EXCHANGE AND FORBEARANCE AGREEMENT
Exhibit
10.1
This
Agreement (this "Agreement") is made and entered into as of March 12, 2007,
by
and among Spectrum Brands, Inc., a Wisconsin corporation (the "Company"), and
each of the holders of the Company's 8 ½% Senior Subordinated Notes due 2013
(the "Notes") which have executed and become a party to this Agreement
(individually, a "Consenting Noteholder" and collectively, the "Consenting
Noteholders").
WHEREAS,
the Company issued the Notes pursuant to that certain indenture dated as of
September 30, 2003, by and among the Company, as issuer, the Subsidiary
Guarantors party thereto, as Guarantors, and U.S. Bank National Association,
as
Trustee (the "Trustee"), as amended by a Supplemental Indenture, dated as of
October 24, 2003, a Second Supplemental Indenture dated as of January 20, 2005,
a Third Supplemental Indenture, dated as of February 7, 2005, and a Fourth
Supplemental Indenture, dated as of May 3, 2005 (such indenture, as so amended,
the "Indenture"); and
WHEREAS,
each Consenting Noteholder currently holds the aggregate principal amount of
Notes set forth beneath such Consenting Noteholder's name on the signature
pages
hereto, and each Consenting Noteholder desires to exchange all of the Notes
it
holds for a like principal amount of New Notes (as defined below), subject
to
the terms and conditions set forth herein; and
WHEREAS,
this Agreement sets forth the terms on which the Consenting Noteholders have
agreed (i) to exchange such Consenting Noteholder's Notes for a like principal
amount of new notes (the "New Notes") having substantially the terms set forth
on the Exhibit A attached hereto, (ii) to provide consents reflecting the
Proposed Amendments (as defined below) to the amendment of the Indenture in
connection with the Exchange Offer and (iii) to forbear from taking certain
actions;
NOW,
THEREFORE,
in
consideration of the premises and the mutual covenants and agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby
agree
as follows:
1. The
Exchange Offer.
(a)
The
Company shall commence, not later than March 16, 2007, an offer (the "Exchange
Offer") to all eligible holders of the Notes (each a "Noteholder" and
collectively the "Noteholders") to exchange any and all Notes for New Notes.
In
conjunction with the Exchange Offer, the Company will solicit consents (the
"Consent Solicitation") to proposed amendments to the Indenture to eliminate
substantially all of the restrictive covenants (including all such covenants
which do not require the consent of each affected holder for amendment),
eliminate or modify certain events of default and eliminate or modify related
provisions in the Indenture (the "Proposed Amendments") and a waiver of any
alleged default or existing default under the Indenture that is known to or
has
been asserted by the Consenting Noteholders and an agreement from taking certain
actions under any other debt agreement or instrument of the Company
(collectively, the "Waiver").
| (b) |
The
Company's obligation to consummate the Exchange Offer will be conditioned
upon (i) the entering into by the Company of a credit agreement with
respect to the refinancing, including pursuant to any substitution,
amendment or replacement thereof, of the Company's existing senior
credit
facilities, on substantially similar terms to those set forth in
a
commitment letter that shall have been obtained prior to commencement
of
the Exchange Offer, (ii) the receipt by the Company of the Waiver
from
holders of at least a majority of the Notes, (iii) the execution
and
delivery by the Trustee of a supplemental indenture (the "Supplemental
Indenture") to the Indenture implementing the Proposed Amendments,
(iv)
the qualification under the Trust Indenture Act of 1939 of the indenture
for the New Notes, if required, and the availability of an exemption
under
the Securities Act of 1933, as amended, with respect to the Exchange
Offer, and (v) other customary conditions which are reasonable and
customary in exchange offers such as the Exchange Offer. The Company
will
use its reasonable efforts to satisfy the conditions to the Exchange
Offer.
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| (c) |
As
promptly as practicable on or after the tenth business day after
the
commencement of the Exchange Offer the Company shall, and shall procure
that the guarantors to the Existing Indenture shall, execute and
deliver
the Supplemental Indenture. Following the execution and delivery
of the
Supplemental Indenture and the satisfaction of the other conditions
to the
Exchange Offer, the Company will accept for exchange and exchange
all
Notes that have been validly tendered by Consenting Noteholders as
of such
time (the date of such exchange, the "Settlement Date"). Subject
to the
terms and conditions of the Exchange Offer, the Company will accept
for
exchange and exchange all Notes validly tendered and not validly
withdrawn
in the Exchange Offer.
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2. Agreement
to Forebear.
Each
Consenting Noteholder hereby agrees that it shall not, and shall not permit
any
of its affiliates to, or direct, solicit or encourage any other person to,
exercise, or seek to exercise, whether individually or jointly with any other
Noteholder, any rights or remedies, including any rights under Section 6.02
or
6.05 of the Indenture, that Noteholders or the Trustee may have under the
Indenture or otherwise in connection with any Default or Event of Default (each
as defined in the Indenture) that exists on the date of this Agreement that
is
known to or has been asserted by the Consenting Noteholders, as a result of
the
Company failing to comply with any of its covenants (other than any payment
covenants) set forth in the Indenture or the Notes, and further agrees not
to
take, or permit any of its affiliates, or direct, solicit or encourage any
other
person, to take, any action, including the giving of any notice, under any
other
debt agreement or instrument of the Company that would be inconsistent with
the
foregoing agreements had such action been taken under the Indenture. Each
Consenting Noteholder also agrees to the rescission of any declaration of
acceleration which may be made by the Trustee or any holders of Notes with
respect to such Defaults or Events of Default during the term of this
Agreement.
3. Agreement
to Exchange.
Promptly following commencement of the Exchange Offer, each Consenting
Noteholder will tender its Notes for exchange in the Exchange Offer and not
revoke such tender, and consent to the Proposed Amendments and the Waiver and
not revoke such consent.
2
4. Certain
Conditions.
The
obligations of each Consenting Noteholder under this Agreement are conditioned
upon (i) the Company having received signed commitments from a lender or lenders
with respect to the refinancing, substitution, amendment or replacement of
the
Company’s senior credit facilities; (ii) the representations and warranties of
the Company contained herein being true and correct as of the date hereof,
as at
the date of entry into a supplemental indenture giving effect to the Proposed
Amendments and as at any Settlement Date; (iii) the terms and conditions of
the
exchange of the Notes in the Exchange Offer and the terms of the New Notes
being
in all material respects as set forth herein, and with respect to terms not
set
forth herein, reasonably acceptable to the Consenting Noteholders, and disclosed
in an Exchange Offer Document (that shall include information customary for
similar exchange offers); and (iv) this Agreement not having been terminated
pursuant to Section 11 hereof.
5. Representations
of Consenting Noteholder.
Each
Consenting Noteholder represents and warrants, severally and not jointly, to
the
Company as follows:
| (a) |
The
Consenting Noteholder has all requisite corporate, partnership, or
limited
liability company power and authority to enter into this Agreement
and to
carry out the transactions contemplated hereby, and to perform its
obligations under this Agreement.
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| (b) |
The
execution and delivery of this Agreement have been duly and validly
authorized, and all necessary action has been taken to make this
Agreement
a legal, valid and binding obligation of the Consenting Noteholder,
enforceable in accordance with its
terms.
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| (c) |
The
Consenting Noteholder (together with its affiliates) owns of record
and/or
beneficially, and/or has investment authority or discretion with
respect
to, the aggregate principal amount of Notes set forth next to such
Consenting Noteholder's name on the signature pages hereto, and such
aggregate principal amount of Notes constitutes all of the Notes
so owned
or controlled by such Consenting Noteholder and its affiliates as
of the
date hereof.
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| (d) |
The
Consenting Noteholder owns the Notes free and clear of all claims,
Liens,
title defects and objections of any kind and nature
whatsoever.
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| (e) |
The
proposed sale of the Notes in exchange for the New Notes by such
Consenting Noteholder was privately negotiated in an independent
transaction and was not solicited by or on behalf of the Company
or any of
their affiliates. The terms of this Agreement were the result of
negotiations between the Consenting Noteholder and the
Company.
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| (f) |
Neither
the Consenting Noteholder nor anyone acting on its behalf has received
or
is entitled to receive any commission or remuneration directly or
indirectly in order to solicit or facilitate the Exchange
Offer.
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3
| (g) |
This
Agreement represents the only agreement or arrangement between the
Company, on the one hand, and the Consenting Noteholder on the other
hand,
with respect to the Exchange Offer.
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6. Representations
of the Company.
The
Company represents and warrants to the Consenting Noteholders as
follows:
| (a) |
The
Company has all requisite corporate, power and authority to enter
into
this Agreement and to carry out the transactions contemplated hereby,
and
to perform its obligations under this
Agreement;
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| (b) |
The
execution and delivery of this Agreement have been duly and validly
authorized, and all necessary action has been taken to make this
Agreement
a legal, valid and binding obligation of the Company, enforceable
in
accordance with its terms;
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| (c) |
Subject
to the accuracy of the representations and warranties of the Consenting
Noteholders contained in Section 5 hereof and of the Company, the
issuance
of New Notes is exempt from the registration and prospectus delivery
requirements of the Securities Act;
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| (d) |
There
is no broker, investment banker, financial advisor, finder or other
person
which has been retained by or is authorized to act on behalf of such
Company who might be entitled to any fee or commission for which
the
Consenting Noteholders will be liable in connection with the execution
of
this Agreement or the transactions contemplated
hereby;
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| (e) |
The
Company is not in violation of (i) any provision of the charter or
bylaws
of the Company, (ii) (other than with respect to any Defaults or
Events of
Default referred to above) any of the terms, conditions or provisions
of
any material note, bond, mortgage, indenture, license, contract,
agreement
or other instrument or obligation to which the Company or any of
its
subsidiaries is a party or by which any of them or any of their properties
or assets may be bound, or (iii) order, writ, injunction, decree,
statute,
law, rule or regulation applicable to the Company, any of its subsidiaries
or any of their respective properties or
assets;
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| (f) |
There
is no action, suit, proceeding, inquiry or other investigation before
or
brought by any court or governmental agency or body, domestic
or foreign,
now pending, or, to the knowledge of the Company or any subsidiary,
threatened, against or affecting the Company or its subsidiaries
(other
than any such action, suit, proceeding, inquiry or investigation
as may
relate to the Notes or any Default or alleged Default or Event of
Default
or alleged Event of Default) which, singly or in the aggregate, would
materially and adversely the properties or assets of the Company
and its
subsidiaries;
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| (g) |
The
Company and its Affiliates have not, directly or indirectly, solicited
any
offer to buy, sold or offered to sell or otherwise negotiated in
respect
of, and will not, directly or indirectly, solicit any offer to buy,
sell
or offer or otherwise negotiate in respect of, in the United States
or to
any United States citizen or resident, any security which is or would
be
integrated with the New Notes in a manner that would require the
New Notes
to be registered under the Securities Act;
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4
| (h) |
On
or prior to the date hereof, the Company has received signed commitments
from a lender or lenders, subject to customary conditions, sufficient
to
enable it to amend, substitute, replace or refinance its existing
senior
credit facilities.
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7. Additional
Notes Subject.
Nothing
in this Agreement shall be deemed to limit or restrict the ability or right
of
any Consenting Noteholder from acquiring any additional Notes (the "Additional
Notes") from and after the issuance of the press release referenced in Section
9(a) of this Agreement; provided,
however,
that in
the event that any Consenting Noteholder acquires any Additional Notes after
such time and prior to the Settlement Date, such Additional Notes shall
immediately upon acquisition, and without further action on the part of the
Company or the Consenting Noteholders, become subject to the terms and
conditions of this Agreement. Each Consenting
Noteholder shall as promptly as practicable notify the Company
of any
such acquisition, and the Consenting Noteholder agrees to execute and deliver
within five (5) business days of the closing of such acquisition any additional
documents that the Company
shall
request to evidence that such Additional Notes are subject to the provisions
of
this Agreement as of the date of acquisition.
8. No
Transfer.
Except
as set forth below, each Consenting Noteholder agrees, without the prior written
consent of the Company, not to sell, transfer, assign or otherwise dispose
of
any Notes, including any Additional Notes, on or prior to the Settlement Date,
unless the transferee accepts such Notes subject to the terms of this Agreement.
In the event that a Consenting Noteholder transfers Notes on or prior to the
Settlement Date, such transferee shall comply with and be subject to the terms
of this Agreement, including but not limited to, the Consenting Noteholder's
obligations to tender the Notes pursuant to the Exchange Offer and consent
to
the Proposed Indenture and the Waiver, and as a condition precedent to the
transfer, execute a signature page hereto upon which it shall become a party
hereto and a Consenting Noeteholder hereunder. Any sale, transfer, assignment,
or other disposition of any Notes in violation of this Section shall be void
ab
initio. Concurrently with any such transfer, a Consenting Noteholder shall
notify the Company pursuant to the notice provisions contained in Section 13
hereof, in writing, of such transfer and promptly thereafter provide the
executed documents as provided for in this paragraph.
9. Other
Agreements of the Company.
(a)
The
Company will issue a press release or press releases reasonably acceptable
to
the Consenting Noteholders announcing its intention to conduct the Exchange
Offer and the receipt of its commitment to the refinancing of its senior credit
facilities not later than 8:00 a.m. (New York Time) on March 12, 2007; and
will
file or furnish such press release to the SEC on Form 8-K promptly thereafter,
which Form 8-K will include as an exhibit this Agreement. The Company shall
provide the Consenting Noteholders a draft of such announcement or announcements
at least 24 hours prior to release, and in any event shall provide the
Consenting Noteholders a reasonable opportunity to review and comment on such
press release or releases.
5
(b) The
Company will reimburse the Consenting Noteholders for all reasonable
out-of-pocket fees and expenses of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, counsel to the
Consenting Noteholders, and of one counsel to the Trustee, incurred by the
Consenting Noteholders (i) prior to the date hereof in connection with their
analysis and assertion of Defaults and Events of Default and (ii) subsequent
to
the date hereof and prior to the Settlement Date in connection with the
transactions contemplated by this Agreement (including, for the avoidance of
doubt, the reasonable fees and expenses of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP with respect
to
the review and comment on, and negotiation with respect to, this
Agreement).
(c) The
Company will pay accrued interest on the Notes to the Consenting Noteholders
in
cash on the Settlement Date.
(d) The
Company will use its reasonable best efforts (i) to effect the qualification
of
the indenture for the New Notes under the Trust Indenture Act of 1939 and (ii)
to enable the Exchange Offer to be exempt from the registration requirements
under the Securities Act of 1933, as amended.
10. Not
an
Amendment or Waiver.
It is
acknowledged and agreed, that except as expressly provided for herein, the
entering into this Agreement does not constitute a full or partial amendment
or
waiver of any of such Consenting Noteholder's rights or remedies under the
Indenture, the Notes or at law or otherwise, and each Consenting Noteholder
hereby reserves such rights and remedies.
11. Termination
of Agreement.
(a)
This
Agreement may be terminated by the Company or Consenting Noteholders
beneficially owning at least 70% of the aggregate principal amount of the Notes
held by all Consenting Noteholders by notice by the Company or the Consenting
Noteholders, as applicable, to the other, (i) upon the breach by the
non-terminating party of any of the representations, warranties or covenants
in
this Agreement and (ii) at any time from and after April 10, 2007 in the event
that the Settlement Date has not occurred on or prior thereto; provided,
however, that the right to terminate this Agreement shall not be available
to
the Company or the Consenting Noteholders where the failure of the Settlement
Date to so occur has resulted from the breach by the party wishing to terminate
of its respective obligations hereunder.
(b) None
of
the representations, warranties and agreements contained herein shall survive
the termination of this Agreement or the consummation of the Exchange Offer,
unless the termination pursuant to (a)(ii) above is being challenged by one
of
the parties hereto and specific performance is being pursued pursuant to
paragraph 14 below .
12. Amendments
and Waivers.
This
Agreement may not be modified, amended, or supplemented or any provision herein
waived without the prior written consent of the Company and the Consenting
Noteholders of at least a majority in aggregate principal amount of the Notes
held by all Consenting Noteholders.
13. Notices.
All
notices, requests, consents and other communications hereunder shall be in
writing, shall be addressed to the receiving party's address set forth herein,
or to such other address as a party may designate by written notice hereunder,
and shall be either (i) delivered by hand, (ii) made by facsimile transmission,
(iii) sent by overnight courier, or (iv) sent by registered or certified mail,
return receipt requested, postage prepaid.
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If
to the
Company, to:
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
General Counsel
If
to the
Consenting Noteholders, to:
The
addresses noted on Exhibit B hereto.
All
notices, requests, consents and other communications hereunder shall be deemed
to be received (i) if by hand, at the time of the delivery thereof to the
receiving party at the address of such party, set forth herein, (ii) if made
by
facsimile transmission, at the time that the receipt thereof has been
acknowledged by electronic confirmation or otherwise, (iii) if sent by overnight
courier, on the next business day following the day such written notice is
delivered to the courier service, or (iv) if sent by registered or certified
mail, return receipt requested, postage prepaid, on the third business day
following the day such mailing is mailed.
14. Governing
Law; Jurisdiction.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, without regard to any conflicts of law provisions. By its
execution and delivery of this Agreement, each of the parties hereto irrevocably
and unconditionally agrees for itself that any legal action, suit or proceeding
against it with respect to any matter under or arising out of or in connection
with this Agreement or for recognition or enforcement of any judgment rendered
in any such action, suit or proceeding, may be brought in the United States
District Court for the Southern District of New York. By execution and delivery
of this Agreement, each of the parties hereto irrevocably accepts and submits
itself to the nonexclusive jurisdiction of such court, generally and
unconditionally, with respect to any such action, suit or
proceeding.
15. Specific
Performance.
It is
understood and agreed by each of the parties hereto that any breach of this
Agreement would give rise to irreparable harm for which money damages would
not
be an adequate remedy and accordingly, and the parties hereto agree that in
addition to any other remedies, each party shall be entitled to enforce the
terms of this Agreement by a decree of specific performance or injunctive relief
without the necessity of proving the inadequacy of money damages as a remedy
or
posting a bond or other security.
16. Headings.
The
headings of the sections of this Agreement are inserted for convenience only
and
shall not affect the interpretation of this Agreement.
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17. Successors
and Assigns.
This
Agreement is intended to bind and inure to the benefit of the parties hereto
and
their respective successors, assigns, heirs, executors, administrators and
representatives.
18. Entire
Agreement.
This
Agreement constitutes the entire agreement of the parties hereto with respect
to
the subject matter of this Agreement and supersedes all other prior
negotiations, agreements, and understandings, whether written or oral, among
the
parties with respect to the subject matter of this Agreement.
19. Counterparts.
This
Agreement may be executed and delivered (including by facsimile transmission)
in
one or more counterparts, each of which shall be deemed an original and all
of
which shall constitute one and the same Agreement.
20. No
Third-Party Beneficiaries.
This
Agreement shall be solely for the benefit of the parties hereto and no other
person or entity shall be a third-party beneficiary of this
Agreement.
21. Severability.
Any
term or provision of this Agreement that is invalid or unenforceable in any
jurisdiction, shall, as to that jurisdiction, be ineffective to the extent
of
such invalidity or unenforceability without rendering invalid or unenforceable
the remaining terms and provisions of this Agreement or affecting the validity
or enforceability of any of the terms or provisions of this Agreement in any
other jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
22. Expenses.
Except
as otherwise provided herein, each of the parties hereto shall pay its own
expenses in connection with this Agreement and the transactions contemplated
hereby.
23. Public
Announcements.
Without
the prior written consent of the Company, no Consenting Noteholder shall issue,
and each Consenting Noteholder shall instruct its officers, directors,
affiliates, associates, employees, investment bankers, attorneys and other
advisers or representatives not to issue, any press release to a non-affiliated
third party with regard to this Agreement or any of the transactions
contemplated herein, except to the extent disclosure may be required by
applicable law or stock exchange or inter-dealer quotation system rules
applicable to a party (subject to giving the Company written notice of the
intention to make such disclosure prior to such disclosure) or except to the
extent such information has already been publicly disclosed by a non-affiliated
person.
24. Certain
Terms.
The
term “affiliate” as used hereunder shall mean
with
respect to a specified person or entity, a person or entity that directly or
indirectly, through one or more intermediaries, controls, or is controlled
by,
or is under common control with, the person or entity specified.
BEFORE
EXECUTING THIS AGREEMENT, THE CONSENTING NOTEHOLDER SHOULD CONSULT WITH ITS
TAX
AND LEGAL ADVISORS REGARDING THE CONSEQUENCES OF THE EXCHANGE OFFER AND
OWNERSHIP OF THE NEW NOTES.
The
balance of this page has been intentionally left
blank.
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IN
WITNESS WHEREOF, each of the parties has caused this Agreement to be executed
and delivered by its duly authorized officer as of the date first above
written.
| ISSUER/COMPANY: | ||
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| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
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Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title:
Executive Vice President and Chief
Financial
Officer
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HOLDERS:
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SANDELMAN
PARTNERS, LP
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| By: |
//s//
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Name:
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Title:
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In
its capacity as investment manager with discretionary authority in
respect
of:
SANDELMAN
PARTNERS MULTI- STRATEGY MASTER FUND,
LTD.
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| Principal amount of Notes Held: $150,710,000 | ||
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Held
in DTC Participant Code: 0005, 0573, 0050
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▇▇▇▇▇▇▇
ASSET MANAGEMENT CORP.
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| By: |
//s//
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Name:
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Title:
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In
its capacity as investment manager with discretionary authority
in respect
of:
CASTLERIGG
MASTER INVESTMENTS, LTD.
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Principal
amount of Notes Held: $26,000,000
Held
in DTC Participant Code:
7378
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EXHIBIT
B
CONSENTING
NOTEHOLDERS
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Name
|
Address
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EXHIBIT
A
2013
Toggle PIK Exchange Notes
Summary
of Terms and Conditions
[Capitalized
terms not otherwise defined herein have the same meanings
as
specified therefor in the Indenture]
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ISSUER:
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Spectrum
Brands, Inc. (f/k/a Rayovac Corporation), a Wisconsin corporation
(the
"Issuer").
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GUARANTORS:
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Same
as in the Indenture.
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TRUSTEE:
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▇▇▇▇▇
Fargo Bank, N.A. (the "Trustee").
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INTEREST PAYMENT
DATES:
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April
1 and October 1.
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UNSECURED
TOGGLE- PIK NOTES:
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An
aggregate principal amount of up to U.S. $350 million will be available
through the New Notes (the "Unsecured
Toggle-PIK Notes").
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COUPON
SCHEDULE:
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Provisions
for payment of interest and coupon shall be as further described
on
Schedule A attached hereto.
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MATURITY:
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The
Unsecured Toggle-PIK Notes shall be subject to repayment of all
amounts
outstanding, plus
accrued interest, on October 2, 2013.
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ELECTION
NOTIFICATION
DATE:
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The
election notification date with respect to an Interest Period will
be the
second trading day preceding the first day of the Interest
Period.
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INTEREST
PERIOD:
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An
Interest Period shall mean the period commencing on and including
an
interest payment date and ending on and including the day immediately
preceding the next succeeding interest payment date.
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MINIMUM
VALUE
FOR PIK PAY
OPTION
CALCULATION:
|
Commences
10 Trading days prior to the Election Notification
Date.
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MINIMUM
EQUITY
VALUE
FOR PIK
PAY
OPTION:
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Closing
price of SPC common stock must close greater than, for each of
the 10
consecutive trading days prior to the election notification date
for
interest payments on the following dates: (a) $3.00 for October
1, 2007,
April 1, 2008 and October 1, 2008; (b) $4.00 for April 1, 2009
and October
1, 2009; and (c) $5.00 for April 1, 2010 and October 1, 2010. Post
October
1, 2010, no PIK option.
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OPTIONAL
REDEMPTION
SCHEDULE:
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As
further described on Schedule A attached hereto.
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ASSET
SALES:
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Same
as in the Indenture.
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CHANGE
OF CONTROL:
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Redemption
premium equivalent to the optional redemption premium.
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SECTION
4.09,
INCURRENCE
OF INDEBTEDNESS;
CLAUSES
(b)(i)
AND (b)(viii):
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Not
to exceed $1.6 billion; and $50 million.
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EVENTS
OF DEFAULT:
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Same
as in the Indenture.
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WAIVERS
AND AMENDMENTS:
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Same
as in the Indenture.
|
Schedule
A
Unsecured
Toggle Note
Coupon
Schedule,
Toggle
Interest
and
Optional
Redemption Schedule
|
100%
Cash Pay Note
|
PIK
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Coupon
Schedule
|
|||||
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While
Company is below 2:1 Fixed Charge Coverage Ratio
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|
Effective
Date through April 1, 2007
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11.00%
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11.50%
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April
2, 2007 through October 1, 2007
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11.25%
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11.75%
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October
2, 2007 through April 1, 2008
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11.50%
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12.00%
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April
2, 2008 through October 1, 2008
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12.00%
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12.50%
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October
2, 2008 through April 1, 2009
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12.50%
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13.00%
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April
2, 2009 through October 1, 2009
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12.75%
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13.25%
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October
2, 2009 through April 1, 2010
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13.50%
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14.00%
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April
2, 2010 through October 1, 2010
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13.75%
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14.25%
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October
2, 2010 through April 1, 2011
|
14.00%
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Cash
Pay thereafter
|
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April
2, 2011 through October 1, 2011
|
14.25%
|
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October
2, 2011 through April 1, 2012
|
14.50%
|
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April
2, 2012 through October 1, 2012
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14.75%
|
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October
2, 2012 through April 1, 2013
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15.00%
|
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April
2, 2013 through October 1, 2013
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15.25%
|
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As
soon as the Company is Above 2:1 Fixed Charge Coverage
Ratio
|
The
then applicable rate increases by 100 bps
|
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|
Optional
Redemption Schedule
|
|||||
|
Effective
Date through Sept 31, 2007
|
110%
of face plus accrued
|
110%
of face plus accrued
|
|||
|
October
1, 2007 through Sept 31, 2008
|
109%
of face plus accrued
|
109%
of face plus accrued
|
|||
|
October
1, 2008 through Sept 31, 2009
|
102%
of face plus accrued
|
102%
of face plus accrued
|
|||
|
October
I, 2009 through Sept 31, 2010
|
101%
of face plus accrued
|
101%
of face plus accrued
|
|||
|
October
1, 2010 and thereafter
|
100%
of face plus accrued
|
100%
of face plus accrued
|
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