 million.
"REVOLVING EXPOSURE" shall mean, with respect to any Lender at any
time, the aggregate principal amount at such time of all outstanding Revolving
Loans of such Lender, plus the aggregate amount at such time of such Lender's
Revolving LC Exposure, plus the aggregate amount at such time of such Lender's
Swingline Exposure.
"REVOLVING LC COMMITMENT" shall mean the commitment of the Issuing
Bank to issue Revolving Letters of Credit pursuant to Section 2.18. The amount
of the Revolving LC Commitment shall initially be $25.0 million, but in no event
shall exceed the aggregate amount of Revolving Commitments.
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"REVOLVING LC DISBURSEMENT" shall mean a payment or disbursement made
by the Issuing Bank pursuant to a Revolving Letter of Credit.
"REVOLVING LC EXPOSURE" shall mean at any time the sum of (a) the
aggregate undrawn amount of all outstanding Revolving Letters of Credit at such
time plus (b) the aggregate principal amount of all Revolving LC Reimbursement
Obligations outstanding at such time. The Revolving LC Exposure of any Revolving
Lender at any time shall mean its Pro Rata Percentage of the aggregate Revolving
LC Exposure at such time.
"REVOLVING LC PARTICIPATION FEE" shall have the meaning assigned to
such term in Section 2.05(c).
"REVOLVING LC REIMBURSEMENT OBLIGATIONS" shall mean Borrower's
obligations under Section 2.18(e) to reimburse Revolving LC Disbursements.
"REVOLVING LENDER" shall mean a Lender with a Revolving Commitment.
"REVOLVING LETTER OF CREDIT" shall mean any Standby Letter of Credit
or Commercial Letter of Credit issued or to be issued by the Issuing Bank under
the Revolving LC Commitment for the account of Borrower pursuant to Section
2.18.
"REVOLVING LETTER OF CREDIT AVAILABILITY PERIOD" shall mean the period
from and including the Closing Date to but excluding the earlier of the
fifteenth day prior to the Revolving Maturity Date and the date of termination
of the Revolving Commitments.
"REVOLVING LENDER" shall mean a Lender with a Revolving Commitment.
"REVOLVING LOAN" shall mean a Loan made by the Lenders to Borrower
pursuant to Section 2.01(b). Each Revolving Loan shall either be an ABR
Revolving Loan or a Eurodollar Revolving Loan.
"REVOLVING MATURITY DATE" shall mean February 11, 2010 or, if such
date is not a Business Day, the first Business Day thereafter.
"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.
"SECURED PARTIES" shall mean, collectively, the Agents, the Lenders,
the Issuing Bank, the Collateral Trustee, each holder of any Related Hedging
Obligations (in its capacity as such) and each person holding Overdraft
Obligations (in its capacity as such) if at the date of entering into such
Related Hedging Obligation or Overdraft Obligation such person was a Lender or
an Affiliate of a Lender and such person executes and delivers to the
Administrative Agent a letter agreement in form and substance acceptable to the
Administrative Agent pursuant to which such person (i) appoints the Collateral
Trustee as its agent under the applicable Loan Documents and (ii) agrees to be
bound by the provisions of Sections 10.03 and 10.09.
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"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 M-1 among the Loan Parties and the
Collateral Trustee for the benefit of the Secured Parties.
"SECURITY AGREEMENT COLLATERAL" shall mean all property pledged or
granted as collateral pursuant to the Security Agreement delivered on the
Closing Date or thereafter pursuant to Section 5.11.
"SECURITY DOCUMENTS" shall mean the Security Agreement, the JBP Pledge
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.
"SENIOR SECURED FLOATING RATE NOTES" shall mean Borrowers' Floating
Rate Second Priority Senior Secured Notes due 2012 issued pursuant to the Senior
Secured Notes Indenture in an aggregate principal amount not to exceed $275.0
million and any registered notes issued by Borrowers in exchange for, and as
contemplated by, such notes with substantially identical terms as such notes.
"SENIOR SECURED NOTE DOCUMENTS" shall mean the Senior Secured Floating
Rate Notes, the Senior Secured Notes Indenture, the Senior Secured Note
Guarantees and all other documents executed and delivered with respect to the
Senior Secured Floating Rate Notes or the Senior Secured Notes Indenture.
"SENIOR SECURED NOTE GUARANTEES" shall mean the guarantees of certain
of the Guarantors pursuant to the Senior Secured Notes Indenture.
"SENIOR SECURED NOTES INDENTURE" shall mean any indenture, note
purchase agreement or other agreement pursuant to which the Senior Secured
Floating Rate Notes are issued as in effect on the date hereof and thereafter
amended from time to time subject to the requirements of this Agreement.
"SENIOR SECURED NOTES TRUSTEE" shall mean Wilmington Trust Company, as
trustee, and its successors and assigns.
"SPONSOR" shall mean JLL Partners Fund II L.P. and JLL Partners Fund
III L.P.
"SPECIAL DISTRIBUTION" means a one-time dividend and cash payment to
option holders payable on the Closing Date or, at the option of the Borrower
within 30 days after the Closing Date, by Borrower to the holders of certain of
Borrower's Equity Interests in an aggregate amount not to exceed $238.0 million.
"STANDBY LETTER OF CREDIT" shall mean any standby letter of credit.
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"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, on terms and
conditions reasonably satisfactory to the Administrative Agent.
"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 JOINDER AGREEMENT" shall mean a joinder agreement
substantially in the form of Exhibit F.
"SUCCESSFUL SYNDICATION" shall mean the successful syndication of the
Loans and the Commitments by the Arrangers, as reasonably determined by the
Arrangers.
"SUPERMAJORITY LENDERS" shall mean at any time, Lenders having Loans,
Revolving LC Exposure, Funded LC Exposure, unused Revolving Commitments and
Excess Credit-Linked Deposits representing at least 66 2/3% of the sum of all
Loans outstanding, Revolving LC Exposure, Funded LC Exposure, unused Revolving
Commitments and Excess Credit-Linked Deposits at such time.
"SURVEY" shall mean a survey of any Mortgaged Property (and all
improvements thereon) which is (a) prepared by a surveyor or engineer licensed
to perform surveys in the state where such Mortgaged Property is located and,
taken together with any affidavits which Borrower may provide and which shall be
acceptable to Title Company, 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(o) or (b) otherwise reasonably acceptable to the
Collateral Trustee.
"SWINGLINE COMMITMENT" shall mean the commitment of the Swingline
Lender to make loans pursuant to Section 2.17, as the same may be reduced from
time to time pursuant to Section 2.07 or Section 2.17. The amount of the
Swingline Commitment shall initially be $10.0 million, but in no event shall
exceed the Revolving Commitment.
"SWINGLINE EXPOSURE" shall mean at any time the aggregate principal
amount at such time of all outstanding Swingline Loans. The Swingline Exposure
of any Revolving Lender at any time shall equal its Pro Rata Percentage of the
aggregate Swingline Exposure at such time.
"SWINGLINE LENDER" shall have the meaning assigned to such term in the
preamble hereto.
"SWINGLINE LOAN" shall mean any loan made by the Swingline Lender
pursuant to Section 2.17.
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"SYNDICATION AGENT" shall have the meaning assigned to such term in
the preamble hereto.
"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).
"TERM BORROWING" shall mean a Borrowing comprised of Term Loans.
"TERM LOAN" shall mean the term loans made by the Lenders to Borrower
pursuant to Section 2.01(a)(i). Each Term Loan shall be either an ABR Term Loan
or a Eurodollar Term Loan.
"TERM LOAN COMMITMENT" shall mean, with respect to each Lender, the
commitment, if any, of such Lender to make a Term Loan hereunder on the Closing
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' Term Loan
Commitments is $225.0 million.
"TERM LOAN LENDER" shall mean a Lender with a Term Loan Commitment or
an outstanding Term Loan.
"TERM LOAN MATURITY DATE" shall mean August 11, 2011 or, if such date
is not a Business Day, the first Business Day thereafter.
"TERM LOAN REPAYMENT DATE" shall have the meaning assigned to such
term in Section 2.09(a).
"TEST PERIOD" shall mean, at any time, the four consecutive fiscal
quarters of Borrower 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(o)(iii).
"TOTAL CREDIT-LINKED DEPOSIT" shall mean, at any time, the sum of all
Credit-Linked Deposits at such time, as the same may be reduced from time to
time pursuant to Section 2.07(b) or 2.18(e)(iii). The initial amount of the
Total Credit-Linked Deposit is $15.0 million.
"TOTAL LEVERAGE RATIO" shall mean, at any date of determination, the
ratio of (a) Consolidated Indebtedness (net of cash and Cash Equivalents of any
Company held in accounts in which such Company has granted a Lien for the
benefit of the Secured Parties pursuant to a Control Agreement) on such date to
(b) Consolidated EBITDA for the Test Period then most recently ended. For the
avoidance of doubt, the Total Credit-Linked Deposit shall not be deducted from
Consolidated Indebtedness for purposes of clause (a) of the definition of Total
Leverage Ratio.
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"TRANSACTION DOCUMENTS" shall mean the Loan Documents, the Senior
Secured Note Documents and the Collateral Trust Agreement.
"TRANSACTIONS" shall mean, collectively, the transactions to occur on
or prior to the Closing Date pursuant to the Transaction Documents, including
(a) the execution, delivery and performance of the Loan Documents and the
initial borrowings hereunder and the funding of the Credit-Linked Deposits
hereunder; (b) the Refinancing; (c) the Special Distribution; (d) the execution,
delivery and performance of the Senior Secured Note Documents and the issuance
of the Senior Secured Floating Rate Notes thereunder; (e) the execution,
delivery and performance of the Collateral Trust Agreement; and (f) the payment
of all fees and expenses to be paid on or prior to the Closing 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.
"UBS ONE-MONTH INTERNAL DEPOSIT RATE" shall mean a one-month rate that
is equal to the rate of interest on deposit accounts established by the
Administrative Agent from time to time.
"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 the Board of
Directors of such person.
"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.
"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.
"WHOLLY OWNED SUBSIDIARY GUARANTOR" shall mean any Guarantor that is a
Wholly Owned Subsidiary.
SECTION 1.02 CLASSIFICATION OF LOANS AND BORROWINGS. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing," "Borrowing of Term Loans")
or by Type (e.g., a "Eurodollar Borrowing") or by Class and Type (e.g., a
"Eurodollar Revolving Borrowing").
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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.
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:
(a) each Term Loan Lender agrees, severally and not jointly, to make a
Term Loan to Borrower on the Closing Date in the principal amount not to exceed
its Term Loan Commitment;
(b) each Revolving Lender agrees, severally and not jointly, to make
Revolving Loans to Borrower, at any time and from time to time after the Closing
Date until the earlier of the Revolving Maturity Date and the termination of the
Revolving Commitment of such Lender in accordance with the terms hereof, in an
aggregate principal amount at any time outstanding that will not result in such
Lender's Revolving Exposure exceeding such Lender's Revolving Commitment; and
(c) each Funded LC Lender agrees, severally and not jointly, to fund
its Credit-Linked Deposit with the Administrative Agent on the Closing Date in
accordance with Section 2.18(d)(ii) and 2.19.
Amounts paid or prepaid in respect of Term Loans may not be
reborrowed. Within the limits set forth in clause (b) above and subject to the
terms, conditions and limitations set forth herein, Borrower may borrow, pay or
prepay and reborrow Revolving Loans. Once funded on the Closing Date, the
funding obligations of each Funded LC Lender shall be satisfied in full with
respect to the Credit-
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Linked Deposits and there shall be no funding obligation with respect to the
Credit-Linked Deposits at any time thereafter.
SECTION 2.02 LOANS.
(a) Each Loan (other than Swingline Loans) 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). Except for Loans deemed made pursuant to Section 2.18(e)(ii), ABR
Loans comprising any Borrowing shall be in an aggregate principal amount that is
(i) an integral multiple of $250,000 and not less than $1,000,000 or (ii) equal
to the remaining available balance of the applicable Commitments and (y) the
Eurodollar Loans comprising any Borrowing shall be in an aggregate principal
amount that is (i) an integral multiple of $250,000 and not less than $1,000,000
or (ii) equal to the remaining available balance of the applicable Commitments.
(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) Except with respect to Loans made pursuant to Section 2.18(e)(ii),
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 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,
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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 Revolving Maturity Date or Term Loan Maturity Date, as applicable.
SECTION 2.03 BORROWING PROCEDURE. To request a Revolving Borrowing or
Term 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 12:00 noon, 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) whether the requested Borrowing is to be a Borrowing of Revolving
Loans or Term Loans;
(b) the aggregate amount of such Borrowing;
(c) the date of such Borrowing, which shall be a Business Day;
(d) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(e) 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
Arrangers shall have notified Borrower and the Administrative Agent that a
Successful Syndication has been achieved, the Interest Period shall be seven
days;
(f) 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
(g) that the conditions set forth in Sections 4.02(b) through (d),
inclusive, 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 Revolving Borrowing, then
Borrower shall be deemed to have selected an Interest Period of one month's
duration (subject to the proviso in clause (e) 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 (i) to the
Administrative Agent for the account of each Term Loan Lender, the principal
amount of each Term Loan of such Term Loan Lender as provided in Section 2.09,
(ii) to the Administrative Agent for the account of each Revolving Lender, the
then unpaid principal amount of each Revolving Loan of such Revolving Lender on
the Revolving Maturity Date and (iii) to the Swingline Lender, the then unpaid
principal amount of each Swingline Loan on the earlier of the Revolving Maturity
Date and the first date after such Swingline Loan is made that is the 15th or
last day of a calendar month and is at least two Business Days after such
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Swingline Loan is made; provided that on each date that a Revolving Borrowing is
made, Borrower shall repay all Swingline Loans that were outstanding on the date
such Borrowing was requested.
(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 Letter of Credit issued hereunder, (ii) the amount
of each Loan made hereunder, the Type and Class thereof and the Interest Period
applicable thereto; (iii) the amount of any principal or interest due and
payable or to become due and payable from Borrower to each Lender hereunder; and
(iv) 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. In the event of a conflict between the accounts maintained
pursuant to paragraphs (b) and (c) above, the account maintained pursuant to
paragraph (c) shall prevail absent manifest error.
(e) Any Lender by written notice to Borrower (with a copy to the
Administrative Agent) may request that Loans of any Class 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 K-1, K-2 or K-3, 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) Commitment Fee. Borrower agrees to pay to the Administrative
Agent for the account of each Revolving Lender a commitment fee (a "COMMITMENT
FEE") equal to the Commitment Fee Percentage per annum on the average daily
unused amount of each Revolving Commitment of such Revolving Lender during the
period from and including the date hereof to but excluding the date on which
such Revolving Commitment terminates. Accrued Commitment Fees shall be payable
in arrears (A) on the last Business Day of March, June, September and December
of each year, commencing on the first such date to occur after the date hereof,
and (B) on the date on which such Revolving Commitment terminates. Commitment
Fees shall be computed on the basis of a year of 360 days and shall be payable
for the actual number of days elapsed (including the first day but excluding the
last day). For purposes of computing Commitment Fees, a Revolving Commitment of
a Lender shall be deemed to be used to the extent of the outstanding Revolving
Loans and Revolving LC Exposure of such Lender (and the Swingline Exposure of
such Lender shall be disregarded for such purpose).
(b) 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").
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(c) Revolving LC Participation and Fronting Fees. Borrower agrees to
pay (i) to the Administrative Agent for the account of each Revolving Lender a
participation fee ("REVOLVING LC PARTICIPATION FEE") with respect to its
participations in Revolving Letters of Credit, which shall accrue at a rate
equal to the Applicable Revolving Letter of Credit Margin during the period from
and including the Closing Date to but excluding the later of the date on which
such Lender's Revolving Commitment terminates and the date on which such Lender
ceases to have any Revolving LC Exposure, and (ii) to the Issuing Bank a
fronting fee ("FRONTING FEE"), which shall accrue at the rate of 0.25% per annum
on the average daily amount of the Revolving LC Exposure (excluding any portion
thereof attributable to Revolving LC Reimbursement Obligations) during the
period from and including the Closing Date to but excluding the later of the
date of termination of the Revolving Commitments and the date on which there
ceases to be any Revolving LC Exposure, as well as the Issuing Bank's customary
fees with respect to the issuance, amendment, renewal or extension of any
Revolving Letter of Credit or processing of drawings thereunder. Accrued
Revolving LC Participation Fees and Fronting Fees shall be payable in arrears
(i) on the last Business Day of March, June, September and December of each
year, commencing on the first such date to occur after the Closing Date, and
(ii) on the date on which the Revolving Commitments terminate. Any such fees
accruing after the date on which the Revolving Commitments terminate shall be
payable on demand. Any other fees payable to the Issuing Bank pursuant to this
paragraph shall be payable within 10 days after written demand therefor. All
Revolving LC Participation Fees and Fronting Fees shall be computed on the basis
of a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(d) Funded LC Participation Fees. Borrower agrees to pay (i) to the
Administrative Agent for the account of each Funded LC Lender a participation
fee ("FUNDED LC PARTICIPATION FEE") with respect to its Credit-Linked Deposit,
which shall accrue at a rate per annum equal to the Applicable Margin from time
to time used to determine the interest rate on Eurodollar Term Loans pursuant to
Section 2.06 on the average daily amount of such Lender's Credit-Linked Deposit
(excluding any portion thereof attributable to Funded LC Reimbursement
Obligations) during the period from and including the Closing Date to but
excluding the date on which the Credit-Linked Deposits are returned to the
Funded LC Lenders and (ii) to each Funded LC Lender, through the Administrative
Agent, the Credit-Linked Deposit Fee referred to in the last sentence of Section
2.19(b), as well as the Issuing Bank's customary fees with respect to the
issuance, amendment, renewal or extension of any Funded Letter of Credit or
processing of drawings thereunder. Accrued Funded LC Participation Fees and
Credit-Linked Deposit Fees shall be payable in arrears (i) on the last Business
Day of March, June, September and December of each year, commencing on the first
such date to occur after the Closing Date, and (ii) on the date on which the
Credit-Linked Deposits are returned to the Funded LC Lenders. Any such fees
payable after the date on which the Credit-Linked Deposits are returned to the
Funded LC Lenders shall be payable on demand. Any other fees payable to the
Issuing Bank pursuant to this paragraph shall be payable within 10 days after
written demand therefor. All Funded LC Participation Fees and Credit-Linked
Deposit Fees shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day).
(e) All Fees shall be paid on the dates due, in immediately available
funds in dollars, to the Administrative Agent for distribution, if and as
appropriate, among the Lenders, except that Borrower shall pay the Fronting Fee
directly to the Issuing Bank. 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, including each Swingline Loan, shall bear interest at a rate
per annum equal to the Alternate Base Rate plus the Applicable Margin in effect
from time to time.
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(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 the occurrence and
continuation of any 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 amount, 2% plus the rate applicable to ABR Revolving 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 (other than a prepayment of an ABR Revolving
Loan or a Swingline 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 AND REDUCTION OF COMMITMENTS; RETURN AND
REDUCTION OF CREDIT-LINKED DEPOSITS.
(a) The Term Loan Commitments shall automatically terminate at 5:00
p.m., New York City time, on the Closing Date. Unless previously terminated in
accordance with the terms hereof, the Revolving Commitments, the Swingline
Commitment and the Revolving LC Commitment shall automatically terminate on the
Revolving Maturity Date. If any Funded Letter of Credit remains outstanding on
the Funded LC Maturity Date, Borrower shall deposit with the Administrative
Agent an amount in cash (or a letter of credit from a financial institution
satisfactory to the Administrative Agent) equal to 100% of the aggregate undrawn
amount of such Funded Letter of Credit (after giving effect to any amounts of
cash collateral with respect thereto) to secure the full obligations with
respect to any drawings that may occur thereunder. Subject only to Borrower's
compliance with its obligations under the immediately preceding sentence, any
amount of the Credit-Linked Deposits held in the Credit-Linked Deposit Account
will be returned to the Funded LC Lenders after the occurrence of the Funded LC
Maturity Date. Notwithstanding the foregoing, all the Commitments shall
automatically terminate at 5:00 p.m., New York City time, on February 15, 2005,
if the initial Credit Extension shall not have occurred by such time.
(b) At its option, Borrower may at any time terminate, or from time to
time permanently reduce, the Commitments of any Class; provided that (i) each
reduction of the Commitments of any Class shall be in an amount that is an
integral multiple of $250,000 and not less than $1,000,000 and (ii) the
Revolving Commitments shall not be terminated or reduced if, after giving effect
to any concurrent prepayment of the Revolving Loans in accordance with Section
2.10, the aggregate amount of Revolving Exposures would exceed the aggregate
amount of Revolving Commitments. At its option, Bor-
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rower may at any time in whole permanently reduce, or from time to time in part
permanently reduce, the Total Credit-Linked Deposit; provided that (i) each
partial reduction of the Total Credit-Linked Deposit shall be in an integral
multiple of $500,000 and not less than $2.0 million and (ii) the Total
Credit-Linked Deposit shall not be reduced to an amount that would result in the
aggregate Funded LC Exposure exceeding the Total Credit-Linked Deposit.
(c) Borrower shall notify the Administrative Agent in writing of any
election to terminate or reduce the Commitments or reduce the Total
Credit-Linked Deposit under Section 2.07(b) at least three Business Days prior
to the effective date of such termination or reduction, specifying such election
and the effective date thereof. Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
notice delivered by Borrower pursuant to this Section shall be irrevocable. Any
termination or reduction of the Commitments of any Class shall be permanent.
Each reduction of the Commitments of any Class shall be made ratably among the
Lenders in accordance with their respective Commitments of such Class. Each
reduction of the Total Credit-Linked Deposit shall be made ratably among the
Funded LC Lenders in accordance with their respective Credit-Linked Deposits
and, in the event of any such reduction, the Administrative Agent shall return
all amounts in the Credit-Linked Deposit Account in excess of the reduced Total
Credit-Linked Deposit to the Funded LC Lenders ratably in accordance with their
respective Credit-Linked Deposits.
(d) In addition to the foregoing and subject to the terms hereof, so
long as no Default or Event of Default shall have occurred and be continuing,
upon at least three Business Days' prior irrevocable written or fax notice to
the Administrative Agent, the Borrower may, at any time and from time to time,
request that any unused portion of the Total Credit-Linked Deposit in an amount
not greater than the excess of the Total Credit-Linked Deposit over the
aggregate Funded LC Exposure be permanently converted into Term Loans, in whole
or in part, without premium or penalty; provided, however, that (i) each partial
conversion shall be an integral multiple of $250,000 and in a minimum amount of
$1,000,000 and (ii) the Total Credit-Linked Deposit shall not be reduced to an
amount that would result in the aggregate Funded LC Exposure exceeding the Total
Credit-Linked Deposit (as so reduced). Any such notice of conversion shall
include the date and amount of such conversion. If any such notice of conversion
is properly given, the Administrative Agent shall irrevocably and permanently
fund the requested amount in the Credit-Linked Deposit Account to the Borrower
as proceeds of Term Loans made on such date by the Funded LC Lenders ratably in
accordance with their Pro Rata Percentages of the Total Credit-Linked Deposit,
and the amount so funded shall permanently reduce the Total Credit-Linked
Deposit; any amount so funded pursuant to this paragraph shall, on and after the
funding date thereof, be deemed to be Term Loans for all purposes hereunder.
SECTION 2.08 INTEREST ELECTIONS.
(a) Each Revolving Borrowing and Term 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.
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. This Section
shall not apply to Swingline Borrowings, which may not be converted or
continued.
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(b) To make an election pursuant to this Section, 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 Revolving Borrowing or Term 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;
(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 Arrangers
shall have notified Borrower and the Administrative Agent 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 AMORTIZATION OF TERM BORROWINGS.
(a) Borrower shall pay to the Administrative Agent, for the account of
the Lenders, on the dates set forth on Annex I, or if any such date is not a
Business Day, on the immediately preceding Business Day (each such date, a "TERM
LOAN REPAYMENT DATE"), a principal amount of the Term Loans (as adjusted from
time to time pursuant to Sections 2.07(d), 2.10(h) and 2.18(e)(iii)) in an
aggregate amount equal to the sum of the principal amount of Term Loans made on
the Closing Date and on the
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date of any conversion of Credit-Linked Deposits pursuant to Section 2.07(d),
multiplied by the percentage set forth on Annex I for such date, together in
each case with accrued and unpaid interest on the principal amount to be paid to
but excluding the date of such payment.
(b) To the extent not previously paid, all Term Loans shall be due and
payable on the Term Loan Maturity Date.
SECTION 2.10 OPTIONAL AND MANDATORY PREPAYMENTS.
(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; provided that each partial prepayment of
Term Loans shall be in an amount that is an integral multiple of $250,000 and
not less than $1,000,000 and each partial prepayment of Revolving Loans shall be
in an amount that is an integral multiple of $100,000 and not less than
$500,000.
(b) Revolving Loan Prepayments.
(i) In the event of the termination of all the Revolving
Commitments by Borrower, Borrower shall, on the date of such termination,
repay or prepay all its outstanding Revolving Borrowings and all
outstanding Swingline Loans and replace all outstanding Revolving Letters
of Credit or cash collateralize all outstanding Revolving Letters of Credit
in accordance with the procedures set forth in Section 2.18(i).
(ii) In the event of any partial reduction of the Revolving
Commitments, then (x) at or prior to the effective date of such reduction,
the Administrative Agent shall notify Borrower and the Revolving Lenders of
the sum of the Revolving Exposures after giving effect thereto and (y) if
the sum of the Revolving Exposures would exceed the aggregate amount of
Revolving Commitments after giving effect to such reduction, then Borrower
shall, on the date of such reduction, first, repay or prepay Swingline
Loans, second, repay or prepay Revolving Borrowings and third, replace
outstanding Revolving Letters of Credit or cash collateralize outstanding
Revolving Letters of Credit in accordance with the procedures set forth in
Section 2.18(i), in an aggregate amount sufficient to eliminate such
excess.
(iii) In the event that the sum of all Lenders' Revolving
Exposures exceeds the Revolving Commitments then in effect, Borrower shall,
without notice or demand, immediately first, repay or prepay Swingline
Loans, second, repay or prepay Revolving Borrowings, and third, replace
outstanding Revolving Letters of Credit or cash collateralize outstanding
Revolving Letters of Credit in accordance with the procedures set forth in
Section 2.18(i), in an aggregate amount sufficient to eliminate such
excess.
(iv) In the event that the aggregate Revolving LC Exposure
exceeds the Revolving LC Commitment then in effect, Borrower shall, without
notice or demand, immediately replace outstanding Revolving Letters of
Credit or cash collateralize outstanding Revolving Letters of Credit in
accordance with the procedures set forth in Section 2.18(i), in an
aggregate amount sufficient to eliminate such excess.
(c) Reductions of Credit-Linked Deposits.
(i) In the event of the reduction in whole of the Total
Credit-Linked Deposit, Borrower shall, on the date of such reduction,
replace all outstanding Funded Letters of
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Credit or cash collateralize all outstanding Funded Letters of Credit in
accordance with the procedures set forth in Section 2.18(i).
(ii) In the event of any partial reduction of the Total
Credit-Linked Deposit, then (x) at or prior to the effective date of such
reduction, the Administrative Agent shall notify Borrower and the Funded LC
Lenders of the total Funded LC Exposure after giving effect to such
reduction and (y) if the total Funded LC Exposure would exceed the Total
Credit-Linked Deposit after giving effect to such reduction, then Borrower
shall, on the date of such reduction, replace outstanding Funded Letters of
Credit or cash collateralize outstanding Funded Letters of Credit in
accordance with the procedures set forth in Section 2.18(i), in an
aggregate amount sufficient to eliminate such excess.
(iii) In the event that the total Funded LC Exposure exceeds the
Total Credit-Linked Deposit then in effect, Borrower shall, without notice
or demand, immediately replace outstanding Funded Letters of Credit or cash
collateralize outstanding Funded Letters of Credit in accordance with the
procedures set forth in Section 2.18(i), in an aggregate amount sufficient
to eliminate such excess.
(d) Asset Sales. Not later than one Business Day following the
receipt of any Net Cash Proceeds of any Asset Sale by JBP (prior to an IPO),
Borrower or any of Borrower's 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 shall then exist or would arise
therefrom, no such prepayment shall be required under this Section
2.10(d)(i) with respect to (A) any Asset Sale permitted by Section 6.06(a),
6.06(c) and 6.06(g), (B) the disposition of property which constitutes a
Casualty Event, or (C) Asset Sales for fair market value resulting in no
more than $1.0 million in Net Cash Proceeds per Asset Sale (or series of
related Asset Sales) and less than $2.0 million in aggregate Net Cash
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 shall then exist or would arise
therefrom and the aggregate of such Net Cash Proceeds of Asset Sales shall
not exceed $20.0 million in any four consecutive fiscal quarters of
Borrower, such proceeds shall not be required to be so applied on such date
to the extent that (A) 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 or Permitted Acquisitions within 365 days following the date
of such Asset Sale (which Officers' Certificate shall set forth the
estimates of the proceeds to be so expended); and (B) all Net Cash Proceeds
referred to in such Officers' Certificate in excess of $5.0 million in the
aggregate at any time shall be held in the Collateral Account and released
therefrom only in accordance with the provisions of Article IX or used to
repay Revolving Loans (which repayment is accompanied by a temporary
reduction in Revolving Commitments in a corresponding amount (which
temporary reduction will not reduce any Commitment Fee otherwise owed
pursuant to Section 2.05), such temporary reduction to be eliminated as and
when Borrower either makes the reinvestment described in such Officers'
Certificate or makes a mandatory prepayment as required pursuant to the
proviso below) (it being understood that if so applied, Borrower shall not
be released from its other obligations with respect to this Section
2.10(d)); provided that if all or any portion of such Net Cash Proceeds is
not so reinvested 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(d); and provided, further, that if the
property subject to such Asset Sale constituted Collateral, then all
property purchased with the Net Cash Proceeds
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thereof pursuant to this subsection shall be made subject to the Lien of
the applicable Security Documents in favor of the Collateral Trustee, for
its benefit and for the benefit of the other Secured Parties in accordance
with Sections 5.11 and 5.12.
(e) Debt Issuance. Not later than one Business Day following the
receipt of any Net Cash Proceeds of any Debt Issuance by JBP (prior to an IPO),
Borrower or any of Borrower's 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.
(f) Casualty Events. Not later than one Business Day following the
receipt of any Net Cash Proceeds from a Casualty Event by JBP (prior to an IPO),
Borrower or any of Borrower's 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 shall then exist or 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 Trustee, for
its benefit and for the benefit of the other Secured Parties in accordance
with Sections 5.11 and 5.12;
(ii) all Net Cash Proceeds in respect of all Casualty Events in
excess of $5.0 million in the aggregate shall be held in the Collateral
Account and released therefrom only in accordance with the provisions of
Article IX or used to repay Revolving Loans (which repayment is accompanied
by a temporary reduction in Revolving Commitments in a corresponding amount
(which temporary reduction will not reduce any Commitment Fee otherwise
owed pursuant to Section 2.05), such temporary reduction to be eliminated
as and when Borrower either makes the applicable repairs or replacements of
the property subject to such Casualty Event or makes a mandatory prepayment
as required pursuant to clause (iii) below) (it being understood that if so
applied, Borrower shall not be released from its other obligations with
respect to this Section 2.10(f)); and
(iii) 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(f).
(g) Excess Cash Flow. 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.
(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
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Section 2.10(h). Mandatory prepayments will first be applied to the then
outstanding Term Loans to reduce scheduled prepayments with respect thereto
required under Section 2.09(a), first, to such scheduled prepayments with
respect thereto due on the Term Loan Repayment Dates occurring within the
12 months following such prepayment and, second, on a pro rata basis among
the prepayments with respect thereto remaining to be made on each other
Term Loan Repayment Date. Optional prepayments will be applied, at the
option of Borrower (which option shall be set forth in the notice referred
to in the first sentence of this paragraph), to (a) repay then outstanding
Revolving Loans, (b) the then outstanding Term Loans to reduce scheduled
prepayments with respect thereto required under Section 2.09(a), first, in
the case of clause (b), to such scheduled prepayments with respect thereto
due on the Term Loan Repayment Dates occurring within the 12 months
following such prepayment and, second, on a pro rata basis among the
prepayments with respect thereto remaining to be made on each other Term
Loan Repayment Date or (c) reduce the Total Credit-Linked Deposits, with
the proceeds thereof applied to cash-collateralize any outstanding Funded
Letters of Credit in accordance with Section 2.18(i) to the extent the
Funded LC Exposure exceeds the Total Credit-Linked Deposit (as so reduced).
If the then outstanding Term Loans have been repaid in full in cash,
mandatory and optional prepayments made shall be applied in the following
manner: first, the Total Credit-Linked Deposit shall be reduced by the
amount of such prepayment and the proceeds thereof applied to
cash-collateralize any outstanding Funded Letters of Credit in accordance
with Section 2.18(i) to the extent the Funded LC Exposure exceeds the Total
Credit-Linked Deposit (as so reduced) and second, to repay then outstanding
Revolving Loans (and/or cash collateralize Revolving Letters of Credit in
accordance with Section 2.18(i), which repayment (or cash
collateralization), in the case of a mandatory prepayment only, shall also
result in Revolving Commitments being reduced ratably among the Revolving
Lenders in accordance with their applicable Revolving Commitments in an
aggregate amount equal to the amount applied toward such prepayment.
(ii) Amounts to be applied pursuant to this Section 2.10 to the
prepayment of Term Loans and Revolving Loans shall be applied, as
applicable, first to reduce outstanding ABR Term Loans and ABR Revolving
Loans, respectively. Any amounts remaining after each such application
shall be applied to prepay Eurodollar Term Loans or Eurodollar Revolving
Loans, as applicable. 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 the Collateral Account 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 in cash 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 in the Collateral
Account 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 (and, in the case of prepayment of a Swingline Loan, the Swingline Lender)
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, (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, (iii) in the case of prepayment of a
Swingline Loan, not later than 11:00 a.m., New York City time,
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on the date of prepayment and (iv) in the case of a permanent reduction of the
Total Credit-Linked Deposit, not later than 11:00 a.m., New York City time,
three Business Days before the date of reduction. Each such notice shall be
irrevocable. Each such notice shall specify the prepayment or reduction date,
the principal amount of each Borrowing or portion thereof to be prepaid or the
amount of the Total Credit-Linked Deposit to be reduced and, in the case of a
mandatory prepayment, a reasonably detailed calculation of the amount of such
prepayment or reduction. Promptly following receipt of any such notice (other
than a notice relating solely to Swingline Loans), 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
(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, (ii) if any Borrowing Request
requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR
Borrowing and (iii) the Credit-Linked Deposits shall be invested so as to earn a
return equal to 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.
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 the Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition affecting this Agreement or Eurodollar
Loans made by such Lender or any Letter of Credit or participation therein
or any Credit-Linked Deposit;
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 increase the cost to such Lender, the
Issuing Bank or such Lender's or the Issuing Bank's holding company, if any, of
participating in, issuing or maintaining any Letter of Credit or any
Credit-Linked Deposit or to reduce the
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amount of any sum received or receivable by such Lender or the Issuing Bank
hereunder (whether of principal, interest or otherwise), then Borrower will pay
to such Lender or the Issuing Bank, as the case may be, such additional amount
or amounts as will compensate such Lender or the Issuing Bank, as the case may
be, 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 or the Issuing Bank 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 or the Issuing Bank's capital or on the capital of such Lender's or the
Issuing Bank's holding company, if any, as a consequence of this Agreement or
the Loans made by, Credit-Linked Deposits funded by, or participations in
Letters of Credit held by, such Lender, or the Letters of Credit issued by the
Issuing Bank, to a level below that which such Lender or the Issuing Bank or
such Lender's or the Issuing Bank's holding company could have achieved but for
such Change in Law (taking into consideration such Lender's or the Issuing
Bank's policies and the policies of such Lender's or the Issuing Bank's holding
company with respect to capital adequacy), then from time to time Borrower will
pay to such Lender or the Issuing Bank, as the case may be, such additional
amount or amounts as will compensate such Lender or the Issuing Bank or such
Lender's or the Issuing Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth in
reasonable detail the amount or amounts necessary to compensate such Lender or
the Issuing Bank 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 or the Issuing Bank, as the case
may be, 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 or the Issuing Bank to
demand compensation pursuant to this Section 2.12 shall not constitute a waiver
of such Lender's or the Issuing Bank's right to demand such compensation;
provided that Borrower shall not be required to compensate a Lender or the
Issuing Bank pursuant to this Section for any increased costs or reductions
incurred more than 180 days prior to the date that such Lender or the Issuing
Bank, as the case may be, notifies Borrower of the Change in Law giving rise to
such increased costs or reductions and of such Lender's or the Issuing Bank's
intention to claim compensation therefor; provided, further, that, if the Change
in Law giving rise to such increased 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, or the reduction of any Credit-Linked Deposit, 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 Revolving Loan or Term Loan, or failure to reduce any
Credit-Linked Deposit, 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 any such event, 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 or the amount of such Credit-Linked Deposit had such event not occurred, at
the Adjusted LIBOR Rate that would have been applicable to such Loan or
Credit-Linked Deposit, 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, continue or reduce, for the period that would
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have been the Interest Period for such Loan or Credit-Linked Deposit), over (ii)
the amount of interest which would accrue on such principal amount or amount of
such Credit-Linked Deposit 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, interest, fees
or LC Reimbursement Obligations, or of amounts payable under Section 2.12, 2.13
or 2.15, or otherwise) 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 payments to be made directly to the
Issuing Bank or Swingline Lender as expressly provided herein and 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, LC Reimbursement
Obligations, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal
and LC Reimbursement Obligations then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and LC
Reimbursement Obligations then due to such parties.
(c) If any Lender (and/or the Issuing Bank, which shall be deemed a
"Lender" for purposes of this Section 2.14(c)) 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 its Revolving Loans, Term Loans or
participations in LC Disbursements or Swingline Loans resulting in such Lender
receiving payment of a greater proportion of the aggregate amount of its
Revolving Loans, Term Loans and participations in LC Disbursements and Swingline
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 Revolving Loans, Term Loans and
participations in LC Disbursements and Swingline 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 Revolving Loans, Term Loans and
participations in LC Disbursements and Swingline Loans; provided that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered,
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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 or participations in LC Disbursements 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 or Issuing Bank 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 or Issuing Bank the amount due.
In such event, if Borrower has not in fact made such payment, then each of the
Lenders or Issuing Bank severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or Issuing Bank
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), 2.17(d), 2.18(d), 2.18(e) 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 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,
any Lender or the Issuing Bank, 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.
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(c) Borrower shall indemnify the Administrative Agent, each Lender and
the Issuing Bank, within 10 Business Days after written demand therefor, for the
full amount of any Indemnified Taxes or Other Taxes paid by the Administrative
Agent, such Lender or the Issuing Bank, 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. A
certificate as to the amount of such payment or liability delivered to Borrower
by a Lender or the Issuing Bank, or by the Administrative Agent on its own
behalf or on behalf of a Lender, or the Issuing Bank, shall be conclusive absent
manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by Borrower and in any event within 30 days of any such payment
being due, 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) 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 two accurate and complete originally executed
(a) U.S. Internal Revenue Service Form W-8BEN (or successor form) or (b) 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 two accurate
and complete originally executed Form W-8BEN (or successor form) or Form W-8ECI
(or successor form) upon the expiration or obsolescence of any previously
delivered forms 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 Q if it is furnishing a Form W-8BEN.
(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,
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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 shall have received the prior written
consent of the Administrative Agent (and, if a Revolving Commitment is being
assigned, the Issuing Bank and Swingline Lender), 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 and participations in LC
Disbursements and Swingline 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 SWINGLINE LOANS.
(a) Swingline Commitment. Subject to the terms and conditions set
forth herein, the Swingline Lender agrees to make Swingline Loans to Borrower
from time to time during the Revolving Availability Period, in an aggregate
principal amount at any time outstanding that will not result in (i) the
aggregate principal amount of outstanding Swingline Loans exceeding $10.0
million or (ii) the sum of the total Revolving Exposures exceeding the total
Revolving Commitments; provided that the Swingline Lender shall not be required
to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the
foregoing limits and subject to the terms and conditions set forth herein,
Borrower may borrow, repay and reborrow Swingline Loans.
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(b) Swingline Loans. To request a Swingline Loan, Borrower shall
deliver, by hand delivery or telecopy, a duly completed and executed Borrowing
Request to the Swingline Lender, with a copy to the Administrative Agent, not
later than 2:00 p.m., New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and the amount of the requested Swingline Loan.
Each Swingline Loan shall be an ABR Loan. The Swingline Lender shall make each
Swingline Loan available to Borrower by means of a credit to the general deposit
account of Borrower with the Swingline Lender (or, in the case of a Swingline
Loan made to finance the reimbursement of an LC Disbursement as provided in
Section 2.18(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City
time, on the requested date of such Swingline Loan. Borrower shall not request a
Swingline Loan if at the time of or immediately after giving effect to the
Credit Extensions contemplated by such request a Default has occurred and is
continuing or would result therefrom. Swingline Loans shall be made in minimum
amounts of $100,000 and integral multiples of $100,000 above such amount.
(c) Prepayment. Borrower shall have the right at any time and from
time to time to repay any Swingline Loan, in whole or in part, upon giving
written notice to the Swingline Lender and the Administrative Agent before 12:00
(noon), New York City time, on the proposed date of repayment.
(d) Participations. The Swingline Lender may at any time in its
discretion by written notice given to the Administrative Agent (provided such
notice requirement shall not apply if the Swingline Lender and the
Administrative Agent are the same entity) not later than 11:00 A.M., New York
City time, on the next succeeding Business Day following such notice require the
Revolving Lenders to acquire participations on such Business Day in all or a
portion of the Swingline Loans then outstanding. Such notice shall specify the
aggregate amount of Swingline Loans in which Revolving Lenders will participate.
Promptly upon receipt of such notice, the Administrative Agent will give notice
thereof to each Revolving Lender, specifying in such notice such Lender's Pro
Rata Percentage of such Swingline Loan or Loans. Each Revolving Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided above,
to pay to the Administrative Agent, for the account of the Swingline Lender,
such Lender's Pro Rata Percentage of such Swingline Loan or Loans. Each
Revolving Lender acknowledges and agrees that its obligation to acquire
participations in Swingline Loans pursuant to this paragraph is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever (so long as such
payment shall not cause such Lender's Revolving Exposure to exceed such Lender's
Revolving Commitment). Each Revolving Lender shall comply with its obligation
under this paragraph by wire transfer of immediately available funds, in the
same manner as provided in Section 2.02(c) with respect to Loans made by such
Lender (and Section 2.02 shall apply, mutatis mutandis, to the payment
obligations of the Revolving Lenders), and the Administrative Agent shall
promptly pay to the Swingline Lender the amounts so received by it from the
Revolving Lenders. The Administrative Agent shall notify Borrower of any
participations in any Swingline Loan acquired by the Revolving Lenders pursuant
to this paragraph, and thereafter payments in respect of such Swingline Loan
shall be made to the Administrative Agent and not to the Swingline Lender. Any
amounts received by the Swingline Lender from Borrower (or other party on behalf
of Borrower) in respect of a Swingline Loan after receipt by the Swingline
Lender of the proceeds of a sale of participations therein shall be promptly
remitted to the Administrative Agent. Any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Revolving Lenders that shall have made their payments pursuant to this
paragraph, as their interests may appear. The purchase of participations in a
Swingline Loan pursuant to this paragraph shall not relieve Borrower of any
default in the payment thereof.
SECTION 2.18 LETTERS OF CREDIT.
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(a) General. Subject to the terms and conditions set forth herein,
Borrower may request the Issuing Bank, and the Issuing Bank agrees, to issue (or
amend, renew or extend) (i) Revolving Letters of Credit at any time and from
time to time during the Revolving Letter of Credit Availability Period and (ii)
Funded Letters of Credit at any time and from time to time during the Funded
Letter of Credit Availability Period, in each case for its own account or the
account of a Subsidiary in a form reasonably acceptable to the Administrative
Agent and the Issuing Bank (provided that Borrower shall be a co-applicant, and
be jointly and severally liable, with respect to each Letter of Credit issued
for the account of a Subsidiary). The Issuing Bank shall have no obligation to
issue, and Borrower shall not request the issuance of, any Revolving Letter of
Credit at any time if after giving effect to such issuance, the Revolving LC
Exposure would exceed the Revolving LC Commitment or the total Revolving
Exposure would exceed the total Revolving Commitments. The Issuing Bank shall
have no obligation to issue, and Borrower shall not request the issuance of, any
Funded Letter of Credit at any time if after giving effect to such issuance, the
Funded LC Exposure would exceed the Total Credit-Linked Deposit. In the event of
any inconsistency between the terms and conditions of this Agreement and the
terms and conditions of any form of letter of credit application or other
agreement submitted by Borrower to, or entered into by Borrower with, the
Issuing Bank relating to any Letter of Credit, the terms and conditions of this
Agreement shall control. On and after the Closing Date, each Existing Letter of
Credit shall constitute a Letter of Credit for all purposes hereof.
(b) Request for Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit or the amendment,
renewal or extension of an outstanding Letter of Credit, Borrower shall hand
deliver or telecopy (or transmit by electronic communication, if arrangements
for doing so have been approved by the Issuing Bank) an LC Request to the
Issuing Bank and the Administrative Agent not later than 11:00 a.m. on the third
Business Day preceding the requested date of issuance, amendment, renewal or
extension (or such later date and time as is acceptable to the Issuing Bank).
A request for an initial issuance of a Letter of Credit shall specify
in form and detail satisfactory to the Issuing Bank:
(i) the proposed issuance date of the requested Letter of Credit
(which shall be a Business Day);
(ii) whether such Letter of Credit is a Revolving Letter of
Credit or a Funded Letter of Credit;
(iii) the amount thereof;
(iv) the expiry date thereof (which shall not be later than the
close of business on the Letter of Credit Expiration Date);
(v) the name and address of the beneficiary thereof;
(vi) whether the Letter of Credit is to be issued for its own
account or for the account of one of its Subsidiaries (provided that
Borrower shall be a co-applicant, and therefore jointly and severally
liable, with respect to each Letter of Credit issued for the account of a
Subsidiary);
(vii) the documents to be presented by such beneficiary in
connection with any drawing thereunder;
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(viii) the full text of any certificate to be presented by such
beneficiary in connection with any drawing thereunder; and
(ix) such other matters as the Issuing Bank may require.
If Borrower shall fail to specify whether any requested Letter of
Credit is to be a Revolving Letter of Credit or a Funded Letter of Credit, then
the requested Letter of Credit shall be deemed to be a Funded Letter of Credit
unless the issuance thereof would result in the Funded LC Exposure exceeding the
Total Credit-Linked Deposit, in which case it shall be deemed to be a Revolving
Letter of Credit, but only if the issuance of a Revolving Letter of Credit is
permissible at such time as described above.
A request for an amendment, renewal or extension of any outstanding
Letter of Credit shall specify in form and detail satisfactory to the Issuing
Bank:
(x) the Letter of Credit to be amended, renewed or extended;
(xi) the proposed date of amendment, renewal or extension thereof
(which shall be a Business Day);
(xii) the nature of the proposed amendment, renewal or extension;
and
(xiii) such other matters as the Issuing Bank may require.
If requested by the Issuing Bank, Borrower also shall submit a letter of credit
application on the Issuing Bank's standard form in connection with any request
for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or
extended only if (and, upon issuance, amendment, renewal or extension of each
Letter of Credit, Borrower shall be deemed to represent and warrant that), after
giving effect to such issuance, amendment, renewal or extension, (i) the
Revolving LC Exposure shall not exceed the Revolving LC Commitment, (ii) the
total Revolving Exposures shall not exceed the total Revolving Commitments,
(iii) the Funded LC Exposure shall not exceed the Total Credit-Linked Deposit
and (iv) the conditions set forth in Article IV in respect of such issuance,
amendment, renewal or extension shall have been satisfied. Unless the Issuing
Bank shall agree otherwise, no Letter of Credit shall be in an initial amount
less than $100,000.
(c) Expiration Date. Each Letter of Credit shall expire no later than
the close of business on the earlier of, (x) the date which is one year after
the date of the issuance of such Letter of Credit (or, in the case of any
renewal or extension thereof, one year after such renewal or extension) and (y)
the Letter of Credit Expiration Date; provided that any Letter of Credit with a
one-year term may, if required by the beneficiary thereof, provide for the
renewal thereof for additional one-year periods (which shall in no event extend
beyond the date referred to in clause (y) above) and shall permit the Issuing
Bank to prevent any such renewal at least once in each twelve-month period
(commencing with the date of issuance of such Letter of Credit) by giving prior
notice to the beneficiary thereof not later than a day in each such twelve-month
period to be agreed upon at the time such Letter of Credit is issued). Upon
termination of the Revolving Commitments, Borrower shall deposit in the LC
Sub-Account, in the name of the Collateral Trustee and for the benefit of the
Revolving Lenders, an amount in cash equal to the Revolving LC Exposure as of
such date associated with all outstanding Revolving Letters of Credit.
(d) Participations. (i) By the issuance of a Revolving Letter of
Credit (or an amendment to a Revolving Letter of Credit increasing the amount
thereof) and without any further action on the part of the Issuing Bank or the
Lenders, the Issuing Bank hereby irrevocably grants to each Revolving Lender,
and each Revolving Lender hereby acquires from the Issuing Bank, a participation
in such Revolving
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Letter of Credit equal to such Revolving Lender's Pro Rata Percentage of the
aggregate amount available to be drawn under such Revolving Letter of Credit. In
consideration and in furtherance of the foregoing, each Revolving Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of the Issuing Bank, such Revolving Lender's Pro Rata Percentage of
each Revolving LC Disbursement made by the Issuing Bank and not reimbursed by
Borrower on the date due as provided in Section 2.18(e), or of any reimbursement
payment required to be refunded to Borrower for any reason. Each Revolving
Lender acknowledges and agrees that its obligation to acquire participations
pursuant to this paragraph in respect of Revolving Letters of Credit is absolute
and unconditional and shall not be affected by any circumstance whatsoever,
including any amendment, renewal or extension of any Revolving Letter of Credit
or the occurrence and continuance of a Default or reduction or termination of
the Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever.
(ii) On the Closing Date, without any further action on the part of
the Issuing Bank or the Lenders, the Issuing Bank hereby grants to each Funded
LC Lender, and each such Lender hereby acquires from the Issuing Bank, a
participation in each Funded Letter of Credit equal to such Funded Lender's Pro
Rata Percentage of the aggregate amount available to be drawn under such Funded
Letter of Credit. The aggregate purchase price for the participations of each
Funded LC Lender in Funded Letters of Credit shall equal the amount of the
Credit-Linked Deposit of such Lender. Each Funded LC Lender shall pay to the
Administrative Agent its Credit-Linked Deposit in full on the Closing Date. Each
Funded LC Lender hereby absolutely and unconditionally agrees that if the
Issuing Bank makes a Funded LC Disbursement that is not reimbursed by Borrower
on the date due pursuant to Section 2.18(e), or is required to refund any
reimbursement payment in respect of any Funded LC Disbursement to Borrower for
any reason, the Administrative Agent shall reimburse the Issuing Bank for the
amount of such Funded LC Disbursement, ratably as among the Funded LC Lenders in
accordance with their Pro Rata Percentages of the Total Credit-Linked Deposit,
from such Funded LC Lender's Credit-Linked Deposit on deposit in the
Credit-Linked Deposit Account. In the event the Credit-Linked Deposit Account is
charged by the Administrative Agent to reimburse the Issuing Bank for an
unreimbursed Funded LC Disbursement, Borrower shall have the right, at any time
prior to the Funded LC Maturity Date, to pay over to the Administrative Agent in
reimbursement thereof an amount equal to the amount so charged, and such payment
shall be deposited by the Administrative Agent in the Credit-Linked Deposit
Account. Each Funded LC Lender acknowledges and agrees that its obligation to
acquire and fund participations in respect of Funded Letters of Credit pursuant
to this paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Funded Letter of Credit or the occurrence and continuance of a Default or the
return of any Credit-Linked Deposit, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever. Without
limiting the foregoing, each Funded LC Lender irrevocably authorizes the
Administrative Agent to apply amounts of its Credit-Linked Deposit as provided
in this paragraph.
(e) Reimbursement.
(i) If the Issuing Bank shall make any LC Disbursement in respect
of a Letter of Credit, Borrower shall reimburse such LC Disbursement by
paying to the Issuing Bank an amount equal to such LC Disbursement not
later than 3:00 p.m., New York City time, on the date that such LC
Disbursement is made if Borrower shall have received notice of such LC
Disbursement prior to 11:00 a.m., New York City time, on such date, or, if
such notice has not been received by Borrower prior to such time on such
date, then not later than 3:00 p.m., New York City time, on the Business
Day immediately following the day that Borrower receives such notice;
provided that Borrower (A) may, subject to the conditions to borrowing set
forth herein, request in accordance with Section 2.03 that any such payment
be financed with ABR Revolving Loans in an equivalent amount and, to the
extent so financed, Borrower's obligation to make such payment
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shall be discharged and replaced by the resulting ABR Revolving Loans or
(B) may, if the Letter of Credit is a Funded Letter of Credit, permit
amounts in the Credit-Linked Deposit Account to be used to make such
payment.
(ii) If Borrower fails to make any payment required to be made
pursuant to Section 2.18(e)(i) above with respect to a Revolving Letter of
Credit when due, the Issuing Bank shall notify the Administrative Agent,
whereupon Borrower shall be deemed to have requested a Revolving Loan in
the amount of such payment. The Administrative Agent shall notify each
Revolving Lender of the applicable Revolving LC Disbursement, the payment
then due from Borrower in respect thereof and such Revolving Lender's Pro
Rata Percentage thereof. Promptly following receipt of such notice, each
Revolving Lender shall pay by wire transfer of immediately available funds
to the Administrative Agent not later than 11:00 a.m., New York City time,
on such date (or, if such Revolving Lender shall have received such notice
later than 12:00 noon, New York City time, on any day, not later than 11:00
a.m., New York City time, on the immediately following Business Day), an
amount equal to such Revolving Lender's Pro Rata Percentage of the
unreimbursed Revolving LC Disbursement in the same manner as provided in
Section 2.02(c) with respect to Revolving Loans made by such Revolving
Lender, and the Administrative Agent will promptly pay to the Issuing Bank
the amounts so received by it from the Revolving Lenders. The
Administrative Agent will promptly pay to the Issuing Bank any amounts
received by it from Borrower pursuant to the above paragraph prior to the
time that any Revolving Lender makes any payment pursuant to the preceding
sentence and any such amounts received by the Administrative Agent from
Borrower thereafter will be promptly remitted by the Administrative Agent
to the Revolving Lenders that shall have made such payments and to the
Issuing Bank, as appropriate. If any Revolving Lender shall not have made
its Pro Rata Percentage of such Revolving LC Disbursement available to the
Administrative Agent as provided above, such Revolving Lender and Borrower
agrees to pay interest on such amount, for each day from and including the
date such amount is required to be paid in accordance with the foregoing to
but excluding the date such amount is paid, to the Administrative Agent for
the account of the Issuing Bank at (i) in the case of Borrower, the rate
per annum set forth in Section 2.18(h) and (ii) in the case of such Lender,
at a rate determined by the Administrative Agent in accordance with banking
industry rules or practices on interbank compensation
(iii) If Borrower fails to make any payment required to be made
pursuant to Section 2.18(e)(i) with respect to a Funded Letter of Credit
when due, the Issuing Bank shall notify the Administrative Agent and the
Administrative Agent shall notify each Funded LC Lender of the applicable
Funded LC Disbursement and such Funded LC Lender's Pro Rata Percentage
thereof, and the Administrative Agent shall promptly pay to the Issuing
Bank each Funded LC Lender's Pro Rata Percentage of such Funded LC
Disbursement from such Funded LC Lender's Credit-Linked Deposit. Promptly
following receipt by the Administrative Agent of any payment by Borrower in
respect of any Funded LC Disbursement, the Administrative Agent shall
distribute such payment to the applicable Issuing Bank or, to the extent
payments have been made from the Credit-Linked Deposits, to the
Credit-Linked Deposit Account to be added to the Credit-Linked Deposits of
the Funded LC Lenders in accordance with their Pro Rata Percentages.
Borrower acknowledges that each payment made pursuant to this paragraph in
respect of any Funded LC Disbursement is required to be made for the
benefit of the distributees indicated in the immediately preceding
sentence. Any payment made from the Credit-Linked Deposit Account pursuant
to this paragraph to reimburse an Issuing Bank for any Funded LC
Disbursement shall be deemed an extension of Term Loans made on such date
by the Funded LC Lenders ratably in accordance with their Pro Rata
Percentages of the Total Credit-Linked Deposit, and the amount so funded
shall permanently reduce the Total Credit-Linked Deposit; any amount so
funded pursuant to this paragraph shall, on and after the funding date
thereof, be deemed to be Term Loans for all
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purposes hereunder. In the event that Borrower is required to reimburse the
Issuing Bank for any Funded LC Disbursement, for a period of 91 days
following such reimbursement payment by Borrower, the Funded LC Exposure
shall be deemed to include for all purposes hereunder (including for
purposes of the issuance of any new Funded Letter of Credit during such
period) the amount of such reimbursement payment until the end of such
91-day period.
(f) Obligations Absolute. The LC Reimbursement Obligation of Borrower
as provided in Section 2.18(e) shall be absolute, unconditional and irrevocable,
and shall be paid and performed strictly in accordance with the terms of this
Agreement under any and all circumstances whatsoever and irrespective of (i) any
lack of validity or enforceability of any Letter of Credit or this Agreement, or
any term or provision therein; (ii) any draft or other document presented under
a Letter of Credit being proved to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or inaccurate
in any respect; (iii) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or other document that fails to comply with the
terms of such Letter of Credit; (iv) any other event or circumstance whatsoever,
whether or not similar to any of the foregoing, that might, but for the
provisions of this Section 2.18, constitute a legal or equitable discharge of,
or provide a right of setoff against, the obligations of Borrower hereunder; (v)
the fact that a Default shall have occurred and be continuing; or (vi) any
material adverse change in the business, property, results of operations,
prospects or condition, financial or otherwise, of Borrower and its
Subsidiaries. None of the Agents, the Lenders, the Issuing Bank or any of their
Affiliates shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
Issuing Bank; provided that the foregoing shall not be construed to excuse the
Issuing Bank from liability to Borrower to the extent of any direct damages (as
opposed to consequential damages, claims in respect of which are hereby waived
by Borrower to the extent permitted by applicable law) suffered by Borrower that
are caused by the Issuing Bank's failure to exercise care when determining
whether drafts and other documents presented under a Letter of Credit comply
with the terms thereof. The parties hereto expressly agree that, in the absence
of gross negligence or willful misconduct on the part of the Issuing Bank (as
finally determined by a court of competent jurisdiction), the Issuing Bank shall
be deemed to have exercised care in each such determination. In furtherance of
the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
give written notice to the Administrative Agent and Borrower of such demand for
payment and whether the Issuing Bank has made or will make an LC Disbursement
thereunder; provided that any failure to give or delay in giving such notice
shall not relieve Borrower of its LC Reimbursement Obligation to the Issuing
Bank and the Revolving Lenders with respect to any such LC Disbursement (other
than with respect to the timing of such LC Reimbursement Obligation set forth in
Section 2.18(e)).
(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless Borrower shall reimburse such LC Disbursement in full
on the date such LC Disbursement is made, the unpaid amount thereof shall bear
interest payable on demand, for each day from and including
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the date such LC Disbursement is made to but excluding the date that Borrower
reimburses such LC Disbursement, at the rate per annum determined pursuant to
Section 2.06(c). Interest accrued pursuant to this paragraph shall be for the
account of the Issuing Bank, except that interest accrued on and after the date
of payment by any Revolving Lender pursuant to Section 2.18(e) to reimburse the
Issuing Bank shall be for the account of such Lender to the extent of such
payment.
(i) Cash Collateralization. If any Event of Default shall occur and
be continuing, on the Business Day that Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Lenders and Funded LC Lenders with LC Exposure
representing greater than 50% of the total LC Exposure) demanding the deposit of
cash collateral pursuant to this paragraph, Borrower shall deposit in the LC
Sub-Account, in the name of the Collateral Trustee and for the benefit of the
Revolving Lenders and the Funded LC Lenders, an amount in cash equal to the LC
Exposure as of such date plus any accrued and unpaid interest thereon; provided
that the obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and payable, without
demand or other notice of any kind, upon the occurrence of any Event of Default
with respect to Borrower described in paragraph (g) or (h) of Article VIII.
Funds in the LC Sub-Account shall be applied by the Collateral Trustee to
reimburse the Issuing Bank for LC Disbursements for which it has not been
reimbursed and, to the extent not so applied, shall be held for the satisfaction
of outstanding LC Reimbursement Obligations or, if the maturity of the Loans has
been accelerated (but subject to the consent of Revolving Lenders and Funded LC
Lenders with LC Exposure representing greater than 50% of the total LC
Exposure), be applied to satisfy other Obligations of Borrower under this
Agreement. If Borrower is required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event of Default, such amount plus
any accrued interest or realized profits with respect to such amounts (to the
extent not applied as aforesaid) shall be returned to Borrower within three
Business Days after all Events of Default have been cured or waived.
(j) Additional Issuing Banks. Borrower may, at any time and from time
to time, designate one or more additional Revolving Lenders to act as an issuing
bank under the terms of this Agreement, with the consent of the Administrative
Agent (which consent shall not be unreasonable withheld), the Issuing Bank and
such Revolving Lender(s). Any Lender designated as an issuing bank pursuant to
this paragraph (j) shall be deemed (in addition to being a Revolving Lender) to
be the Issuing Bank with respect to Letters of Credit issued or to be issued by
such Revolving Lender, and all references herein and in the other Loan Documents
to the term "Issuing Bank" shall, with respect to such Letters of Credit, be
deemed to refer to such Revolving Lender in its capacity as Issuing Bank, as the
context shall require.
(k) Resignation or Removal of the Issuing Bank. The Issuing Bank may
resign as Issuing Bank hereunder at any time upon at least 30 days' prior notice
to the Lenders, the Administrative Agent and Borrower. The Issuing Bank may be
replaced at any time by written agreement among Borrower, each Agent, the
replaced Issuing Bank and the successor Issuing Bank. The Administrative Agent
shall notify the Lenders of any such replacement of the Issuing Bank or any such
additional Issuing Bank. At the time any such resignation or replacement shall
become effective, Borrower shall pay all unpaid fees accrued for the account of
the replaced Issuing Bank pursuant to Section 2.05(c). From and after the
effective date of any such resignation or replacement or addition, as
applicable, (i) the successor or additional Issuing Bank shall have all the
rights and obligations of the Issuing Bank under this Agreement with respect to
Letters of Credit to be issued by it thereafter and (ii) references herein to
the term "Issuing Bank" shall be deemed to refer to such successor or such
addition or to any previous Issuing Bank, or to such successor or such addition
and all previous Issuing Banks, as the context shall require. After the
resignation or replacement of an Issuing Bank hereunder, the replaced Issuing
Bank shall remain a party hereto and shall continue to have all the rights and
obligations of an Issuing Bank under this Agreement with respect to Letters of
Credit issued by it prior to such resignation or replacement, but shall not be
required
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to issue additional Letters of Credit. If at any time there is more than one
Issuing Bank hereunder, Borrower may, in its discretion, select which Issuing
Bank is to issue any particular Letter of Credit.
(l) Other. The Issuing Bank shall be under no obligation to issue any
Letter of Credit if
(i) any order, judgment or decree of any Governmental Authority
or arbitrator shall by its terms purport to enjoin or restrain the Issuing
Bank from issuing such Letter of Credit, or any law applicable to the
Issuing Bank or any request or directive (whether or not having the force
of law) from any Governmental Authority with jurisdiction over the Issuing
Bank shall prohibit, or request that the Issuing Bank refrain from, the
issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon the Issuing Bank with respect to such
Letter of Credit any restriction, reserve or capital requirement (for which
the Issuing Bank is not otherwise compensated hereunder) not in effect on
the Closing Date, or shall impose upon the Issuing Bank any unreimbursed
loss, cost or expense which was not applicable on the Closing Date and
which the Issuing Bank in good ▇▇▇▇▇ ▇▇▇▇▇ material to it; or
(ii) the issuance of such Letter of Credit would violate one or
more policies of the Issuing Bank.
The Issuing Bank shall be under no obligation to amend any Letter of Credit if
(A) the Issuing Bank would have no obligation at such time to issue such Letter
of Credit in its amended form under the terms hereof, or (B) the beneficiary of
such Letter of Credit does not accept the proposed amendment to such Letter of
Credit.
SECTION 2.19 Credit-Linked Deposit Account.
(a) The Credit-Linked Deposits shall be held by the Administrative
Agent in the Credit-Linked Deposit Account, and no party other than the
Administrative Agent shall have a right of withdrawal from the Credit-Linked
Deposit Account or any other right or power with respect to the Credit-Linked
Deposits, except as expressly set forth in Section 2.07(b) or Section
2.18(e)(iii). Notwithstanding any provision in this Agreement to the contrary,
the sole funding obligation of each Funded LC Lender in respect of its
participation in Funded Letters of Credit shall be satisfied in full upon the
funding of its Credit-Linked Deposit on the Closing Date.
(b) Each of Borrower, the Administrative Agent, the Issuing Bank and
each Funded LC Lender hereby acknowledges and agrees that each Funded LC Lender
is funding its Credit-Linked Deposit to the Administrative Agent for application
in the manner contemplated by Section 2.18(e)(iii) and that the Administrative
Agent has agreed to invest the Credit-Linked Deposits so as to earn a return
(except during periods when such Credit-Linked Deposits, or funds advanced by
the Administrative Agent against such Credit-Linked Deposits, are used to cover
unreimbursed Funded LC Disbursements) for the Funded LC Lenders equal to the UBS
One-Month Internal Deposit Rate, subject to Section 2.11. Such interest will be
paid to the Funded LC Lenders by the Administrative Agent quarterly in arrears
when Funded LC Participation Fees are payable pursuant to Section 2.05(d). In
addition to the foregoing payments by the Administrative Agent, Borrower agrees
to make payments to the Funded LC Lenders quarterly in arrears when Funded LC
Participation Fees are payable pursuant to Section 2.05(d) (and together with
the payment of such Funded LC Participation Fees) in an amount equal to the
difference between the Adjusted LIBOR Rate for an Interest Period of one month
and the UBS One-Month Internal Deposit Rate on the average daily amount of the
Credit-Linked Deposit during such Interest Period (such payments, the
"CREDIT-LINKED DEPOSIT FEE").
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(c) Borrower shall have no right, title or interest in or to the
Credit-Linked Deposits and no obligations with respect thereto (except for the
Funded LC Reimbursement Obligations provided in Section 2.18(e)(iii)), it being
acknowledged and agreed by the parties hereto that the making of the
Credit-Linked Deposits by the Funded LC Lenders, the provisions of this Section
2.19 and the application of the Credit-Linked Deposits in the manner
contemplated by Section 2.18(e)(iii) constitute agreements among the
Administrative Agent, the Issuing Bank and each Funded LC Lender with respect to
the funding obligations of each Funded LC Lender in respect of its participation
in Funded Letters of Credit and do not constitute any loan or extension of
credit to Borrower.
(d) Subject to Borrower's compliance with the cash-collateralization
requirements set forth herein, the Administrative Agent shall return any
remaining Credit-Linked Deposits to the Funded LC Lenders following the
occurrence of the Funded LC Maturity Date.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
Each Loan Party represents and warrants to the Administrative Agent,
the Collateral Trustee, the Issuing Bank and each of the Lenders that:
SECTION 3.01 ORGANIZATION; POWERS. Each Loan Party (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 Loan Party 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 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 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 violate the Organizational Documents of any Loan Party or
any judgment, decree or order of any Governmental Authority, (c) will 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 Loan Party or its property, or give rise to a right thereunder to require
any payment to be made by any Loan Party, 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 result in the creation or imposition
of any Lien on any property of any Loan Party, except Liens created by the Loan
Documents and Permitted Liens.
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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 31, 2001,
December 31, 2002 and December 31 2003, audited by and accompanied by the
unqualified opinion of PricewaterhouseCoopers, independent public accountants,
and (ii) as of and for the nine-month period ended September 30, 2004 and for
the comparable period of the preceding fiscal year, 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), (b) and (c) have
been prepared in accordance with GAAP (except, in the case of Sections 5.01(b)
and (c), 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 Loan Party of any kind,
whether accrued, contingent, absolute, determined, determinable or otherwise,
which could reasonably be expected to result in a Material Adverse Effect.
(b) The forecasts of financial performance of Borrower and its
subsidiaries furnished to the Lenders have been prepared in good faith by
Borrower and based on assumptions believed by Borrower to reasonable.
(c) Since December 31, 2003 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 Loan Party 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 Loan Party as of the date hereof and
describes the type of interest therein held by such Loan Party and (ii) leased,
subleased or otherwise occupied or utilized by any Loan Party, as lessee,
sublessee, franchisee or licensee, as of the date hereof and describes the type
of interest therein held by such Loan Party and whether such lease, sublease or
other instrument requires the consent of the landlord thereunder or other
parties thereto to the Transactions.
(c) No Loan Party 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 Closing 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 the Closing Date, no Loan Party has received any notice of, nor has
any knowledge of, the occurrence or pendency or contemplation of any Material
Casualty
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Event affecting all or any portion of its property. Except for those properties
listed on Schedule 3.05(c), no Mortgage, delivered on the Closing Date or to be
delivered pursuant to Section 5.16 hereof, 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 Loan Party 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 Loan Party's business as currently conducted. The use by each
Loan Party 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 Loan Party'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 Loan Party is in good repair, working order
and condition, reasonable wear and tear excepted. Each Loan Party 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
Loan Party'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 13(a) and 13(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 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
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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
JBP and their jurisdiction of organization as of the Closing Date and (ii) the
number of each class of its Equity Interests authorized, and the number
outstanding, on the Closing Date and the number of shares covered by all
outstanding options, warrants, rights of conversion or purchase and similar
rights at the Closing Date. All Equity Interests of each Loan Party are duly and
validly issued and are fully paid and non-assessable, and, other than the Equity
Interests of Borrower, are owned by Borrower, directly or indirectly through
Wholly Owned Subsidiaries. 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 Agreement
and the Senior Secured Notes 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 except as set
forth on Schedule 3.07(a).
(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
first priority status of the security interest of the Collateral Trustee in any
Equity Interests pledged to the Collateral Trustee for the benefit of the
Secured Parties under the Security Agreement or the exercise by the Collateral
Trustee 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
JBP, Borrower and each Subsidiary on the Closing 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
Loan Party, threatened against or affecting any Loan Party or any business,
property or rights of any Loan Party (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 Loan Party 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 permits) or any
restrictions of record or agreements affecting any Loan Party'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.
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SECTION 3.09 AGREEMENTS.
(a) No Loan Party 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 Loan Party 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 Loan Party 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 Loan Party 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 or any Letter of Credit 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; PUBLIC UTILITY HOLDING COMPANY
ACT. No Loan Party is (a) 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, or (b) a "holding company," an
"affiliate" of a "holding company" or a "subsidiary company" of a "holding
company," as defined in, or subject to regulation under, the Public Utility
Holding Company Act of 1935, as amended.
SECTION 3.12 USE OF PROCEEDS. Borrower will use the proceeds of (a)
the Term Loans to finance (i) the Refinancing, (ii) a portion of the Special
Distribution, and, (iii) to the extent, and only to the extent, that the
aggregated amount of the Term Loans funded on the Closing Date exceeds the sum
of all amounts payable in respect of the Refinancing and the amount of the
Special Distribution not paid in the Closing Date as otherwise permitted by the
terms hereof, working capital and general corporate purposes and, in the case of
the foregoing clauses (i) and (ii), to pay related fees, commissions and
expenses, (b) the Revolving Loans and Swingline Loans after the Closing Date to
finance working capital and general corporate purposes (including to effect
Permitted Acquisitions) and (c) Letters of Credit on and after the Closing Date
to support Borrower's and its Subsidiaries' surety bonding program, insurance
requirements and other general corporate purposes of Borrower and its
Subsidiaries, provided that the Issuing Bank may issue (i) Funded Letters of
Credit with a face amount of up to $15.0 million on the Closing Date and (ii)
Revolving Letters of Credit with a face amount of up to $1.5 million on the
Closing Date.
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SECTION 3.13 TAXES. Each Loan Party 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 Loan Party 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 Loan Party has made adequate
provision in accordance with GAAP for all Taxes not yet due and payable. Each
Loan Party is unaware of any proposed or pending tax assessments, deficiencies
or audits that could be reasonably expected to, individually or in the
aggregate, result in a Material Adverse Effect. No Loan Party 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.
SECTION 3.14 NO MATERIAL MISSTATEMENTS. No written information,
report, financial statement, certificate, Borrowing Request, LC Request, exhibit
or schedule furnished by or on behalf of any Loan Party to the Administrative
Agent or any Lender in connection with the negotiation of any Loan Document or
included therein or delivered pursuant thereto (including the Confidential
Information Memorandum), 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 Loan Party 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 Closing
Date, there are no strikes, lockouts or slowdowns against any Loan Party pending
or, to the knowledge of any Loan Party, threatened. The hours worked by and
payments made to employees of any Loan Party 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 Loan Party, or for which any claim may be made against any Loan Party,
on account of wages and employee health and welfare insurance and other
benefits, have been paid or accrued as a liability on the books of such Loan
Party 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 Loan Party
is bound.
SECTION 3.16 SOLVENCY. Immediately after the consummation of the
Transactions to occur on the Closing 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) 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) 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) 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) will not have unreasonably
small
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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 Closing
Date.
SECTION 3.17 EMPLOYEE BENEFIT PLANS. Except as set forth on Schedule
3.17, each Loan Party and its ERISA Affiliates are in compliance in all material
respects with the applicable provisions of ERISA and the Code and the
regulations and published interpretations thereunder, and, except as could not
reasonably be expected to result in material liability to any Loan Party, all
contributions required to be made under the terms of any Company Retirement Plan
as of the date of this Agreement have been timely made or, if not yet due, have
been properly reflected on the most recent consolidated balance sheet filed or
incorporated by reference in the Companies' financial statements. 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. Each "pension plan" (within the meaning of Section 3(2)
of ERISA) which is intended to qualify under Section 401(a) of the Code and
which is maintained, sponsored or contributed to by any Loan Party or under
which any Loan Party may incur liability (a "COMPANY RETIREMENT PLAN") has
received a favorable determination or opinion letter from the Internal Revenue
Service as to its qualified status or an application for such a letter has been
properly and timely filed and is currently being processed by the Internal
Revenue Service, and to the knowledge of each Loan Party, no fact or event has
occurred that could adversely affect the qualified status of any such plan or
prevent such qualification. Except as set forth on Schedule 3.17, to the
knowledge of each Loan Party there has been no prohibited transaction (within
the meaning of Section 406 of ERISA or Section 4975 of the Code and other than a
transaction that is exempt under a statutory or administrative exemption) with
respect to any Plan or Company Retirement Plan that could result in material
liability to any Loan Party. The present value of all accumulated benefit
obligations of all underfunded Plans (based on the assumptions used for purposes
of Statement of Financial Accounting Standards 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
Loan Party 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. No Loan Party has any material liability with respect
to "expected post-retirement benefit obligations" within the meaning of
Financial Accounting Standards Board Statement 106. 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 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;
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(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;
(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; and
(vi) With regard to every parcel of Real Property the Companies
lease or have leased, there has not been, nor will there be, any acts or
omissions by the Companies that: (A) adversely affect the Companies' rights
to indemnification relating to compliance with or liability under
Environmental Law; (B) gives rise to any liability under Environmental Law;
or (C) triggers any indemnity obligation the Companies owe to any lessor or
other third person relating to liability under Environmental Law.
(b) Except as set forth in Schedule 3.18:
(i) No Loan Party 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 Loan Party is conducting or financing any Response
pursuant to any Environmental Law with respect to any Real Property or any
other location;
(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 Loan
Party, 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
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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 Loan Party as of the
Closing Date. All insurance maintained by the Companies is in full force and
effect, all premiums have been duly paid, no Loan Party 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
Loan Party 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 Trustee 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) financing statements and
other filings in appropriate form are filed in the offices specified on Schedule
3.20 hereto and (ii) upon the taking of possession or control by the Collateral
Trustee 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 Trustee to the extent possession or
control by the Collateral Trustee is required by the Security Agreement), the
Liens created by the Security Agreement shall constitute fully perfected 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 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.
(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 Agreement shall constitute fully
perfected 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, from and after the date of its execution and
delivery to the Collateral Trustee, is effective to create, in favor of the
Collateral Trustee, for its benefit and the benefit of the Secured Parties,
legal, valid and enforceable Liens on, and security interests in, all of the
Loan Parties' right, title and interest in and to the Mortgaged Properties
thereunder and the proceeds thereof, subject only to Permitted Collateral Liens
or other Liens acceptable to the Collateral Trustee, 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 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 Trustee, for the benefit of the Secured Parties, legal, valid
and enforceable Liens on, and security interests in, all of the Loan Parties'
right, title and interest in and to the Collateral thereunder, and when all
appropriate filings or recordings are made in the appropriate offices as may be
required under applicable law, such Security
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Document will constitute fully perfected 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, in each case subject to no Liens
other than the applicable Permitted Collateral Liens.
SECTION 3.21 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;
(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.
ARTICLE IV.
CONDITIONS TO CREDIT EXTENSIONS
SECTION 4.01 CONDITIONS TO INITIAL CREDIT EXTENSION. The obligation
of each Lender and, if applicable, each Issuing Bank to fund the initial Credit
Extension requested to be made by it, and the obligations of the Funded LC
Lenders to fund their Credit-Linked Deposits, shall be subject to the prior or
concurrent satisfaction of each of the conditions precedent set forth in this
Section 4.01.
(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, to the Issuing Bank
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and to the Administrative Agent and there shall have been delivered to the
Administrative Agent an executed counterpart of each of the Loan Documents and
the Perfection Certificate.
(b) Corporate Documents. The Administrative Agent shall have
received:
(i) a certificate of the secretary or assistant secretary of each
Loan Party dated the Closing 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, the Issuing Bank or
the Administrative Agent may reasonably request.
(c) Officers' Certificate. The Administrative Agent shall have
received a certificate, dated the Closing 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 and Sections 4.02(b),
(c) and (d).
(d) Financings and Other Transactions, Etc.
(i) The Transactions shall have been consummated or shall be
consummated simultaneously on the Closing Date, in each case in all
material respects in accordance with the terms hereof and the terms of the
Loan Documents.
(ii) Borrower shall have received not less than $275.0 million in
gross proceeds from the issuance and sale of the Senior Secured Floating
Rate Notes, and the Senior Secured Note Documents shall be in form and
substance reasonably satisfactory to the Lenders.
(iii) The Special Distribution shall have been commenced.
(iv) The Lenders shall be satisfied with the capitalization, the
terms and conditions of any equity arrangements and the corporate or other
organizational structure of the Companies.
(v) The Refinancing shall have been consummated in full to the
satisfaction of the Lenders with all liens in favor of the existing lenders
being unconditionally released; the Administrative Agent shall have
received a "pay-off" letter in form and substance reasonably satisfactory
to the Administrative Agent with respect to all debt being refinanced in
the Refinancing; and the Administrative Agent shall have received from any
person holding any Lien securing any such debt, such UCC termination
statements, mortgage releases, releases of assignments of leases
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and rents, releases of security interests in Intellectual Property and
other instruments, in each case in proper form for recording, as the
Administrative Agent shall have reasonably requested to release and
terminate of record the Liens securing such debt.
(e) Financial Statements, Pro Forma Balance Sheet; Projections. The
Lenders shall have received and shall be satisfied with the form and substance
of the financial statements described in Section 3.04.
(f) Indebtedness and Minority Interests. After giving effect to the
Transactions and the other transactions contemplated hereby, no Loan Party shall
have outstanding any Indebtedness or preferred stock other than (i) the Loans
and Credit Extensions hereunder, (ii) the Senior Secured Floating Rate Notes;
(iii) the Indebtedness listed on Schedule 6.01(b), (iv) Indebtedness owed to
Borrower or any Guarantor and (iv) Indebtedness permitted pursuant to Section
6.01(e) hereof in an amount not to exceed $1,000,000.
(g) Opinions of Counsel. The Administrative Agent shall have
received, on behalf of itself, the other Agents, the Arrangers, the Lenders and
the Issuing Bank, a favorable written opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ &
▇▇▇▇ LLP, special counsel for the Loan Parties, substantially to the effect set
forth in Exhibit N-1, (A) dated the Closing Date, (B) addressed to the Agents,
the Issuing Bank and the Lenders and (C) covering such other matters relating to
the Loan Documents and the Transactions as the Administrative Agent shall
reasonably request.
(h) Solvency Certificate and Other Reports. The Lenders shall have
received a solvency certificate in the form of Exhibit O, dated the Closing 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 JBP,
Borrower, 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 JBP, Borrower and their
respective Subsidiaries to fully and timely perform their respective obligations
under the Loan Documents, 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 Arrangers and Administrative Agent shall have received
all Fees and other amounts due and payable on or prior to the Closing 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,
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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 Trustee shall have
received:
(i) all certificates, agreements or instruments representing or
evidencing the Securities Collateral accompanied by instruments of transfer
and stock powers undated and endorsed in blank;
(ii) the Intercompany Note, accompanied by an instrument of
transfer marked and endorsed in blank;
(iii) all other certificates, agreements, including control
agreements, or instruments necessary to perfect the Collateral Trustee's
security interest in all Chattel Paper, all Instruments, all Deposit
Accounts (other than Deposit Accounts with, in aggregate, up to $10 million
in cash and Cash Equivalents) 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);
(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 Trustee, 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 Trustee 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 Trustee); and
(vi) evidence acceptable to the Collateral Trustee 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.
(vii) Beginning on the date that is 3 months after the Closing
Date, Borrower shall use commercially reasonable efforts to obtain as soon
as reasonably practicable, with respect to each location set forth on
Schedule 4.01(n), a Landlord Access Agreement or Bailee Letter, as
applicable; provided that no such Landlord Access Agreement shall be
required with respect to any Real Property that could not be obtained after
the Loan Party that is the lessee or owner of the inventory or other
personal property Collateral stored with the bailee thereof, as applicable,
shall have used all commercially reasonable efforts to do so.
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(o) Real Property Requirements. The Collateral Trustee shall have
received:
(i) a Mortgage encumbering each Mortgaged Property listed on
Schedule 1.01(b) in favor of the Collateral Trustee, 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 required in connection with the recording or filing thereof to
create a first priority lien, under applicable law, in favor of the
Collateral Trustee for the benefit of the Secured Parties, subject only to
Permitted Collateral Liens, 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 Collateral Trustee;
(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 Trustee 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 encumbering each such
Mortgaged Property identified on Schedule 1.01(a) as being "material" (each
a "MATERIAL MORTGAGED PROPERTY"), 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 first mortgage
lien on the Mortgaged Property and fixtures described therein in favor of
the Collateral Trustee for the benefit of the Secured Parties in amounts to
be agreed with the Administrative Agent in its reasonable discretion, 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 Trustee, (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 at commercially reasonable rates, letters from municipalities
or opinions of special counsel, architects or other professionals
reasonably acceptable to the Collateral Trustee) as shall be reasonably
requested by the Collateral Trustee (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 Collateral Liens and exceptions
acceptable to the Collateral Trustee;
(iv) with respect to each such Material 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 Trustee of
payment by Borrower of all Title Policy premiums, search and examination
charges, escrow charges and related
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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 Trustee;
(vii) with respect to each such Mortgaged Property, each Loan
Party 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 Material 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 Trustee, on behalf of the Secured Parties, as additional
insured, in form and substance satisfactory to the Administrative Agent.
(q) Ratings. Borrower shall have received secured debt ratings on the
Loans from each of ▇▇▇▇▇'▇ and S&P (which ratings need not be monitored public
ratings).
(r) Minimum EBITDA. Borrower's Consolidated EBITDA for the latest
twelve month period ending more than 45 days prior to the Closing Date shall not
be less than $121.0 million. EBITDA shall be prepared on a basis consistent with
an EBITDA presentation set forth in a registration statement filed with the
Securities and Exchange Commission.
SECTION 4.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of
each Lender and each Issuing Bank to make any Credit Extension (including the
initial Credit Extension) shall 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 (or such notice shall have been deemed given
in accordance with Section 2.03) if Loans are being requested or, in the case of
the issuance, amendment, extension or renewal of a Letter of Credit, the Issuing
Bank and the Administrative Agent shall have received a notice requesting the
issuance, amendment, extension or renewal of such Letter of Credit as required
by Section 2.18(b) or, in the case of the Borrowing of a Swingline Loan, the
Swingline Lender and the Administrative Agent shall have received a Borrowing
Request as required by Section 2.17(b).
(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.
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(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 or notice requesting the
issuance, amendment, extension or renewal of a Letter of Credit 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 and
each Agent 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 and all Letters of Credit have been canceled or have
expired and all amounts drawn thereunder have been reimbursed in full or such
Letters of Credit have been collateralized with cash or a letter of credit from
a financial institution satisfactory to the Administrative Agent and all
Credit-Linked Deposits have been returned in full to the Funded LC Lenders,
unless the Required Lenders shall otherwise consent in writing, each Loan Party
will, and will cause each of its Subsidiaries to:
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 (but no later than the date on which
Borrower would be required to file a Form 10-K under the Exchange Act if it were
subject to Section 15 and Section 13(d) of the Exchange Act), the consolidated
balance sheet of Borrower 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 PricewaterhouseCoopers 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 Borrower 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 (but no later than the date on which Borrower
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would be required to file a Form 10-Q under the Exchange Act if it were subject
to Section 15 and Section 13(d) of the Exchange Act), the consolidated balance
sheet of Borrower 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
Borrower 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) Monthly Reports. Within 30 days after the end of each of the
first two months of each fiscal quarter, the consolidated balance sheet of
Borrower as of the end of such two months and the related consolidated
statements of income and cash flows of Borrower for such month 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 results of operations and cash flows of Borrower as of the date and
for the periods specified in accordance with GAAP consistently applied (except
for the absence of notes thereto), subject to normal year-end audit adjustments;
(d) Financial Officer's Certificate. (i) Concurrently with any
delivery of financial statements under Section 5.01(a), (b) or (c) 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(e) 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 Borrower 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) Officer's Certificate Regarding Collateral. Concurrently with any
delivery of financial statements under Section 5.01(a) above, an Officer's
Certificate 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;
(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 Loan Party 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
Loan Party, a copy of any "management letter" received by any such person from
its certified public accountants and the management's responses thereto;
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(h) Budgets. No later than 30 days after the first day of each fiscal
year of Borrower, 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 Borrower 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 Borrower 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 Borrower to
the effect that the budget of Borrower is a reasonable estimate for the period
covered thereby;
(i) Organization. Within 30 days after the close of each fiscal year
of Borrower, 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 Loan Party under any Organizational Document within 15 days after such
Loan Party 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 Loan Party, 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 Loan Party 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;
(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.
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(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 Loan Party in accordance
with Section 6.05 or Section 6.06; (ii) the withdrawal by any Loan Party 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 Loan
Party 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 Trustee); provided that with respect to physical hazard insurance,
neither the Collateral Trustee nor the applicable Loan Party shall agree to the
adjustment of any claim thereunder involving an amount in excess of $100,000
except to the extent such claim would fall within an applicable deductible
without the consent of the other (such consent not to be unreasonably withheld
or delayed); provided, further, that no consent of any Loan Party 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 Trustee of
written notice thereof, (ii) name the Collateral Trustee 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 Trustee, include a breach of warranty clause and (iv) be reasonably
satisfactory in all other respects to the Collateral Trustee.
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(c) Notify the Administrative Agent and the Collateral Trustee
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 Loan Party; and promptly deliver to the Administrative Agent
and the Collateral Trustee a duplicate original copy of such policy or policies.
(d) With respect to each Mortgaged Property set forth on Schedule
3.05(c) and any Mortgaged Property acquired after the Closing Date, 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 Trustee 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 Trustee 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 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 Loan Party 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 Loan Party 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, (b) maintain the qualified
status of all Company Retirement
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Plans, (c) take all actions necessary to correct and/or remedy any non-exempt
prohibited transaction (within the meaning of Section 406 of ERISA or Section
4975 of the Code) with respect to a Company Retirement Plan, and (d)furnish to
the Administrative Agent (x) as soon as practicable after, and in any event
within 5 Business Days after any Responsible Officer of any Loan Party or any
ERISA Affiliates of any Loan Party 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, (y) as soon as practicable, and in any event within 5
Business Days after receipt by any Loan Party of an unfavorable determination
letter issued by the Internal Revenue Service with respect to any Company
Retirement Plan, a copy of such letter, and (z) upon request by the
Administrative Agent, copies of (i) each Schedule B (Actuarial Information) to
the annual report (Form 5500 Series) filed by any Loan Party or 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 Loan Party 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 Company Retirement Plan (or
other employee benefit plan sponsored or contributed to by any Loan Party) 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
Loan Party will permit any representatives designated by the Administrative
Agent or any Lender to visit and inspect the financial records and the property
of such Loan Party 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 Loan Party 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 and
request the issuance of Letters of Credit only for the purposes set forth in
Section 3.12.
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 Loan Party 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 Loan Party 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.
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(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, operator or lessee of Real
Property shall not produce, generate, handle, use, store, dispose, install nor
permit to be produced, generated, handled, used, stored, disposed or installed
in such Real Property any Hazardous Materials, other than in compliance with
applicable Environmental Laws and the terms of any lease, if applicable. Each
Loan Party shall not release and shall not permit to be Released any Hazardous
Material on, at or from any such Real Property that could reasonably be expected
to result in a Material Adverse Effect.
SECTION 5.10 INTEREST RATE PROTECTION. No later than the 270th day
after the Closing 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 outstanding Term Loans and Senior Secured Floating Rate Notes of the
Borrower and its Subsidiaries 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 this Section 5.11, with respect to any property
acquired after the Closing 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 consent 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 Trustee such
amendments or supplements to the relevant Security Documents or such other
documents as the Administrative Agent or the Collateral Trustee shall deem
necessary or advisable to grant to the Collateral Trustee, for its benefit and
for the benefit of the other applicable Secured Parties, a Lien 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 Trustee such documents as the Administrative Agent or the Collateral
Trustee shall require to confirm the validity, perfection and priority of the
Lien of the Security Documents against such after-acquired properties.
(b) With respect to any person that is or becomes a Subsidiary after
the Closing Date, promptly (and in any event within 30 days after such person
becomes a Subsidiary) (i) deliver to the Collateral Trustee the certificates, if
any, representing all of the Equity Interests of such Subsidiary, 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 Guarantor and a
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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 consent 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 Administrative
Agent, and (B) to take all actions necessary or advisable in the opinion of the
Administrative Agent or the Collateral Trustee 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 Trustee. Notwithstanding
the foregoing, (1) the Equity Interests required to be delivered to the
Collateral Trustee 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 Closing 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).
(c) Promptly grant to the Collateral Trustee, within 60 days of the
acquisition thereof, a security interest in and Mortgage on each Real Property
owned in fee by such Loan Party as is acquired by such Loan Party after the
Closing Date and that, together with any improvements thereon, individually has
a fair market value of at least $1.0 million, 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, and the Loan Parties shall deliver, documentation reasonably
satisfactory in form and substance to the Administrative Agent and the
Collateral Trustee, including, without limitation, all documentation required to
be delivered in respect of Mortgaged Property on the Closing Date pursuant to
Section 4.01(o) hereof, and shall constitute valid and enforceable perfected
Liens subject only to Permitted Collateral Liens or other Liens acceptable to
the Collateral Trustee; provided that Real Property acquired after the Closing
Date that, together with any improvements thereon, individually has a fair
market value of less than $2.0 million shall not be deemed "Material Mortgaged
Property." 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 Trustee
required to be granted pursuant to the Mortgages and all taxes, fees and other
charges payable in connection therewith shall be paid in full. Such Loan Party
shall otherwise take such actions and execute and/or deliver to the Collateral
Trustee such documents as the Administrative Agent or the Collateral Trustee
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
Trustee) in respect of such Mortgage).
(d) Concurrently with the consummation of the sale or issuance of the
Equity Interests pursuant to which any person becomes an Additional Equity
Partner prior to an IPO, such Additional Equity Partner shall, and the Loan
Parties shall cause such Additional Equity Partner to: (i) deliver to the
Collateral Trustee the certificates representing all of the Equity Interests of
the Loan Party acquired by such Additional Equity Partner, together with undated
stock powers or other appropriate instruments of
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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 JBP Pledge 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 Trustee
to cause the Lien created by the JBP Pledge 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 Trustee.
SECTION 5.12 SECURITY INTERESTS; FURTHER ASSURANCES. Promptly, upon
the reasonable request of the Administrative Agent, the Collateral Trustee 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 Trustee 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 Trustee 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 Trustee as the
Administrative Agent and the Collateral Trustee 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 Trustee
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 Trustee or such Lender may require. If
the Administrative Agent, the Collateral Trustee 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 Trustee.
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 Trustee and the Administrative Agent 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 Trustee, of its intention so to do,
clearly describing such change and providing such other information in
connection therewith as the Collateral Trustee or the Administrative Agent may
reasonably request and (B) it shall have taken all action reasonably
satisfactory to the Collateral Trustee to maintain the perfection and priority
of the security interest of the Collateral Trustee for the benefit of the
Secured Parties in the Collateral, if applicable. Each Loan Party agrees to
promptly provide the Collateral Trustee with certified Organizational Documents
reflecting any of the changes described in the preceding sentence. Each Loan
Party also agrees to promptly notify the Collateral Trustee 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
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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.
(b) Concurrently with the delivery of financial statements pursuant to
Section 5.01(a), deliver to the Administrative Agent and the Collateral Trustee
a Perfection Certificate Supplement.
SECTION 5.14 POST-CLOSING MATTERS. Execute and deliver the documents
and complete the tasks set forth on Schedule 5.14, in each case within 30 days
after the Closing Date or such longer period as set forth on Schedule 5.14
hereto or approved by the Administrative Agent.
SECTION 5.15 RATINGS. 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).
SECTION 5.16 FOUNTAIN, COLORADO AND KELLER, TEXAS PROPERTIES. If
either of the Real Properties located in Fountain, Colorado and Keller, Texas
owned by Borrower or any of its Subsidiaries are sold to a third party after the
Closing Date, within ten Business Days after such sale, Borrower shall deliver
an Officer's Certificate to the Collateral Trustee stating that such property or
properties were sold. If for any reason (i) the Real Property located in
Fountain, Colorado owned by Borrower or any of its Subsidiaries is not sold on
or prior to May 15, 2005 or (ii) the Real Property located in Keller, Texas
owned by Borrower or any of its Subsidiaries is not sold on or prior to June 30,
2005, Borrower or the applicable Subsidiary owning such Real Property shall
grant a security interest in and Mortgage on such Real Property. Such Mortgages
shall be granted pursuant to, and the applicable Loan Parties shall deliver,
documentation reasonably satisfactory in form and substance to the
Administrative Agent and the Collateral Trustee, including, without limitation,
all documentation required to be delivered in respect of Mortgaged Property on
the Closing Date pursuant to Section 4.01(o) hereof, and shall constitute valid
and enforceable perfected Liens subject only to Permitted Collateral Liens or
other Liens acceptable to the Collateral Trustee; provided that such Real
Property shall not be deemed "Material Mortgaged Property." 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 Trustee required to be granted
pursuant to the Mortgages and all taxes, fees and other charges payable in
connection therewith shall be paid in full. Such Loan Party shall otherwise take
such actions and execute and/or deliver to the Collateral Trustee such documents
as the Administrative Agent or the Collateral Trustee shall require to confirm
the validity, perfection and priority of the Lien of any existing Mortgage or
new Mortgage against such Real Property.
ARTICLE VI.
NEGATIVE COVENANTS
JBP (solely in the case of Section 6.15(a)) and each Loan Party
warrants, covenants and agrees with each Lender and each Agent 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
and all Letters of Credit have been canceled or have expired and all amounts
drawn thereunder have been reimbursed in full or such Letters of Credit have
been collateralized with cash or a letter of credit from a financial institution
satisfactory to the Administrative Agent and all Credit-Linked Deposits have
been returned in full to the Funded LC Lenders, unless the Required Lenders
shall otherwise consent in writing, neither JBP (solely in the case of Section
6.15(a)) nor any Loan Party will, nor will they cause or permit any Subsidiaries
to:
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SECTION 6.01 INDEBTEDNESS. Incur, create, assume or permit to exist,
directly or indirectly, any Indebtedness, except
(a) Indebtedness of any Loan Party incurred under this Agreement and
the other Loan Documents;
(b) (i) Indebtedness of any Company outstanding on the Closing Date
and listed on Schedule 6.01(b), (ii) the Senior Secured Floating Rate Notes and
the Senior Secured Note Guarantees and (iii) refinancings or renewals of the
Indebtedness permitted under the foregoing clauses (i) and (ii); 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 of any Company that are
designed to protect against fluctuations in interest 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 Hedging
Obligations at the time incurred does not exceed the principal amount of the
Indebtedness to which such Hedging Obligations relate;
(d) Indebtedness of any Company permitted by Section 6.04(e);
(e) Indebtedness in respect of Purchase Money Obligations and Capital
Lease Obligations, in each case, of Borrower and any Guarantor, and refinancings
or renewals thereof, in an aggregate amount not to exceed $10.0 million at any
time outstanding;
(f) Indebtedness of any Company 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 $10.0 million at any time outstanding;
(g) Contingent Obligations of any Company in respect of Indebtedness
otherwise permitted under this Section 6.01;
(h) Indebtedness of any Company 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 of any Company arising in connection with endorsement
of instruments for deposit in the ordinary course of business;
(j) unsecured Subordinated Indebtedness of any Company in an aggregate
amount not to exceed $25.0 million at any time outstanding;
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(k) Indebtedness of any Company in respect of obligations evidenced by
bonds, debentures, notes or similar instruments issued as "pay-in-kind" interest
payments;
(l) accretion of principal amount of obligations evidenced by bonds,
debentures, notes or similar instruments issued at any original issued discount;
(m) Indebtedness of persons acquired in a Permitted Acquisition in an
aggregate amount not to exceed $10.0 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;
(n) Indebtedness incurred for the sole purpose of financing the
payment of insurance premiums in the ordinary course of business; and
(o) unsecured Indebtedness of any Company in an aggregate amount not
to exceed $25.0 million at any time outstanding.
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 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, 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 Closing 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 Closing Date and (ii) does not encumber
any property other than the property subject thereto on the Closing 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
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(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
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) of this paragraph (f) shall not exceed $5.0 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 are
subordinate in all respects to the Liens granted and evidenced by the Security
Documents and 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 of any Company 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;
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(k) Liens on property of a person existing at the time such person is
acquired by any Company 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;
(m) Liens securing the obligations under the Senior Secured Notes
Documents and refinancings thereof permitted under Section 6.01(b) as long as
the Liens securing payment thereof do not attach to any assets that are not
encumbered by Liens securing the Obligations;
(n) 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;
(o) the filing of UCC financing statements by any Company solely as a
precautionary measure in connection with operating leases or consignment of
goods;
(p) Liens securing Indebtedness permitted under Section 6.01(n); and
(q) Liens incurred in the ordinary course of business of any Company
with respect to obligations that do not in the aggregate exceed $5.0 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.
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 the Senior Secured Note 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) Investments outstanding on the Closing Date and identified on
Schedule 6.04(a);
(b) 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
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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;
(c) Hedging Obligations permitted to be incurred under Section
6.01(c);
(d) loans and advances to directors, employees and officers of any
Company for bona fide business purposes and to purchase Equity Interests of
Borrower, in aggregate amount not to exceed $500,000 at any time outstanding;
(e) Investments (i) by Borrower in any Guarantor, (ii) by any Company
in Borrower or any Guarantor, (iii) by a Guarantor in another Guarantor and (iv)
by a Subsidiary that is not a Guarantor in any other Subsidiary that is not a
Guarantor; provided that any Investment in the form of a loan or advance shall
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;
(f) 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;
(g) Investments made by any Company as a result of consideration
received in connection with an Asset Sale made in compliance with Section 6.06;
(h) other investments by any Company, in an aggregate amount not to
exceed $15.0 million at any time, in Persons engaged in a business of the type
that Borrower and the Subsidiaries are permitted to be engaged in under Section
6.15 and businesses reasonably related thereto; provided the property acquired
in connection with any such investment, other than investments in Persons whose
Organizational Documents expressly forbid the creation of such Liens, 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; and
(i) 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) Assets Sales in compliance with Section 6.06;
(b) acquisitions in compliance with Section 6.07;
(c) subject to compliance with the provisions of this Agreement, any
Company may merge or consolidate with or into Borrower or any Guarantor (as long
as Borrower or a Guarantor is the surviving person in such merger or
consolidation and remains a Wholly Owned Subsidiary of Borrower); provided that
the Lien on and security interest in such property granted or to be granted in
favor of the Collateral Trustee 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
(d) 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.
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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, 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
Company in the ordinary course of business and the abandonment or other
disposition of Intellectual Property 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 $30.0
million in any four consecutive fiscal quarters of Borrower;
(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) agreements to effect an Asset Sale, so long as such agreement
contains a condition requiring the consent of the Required Lenders, if such
Asset Sale is otherwise prohibited by the terms hereof;
(f) Investments in compliance with Section 6.04;
(g) 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 $15.0 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
(h) sales of the Real Property described on Schedule 6.06(h).
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, 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 the Companies shall be permitted to the
extent permitted by Section 6.10(c);
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(b) purchases and other acquisitions of inventory, materials,
equipment and intangible property by any Company in the ordinary course of
business;
(c) Investments in compliance with Section 6.04;
(d) leases of real or personal property by any Company in the ordinary
course of business and in accordance with the applicable Security Documents;
(e) Permitted Acquisitions; and
(f) 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 Trustee 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) commencing on January 1, 2006, payments to Borrower to permit
Borrower, and the subsequent use of such payments by Borrower, to repurchase or
redeem Equity Interests and options to purchase Equity Interests of Borrower
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)
$2.0 million in any fiscal year and (b) $10.0 million in the aggregate from the
Closing Date;
(c) the Special Distribution;
(d) prior to an IPO, (A) to the extent actually used by JBP to pay
such Taxes, costs and expenses, payments by Borrower to or on behalf of JBP in
an amount sufficient to pay franchise taxes and other fees required to maintain
the legal existence of JBP and (B) payments by Borrower to or on behalf of JBP
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 JBP; and
(e) so long as no Default or Event of Default has occurred and is
continuing at the time of declaration thereof and so long as no Event of Default
under Section 8.01(a), (b), (g) or (h) has occurred and is continuing at the
time of payment thereof, following an IPO, dividends on the Borrower's common
stock in an amount per fiscal year not to exceed the lesser of $10,000,000 and
6.0% of the gross proceeds received in such IPO.
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 Guarantors), 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:
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(a) Dividends permitted by Section 6.08;
(b) Investments permitted by Sections 6.04(d) and (e);
(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) 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
(f) any transaction with an Affiliate where the only consideration
paid by any Loan Party is Qualified Capital Stock of Borrower;
provided that upon the occurrence and during the continuation of any Event of
Default no payments of management fees, consulting fees or any other
distributions to or on account of any Sponsor shall be permitted, other than out
of pocket expenses of such Sponsor otherwise subject to and made in compliance
with this Section 6.09.
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 during any period set forth in the
table below, to exceed the ratio set forth opposite such period in the table
below:
TOTAL
PERIOD LEVERAGE RATIO
------------------------------------ --------------
Closing Date -- March 31, 2005 5.25:1.0
April 1, 2005 -- June 30, 2005 5.25:1.0
July 1, 2005 -- September 30, 2005 5.25:1.0
October 1, 2005 -- December 31, 2005 5.00:1.0
January 1, 2006 -- March 31, 2006 5.00:1.0
April 1, 2006 -- June 30, 2006 4.75:1.0
July 1, 2006 -- September 30, 2006 4.75:1.0
October 1, 2006 -- December 31, 2006 4.50:1.0
January 1, 2007 -- December 31, 2007 3.75:1.0
January 1, 2008 -- December 31, 2008 3.25:1.0
January 1, 2009 -- December 31, 2009 2.75:1.0
March 31, 2010 and thereafter 2.50:1.0
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(b) Minimum Interest Coverage Ratio. Permit the Consolidated Interest
Coverage Ratio, as of the last day of 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:
INTEREST COVERAGE
PERIOD RATIO
------------------------------------- -----------------
Closing Date -- September 30, 2005 2.50:1.0
October 1, 2005 -- September 30, 2006 2.70:1.0
October 1, 2006 -- December 31, 2006 2.75:1.0
January 1, 2007 -- December 31, 2007 3.00:1.0
January 1, 2008 -- December 31, 2008 3.25:1.0
January 1, 2009 and thereafter 3.50:1.0
(c) 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 (IN
PERIOD MILLIONS)
----------------------------------- ----------
January 1, 2005 - December 31, 2005 $36.0
January 1, 2006 - December 31, 2006 $36.0
January 1, 2007 - December 31, 2007 $38.0
January 1, 2008 - December 31, 2008 $40.0
January 1, 2009 - December 31, 2009 $42.0
January 1, 2010 - December 31, 2010 $44.0
January 1, 2011 and thereafter $44.0
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(c) 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(c) 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(c), 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.
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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 Indebtedness outstanding under the Senior Secured Floating
Rate Notes or any Subordinated Indebtedness, except (i) the repayment of up to
35% of the aggregate principal amount of the Senior Secured Floating Rate Notes
with the net cash proceeds from an IPO in accordance with the terms of the
Senior Secured Notes Indenture as in effect on the date hereof or (ii) as
otherwise permitted by this Agreement;
(b) amend or modify, or permit the amendment or modification of, any
provision of any Senior Secured Note Document in any manner that is adverse in
any material respect to the interests of the Lenders; 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), Subordinated
Indebtedness 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 are not adverse in any
material respect to the interests of the Lenders; provided that Borrower 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 any Company, or pay any
Indebtedness owed to Borrower or a Subsidiary, (b) make loans or advances to any
Company or (c) transfer any of its properties to any Company, except for such
encumbrances or restrictions existing under or by reason of (i) applicable law;
(ii) this Agreement and the other Loan Documents; (iii) the Senior Secured Note
Documents as in effect on the Closing Date; (iv) customary provisions
restricting subletting or assignment of any lease governing a leasehold interest
of a Subsidiary; (v) customary provisions restricting assignment of any
agreement entered into by a Subsidiary in the ordinary course of business; (vi)
any holder of a Lien permitted by Section 6.02 restricting the transfer of the
property subject thereto; (vii) 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; (viii) 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; (ix) 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 (x) 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 (iv) or (viii)
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. Issue any
Equity Interest (including by way of sales of treasury stock) or any options or
warrants to purchase, or securities convertible
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into, any Equity Interest, except the following: (a) Subsidiaries of Borrower
formed after the Closing 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, (b) prior to an IPO, (i) Borrower and its Subsidiaries may do 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; and (ii) Borrower may issue (A)
Qualified Capital Stock to JBP and to Additional Equity Partners (including to
any Person that is a seller or any other Person that owns Equity Interests,
directly or indirectly, in such Person in connection with any Permitted
Acquisition) in Qualified Contribution Transactions and (B) common stock and
options in respect of common stock to officers, directors or employees of any
Company, provided in the case of clause (ii) that such issuance does not trigger
a Change in Control, (c) Borrower may consummate the IPO and (d) after an IPO,
Borrower may issue Qualified Capital Stock so long as such issuance does not
trigger a Change in Control. All Equity Interests issued in accordance with
clauses (a) and (b) of this Section 6.13 shall, to the extent required by
Sections 5.11 and 5.12 hereof or the Security Agreement, be delivered to the
Collateral Trustee 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 made pursuant to Section 6.04(e) 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 JBP, at any time prior to an IPO, 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 Senior Secured Notes Documents and (iii) activities and
properties incidental to the foregoing clauses (i) and (ii).
(b) With respect to the Borrower, engage in any business activities or
have any properties or liabilities, other than (i) its ownership of the Equity
Interests of its Subsidiaries and any intercompany notes owed by its
Subsidiaries, (ii) obligations under the Loan Documents and the Senior Secured
Notes Documents, (iii) obligations under (A) contracts to which one or more of
its Subsidiaries is a party guaranteeing performance by such Subsidiaries and
(B) contracts entered into solely for the benefit of one or more of its
Subsidiaries and where the services performed by the third party are made solely
to such Subsidiaries and (iv) activities and properties incidental to the
foregoing clauses (i), (ii) and (iii).
(c) With respect to any Company (other than Builders FirstSource of
Nashville, Inc. and CCWP, Inc.), engage (directly or indirectly) in any business
other than those businesses in which Borrower and its Subsidiaries are engaged
on the Closing Date as described in the Confidential Information Memorandum (or,
in the good faith judgment of the Board of Directors, which are substantially
related thereto or are reasonable extensions thereof).
(d) With respect to Builders FirstSource of Nashville, Inc. and CCWP,
Inc., engage in any business activities or have any properties or liabilities,
other than (i) ownership, in the case of CCWP, Inc. of the Real Property
described on Schedule 6.15(d) hereto and (ii) obligations under the Loan
Documents.
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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 Borrower 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 last day in December.
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, 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; (2) covenants in documents creating Liens permitted by
Section 6.02 prohibiting further Liens on the properties encumbered thereby; (3)
the Senior Secured Note Documents as in effect on the Closing Date; (4) 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 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 (5)
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, (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 3.21, (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
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(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 the Secured
Parties 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 the Lenders 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 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
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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,
Issuing Bank or 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.
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 any 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(d) shall be
subordinated to such Loan Party's Obligations in the manner set forth in the
Intercompany Note.
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
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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 performance, 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 (the "MAXIMUM LIABILITY").
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 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 Trustee
pursuant to the Security Agreements shall be released, and the Collateral
Trustee 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.
SECTION 7.10 CONTRIBUTION. Each Guarantor hereby agrees that to the
extent that any Guarantor makes any payment under this Article VII, the
Guarantor making such payment shall be entitled to seek and receive contribution
and indemnification from and to be reimbursed by each other Guarantor, in an
amount equal to a fraction of such payment, the numerator of which is the
Maximum Liability of such other Guarantor and the denominator of which is the
sum of the Maximum Liability of all Guarantors, in the aggregate, as of the date
of determination. Each Guarantor's right of contribution shall be subject to the
terms and conditions of Section 7.04. This Section 7.10 is intended only to
define the relative rights of the Guarantors, and each Guarantor shall remain
liable to the Secured Parties for the full amount of its liabilities under this
Agreement.
ARTICLE VIII.
EVENTS OF DEFAULT
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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
or any LC Reimbursement Obligation 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 or issuances of Letters of
Credit 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 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 $5.0 million at any one time (provided that, in the case of Hedging
Obligations, the termination value shall be counted for this purpose);
(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
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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 $5.0 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 Trustee, 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 first priority security
interest in and Lien on, all of the Collateral thereunder (except as otherwise
expressly provided in such Security Document)) in favor of the Collateral
Trustee, or shall be asserted by Borrower or any other Loan Party not to be, a
valid, perfected, first 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, 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 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 (which termination of Commitments, in the case of Revolving
Commitments, may be in the sole discretion of the Required Lenders as to all
Revolving Commitments (resulting in a required repayment of all outstanding
Revolving Loans) or as to all unused Revolving Commitments at such time) and
return the Credit-Linked Deposits to the Funded LC Lenders and (ii) declare the
Loans and LC Reimbursement Obligations then outstanding to be forthwith due and
payable in whole or in part, whereupon the principal of the Loans and
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LC Reimbursement Obligations 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 JBP or Borrower
described in paragraph (g) or (h) above, the Commitments shall automatically
terminate and the principal of the Loans and LC Reimbursement Obligations 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.
COLLATERAL ACCOUNT; APPLICATION OF COLLATERAL PROCEEDS
SECTION 9.01 COLLATERAL ACCOUNT.
(a) The Collateral Trustee is hereby authorized to establish and
maintain at its office at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
in the name of the Collateral Trustee and pursuant to a Control Agreement, a
restricted deposit account designated "Business FirstSource Collateral Account."
Each Loan Party shall deposit into the Collateral Account from time to time (i)
the cash proceeds of any of the Collateral (including pursuant to any
disposition thereof) to the extent contemplated herein or in any other Loan
Document, (ii) the cash proceeds of any Casualty Event with respect to
Collateral, to the extent contemplated herein or in any other Loan Document, and
(iii) any cash such Loan Party is required to pledge as additional collateral
security hereunder pursuant to the Loan Documents.
(b) The balance from time to time in the Collateral Account shall
constitute part of the Collateral and shall not constitute payment of the
Obligations until applied as hereinafter provided. So long as no Event of
Default has occurred and is continuing or will result therefrom, the Collateral
Trustee shall within two Business Days of receiving a request of the applicable
Loan Party for release of cash proceeds (i) from the Collateral Account
constituting Net Cash Proceeds relating to any Casualty Event or Asset Sale
remit such cash proceeds on deposit in the Collateral Account to or upon the
order of such Loan Party, so long as such Loan Party has satisfied the
conditions relating thereto set forth in Section 9.02 and (ii) with respect to
the LC Sub-Account (as defined below), remit such Net Cash Proceeds on deposit
in the LC Sub-Account to or upon the order of such Loan Party (x) at such time
as all Letters of Credit shall have been terminated and all of the liabilities
in respect of the Letters of Credit have been paid in full or (y) otherwise in
accordance with Section 2.18(i). At any time following the occurrence and during
the continuance of an Event of Default, the Collateral Trustee may (and, if
instructed by the Required Lenders as specified herein, shall) in its (or their)
discretion apply or cause to be applied (subject to collection) the balance from
time to time outstanding to the credit of the Collateral Account to the payment
of the Obligations in the manner specified in Section 9.03 hereof subject,
however, in the case of amounts deposited in the LC Sub-Account, to the
provisions of Sections 2.18(i) and 9.03. The Loan Parties shall have no right to
withdraw, transfer or otherwise receive any funds deposited in the Collateral
Account except to the extent specifically provided herein.
(c) Amounts on deposit in the Collateral Account shall be invested and
reinvested from time to time in Cash Equivalents as the applicable Loan Party
(or, after the occurrence and during the continuance of an Event of Default, the
Collateral Trustee) shall determine by written instruction to the Collateral
Trustee, or if no such instructions are given, then as the Collateral Trustee,
in its sole discretion, shall determine which Cash Equivalents shall be held in
the name and be under the control of the
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Collateral Trustee (or any sub-agent); provided that at any time after the
occurrence and during the continuance of an Event of Default, the Collateral
Trustee may (and, if instructed by the Required Lenders as specified herein,
shall) in its (or their) discretion at any time and from time to time elect to
liquidate any such Cash Equivalents and to apply or cause to be applied the
proceeds thereof to the payment of the Obligations in the manner specified in
Section 9.03 hereof subject, however, in the case of amounts deposited in the LC
Sub-Account, to the provisions of Section 2.18(i).
(d) Amounts deposited into the Collateral Account as cover for
liabilities in respect of Letters of Credit under any provision of this
Agreement requiring such cover shall be held by the Administrative Agent in a
separate sub-account designated as the "LC Sub-Account" (the "LC SUB-ACCOUNT")
and, subject to Section 2.18(i), all amounts held in the LC Sub-Account shall
constitute collateral security to be applied in accordance with Section 2.18(i).
SECTION 9.02 PROCEEDS OF DESTRUCTION, TAKING AND COLLATERAL
DISPOSITIONS. So long as no Event of Default shall have occurred and be
continuing, in the event the applicable Loan Party elects to reinvest Net Cash
Proceeds in respect of any Asset Sale or Casualty Event in accordance with the
provisions of Sections 2.10(c) and 2.10(e) as applicable, the Collateral Trustee
shall receive at least 2 Business Days' prior notice of each request for payment
and shall not release any part of such Net Cash Proceeds, until the applicable
Loan Party has furnished to the Collateral Trustee (i) an Officers' Certificate
setting forth: (A) a brief description of the reinvestment to be made, (B) the
dollar amount of the expenditures to be made, or costs incurred by such Loan
Party in connection with such reinvestment and (C) evidence that the properties
acquired in connection with such reinvestment have a fair market value at least
equal to the amount of such Net Cash Proceeds requested to be released from the
Collateral Account (provided, that if such properties are acquired from an
entity or person that is not an Affiliate of any Company, such Company may
provide an Officers' Certificate or a written resolution of its Board of
Directors expressly stating that the properties acquired in connection with such
reinvestment have a fair market value (as determined in good faith by the
officer signing such certificate or the Board of Directors, as applicable) at
least equal to the amount of such Net Cash Proceeds requested to be released
from the Collateral Account) and (ii) all security agreements and Mortgages and
other items required by the provisions of Sections 5.11 and 5.12 to, among other
things, subject such reinvestment properties to the Lien of the Security
Documents in favor of the Collateral Trustee, for its benefit and for the
benefit of the other Secured Parties.
SECTION 9.03 APPLICATION OF PROCEEDS. The proceeds received by the
Collateral Trustee 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 Trustee of its remedies shall be applied, in full or in part,
together with any other sums then held by the Collateral Trustee pursuant to
this Agreement, promptly by the Collateral Trustee as follows:
(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 Trustee and its agents and counsel, and all
expenses, liabilities and advances made or incurred by the Collateral Trustee in
connection therewith and all amounts for which the Collateral Trustee 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 in cash;
(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
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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 in cash;
(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, LC
Reimbursement Obligations, Obligations in respect of any Hedging Agreement
consisting of swap termination liabilities and all Obligations in respect of any
overdrafts constituting principal amounts of such overdrafts) 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 (including LC Reimbursement Obligations with
respect thereto, Obligations in respect of any Hedging Agreement consisting of
swap termination liabilities and all Obligations in respect of any overdrafts
constituting principal amounts of such overdrafts); and
(e) Fifth, to the Senior Secured Notes Trustee, to be applied in
accordance with the Senior Secured Notes Indenture; and
(f) Sixth, 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 in
cash the items described in clauses (a) through (h) 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, on the one hand, and the Senior Secured Notes
Trustee and the holders of the Senior Secured Floating Rate Notes, on the other,
as set forth in the Collateral Trust Agreement and this Agreement, including as
set forth in this Section 9.03.
ARTICLE X.
THE ADMINISTRATIVE AGENT AND THE COLLATERAL TRUSTEE
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 that holds Loans or has
Credit-Linked Deposits or Commitments and each holder of any Related Hedging
Obligations and each person holding Overdraft Obligations (in each case, in its
capacity as such) hereby irrevocably designates and appoints the Collateral
Trustee as an agent of such person under this Agreement. The Collateral Trustee
may act as collateral trustee, collateral agent or any similar title that the
Collateral Trustee deems necessary or convenient for the purpose of perfecting
the security interests in the Collateral. Each Lender irrevocably authorizes
each Agent, in such capacity, through its agents or employees, to execute and
deliver any Loan Documents and 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.
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.
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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 or Article XII), 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 Article
XII) 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, the Issuing Bank and
Borrower (except that such consultation is not required while an Event of
Default under Sections 8.01(a), 8.01(g) or 8.01(h) has occurred and is
continuing). Upon any such resignation, the Required 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 and the Issuing Bank, 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 $250.0 million; provided
that if such retiring Agent is unable to find a commercial
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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 resigning Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
Agent.
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
Arrangers, the 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, Credit-Linked Deposits 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, the
Loans and LC Reimbursement Obligations shall have been paid in full and the
Credit-Linked Deposits shall have been returned, ratably in accordance with such
outstanding Loans, Credit-Linked Deposits 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 and LC Reimbursement Obligations and
the return of the Credit-Linked Deposits) be imposed on, incurred by or asserted
against such Agent in any way relating to or arising out of, the Commitments,
the Credit-Linked Deposits, 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 to any Agent 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
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SECTION 11.01 NOTICES. 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:
(a) if to any Loan Party, to Borrower at:
JLL Partners
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇;
and
Builders FirstSource, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Administrative Agent or the Collateral Trustee, to it
at:
UBS AG, Stamford Branch
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Winslowe Ogbourne
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇;
(c) If to the Swingline Lender:
UBS Loan Finance LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇; and
(d) 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.
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.
SECTION 11.02 WAIVERS; AMENDMENT.
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(a) No failure or delay by any Agent, the Issuing Bank 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,
the Issuing Bank 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 or issuance of a Letter of Credit shall not be construed as a
waiver of any Default, regardless of whether any Agent, any Lender or the
Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as provided in 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, the
Collateral Trustee (in the case of any Security Document) 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;
(ii) reduce or forgive the principal amount or premium of any
Loan or LC Disbursement or reduce the rate of interest thereon or on any
Credit-Linked Deposit, 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
scheduled date of payment of or the installment otherwise due on the
principal amount of any Term Loan under Section 2.09, or the required date
of payment of any LC Reimbursement Obligation, or any date for the payment
of any interest or fees payable hereunder, or extend the date on which the
Credit-Linked Deposits are required to be returned in full, or reduce the
amount of, waive or excuse any such payment, or postpone the scheduled date
of expiration of any Commitment, postpone the scheduled date of expiration
of any Letter of Credit beyond the Revolving Maturity Date, or of any
Funded Letter of Credit beyond the Funded LC Maturity Date, 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);
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(vi) 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) 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;
(viii) change any provisions of any Loan Document in a manner
that by its terms adversely affects the rights in respect of payments due
to Lenders holding Loans or Credit-Linked Deposits of any Class differently
than those holding Loans or Credit-Linked Deposits of any other Class,
without the written consent of Lenders holding a majority in interest of
the outstanding Loans, Credit-Linked Deposits and unused Commitments of
each affected Class; or
(ix) without the consent of the Required Lenders, change the
order of application of prepayments under Section 2.10 among the Term
Loans, the Revolving Commitments and the Credit-Linked Deposits;
provided, further, that (1) no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent, the Collateral Trustee,
the Issuing Bank or the Swingline Lender without the prior written consent of
the Administrative Agent, the Collateral Trustee, the Issuing Bank or the
Swingline Lender, as the case may be, (2) any waiver, amendment or modification
of this Agreement that by its terms affects the rights or duties under this
Agreement of the Revolving Lenders (but not the Term Loan Lenders or the Funded
LC Lenders), or the Term Loan Lenders (but not the Revolving Lenders or the
Funded LC Lenders), or the Funded LC Lenders (but not the Revolving Lenders or
the Term Loan Lenders) may be effected by an agreement or agreements in writing
entered into by Borrower and requisite percentage in interest of the affected
Class of Lenders that would be required to consent thereto under this Section if
such Class of Lenders were the only Class of Lenders hereunder at the time, (3)
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
(4) any waiver, amendment or modification of the Collateral Trust Agreement (and
any related definitions) may be effected by an agreement or agreements in
writing entered into among the Collateral Trustee, the Required Lenders and the
Senior Secured Note Trustee (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 (and, if their rights or
obligations are affected thereby, the Issuing Bank and the Swingline Lender) if
(x) by the terms of such agreement the Commitments, Loans and Credit-Linked
Deposits 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 or Credit-Linked Deposit 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 Section
11.02(b), 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
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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.
(d) In addition, notwithstanding the foregoing, this Agreement may be
amended with the written consent of the Administrative Agent, JBP, Borrower and
the Lenders providing the relevant Replacement Term Loans (as defined below) to
permit the refinancing of all outstanding Term Loans ("REFINANCED TERM LOANS")
with a replacement term loan tranche hereunder which shall constitute Term Loans
hereunder ("REPLACEMENT TERM LOANS"); provided that (a) the aggregate principal
amount of Replacement Term Loans shall not exceed the aggregate principal amount
of Refinanced Term Loans, (b) the Applicable Margin for Replacement Term Loans
shall not be higher than the Applicable Margin for Refinanced Term Loans, (c)
the weighted average life to maturity of Replacement Term Loans shall not be
shorter than the weighted average life to maturity of Refinanced Term Loans at
the time of such refinancing and (d) all other terms applicable to Replacement
Term Loans shall be substantially identical to, or less favorable to the Lenders
providing Replacement Term Loans than, those applicable to Refinanced Term
Loans, except to the extent necessary to provide for covenants and other terms
applicable to any period after the Final Maturity Date in effect immediately
prior to such refinancing.
SECTION 11.03 EXPENSES; INDEMNITY.
(a) The Loan Parties agree, jointly and severally, to pay, promptly
upon demand:
(i) all reasonable out-of-pocket costs and expenses incurred by
the Arranger, the Administrative Agent, the Collateral Trustee, the
Swingline Lender and the Issuing Bank, including the reasonable fees,
charges and disbursements of Advisors for the Arranger, the Administrative
Agent, the Collateral Trustee, the Swingline Lender and the Issuing Bank,
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 out-of-pocket costs and expenses incurred by the
Administrative Agent or the Collateral Trustee, including the fees, charges
and disbursements of Advisors for the Administrative Agent and the
Collateral Trustee, 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 Trustee 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 Trustee 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 Trustee, the Swingline Lender, the
Issuing Bank or any Lender, including the fees, charges and disbursements
of Advisors for the Arranger, the Administrative Agent, the Collateral
Trustee, the Swingline Lender, the Issuing Bank 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 or Letters of Credit issued hereunder, the
Credit-Linked Deposits 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
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(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, each Lender, the Issuing Bank and the Swingline Lender, each Affiliate
of any of the foregoing persons and each of their respective partners,
controlling 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 or Credit-Linked Deposits or issuance of Letters of
Credit, (iii) any claim, litigation, investigation or proceeding relating to any
of the foregoing, whether or not any Indemnitee is a party thereto, or (iv) any
actual or alleged presence or Release 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 and LC Reimbursement Obligations, the release of all or
any portion of the Collateral, the expiration of the Commitments, the return or
application of any Credit-Linked Deposit, the expiration of any Letter of
Credit, 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, the Issuing Bank 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, the Issuing Bank or the Swingline
Lender under paragraph (a) or (b) of this Section, each Lender severally agrees
to pay to the Agents, the Issuing Bank or the Swingline Lender, as the case may
be, such Lender's pro rata share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
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, the Issuing Bank or the Swingline Lender 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 total Revolving Exposure,
outstanding Credit-Linked Deposits, outstanding Term Loans and unused
Commitments at the time.
SECTION 11.04 SUCCESSORS AND ASSIGNS.
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(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 (including any Affiliate of the Issuing Bank that issues any
Letter of Credit), except that the Loan Parties may not assign or otherwise
transfer any of their rights or obligations hereunder or under the other Loan
Documents without the prior written consent of the Administrative Agent, the
Collateral Trustee, the Issuing Lender, the Swingline Lender 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 (including any Affiliate of
the Issuing Bank that issues any Letter of Credit) 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 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, the Loans at the time owing to it and the
Credit-Linked Deposits held by it); provided that (i) except in the case of an
assignment to a Lender, an Affiliate of a Lender or a Related Fund, each of the
Administrative Agent and, after the achievement of a Successful Syndication,
Borrower (and, in the case of an assignment of all or a portion of a Revolving
Commitment or any Lender's obligations in respect of its LC Exposure or
Swingline Exposure, the Issuing Bank and the Swingline Lender) 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 (treating simultaneous
assignments by two or more Related Funds as a single transfer for purposes of
such minimum amount), in the case of Terms Loans, Term Loan Commitments or
Credit Linked Deposits being so assigned, and $2.5 million, in the case of
Revolving Loans or Revolving Commitments being so assigned, 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 (with
only one such fee payable in connection with simultaneous assignments to or by
two or more Related Funds) 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.
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). Without the consent of
Borrower (which
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consent shall not be unreasonably withheld) and the Administrative Agent, the
Credit-Linked Deposit of any Funded LC Lender shall not be released in
connection with any assignment by such Funded LC Lender, but shall instead be
purchased by the relevant assignee and continue to be held for application (to
the extent not already applied) in accordance with Section 2.18(e)(iii) to
satisfy such assignee's obligations in respect of Funded LC Disbursements.
(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 LC Disbursements 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, the Issuing Bank and the Lenders may treat each person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by Borrower, the Issuing Bank, the
Collateral Trustee, the Swingline Lender 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.
(e) Any Lender shall have the right at any time, without the consent
of Borrower, the Administrative Agent, the Issuing Bank or the Swingline Lender
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 Commitments, the Loans
owing to it and the Credit-Linked Deposits held by 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,
the Issuing Bank 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
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participation sold to such Participant, unless the sale of the participation to
such Participant is made with the prior written consent of Borrower (which
consent shall not be unreasonably withheld or delayed). 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, the
funding of the Credit-Linked Deposits and the issuance of any Letters of Credit,
regardless of any investigation made by any such other party or on its behalf
and notwithstanding that the Agents, the Issuing Bank or any Lender may have had
notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any
fee or any other amount payable under this Agreement is outstanding and unpaid
or any Letter of Credit or Credit-Linked Deposit is outstanding 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 payment of the LC Reimbursement Obligations, the
expiration or termination of the Letters of Credit and the Commitments, the
return or application of the Credit-Linked Deposits or the termination of this
Agreement or any provision hereof.
SECTION 11.06 COUNTERPARTS; INTEGRATION; EFFECTIVENESS. 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.
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
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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.
(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, the Collateral Trustee, the Issuing Bank 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 party hereto 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,
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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, the
Issuing Bank 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 assignee of or Participant in, any of its rights or obligations
under this Agreement, (ii) any secured creditor to whom any Lender has pledged
its interest in any Loan as otherwise permitted by this Agreement and 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, the Issuing Bank 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,
the Issuing Bank 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
or Credit-Linked Deposit, together with all fees, charges and other amounts
which are treated as interest on such Loan under applicable law (collectively,
the "CHARGES"), shall exceed the maximum lawful rate (the "MAXIMUM RATE") which
may be contracted for, charged, taken, received or reserved by the Lender
holding such Loan or Credit-Linked Deposit in accordance with applicable law,
the rate of interest payable in respect of such Loan or Credit-Linked Deposit
hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan or Credit-Linked Deposit
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 Credit-Linked Deposits 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.
-118-
SECTION 11.14 LENDER ADDENDUM. Each Lender to become a party to this
Agreement on the Closing Date 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
(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 the 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 the Borrower, which information includes the name
and address of the Borrower and other information that will allow such Lender or
the Administrative Agent, as applicable, to identify the Borrower in accordance
with the Act.
[Signature Pages Follow]
-119-
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.
BUILDERS FIRSTSOURCE, INC., as Borrower
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
JLL BUILDING PRODUCTS, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
BUILDERS FIRSTSOURCE NORTHEAST GROUP,
LLC, as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
BUILDERS FIRSTSOURCE - TEXAS GENPAR,
LLC, as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
BUILDERS FIRSTSOURCE - MBS, LLC,
as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
S-1
BUILDERS FIRSTSOURCE - TEXAS GROUP,
L.P.,as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
BFS TEXAS, LLC, as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
BUILDERS FIRSTSOURCE - SOUTH TEXAS,
L.P., as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
BUILDERS FIRSTSOURCE - TEXAS INSTALLED
SALES, L.P., as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
BFS IP, LLC, as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
BUILDERS FIRSTSOURCE - INTELLECTUAL
PROPERTY, L.P., as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
S-2
BUILDERS FIRSTSOURCE HOLDINGS, INC.,
as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
BUILDERS FIRSTSOURCE - DALLAS,
LLC, as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
BUILDERS FIRSTSOURCE - FLORIDA,
LLC, as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
BUILDERS FIRSTSOURCE - FLORIDA DESIGN
CENTER, LLC, as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
BUILDERS FIRSTSOURCE - OHIO VALLEY,
LLC, as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
BFS, LLC, as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
S-3
BUILDERS FIRSTSOURCE - ATLANTIC GROUP,
LLC, as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
BUILDERS FIRSTSOURCE OF NASHVILLE, INC.,
as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
BUILDERS FIRSTSOURCE - SOUTHEAST GROUP,
LLC, as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
BUILDERS FIRSTSOURCE - SNC, LLC,
as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
CCWP, INC., as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
BUILDERS FIRSTSOURCE - RALEIGH,
LLC, as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
S-4
BUILDERS FIRSTSOURCE - COLORADO GROUP,
LLC, as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
BUILDERS FIRSTSOURCE - COLORADO, LLC,
as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
BUILDERS FIRSTSOURCE FINANCING, INC.,
as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
S-5
UBS SECURITIES LLC, as Joint Arranger
and Joint Book Runner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇
Title: Director
UBS AG, STAMFORD BRANCH, as Issuing
Bank, Administrative Agent and
Collateral Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. Saint
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Saint
Title: Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Associate Director
UBS LOAN FINANCE LLC, as Swingline
Lender and a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. Saint
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Saint
Its: Duly Authorized Signatory
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Its: Duly Authorized Signatory
S-6
DEUTSCHE BANK SECURITIES INC.,
as Joint Arranger, Joint Book Runner
and Syndication Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
S-7
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Co-Documentation Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
S-8
LASALLE BANK NATIONAL ASSOCIATION,
as a Co-Documentation Agent
By: /s/ ▇▇▇▇▇ ▇. Cable
------------------------------------
Name: ▇▇▇▇▇ ▇. Cable
Title: Vice President
S-9
ANNEX I
AMORTIZATION TABLE
TERM LOAN
DATE PERCENTAGE
----------------------- ----------
6/30/2005 0.25%
9/30/2005 0.25%
12/31/2005 0.25%
3/31/2006 0.25%
6/30/2006 0.25%
9/30/2006 0.25%
12/31/2006 0.25%
3/31/2007 0.25%
6/30/2007 0.25%
9/30/2007 0.25%
12/31/2007 0.25%
3/31/2008 0.25%
6/30/2008 0.25%
9/30/2008 0.25%
12/31/2008 0.25%
3/31/2009 0.25%
6/30/2009 0.25%
9/30/2009 0.25%
12/31/2009 0.25%
3/31/2010 0.25%
6/30/2010 0.25%
9/30/2010 0.25%
12/31/2010 0.25%
3/31/2011 0.25%
6/30/2011 0.25%
Term Loan Maturity Date Balance
ANNEX II
CONSOLIDATED EBITDA
June 30, 2004 $30,962,000
October 31, 2004 $41,483,000
December 31, 2004 $35,708,000