Exhibit 10.1
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ATRIUM COMPANIES, INC.,
as Borrower,
and
THE GUARANTORS PARTY HERETO
---------------
CREDIT AGREEMENT
Dated as of December 28, 2004
---------------
VARIOUS FINANCIAL INSTITUTIONS AND OTHER PERSONS
FROM TIME TO TIME PARTIES HERETO,
as the Lenders,
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL, a division of ▇▇▇▇▇▇▇ ▇▇▇▇▇
Business Financial Services Inc.,
as the Administrative Agent and the Collateral Agent,
and
UBS SECURITIES LLC,
as the Sole Lead Arranger, Sole Bookrunner and Syndication Agent
and
ANTARES CAPITAL CORPORATION
CITICORP NORTH AMERICA, INC.
and
GENERAL ELECTRIC CAPITAL CORPORATION,
as Co-Documentation Agents
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
TABLE OF CONTENTS
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Section 1. Definitions, Accounting Matters and Rules of
Construction.....................................................2
1.01. Certain Defined Terms............................................2
1.02. Accounting Terms and Determinations.............................32
1.03. Classes and Types of Loans......................................32
1.04. Rules of Construction...........................................32
Section 2. Commitments, Letters of Credit, Fees, Register,
Prepayments and Replacement of Lenders..........................33
2.01. Loans...........................................................33
2.02. Borrowings......................................................35
2.03. Letters of Credit...............................................35
2.04. Termination and Reductions of Commitments.......................40
2.05. Fees............................................................40
2.06. Lending Offices.................................................40
2.07. Several Obligations of Lenders..................................41
2.08. Notes; Register.................................................41
2.09. Optional Prepayments and Conversions or Continuations
of Loans.....................................................41
2.10. Mandatory Prepayments...........................................42
2.11. Replacement of Lenders..........................................44
Section 3. Payments of Principal and Interest..............................45
3.01. Repayment of Loans..............................................45
3.02. Interest........................................................45
Section 4. Payments; Pro Rata Treatment; Computations; Etc.................46
4.01. Payments........................................................46
4.02. Pro Rata Treatment..............................................46
4.03. Computations....................................................46
4.04. Minimum Amounts.................................................47
4.05. Certain Notices.................................................47
4.06. Non Receipt of Funds by the Administrative Agent................48
4.07. Right of Setoff; Sharing of Payments; Etc.......................48
Section 5. Yield Protection, Etc...........................................49
5.01. Additional Costs................................................49
5.02. Limitation on Types of Loans....................................51
5.03. Illegality......................................................51
5.04. Treatment of Affected Loans.....................................51
5.05. Compensation....................................................52
5.06. Net Payments....................................................52
Section 6. Guarantee.......................................................55
6.01. The Guarantee...................................................55
6.02. Obligations Unconditional.......................................55
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6.03. Reinstatement...................................................56
6.04. Subrogation; Subordination......................................56
6.05. Remedies........................................................57
6.06. Instrument for the Payment of Money.............................57
6.07. Continuing Guarantee............................................57
6.08. General Limitation on Guarantee Obligations.....................57
Section 7. Conditions Precedent............................................57
7.01. Effectiveness of Credit Agreement and Initial
Extension of Credit Under the Credit Agreement...............57
7.02. Initial and Subsequent Extensions of Credit Under This
Agreement....................................................63
7.03. Certifications..................................................64
Section 8. Representations and Warranties..................................64
8.01. Corporate Existence.............................................64
8.02. Financial Condition; Etc........................................64
8.03. Litigation......................................................64
8.04. No Breach; No Default...........................................65
8.05. Action..........................................................65
8.06. Approvals.......................................................65
8.07. Representations and Warranties in Transaction Documents.........65
8.08. ERISA...........................................................65
8.09. Taxes...........................................................66
8.10. Investment Company Act; Public Utility Holding Company
Act; Other Restrictions......................................66
8.11. Environmental Matters...........................................67
8.12. Environmental Investigations....................................67
8.13. Use of Proceeds.................................................67
8.14. Subsidiaries....................................................68
8.15. Properties......................................................68
8.16. Security Documents..............................................68
8.17. Licenses and Permits; Compliance with Laws......................69
8.18. True and Complete Disclosure....................................69
8.19. Solvency; Etc...................................................70
8.20. Contracts.......................................................70
8.21. Labor Matters...................................................70
8.22. Intellectual Property...........................................70
8.23. Anti Terrorism Laws.............................................71
Section 9. Covenants.......................................................71
9.01. Financial Statements, Etc.......................................71
9.02. Litigation, Etc.................................................74
9.03. Existence; Compliance with Law; Payment of Taxes;
Inspection Rights; Performance of Obligations; Etc...........74
9.04. Insurance.......................................................75
9.05. Limitation on Lines of Business.................................76
9.06. Limitation on Fundamental Changes, Acquisitions and
Dispositions.................................................76
9.07. Limitation on Liens and Related Matters.........................79
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9.08. Prohibition on Disqualified Capital Stock; Limitation
on Indebtedness and Contingent Obligations...................82
9.09. Limitation on Investments; Limitation on Creation of
Subsidiaries.................................................83
9.10. Limitation on Dividend Payments.................................86
9.11. Financial Covenants.............................................86
9.12. Pledge or Mortgage of Additional Collateral.....................88
9.13. Security Interests; Further Assurances..........................90
9.14. Compliance with Environmental Laws..............................90
9.15. Limitation on Transactions with Affiliates......................91
9.16. Limitation on Accounting Changes; Limitation on
Investment Company Status....................................92
9.17. Limitation on Modifications of Certain Documents, Etc...........92
9.18. Interest Rate Protection Agreements.............................92
9.19. Limitation on Certain Restrictions Affecting
Subsidiaries.................................................92
9.20. Additional Obligors.............................................92
9.21. Limitation on Designation of Designated Senior
Indebtedness.................................................93
9.22. Foreign Subsidiaries' Security..................................93
9.23. Limitation on Activities of Holdings............................93
9.24. Limitation on Issuance or Dispositions of Equity
Interests of Companies.......................................94
9.25. Limitation on Payments or Prepayments of Subordinated
Debt or Modification of Debt Documents.......................94
9.26. Casualty and Condemnation.......................................94
9.27. Tax Sharing Arrangements........................................95
9.28. Use of Proceeds.................................................95
9.29. Rating of Loans.................................................95
9.30. Sale and Leaseback..............................................95
9.31. Account Maintenance.............................................95
9.32. Anti Terrorism Law; Anti Money Laundering.......................96
9.33. Embargoed Person................................................96
9.34. Post Closing Obligations........................................96
Section 10. Events of Default...............................................96
Section 11. The Agents......................................................99
11.01. General Provisions...........................................99
11.02. Indemnification.............................................102
11.03. Consents Under Other Credit Documents.......................102
11.04. Assistance by Lenders.......................................102
11.05. Agency for Perfection.......................................102
11.06. Right to Perform, Preserve and Protect......................102
11.07. Disbursements of Revolving Credit Loans; Payment............103
11.08. Syndication Agent and the Documentation Agents..............105
Section 12. Application of Proceeds........................................105
Section 13. Miscellaneous..................................................106
13.01. Waiver......................................................106
13.02. Notices.....................................................106
13.03. Expenses, Indemnification, Etc..............................106
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13.04. Amendments, Etc.............................................108
13.05. Successors and Assigns......................................111
13.06. Assignments and Participations..............................111
13.07. Survival....................................................113
13.08. Captions....................................................114
13.09. Counterparts; Interpretation; Effectiveness.................114
13.10. Governing Law; Submission to Jurisdiction; Waivers;
Etc.........................................................114
13.11. Confidentiality.............................................114
13.12. Independence of Representations, Warranties and
Covenants...................................................115
13.13. Severability................................................115
13.14. Acknowledgments.............................................115
13.15. Limitation on Interest......................................115
13.16. USA PATRIOT Act Notice......................................116
13.17. Publication; Advertisement..................................116
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ANNEX A - General Terms of Permitted Receivables
Transaction
SCHEDULE 1.01(a) - Existing Letters of Credit
SCHEDULE 1.01(b) - Subsidiary Guarantors
SCHEDULE 3.01(b) - Amortization Schedule
SCHEDULE 7.01(v) - Indebtedness
SCHEDULE 7.01(x)(c) - Deposit Accounts and Securities Accounts
SCHEDULE 7.01(x)(f) - Landlord Access Agreement Locations
SCHEDULE 8.03 - Litigation
SCHEDULE 8.11 - Environmental Matters
SCHEDULE 8.14 - Subsidiaries of Borrower
SCHEDULE 8.15 - Property
SCHEDULE 8.20 - Certain Contracts
SCHEDULE 8.21 - Labor Matters
SCHEDULE 8.22 - Intellectual Property
SCHEDULE 9.06(k) - Certain Properties to Be Leased or Subleased
SCHEDULE 9.09 - Investments
SCHEDULE 9.15 - Existing Affiliate Agreements
SCHEDULE 9.32 - Liens to be Removed Post-Closing
EXHIBIT A-1 - Form of Revolving Credit Note
EXHIBIT A-2 - Form of Term Loan Note
EXHIBIT A-3 - Form of Swing Loan Note
EXHIBIT B - Form of Intercompany Note
EXHIBIT C - Form of Interest Rate Certificate
EXHIBIT D - [RESERVED]
EXHIBIT E - Form of Security Agreement
EXHIBIT F - Form of Perfection Certificate
EXHIBIT G - Form of Opinion of Counsel to the Obligors
to Be Delivered on the Closing Date
EXHIBIT H - Form of Notice of Assignment
EXHIBIT I - Form of Notice of Borrowing
EXHIBIT J - Form of Notice of Conversion/Continuation
EXHIBIT K - Form of Joinder Agreement
EXHIBIT L - Form of Section 5.06 Certificate for Lenders
EXHIBIT M - Form of Solvency Certificate
EXHIBIT N - Form of Assignment Agreement
EXHIBIT O - Form of Landlord Access Agreement
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CREDIT AGREEMENT
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THIS CREDIT AGREEMENT, dated as of December 28, 2004, is among
ATRIUM COMPANIES, INC., a Delaware corporation ("Borrower"), ACIH, INC., a
Delaware corporation ("Holdings"), the Subsidiary Guarantors, each of the
lenders that is a signatory hereto identified under the caption "LENDERS" on the
signature pages hereto or that, pursuant to Section 13.06(b), shall become a
"Lender" hereunder (collectively, the "Lenders"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL, a
division of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Business Financial Services Inc., as the
administrative agent (in such capacity, the "Administrative Agent") for the
Lenders and as the collateral agent (in such capacity, the "Collateral Agent")
for the Creditors, UBS SECURITIES LLC ("UBSS"), as the syndication agent (in
such capacity, the "Syndication Agent") and as the sole lead arranger and sole
bookrunner (in such capacities, the "Lead Arranger") and ANTARES CAPITAL
CORPORATION, CITICORP NORTH AMERICA, INC. and GENERAL ELECTRIC CAPITAL
CORPORATION, as the co-documentation agents (in such capacity, the
"Documentation Agents") for the Lenders.
W I T N E S S E T H:
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WHEREAS, Borrower proposes to refinance (the "Refinancing") its
$225.0 million aggregate principal amount 10 1/2% Senior Subordinated Notes due
2009 (the "Existing Notes") and the indebtedness under its Credit Agreement,
dated as of December 10, 2003, as amended, with Canadian Imperial Bank of
Commerce, as Administrative Agent (the "Existing Bank Debt");
WHEREAS, in connection with the Refinancing, Borrower will offer to
purchase the Existing Notes pursuant to a tender offer (the "Tender Offer") and
on the Closing Date (as defined herein) will give an irrevocable notice of
redemption with respect to any Existing Notes not tendered in the early consent
portion of the Tender Offer (such notice and the delivery thereof, the "Existing
Notes Redemption Notice" and all transactions related to such redemption and the
consummation thereof, the "Existing Notes Redemption");
WHEREAS, the sources of funds required to fund the Refinancing, the
Tender Offer, the Existing Notes Redemption, the payment of accrued interest,
consent fees and redemption premiums in connection with the Refinancing, to pay
fees, commissions and expenses of approximately $6.5 million in connection with
the Transactions and to provide ongoing working capital requirements of Borrower
and its Subsidiaries following the Refinancing will include:
(i) senior secured credit facilities consisting, pursuant to this
Agreement, of (x) a senior secured term loan facility to Borrower of up to
$325.0 million and (y) a senior secured revolving credit facility to
Borrower of up to $50.0 million, which will be undrawn on the closing date
of the Refinancing (subject to the issuance of Letters of Credit on the
Closing Date); and
(ii) the issuance by Holdings of $125.0 million aggregate gross
proceeds of senior discount notes due 2012 (the "Holdings Notes") pursuant
to a Rule 144A offering or other private placement (the "Holdings Notes
Offering");
WHEREAS, as part of the Refinancing, Borrower has formed Holdings,
which will initially be a new wholly-owned subsidiary of Borrower and Holdings
has formed Atrium Merger Sub 2, Inc., a Delaware corporation ("Newco");
WHEREAS, as part of the Refinancing, Borrower will dividend (the
"Holdings Dividend") all of the outstanding capital stock of Holdings to Parent;
WHEREAS, as part of the Refinancing, immediately following the
Holdings Dividend and pursuant to an agreement and plan of merger (the "Merger
Agreement") dated as of December 28, 2004 by and between Borrower and Newco,
Borrower will be merged (the "Merger") with and into Newco, with Borrower being
the surviving corporation;
WHEREAS, in connection with the Refinancing and the ongoing working
capital and general corporate needs of Borrower and its Subsidiaries, Borrower
desires to obtain the Commitments on the terms and conditions set forth herein;
and
WHEREAS, the Lenders and the Issuing Lender are willing, on the
terms and subject to the conditions hereinafter set forth, to extend the
Commitments and make Loans to Borrower and issue (or participate in) Letters of
Credit.
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained herein, the parties hereto agree as follows:
Section 1. Definitions, Accounting Matters and Rules of Construction.
1.01. Certain Defined Terms. As used herein, the following terms shall have the
following meanings:
"ABR Loans" shall mean Loans that bear interest at rates based upon
the Alternate Base Rate.
"Account" shall mean any account (as that term is defined in Section
9-106 of the UCC) of any Company arising from the sale or lease of goods or
rendering of services.
"Acquisition" shall mean, with respect to any Person, any
transaction or series of related transactions for the direct or indirect (a)
acquisition of all or substantially all of the Property of any other Person, or
of any business or division of any other Person, (b) acquisition of in excess of
50% of the Equity Interests of any other Person, or otherwise causing any other
Person to become a Subsidiary of such Person, or (c) merger or consolidation or
any other combination with any other Person.
"Acquisition Consideration" shall mean the purchase consideration
for any Acquisition and all other payments made and Indebtedness assumed by any
Company in exchange for, or as part of, or in connection with, any Acquisition,
whether paid in cash or by exchange of Equity Interests or of assets or
otherwise and whether payable at or prior to the consummation of such
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 and liabilities representing the purchase price and the amount
of any Indebtedness assumed, "earn-outs" and other similar agreements in an
amount reasonably determined in good faith by Borrower (such determination to
include Borrower's good faith judgment as to whether any contingencies or other
conditions associated with any such "earn-out" or similar arrangement are
reasonably likely to be met or satisfied) at the time of consummation of such
Acquisition equal to the net present value of the payment provided for in such
"earn-out" or other similar agreement, consulting agreements (exclusive of
consulting or employment agreements for services rendered in the ordinary course
of business) and service agreements and non-competition agreements.
"Act" see Section 13.16.
"Additional Collateral" see Section 9.12.
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"Adjusted Net Income" shall mean, for any period, the consolidated
net income (loss) for such period, of Borrower and its Consolidated Subsidiaries
calculated on a consolidated basis in accordance with GAAP, adjusted by
excluding (to the extent taken into account in the calculation of such
consolidated net income (loss)) the effect of (a) gains or losses for such
period from Dispositions not in the ordinary course of business and Excluded
Dispositions not in the ordinary course of business, and the tax consequences
thereof, (b) any non-recurring or extraordinary items of income or expense for
such period and the tax consequences thereof (including expenses related to the
Transactions or any Permitted Acquisition); provided that an item will not be
considered "non-recurring" if it is in the ordinary course of continuing
operations, (c) the portion of net income (loss) of any Person (other than a
Subsidiary) in which Borrower or any Subsidiary has an ownership interest,
except to the extent of the amount of cash dividends or other cash distributions
actually paid to Borrower or (subject to clause (d) below) any Subsidiary during
such period to the extent not in excess of Borrower's or such Subsidiary's
proportionate interest in such Person's consolidated net income for such period,
(d) the net income of any Subsidiary to the extent that the declaration or
payment of dividends or similar distribution by such Subsidiary was not for the
relevant period permitted (without giving effect to any non-permanent waiver),
directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to such Subsidiary or its stockholders, (e) any unrealized
gains or losses relating to hedging transactions and ▇▇▇▇-to-market in foreign
currencies or Swap Contracts, (f) any non-cash impairment charges resulting from
intangible assets, and (g) any net after-tax income or loss from discontinued
operations and any net after-tax gains or losses on disposal of discontinued
operations.
"Administrative Agent" see the introduction to this Agreement.
"Advance Date" see Section 4.06.
"Affiliate" shall mean, with respect to any Person, any other Person
which directly or indirectly controls, or is under common control with, or is
controlled by, such Person. As used in this definition, "control" (including,
with its correlative meanings, "controlled by" and "under common control with")
shall mean possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise).
Notwithstanding the foregoing, solely for purposes of Section 9.15, no Company
shall be deemed an Affiliate of any other Company. No Creditor will be deemed to
be an Affiliate of any Company solely by reason of its relationship with such
Company arising from the Credit Documents.
"Affiliate Transaction" see Section 9.15.
"Agent" shall mean any of the Administrative Agent, the Collateral
Agent, the Documentation Agents or the Syndication Agent; provided, that for
purposes of Section 11 "Agent" shall mean only the Administrative Agent or the
Collateral Agent, as the context requires.
"Agreement" shall mean, on any date, this Credit Agreement as
originally in effect on the Closing Date and as thereafter from time to time
amended, supplemented, amended and restated or otherwise modified from time to
time and in effect on such date.
"Alternate Base Rate" shall mean for any day, a rate per annum that
is equal to the higher of (i) the Federal Funds Rate, plus 0.50%, or (ii) the
Prime Rate.
"Amortization Payment" shall mean each scheduled installment of
principal payments on the Term Loans as set forth in Section 3.01(b).
"Anti-Terrorism Laws" see Section 8.23.
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"Applicable Lending Office" shall mean, for each Lender and for each
Type of Loan, the "Lending Office" of such Lender (or of an Affiliate of such
Lender) designated for such type of Loan on the signature pages hereof or such
other office of such Lender (or of an Affiliate of such Lender) as such Lender
may from time to time specify in writing to the Administrative Agent and
Borrower as the office by which its Loans of such Type are to be made and
maintained.
"Applicable Margin" shall mean:
(a) with respect to Term Loans, 1.50% for Term Loans maintained as
ABR Loans and 2.50% for Term Loans maintained as LIBOR Loans; and
(b) with respect to Revolving Credit Loans, (i) at all times prior
to the Reset Date, 1.25% for Revolving Credit Loans maintained as ABR
Loans and 2.25% for Revolving Credit Loans maintained as LIBOR Loans and
(ii) at all times after the Reset Date, the applicable percentage set
forth below corresponding to the relevant Total Leverage Ratio determined
by reference to the Total Leverage Ratio set forth in the Interest Rate
Certificate most recently delivered by Borrower to the Administrative
Agent:
Applicable
Applicable Margin for
Margin for Revolving Credit
Revolving Credit Loans
Leverage Loans Maintained as Maintained as
Ratio ABR Loans LIBOR Loans
----- --------- -----------
= 4.00:1 1.75% 2.75%
< 4.00:1 but = 3.75:1 1.50% 2.50%
< 3.75:1 but = 3.25:1 1.25% 2.25%
< 3.25:1 but = 2.75:1 1.00% 2.00%
< 2.75:1 0.75% 1.75%
Changes in the Applicable Margin resulting from a change in the Total Leverage
Ratio shall become effective upon delivery by Borrower to the Administrative
Agent of a new Interest Rate Certificate pursuant to Section 9.01(e). If
Borrower fails to deliver the Interest Rate Certificates and financial
statements within the times specified in Sections 9.01(a), (b) and (e), the
Total Leverage Ratio shall be deemed to be that in the highest Applicable Margin
set forth above until but not including the date on which Borrower delivers such
Interest Rate Certificates and financial statements.
"Approved Fund" shall mean, with respect to any Lender that is a
fund or commingled investment vehicle that invests in commercial loans, any
other fund that invests in commercial loans and is administered, managed or
advised by the same investment advisor as such Lender or by an Affiliate of such
investment advisor.
"A/R Facility" shall mean Borrower's existing receivables
securitization facility established pursuant to the A/R Facility Documentation.
"A/R Facility Documentation" shall mean that certain Receivable
Purchase Agreement dated as of July 31, 2001, among Atrium Funding Corporation,
Borrower, Fairway Finance Corporation and BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Corp., as amended,
and that certain Purchase and Sale Agreement dated July 31, 2001, between the
various entities listed on Schedule A thereto and Atrium Funding Corporation, as
amended.
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"Bankruptcy Code" shall mean the Federal Bankruptcy Code of 1978, as
amended.
"Borrower" see the introduction to this Agreement.
"Business Day" shall mean any day (a) on which commercial banks are
not authorized or required to close in Chicago, New York City or Dallas, Texas
and (b) if such day relates to a borrowing of, a payment or prepayment of
principal of or interest on, a Continuation or Conversion of or into, or an
Interest Period for, a LIBOR Loan or a notice by Borrower with respect to any
such borrowing, payment, prepayment, Continuation, Conversion or Interest
Period, that is also a day on which dealings in Dollar deposits are carried out
in the London interbank market.
"Capital Expenditures" shall mean, for any period, any direct or
indirect expenditures of Borrower and the Subsidiaries which should be
capitalized on the consolidated balance sheet of Borrower and the Subsidiaries
in accordance with GAAP in respect of the purchase or other acquisition of fixed
or capital assets (including, without limitation, securities), excluding (i)
normal replacement and maintenance programs properly charged to current
operations, (ii) any expenditure made with the Net Available Proceeds of any
Disposition to the extent such Net Available Proceeds are not required to be
applied to the prepayment of the Loans in accordance with Section 2.10(a)(iv),
(iii) any expenditure made with the proceeds of any Excluded Disposition, (iv)
expenditures in an amount not to exceed the sum of (x) the Net Available
Proceeds of any Casualty Event to the extent such Net Available Proceeds are not
required to be applied to the prepayment of the Loans in accordance with Section
2.10(a)(i) and (y) the amount of any applicable insurance deductibles with
respect to such Casualty Event to the extent such amount is applied as set forth
in clause (x) of Section 2.10(a)(i) within the period specified therein, (v)
expenditures to effect Permitted Acquisitions, (vi) the purchase price of
equipment to the extent that the consideration therefor consists of used or
surplus equipment being traded in at such time or the proceeds of a concurrent
sale of such used or surplus equipment, in each case in the ordinary course of
business, (vii) any deposits required to be made in connection with the purchase
or other acquisition of fixed or capital assets; provided, however, that such a
deposit shall no longer be excluded from Capital Expenditures if used to
purchase or acquire fixed or capital assets, (viii) option exercise costs to
acquire Property and the costs of improvements to such Property so long as such
Property is sold within the same fiscal year, (ix) any capitalized interest and
(x) capital expenditures resulting from operating lease conversions pursuant to
Section 9.08(k)(ii).
"Capital Lease," as applied to any Person, shall mean any lease of
any Property by that Person as lessee which, in conformity with GAAP, is
required to be classified and accounted for as a capital lease on the balance
sheet of that Person.
"Capital Lease Obligations" shall mean, for any Person, all
obligations of such Person to pay rent or other amounts under a Capital Lease,
and, for purposes of this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP.
"Casualty Event" shall mean, with respect to any Property (including
Real Property) of any Person, any loss of title with respect to Real Property or
any loss of or damage to or destruction of, or any condemnation or other taking
(including by any Governmental Authority) of, such Property (including Real
Property) for which such Person or any of its Subsidiaries receives insurance
proceeds or proceeds of a condemnation award or other compensation; provided,
however, no such event shall constitute a Casualty Event if (x) such proceeds or
other compensation in respect thereof is less than $1.0 million and (y) all such
proceeds and other compensation in respect of all such events since the Closing
Date are less than $5.0 million. "Casualty Event" shall include but not be
limited to any taking of any Mortgaged Real Property or Real Property of any
Company or any part thereof, in or by condemnation or other eminent domain
proceedings pursuant to any law, general or special, or by reason of the
requisition (other
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than for temporary purposes) of the use or occupancy of any Mortgaged Real
Property or Real Property of any Company or any part thereof, by any
Governmental Authority, civil or military.
"CERCLA" see Section 8.11.
"Change of Control" shall mean any transaction or event (including,
without limitation, an issuance, sale or exchange of Equity Interests, a merger
or consolidation, or a dissolution or liquidation) occurring on or after the
Closing Date (whether or not approved by the board of directors of Parent) as a
direct or indirect result of which (a) if such transaction or event occurs prior
to the consummation of an Initial Public Offering, the Permitted Holders fail to
collectively beneficially own, directly or indirectly, Equity Interests of
Parent representing at least a majority (on a fully diluted basis) of the
aggregate voting power of the Equity Interests of Parent at the time outstanding
or fail to have the ability to appoint at least a majority of the board of
directors of Parent or Borrower; (b) if such transaction or event is an Initial
Public Offering or occurs after the consummation of an Initial Public Offering,
(i) any Person or any group (other than the Permitted Holders) shall (A)
(directly or indirectly) beneficially own in the aggregate Equity Interests of
Parent representing 35% or more (on a fully diluted basis) of the aggregate
voting power of the Equity Interests of Parent at the time outstanding or (B)
have the right or power to appoint, directly or indirectly, a majority or more
of the board of directors of Parent or Borrower or (ii) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the board of directors of Parent or Borrower (together with any new directors
whose election by the shareholders of Parent or Borrower, as applicable, was
approved by a vote of at least a majority of the directors of Parent or
Borrower, as applicable, then still in office who were either directors at the
beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
board of directors of Parent or Borrower, as applicable, then in office; or (c)
if such transaction or event occurs at any time, whether before or after the
consummation of an Initial Public Offering, (i) any event or circumstance
constituting a "change of control" or other similar occurrence under any
Material Indebtedness shall occur which results in an obligation of Parent or
any of its Subsidiaries or any Company to prepay, purchase, offer to purchase,
redeem or defease all or a portion of such Indebtedness or (ii) Parent at any
time ceases to own directly or indirectly 100% of the Equity Interests of
Borrower. For purposes of this definition, the terms "beneficially own" and
"group" shall have the respective meanings ascribed to them pursuant to Section
13(d) of the Exchange Act, except that a Person or group shall be deemed to
"beneficially own" all securities that such Person or group has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time.
"Class" see Section 1.03.
"Closing Date" shall mean the date upon which the initial extension
of credit under this Agreement is made.
"Code" shall mean the United States Internal Revenue Code of 1986,
as amended from time to time, and the U.S. Treasury Regulations promulgated
thereunder.
"Collateral" shall mean all of the Security Agreement Collateral and
Mortgaged Real Property.
"Collateral Agent" see the introduction to this Agreement.
"Commission" shall mean the United States Securities and Exchange
Commission.
"Commitment Letter" shall mean the bank commitment letter, dated
November 29, 2004, from UBS and UBSS to Borrower.
-6-
"Commitments" shall mean the Revolving Credit Commitments and the
Term Loan Commitments.
"Companies" shall mean the Obligors and their respective
Subsidiaries; and "Company" shall mean any of them.
"Consolidated EBITDA" shall mean, for any Measurement Period, the
remainder of (A) the sum (without duplication) of the amounts for such period of
(i) Adjusted Net Income, (ii) income tax expense to the extent deducted in
determining Adjusted Net Income for such period, (iii) the sum of (a) all
interest expense to the extent deducted in determining Adjusted Net Income for
such period, plus (b) an amount equal to the interest (or other fees in the
nature of interest or discount accrued and paid or payable in cash) for such
period on any Permitted Receivables Transaction, plus (c) other than for
purposes of the definition of Excess Cash Flow, Permitted Securitization Fees
paid or payable in cash for such period to the extent deducted in determining
Adjusted Net Income for such period (without duplication of any such amounts
added back pursuant to any other clause of this definition), (iv) depreciation
expenses and amortization expense to the extent deducted in determining Adjusted
Net Income for such period, (v) the non-cash component of any item of expense to
the extent deducted in determining Adjusted Net Income for such period, other
than to the extent requiring an accrual or reserve for future cash expenses in
accordance with GAAP, (vi) the amortization or expensing resulting from the
application of purchase accounting to the extent deducted in determining
Adjusted Net Income, (vii) other than for purposes of calculating Excess Cash
Flow, to the extent deducted in determining Adjusted Net Income, the cash
portion of stock compensation expense related to the departure from Parent or
any of its Subsidiaries of any Person owning any Equity Interests of Parent up
to a maximum of $15.0 million, (viii) expenses resulting from changes in
accounting methods, (ix) the non-cash portion of stock compensation expense to
the extent not requiring any cash expenses in the relevant Measurement Period
and (x) non-capitalized acquisition or transaction expenses, all as determined
on a consolidated basis for Borrower and its Consolidated Subsidiaries in
accordance with GAAP, minus (B) the sum of (1) cash dividends and other
distributions paid by Borrower pursuant to Sections 9.10(b)(i) and (2) solely
for purposes of calculating Consolidated EBITDA for purposes of the Interest
Coverage Ratio and the Fixed Charge Coverage Ratio, interest income from
Permitted Investments.
Other than for purposes of calculating Excess Cash Flow,
Consolidated EBITDA shall be calculated on a Pro Forma Basis to give effect to
the Transactions, any Acquisition permitted hereby and Dispositions (other than
any Dispositions in the ordinary course of business) consummated during the
relevant Measurement Period as if each such Acquisition had been effected on the
first day of such period and as if each such Disposition had been consummated on
the day prior to the first day of such period.
"Consolidated Interest Expense" shall mean, for any Measurement
Period, the sum of (A) all cash interest expense (including commitment fees,
letter of credit fees, the interest component of Capital Leases and cash
interest paid on the Holdings Notes) of Holdings and its Consolidated
Subsidiaries for such Measurement Period including the net amounts paid or
received under all Interest Rate Protection Agreements less interest income from
Permitted Investments, plus (B) in the event of the consummation of a Permitted
Receivables Transaction, an amount equal to the interest (or other fees in the
nature of interest or discount accrued and paid or payable in cash) for such
period on any Permitted Receivables Transaction, plus (C) an amount equal to
Dividend Payments made pursuant to Section 9.10(c) minus any interest expense
incurred by the Borrower on the Existing Notes; provided that for purposes of
Section 9.11 only Borrower will be permitted to exclude from Consolidated
Interest Expense any interest expense incurred by Borrower on the Existing Notes
between the Closing Date and the date such notes are redeemed by Borrower
pursuant to the Tender Offer or the Existing Notes Redemption so long as such
Existing Notes have been called for redemption pursuant to the Existing Notes
Redemption Notice.
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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 Measurement Period in connection with any
Acquisitions permitted hereby and Dispositions (other than any Dispositions in
the ordinary course of business) as if such incurrence, assumption, repayment or
extinguishing had been effected on the first day of such period.
"Consolidated Subsidiary" shall mean, for any Person, each
Subsidiary of such Person (whether now existing or hereafter created or
acquired) the financial statements of which shall be (or should have been)
consolidated with the financial statements of such Person in accordance with
GAAP.
"Contingent Obligation" shall mean, as to any Person, any direct or
indirect liability of such Person, whether or not contingent, with or without
recourse, (a) with respect to any Indebtedness, lease, dividend or other
obligation (the "primary obligations") of another Person (the "primary
obligor"), including any obligation of such Person (i) to purchase, repurchase
or otherwise acquire such primary obligations or any security therefor, (ii) to
advance or provide funds for the payment or discharge of any such primary
obligation, or to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency or any balance sheet
item, level of income or financial condition of the primary obligor, (iii) 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, or (iv) otherwise to assure or hold
harmless the holder of any such primary obligation against loss in respect
thereof (each of (i)-(iv), a "Guaranty Obligation"); (b) with respect to any
Surety Instrument (other than any Letter of Credit) issued for the account of
such Person or as to which such Person is otherwise liable for reimbursement of
drawings or payments; (c) to purchase any materials, supplies or other property
from, or to obtain the services of, another Person if the relevant contract or
other related document or obligation requires that payment for such materials,
supplies or other property, or for such services, shall be made regardless of
whether delivery of such materials, supplies or other property is ever made or
tendered, or such services are ever performed or tendered; or (d) in respect of
any Swap Contract; provided, however, that the term Contingent Obligation shall
not include endorsements of instruments for deposit or collection or standard
contractual indemnities entered into, in each case in the ordinary course of
business. The amount of any Contingent Obligation shall (x) in the case of a
Guaranty Obligation, be deemed equal to the stated or determinable amount of the
primary obligation in respect of which such Guaranty Obligation is made or, if
not stated or if indeterminable, the maximum reasonably anticipated liability in
respect thereof, and (y) in the case of other Contingent Obligations, be equal
to the maximum reasonably anticipated liability in respect thereof.
"Continue," "Continuation" and "Continued" shall refer to the
continuation pursuant to Section 2.09 of a LIBOR Loan from one Interest Period
to the next Interest Period.
"Contractual Obligation" shall mean as to any Person, any provision
of any security issued by such Person or of any mortgage, security agreement,
pledge agreement, indenture, credit agreement, securities purchase agreement,
debt instrument, contract, agreement, instrument or other undertaking to which
such Person is a party or by or to which it or any of its Property is bound or
subject.
"Control Agreement" shall have the meaning assigned to such term in
the Security Agreement.
"Convert," "Conversion" and "Converted" shall refer to a conversion
pursuant to Section 2.09 of one Type of Loan into another Type of Loan, which
may be accompanied by the transfer by a Lender (at its sole discretion) of a
Loan from one Applicable Lending Office to another.
"Covered Taxes" see Section 5.06(a).
-8-
"Credit Documents" shall mean, collectively, this Agreement, the
Notes, the Letters of Credit, each Security Document and each other agreement,
certificate, document or instrument delivered in connection with any Credit
Document, whether or not specifically mentioned herein or therein; provided that
for purposes of any agreement pursuant to which the Collateral Agent is granted
a Lien to secure the Obligations, the term "Credit Document" shall include each
Swap Contract entered into by Borrower or any of its Subsidiaries with a
Creditor.
"Creditor" shall mean (i) any Agent, (ii) the Issuing Lender, (iii)
any Lender, and (iv) any party to a Swap Contract relating to the Loans if at
the date of entering into such Swap Contract such party was a Lender or an
Affiliate of a Lender.
"Debt Issuance" shall mean the incurrence by any Company of any
Indebtedness after the Closing Date (other than as permitted by Section 9.08).
"Default" shall mean any event or condition that constitutes an
Event of Default or that would become, with notice or lapse of time or both, an
Event of Default.
"Defaulted Lender" shall mean, so long as such failure shall remain
in existence and uncured, any Lender which shall have failed to make any Loan or
other credit accommodation, disbursement or reimbursement required pursuant to
the terms of any Credit Document.
"Designated Equity Issuance Proceeds" shall mean at any time the
excess of (A) any net cash proceeds (so long as they are contributed to an
Obligor) of any issuance of Qualified Capital Stock by Parent designated in
writing by Borrower to the Administrative Agent pursuant to an Officer's
Certificate as being "Designated Equity Issuance Proceeds" to the extent that
the aggregate amount of such net cash proceeds so designated since the Closing
Date does not exceed $30.0 million over (B) the aggregate sum total of all
amounts applied in reliance on such Designated Equity Issuance Proceeds since
the Closing Date and on or prior to such time pursuant to Section 9.06(i).
"Disposition" shall mean (i) any conveyance, sale, lease,
assignment, transfer or other disposition (including by way of merger or
consolidation and including any sale-leaseback transaction) of any Property
(including receivables and Equity Interests of any Person owned by any Company)
(whether now owned or hereafter acquired) by any Company to any Person other
than Borrower or any Qualified Subsidiary, (ii) any issuance or sale by any
Subsidiary of its Equity Interests to any Person other than Borrower or any
Subsidiary, and (iii) any liquidating or other non-ordinary course dividend or
distribution or return of Investment received by any Company in respect of any
joint venture or similar enterprise, excluding, however, in each case, any
Excluded Disposition.
"Disposition Event" shall mean the receipt by any Company of cash
proceeds or cash distributions of any kind from Property received in
consideration for a Disposition.
"Disqualified Capital Stock" shall mean, with respect to any Person,
any Equity Interest of such Person that, 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, matures (excluding any maturity as the result of an
optional redemption by the issuer thereof) or is mandatorily redeemable (other
than solely for Qualified Capital Stock), pursuant to a sinking fund obligation
or otherwise, or is redeemable at the sole option of the holder thereof (other
than solely for Qualified Capital Stock) or exchangeable or convertible into
debt securities of the issuer thereof at the sole option of the holder thereof,
in whole or in part, on or prior to the date which is 90 days after the Final
Maturity Date.
-9-
"Dividend Payment" shall mean dividends (in cash, Property or
obligations) on, or other payments or distributions on account of, or the
setting apart of money for a sinking or other analogous fund for, or the
purchase, redemption, retirement or other acquisition of, any Equity Interests
or Equity Rights of any Company, but excluding dividends paid through the
issuance of additional shares of Qualified Capital Stock and any redemption or
exchange of any Qualified Capital Stock of such Company through the issuance of
Qualified Capital Stock of such Company.
"Documentation Agents" see the introduction to this Agreement.
"Dollars" and "$" shall mean lawful money of the United States of
America.
"Eligible Person" shall mean (i) a commercial bank organized under
the laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $100.0 million; (ii) a commercial bank organized
under the laws of any other country that is a member of the Organization for
Economic Cooperation and Development (the "OECD"), or a political subdivision of
any such country, and having a combined capital and surplus in a dollar
equivalent amount of at least $100.0 million; provided, however, that such bank
is acting through a branch or agency located in the country in which it is
organized or another country that is also a member of the OECD; (iii) an
insurance company, mutual fund or other entity which is regularly engaged in
making, purchasing or investing in loans or securities or other financial
institution organized under the laws of the United States, any state thereof,
any other country that is a member of the OECD or a political subdivision of any
such country with assets, or assets under management, in a dollar equivalent
amount of at least $100.0 million; (iv) any Affiliate of a Lender or an Approved
Fund of a Lender; and (v) any other entity (other than a natural person) which
is an "accredited investor" (as defined in Regulation D under the United States
Securities Act of 1933, as amended) which extends credit or buys loans as one of
its businesses including, but not limited to, insurance companies, mutual funds
and investment funds. With respect to any Lender, any Approved Fund in respect
thereof shall be treated as a single Eligible Person.
"Embargoed Person" see Section 9.33.
"Employee Benefit Plan" shall mean an employee benefit plan (as
defined in Section 3(3) of ERISA) that is maintained or contributed to by any
ERISA Entity or with respect to which Borrower or a Subsidiary could incur
liability.
"Environment" shall mean ambient air, indoor air, soil, surface
water, ground water, drinking water, land or subsurface strata and natural
resources such as wetlands, flora and fauna.
"Environmental Claim" shall mean, with respect to any Person, any
written notice, claim, demand or other communication (collectively, a "claim")
by any other Person alleging such Person's liability for any costs, cleanup
costs, response, corrective action or other costs, damages to natural resources
or other Property, personal injuries, fines or penalties arising out of or
resulting from (i) the presence, Release or threatened Release into the
Environment, of any Hazardous Material at any location, whether or not owned by
such Person, or (ii) any violation of any Environmental Law. The term
"Environmental Claim" shall include, without limitation, any claim by any Person
seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from the known or suspected presence of Hazardous
Materials or arising from alleged injury or threat of injury to health, safety
or the Environment.
"Environmental Laws" shall mean any and all applicable laws, rules
or regulations of any Governmental Authority, any orders, decrees, judgments or
injunctions and the common law in each case relating to pollution or protection
of health, safety or the Environment, including without limitation, those
-10-
relating to Releases or threatened Releases of Hazardous Materials into the
Environment, or otherwise relating to the manufacture, processing, generation,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials.
"Equity Interests" shall mean, with respect to any Person, any and
all shares, interests, participations or other equivalents, including membership
interests (however designated, whether voting or non-voting), of capital 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 assets of, such partnership, whether outstanding on or after
the Closing Date.
"Equity Issuance" shall mean any of (a) any issuance or sale after
the Closing Date by Borrower, Parent, or any other Person of which Borrower is a
Wholly Owned Subsidiary of (x) any Equity Interests (including any Equity
Interests issued upon exercise of any Equity Rights) or any Equity Rights, or
(y) any other security or instrument representing an Equity Interest (or the
right to obtain any Equity Interest) in the issuing or selling Person, or (b)
the receipt by any Company after the Closing Date of any capital contribution
(whether or not evidenced by any Equity Interest issued by the recipient of such
contribution) other than from any other Company; provided, however, that the
issuance of (i) any debt security that is convertible into or exchangeable for
Equity Interests or Equity Rights or (ii) any Disqualified Capital Stock shall,
for purposes of Section 2.10(a), be a Debt Issuance and not an Equity Issuance.
Notwithstanding the foregoing, each of the following shall be deemed not to be
an Equity Issuance: (i) any issuance of Equity Interests of Parent to the seller
or sellers in consideration for a Permitted Acquisition; (ii) any issuance or
sale of Equity Interests of any Person (other than Borrower) owned by any
Company (which, for the avoidance of doubt, is treated as a Disposition); (iii)
any individual issuance or sale by Parent of Equity Interests of Parent to any
employee, director, officer or consultant of Parent or any of its Subsidiaries
in an aggregate amount for all such issuances and sales not to exceed 10% of the
then outstanding Equity Interests of Parent; (iv) any issuance of Equity
Interests of Parent to the extent that the proceeds thereof are used for a
substantially contemporaneous purchase or redemption of Equity Interests of
Parent pursuant to Section 9.10(b)(ii); and (v) Equity Issuances to any of the
Permitted Holders in an aggregate amount not to exceed $15.0 million since the
Closing Date.
"Equity Rights" shall mean, with respect to any Person, any
outstanding subscriptions, options, warrants, commitments, preemptive rights or
agreements of any kind (including any stockholders' or voting trust agreements)
for the issuance, sale, registration or voting of, or outstanding securities
convertible into, any additional Equity Interests of any class, or partnership
or other ownership interests of any type in, such Person.
"ERISA" shall mean the United States Employee Retirement Income
Security Act of 1974, as amended.
"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) or (c) of the Code, or solely
for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as
a single employer under Section 414 of the Code.
"ERISA Entity" shall mean any member of an ERISA Group.
"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); (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, the
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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; (c) 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; (d) the incurrence by any
ERISA Entity of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by any ERISA Entity from the PBGC of
any notice relating to an intention of the PBGC to terminate any Plan or Plans
or to appoint a trustee to administer any Plan, or the occurrence of any event
or condition which is reasonably likely to constitute grounds under ERISA for
the PBGC to terminate or appoint a trustee to administer any Plan; (f) the
incurrence by any ERISA Entity of any liability with respect to the withdrawal
or partial withdrawal from any Multiemployer Plan; (g) the receipt by an ERISA
Entity of any notice, or the receipt by any Multiemployer Plan from any Company
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; (h) 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; or (i) the occurrence of a nonexempt
prohibited transaction (within the meaning of Section 4975 of the Code or
Section 406 of ERISA) which is reasonably likely to result in liability to any
Company.
"ERISA Group" shall mean any Company and all members of a controlled
group of corporations and all trades or businesses (whether or not incorporated)
under common control which, together with any Subsidiary are treated as a single
employer under Section 414 of the Code.
"Event of Default" see Section 10.
"Excess Cash Flow" shall mean, for any period, (A) the sum of (i)
Consolidated EBITDA for such period (calculated for this definition by adding
back the cash portion of all extraordinary or non-recurring items of income
(other than from Dispositions and Excluded Dispositions) to the extent excluded
in the calculation of Adjusted Net Income and by deducting the cash portion of
all extraordinary or non-recurring items of expense to the extent excluded in
the calculation of Adjusted Net Income and determined by adding back thereto,
but without duplication, any amounts deducted in the calculation of Adjusted Net
Income for such period that were paid, incurred or accrued in violation of any
of the provisions of this Agreement), (ii) any net decrease in Working Capital
during such period (except to the extent attributable to assets or Persons
subject to a Disposition during such period), and (iii) cash received from the
proceeds of any life insurance or "key man" policy during such period, minus (B)
the sum of (i) cash interest expense in respect of Indebtedness incurred in
accordance with Section 9.08 (including, without duplication, Capital Lease
expense, letter of credit fees and commitment fees and, for each Permitted
Receivables Transaction, other fees in the nature of interest or discount
accrued or payable in cash) of Borrower and its Consolidated Subsidiaries for
such period to the extent deducted in calculating Adjusted Net Income, (ii) the
sum of all scheduled principal payments (other than pursuant to Section
2.10(a)(v)) on any Indebtedness incurred in accordance with Section 9.08
(including Capital Leases and Term Loans pursuant to Section 3.01(b)) of
Borrower and its Consolidated Subsidiaries made during such period from
internally generated funds and all prepayments of Revolving Credit Loans made
from internally generated funds and to the extent accompanied by a permanent
reduction in Revolving Credit Commitments, (iii) Capital Expenditures (to the
extent permitted hereunder) made during such period by Borrower and the
Subsidiaries from internally generated funds (including expenditures that would
be Capital Expenditures but for being excluded from the definition of "Capital
Expenditures" by clauses (v) and (vii) thereof), (iv) all income taxes actually
paid in cash by Borrower or any Subsidiary during such period or within a normal
payment period thereafter (provided, however, that any amount deducted pursuant
to this clause (iv) which was not actually paid during such period shall not
again be deducted for determining Excess Cash Flow for another period), (v) cash
dividends paid during such period by Borrower pursuant to Section 9.10(b)(ii) to
the extent made with internally generated funds, (vi) cash paid during such
period for any Permitted Acquisition to the extent funded from internally
generated funds, (vii) any net increases
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in Working Capital during such period (except to the extent attributable to
assets or Persons subject to an Acquisition during such period), (viii) any
earnings included in Consolidated EBITDA for such period of a Receivables Co. to
the extent the terms of any Permitted Receivables Transaction prohibit the
distribution thereof to any Obligor, (ix) any cash payments in respect of
Permitted Securitization Fees during such period except to the extent deducted
from Consolidated EBITDA in clause (A)(i) of this definition and (x) for periods
ending prior to 2008, $10.0 million.
"Exchange Act" shall mean the United States Securities Exchange Act
of 1934, as amended.
"Excluded Dispositions" shall mean (i) Dispositions for fair market
value resulting in no more than $5.0 million in aggregate proceeds in any fiscal
year; (ii) an exchange of equipment or inventory for other equipment or
inventory, provided that the Company effecting such exchange receives at least
substantially equivalent value in such exchange for the Property disposed of;
(iii) other than for purposes of Section 9.06, any transaction permitted by
Section 9.06 (other than clauses (g) and (h) thereof), any Permitted Lien and
any Investment permitted by Section 9.09; (iv) any issuance of Equity Interests
by any Subsidiary to directors or nominees if required by applicable law if
resulting in de minimis proceeds; and (v) the sale of inventory in the ordinary
course of business.
"Excluded Equity Issuance" shall mean any issuance of Equity
Interests of Parent excluded from the definition of Equity Issuance by virtue of
clause (iv) of the second sentence thereof.
"Excluded Taxes" see Section 5.06(a).
"Executive Order" see Section 8.23.
"Exempt Lender" see Section 5.06(b).
"Existing Affiliate Agreements" see Section 9.15.
"Existing Bank Debt" see the first recital to this Agreement.
"Existing Letter of Credit" shall mean each letter of credit
previously issued for the account of Borrower or any of its Subsidiaries that is
(a) outstanding on the Closing Date and (b) listed on Schedule 1.01(a).
"Existing Notes" see the first recital to this Agreement.
"Existing Notes Indenture" shall mean the Indenture by and among
Borrower, as issuer, each of the guarantors party thereto from time to time and
State Street Bank and Trust Company, as trustee, dated as of May 17, 1999, as
amended and in effect from time to time in accordance with its terms and this
Agreement.
"Existing Notes Redemption" see the second recital to this
Agreement.
"Existing Notes Redemption Notice" see the second recital to this
Agreement.
"fair market value" shall mean, with respect to any asset, a price
(after taking into account any liabilities relating to such assets), as
determined by Borrower in good faith, that is within a reasonable range of
prices which could be negotiated in an arm's-length free market transaction, for
cash,
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between a willing seller and a willing and able buyer, neither of which is under
any compulsion to complete the transaction.
"Federal Funds Rate" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided, however, that (a) if the day for which such
rate is to be determined is not a Business Day, the Federal Funds Rate for such
day shall be such rate on such transactions on the next preceding Business Day
as so published on the next succeeding Business Day and (b) if such rate is not
so published for any Business Day, the Federal Funds Rate for such Business Day
shall be the average rate quoted to the Administrative Agent on such Business
Day on such transactions by three federal funds brokers of recognized standing,
as determined by the Administrative Agent.
"Fee Letter" shall mean the confidential bank fee letter, dated
November 29, 2004, from UBS and UBSS to Borrower.
"Final Maturity Date" shall mean (a) with respect to all Term Loans,
December 28, 2011 and (b) with respect to all Revolving Credit Loans and Swing
Loans the earlier of (i) December 28, 2009 and (ii) the date that all Term Loans
are repaid in full.
"Financial Maintenance Covenants" shall mean the covenants set forth
in Section 9.11(a) through (e).
"Fixed Charge Coverage Ratio" shall mean, for any Test Date, the
ratio of (x) Consolidated EBITDA for the Measurement Period ending on or
immediately prior to such Test Date to (y) Fixed Charges for such Measurement
Period.
"Fixed Charges" shall mean, for any Measurement Period, the sum of
(i) Consolidated Interest Expense for such period, (ii) the sum of all scheduled
principal payments on any Indebtedness of Borrower and its Consolidated
Subsidiaries (including, without duplication, any lease payments in respect of
Capital Leases attributable to the principal component thereof for such period),
(iii) Capital Expenditures actually made during such period and (iv) all income
Taxes actually paid in cash by Borrower and its Subsidiaries during such period.
"Foreign Plan" shall mean any employee benefit plan, program,
policy, arrangement or agreement maintained or contributed to by, or entered
into with, Borrower or any Subsidiary with respect to employees employed outside
the United States.
"Foreign Subsidiary" shall mean any direct or indirect Subsidiary
organized outside of the United States as defined in Section 7701(a)(9) of the
Code (or any successor provision).
"Funding Date" shall mean the date of the making of any extension of
credit hereunder.
"GAAP" shall mean generally accepted accounting principles in effect
in the United States of America and set forth as of the relevant date in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board (or agencies with similar functions of
comparable stature and authority within the U.S. accounting profession), which
are applicable to the circumstances as of the date of determination.
-14-
"Governmental Authority" shall mean any government or political
subdivision of the United States or any other country or any agency, authority,
board, bureau, central bank, commission, department or instrumentality thereof
or therein, including, without limitation, any court, tribunal, grand jury or
arbitrator, in each case whether foreign or domestic, or any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to such government or political subdivision.
"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, without limitation, 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.
"Greenshoe Option" see Section 13.04(iii).
"Guarantee" shall mean the guarantee of each Guarantor pursuant to
Section 6.
"Guaranteed Obligations" see Section 6.01.
"Guarantors" shall mean Holdings and each Subsidiary Guarantor.
"Guaranty Obligation" see the definition of "Contingent Obligation."
"Hazardous Material" shall mean any pollutant, contaminant, toxic,
hazardous or extremely hazardous substance, constituent or waste, or any other
constituent, waste, material, compound or substance subject to regulation or
which may result in liability under any Environmental Law including, without
limitation, petroleum or any petroleum product, including crude oil or any
fraction thereof, polychlorinated biphenyls, urea-formaldehyde insulation and
asbestos.
"Holdings" see the introduction to this Agreement.
"Holdings Dividend" see the fifth recital to this Agreement.
"Holdings Notes" see the third recital to this Agreement.
"Holdings Notes Indenture" shall mean that certain indenture dated
as of December 28, 2004 between Holdings, as issuer, and U.S. Bank National
Association, as trustee.
"Holdings Notes Offering" see the third recital to this Agreement.
"in the ordinary course of business" shall mean in the ordinary
course of business of Borrower and the Subsidiaries and on ordinary business
terms.
"incur" shall mean, with respect to any Indebtedness or other
obligation of any Person, to create, issue, incur (including by conversion,
exchange or otherwise), assume, guarantee or otherwise become liable in respect
of such Indebtedness or other obligation or the recording, as required pursuant
to GAAP or otherwise, of any such Indebtedness or other obligation on the
balance sheet of such Person (and "incurrence," "incurred" and "incurring" shall
have meanings correlative to the foregoing). Indebt-
-15-
edness of any Person or any of its Subsidiaries existing at the time such Person
becomes a Company (or is merged into or consolidates with any Company), whether
or not such Indebtedness was incurred in connection with, or in contemplation
of, such Person becoming a Company (or being merged into or consolidated with
any Company), shall be deemed incurred at the time any such Person becomes a
Company or merges into or consolidates with any Company. Neither the accrual of
interest, nor the accretion of accreted value or amortization of financing fees,
shall be deemed to be an incurrence.
"Indebtedness" shall mean, for any Person, without duplication, (a)
all indebtedness for borrowed money of such Person; (b) all non-contingent (but
only so long as non-contingent) obligations issued, undertaken or assumed by
such Person as the deferred purchase price of Property or services (other than
earn-out payments made in connection with acquisitions and not more than 60 days
past due and trade payables and accrued expenses paid on customary terms and not
more than 60 days past due and incurred in the ordinary course of business on
ordinary terms), excluding payments made in connection with non-compete
arrangements; (c) all non-contingent reimbursement or payment obligations of
such Person with respect to Surety Instruments (such as, for example, unpaid
reimbursement obligations in respect of a drawing under a letter of credit); (d)
all obligations of such Person evidenced by notes, bonds, debentures or similar
instruments, including obligations so evidenced incurred in connection with the
acquisition of Property or businesses; (e) all indebtedness of such Person
created or arising under any conditional sale or other title retention
agreement, or incurred as financing, in either case with respect to Property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such Property), the amount of such indebtedness to be deemed the fair
market value of such Property; (f) all Capital Lease Obligations of such Person;
(g) all amounts required to be paid by such Person as a guaranteed payment to
partners, including any mandatory redemption of shares or interests; (h) all
obligations, contingent or otherwise, relative to the face amount of all letters
of credit, whether or not drawn, and banker's acceptances issued for the account
of such Person; (i) all obligations of such Person under any take-or-pay or
other similar arrangements that are not in the ordinary course of business; (j)
all obligations of such Person under any Disqualified Capital Stock; (k) all
indebtedness of other Persons referred to in clauses (a) through (j) above
secured by (or for which the holder of such indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in Property
(including accounts and contracts rights) owned by such Person, whether or not
such Person has assumed or become liable for the payment of such indebtedness,
the amount of such indebtedness to be deemed to be the fair market value of such
Property; and (l) all Guaranty Obligations of such Person in respect of
indebtedness or obligations of others of the kinds referred to in clauses (a)
through (j) above. Indebtedness shall not include accounts extended by suppliers
in the ordinary course of business on normal trade terms in connection with the
purchase of goods and services. The Indebtedness of any Person shall include any
Indebtedness of any partnership in which such Person is the general partner.
"Indemnitee" see Section 13.03.
"Initial Public Offering" shall mean a primary underwritten public
offering of the common stock of Parent, other than any public offering or sale
pursuant to a registration statement on Form S-8 or a comparable form.
"Insignificant Subsidiary" shall mean any Subsidiary of Borrower
that is not a Significant Subsidiary.
"Insolvency Proceeding" shall mean, with respect to any Person, (a)
any case, action or proceeding with respect to such Person before any court or
by or before any other Governmental Authority relating to bankruptcy,
insolvency, reorganization, liquidation, receivership, dissolution,
sequestration, conservatorship, winding-up or relief of debtors (or the passing
of a resolution for or with a view to any of
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the foregoing), or (b) any assignment for the benefit of creditors, composition,
marshalling of assets for creditors, or other similar arrangement in respect of
such Person's creditors generally or any substantial portion of its creditors.
"Intellectual Property" see Section 8.22.
"Intercompany Note" shall mean a promissory note substantially in
the form of Exhibit B.
"Interest Coverage Ratio" shall mean, for any Test Date, the ratio
of (x) Consolidated EBITDA for the Measurement Period ending on or immediately
prior to such Test Date to (y) Consolidated Interest Expense for such
Measurement Period.
"Interest Period" shall mean, with respect to any LIBOR Loan, each
period commencing on the date such LIBOR Loan is made or Converted from an ABR
Loan or the last day of the next preceding Interest Period for such LIBOR Loan
and (subject to the requirements of Sections 2.01(a), 2.01(b) and 2.09) ending
on the numerically corresponding day in (subject to Section 2.01(c)) the first,
second, third or sixth calendar month or, if available to all Lenders, the ninth
or twelfth calendar month thereafter, except that each Interest Period that
commences on the last Business Day of a calendar month (or on any day for which
there is no numerically corresponding day in the appropriate subsequent calendar
month) shall end on the last Business Day of the appropriate subsequent calendar
month. Notwithstanding the foregoing, (i) if any Interest Period for any
Revolving Credit Loan would otherwise end after the Revolving Credit Commitment
Termination Date, such Interest Period shall end on the Revolving Credit
Commitment Termination Date; (ii) no Interest Period for any Term Loan may
commence before and end after any Principal Payment Date, unless, after giving
effect thereto, the aggregate principal amount of the Term Loans having Interest
Periods that end after such Principal Payment Date shall be equal to or less
than the aggregate principal amount of the Term Loans scheduled to be
outstanding after giving effect to the payments of principal required to be made
on such Principal Payment Date; (iii) each Interest Period that would otherwise
end on a day that is not a Business Day shall end on the next succeeding
Business Day (or, if such next succeeding Business Day falls in the next
succeeding calendar month, on the next preceding Business Day); and (iv)
notwithstanding clauses (i) and (ii) above, no Interest Period shall have a
duration of less than one month and, if the Interest Period for any LIBOR Loan
would otherwise be a shorter period, such Loan shall not be available hereunder
as a LIBOR Loan for such period.
"Interest Rate Certificate" shall mean an Officer's Certificate
substantially in the form of Exhibit C, delivered pursuant to Section 9.01(e),
demonstrating in reasonable detail the calculation of the Total Leverage Ratio
as of the last day of the Measurement Period then last ended on or immediately
prior to the date such certificate is required to be delivered.
"Interest Rate Protection Agreement" shall mean, for any Person, an
interest rate swap, cap, floor or collar agreement or similar arrangement
between such Person and one or more financial institutions providing for the
transfer or mitigation of interest risks either generally or under specific
contingencies.
"internally generated funds" shall mean funds not generated from the
proceeds of any Loan, Debt Issuance, Equity Issuance, Disposition, insurance or
eminent domain, condemnation or other similar recovery or Indebtedness (in each
case without regard to the exclusions from the definition thereof) (other than
transactions in the ordinary course of business).
"Investment" shall mean, for any Person, (a) the acquisition
(whether for cash, Property, services or securities or otherwise) of Equity
Interests, bonds, notes, debentures or other securities of any
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other Person; (b) the making of any deposit with, or advance, loan or other
extension of credit to, any other Person (including the purchase of Property
from another Person subject to an understanding or agreement, contingent or
otherwise, to resell such Property to such Person); (c) any capital contribution
to (by means of any transfer of cash or other Property to others or any payment
for Property or services for the account or use of others) any other Person; (d)
the entering into, or direct or indirect incurrence, of any Guaranty Obligation
with respect to Indebtedness or other liability of any other Person; (e) the
entering into of any Swap Contract; or (f) any agreement to make any Investment
(including any "short sale" or any sale of any securities at a time when such
securities are not owned by the Person entering in to such sale).
"Issuing Lender" shall mean any Affiliate of Administrative Agent
with respect to standby Letters of Credit and, if it so agrees in any given
instance, LaSalle Bank, N.A., with respect to documentary Letters of Credit, or
such other Lender or Lenders selected by Borrower reasonably satisfactory to the
Administrative Agent, as the issuer of Letters of Credit under Section 2.03,
together with its successors and assigns in such capacity.
"Joinder Agreement" shall mean a Joinder Agreement substantially in
the form of Exhibit K.
"Lead Arranger" see the introduction to this Agreement.
"Lease" shall mean any lease, sublease, franchise agreement,
license, occupancy or concession agreement.
"Lenders" see the introduction to this Agreement.
"Letter of Credit" see Section 2.03.
"Letter of Credit Documents" shall mean, with respect to any Letter
of Credit, collectively, any other agreements, instruments, guarantees or other
documents (whether general in application or applicable only to such Letter of
Credit) governing or providing for (a) the rights and obligations of the parties
concerned or at risk with respect to such Letter of Credit or (b) any collateral
security for any of such obligations, each as the same may be modified and
supplemented and in effect from time to time.
"Letter of Credit Interest" shall mean, for each Revolving Credit
Lender, such Lender's participation interest (or, in the case of the Issuing
Lender, the Issuing Lender's retained interest) in the Issuing Lender's
liability under Letters of Credit and such Lender's rights and interests in
Reimbursement Obligations and fees, interest and other amounts payable in
connection with Letters of Credit and Reimbursement Obligations.
"Letter of Credit Liability" shall mean, without duplication, at any
time and in respect of any Letter of Credit, the sum of (a) the undrawn face
amount of such Letter of Credit, plus (b) the aggregate unpaid principal amount
of all Reimbursement Obligations of Borrower at such time due and payable in
respect of all drawings made under such Letter of Credit.
"LIBOR Base Rate" shall mean, with respect to any LIBOR Loan for any
Interest Period therefor, a rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) equal to (i) the rate of interest which is identified
and normally published by Bloomberg Professional Service Page BBAM 1 as the
offered rate for loans in United States dollars for the applicable Interest
Period under the caption British Bankers Association LIBOR Rates 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
-18-
event the next succeeding Business Day will be used). If Bloomberg Professional
Service no longer reports the LIBOR or the Administrative Agent determines in
good faith that the rate so reported no longer accurately reflects the rate
available to the Administrative Agent in the London Interbank Market or if such
index no longer exists or if Page BBAM 1 no longer exists or accurately reflects
the rate available to the Administrative Agent in the London Interbank Market,
Administrative Agent may select a replacement index or replacement page, as the
case may be.
"LIBOR Loans" shall mean Loans that bear interest at rates based on
rates referred to in the definition of "LIBOR Base Rate" in this Section 1.01.
"LIBOR Rate" shall mean, for any LIBOR Loan for any Interest Period
therefor, a rate per annum (rounded upwards, if necessary, to the nearest 1/100
of 1%) determined by the Administrative Agent to be equal to the LIBOR Base Rate
for such Loan for such Interest Period divided by 1 minus the Reserve
Requirement (if any) for such Loan for such Interest Period.
"Lien" shall mean, with respect to any Property, any mortgage, deed
of trust, lien, pledge, claim, charge, security interest or encumbrance of any
kind, whether consensual or non-consensual, any other type of preferential
arrangement in respect of such Property having the effect of a security interest
or any filing consented to by any Company of any financing statement under the
UCC or any other similar notice of Lien under any similar notice or recording
statute of any Governmental Authority consented to by any Company, including any
easement, right-of-way or other encumbrance on title to Real Property, and any
agreement to give any of the foregoing. For purposes of the Credit Documents, a
Person shall be deemed to own subject to a Lien any Property that it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
(other than an operating lease) relating to such Property.
"LLC" shall mean ATR Acquisition, LLC, a Delaware limited liability
company.
"Loans" shall mean the Revolving Credit Loans, the Term Loans
(including Replacement Term Loans) and the Swing Loans.
"Losses" of any Person shall mean the losses, liabilities, claims
(including those based upon negligence, strict or absolute liability and
liability in tort), damages, reasonable expenses, obligations, penalties,
actions, judgments, encumbrances, liens, penalties, fines, suits, reasonable and
documented costs or disbursements of any kind or nature whatsoever (including
reasonable fees and expenses of counsel in connection with any Proceeding
commenced or threatened in writing, whether or not such Person shall be
designated a party thereto) at any time (including following the payment of the
Obligations) incurred by, imposed on or asserted against such Person.
"Majority Lenders" shall mean Lenders holding at least a majority of
the sum of (without duplication) (a) the aggregate principal amount of
outstanding Loans (other than Swing Loans), plus (b) the aggregate amount of all
Letter of Credit Liabilities, plus (c) the aggregate Unutilized Revolving Credit
Commitments then in effect, plus (d) the aggregate Term Loan Commitments then in
effect, plus (e) in the case of the Swing Loan Lender only, the aggregate amount
of Swing Loans then outstanding.
"Majority Revolving Credit Lenders" shall mean Lenders holding at
least a majority of the sum of (without duplication) (a) the aggregate principal
amount of outstanding Revolving Credit Loans, plus (b) the aggregate amount of
all Letter of Credit Liabilities, plus (c) the aggregate Unutilized Revolving
Credit Commitments then in effect, plus (d) in the case of the Swing Loan Lender
only, the aggregate amount of Swing Loans then outstanding.
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"Majority Term Loan Lenders" shall mean Lenders holding at least a
majority of the aggregate principal amount of outstanding Term Loans.
"Management Agreement" shall mean the management agreement dated as
of December 10, 2003 among Parent, Borrower and JLK Operations, Inc., as such
agreement may be amended and in effect from time to time in accordance with its
terms and this Agreement.
"Margin Stock" shall mean margin stock within the meaning of
Regulations T, U and X.
"Material Adverse Change" shall mean, with respect to any Person, a
material adverse change, or any condition or event that has resulted or could
reasonably be expected to result in a material adverse change, in the business,
condition (financial or otherwise), results of operations, assets or liabilities
of such Person, together with the Subsidiaries taken as a whole. Unless
otherwise indicated, Material Adverse Change refers to Holdings and its
Subsidiaries, taken as a whole.
"Material Adverse Effect" shall mean, any of (a) a material adverse
effect, or any condition or event that has resulted or could reasonably be
expected to result in a material adverse effect, on the business, condition
(financial or otherwise), results of operations, assets or liabilities of
Holdings and its Subsidiaries, taken as a whole, (b) a material adverse effect
on the ability of the Obligors to perform any of their material obligations
under any Credit Document, (c) an adverse effect on the legality, binding effect
or enforceability of any material provision of any Credit Document or any of the
material rights and remedies of the Lenders, the Issuing Lender or Lead Arranger
thereunder or (d) a material adverse effect on the Collateral or the Liens in
favor of the Collateral Agent on the Collateral or the priority of such Liens.
"Material Indebtedness" shall mean (a) the Holdings Notes, (b) the
A/R Facility and (c) any Permitted Refinancing of any Material Indebtedness.
"Measurement Period" shall mean the most recent trailing four fiscal
quarters of Borrower for which financial statements have been, or should have
been, provided pursuant to Section 9.01(a) or (b).
"Merger" see the sixth recital to this Agreement.
"Merger Agreement" see the sixth recital to this Agreement.
"Merrill Fee Letter" shall mean that certain confidential Fee
Letter, dated the date hereof, from Borrower to ▇▇▇▇▇▇▇ ▇▇▇▇▇.
"▇▇▇▇▇▇▇ ▇▇▇▇▇" shall mean ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, a division of
▇▇▇▇▇▇▇ ▇▇▇▇▇ Business Financial Services Inc. and its successors.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"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
Mortgaged Real Property, which shall be on such form as shall be reasonably
acceptable to Collateral Agent, with such schedules and including provisions as
shall be necessary to conform such document to applicable or local law or as
shall be customary under local law, as the same may be amended from time to time
in accordance with the terms hereof and thereof.
-20-
"Mortgaged Real Property" shall mean each Real Property subject to a
Mortgage delivered pursuant to Section 9.12.
"Multiemployer Plan" shall mean at any time a multiemployer plan
within the meaning of Section 4001(a)(3) of ERISA (i) to which any member of the
ERISA Group is then making or accruing an obligation to make contributions while
a member of the ERISA Group, (ii) to which any member of the ERISA Group has
within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period, or (iii) with respect to which any Company is reasonably
likely to incur liability.
"NAIC" shall mean the National Association of Insurance
Commissioners.
"Net Available Proceeds" shall mean:
(i) in the case of any Disposition Event, the amount of Net Cash
Payments received by any Company in connection with such Disposition
Event;
(ii) in the case of any Casualty Event, the aggregate amount of
proceeds of insurance, condemnation awards and other compensation received
by any Company in respect of such Casualty Event net of (A) fees and
expenses payable to any Person other than an Affiliate of any Company
incurred by such Company in connection with recovery thereof, (B)
repayments of Indebtedness (other than Indebtedness hereunder) to the
extent secured by a Lien on such Property, and (C) any taxes (including
income, transfer, stamp, duty, customs, withholding and any other taxes)
paid or payable by any Company in respect of the amount so recovered
(after application of all credits and other offsets); and
(iii) in the case of any Equity Issuance or any Debt Issuance, the
aggregate amount of all cash received by the Person effecting such
transaction in respect thereof net of all investment banking fees,
discounts and commissions, legal fees, consulting fees, accountants' fees,
underwriting discounts and commissions and other customary fees and
expenses payable to any Person other than an Affiliate of any Company,
actually incurred and satisfactorily documented in connection therewith.
"Net Cash Payments" shall mean, with respect to any Disposition
Event, the aggregate amount of all cash payments (including any cash payments
received by way of deferred payment of principal pursuant to a note or
installment receivable or purchase price adjustment receivable or otherwise, but
only as and when received) received by any Company directly or indirectly in
connection with such Disposition Event; provided, however, that Net Cash
Payments shall be net (without duplication) of (i) the amount of all fees and
expenses paid to any Person other than an Affiliate of any Company by any
Company in connection with such Disposition Event (the "Relevant Disposition");
(ii) any taxes (including income, transfer, stamp, duty, customs, withholding
and any other taxes) paid or estimated to be payable by any Company as a result
of the Relevant Disposition (after application of all credits and other
offsets); (iii) any repayments by any Company of any Indebtedness required to be
repaid as a condition to the consummation of such Relevant Disposition; (iv)
amounts required to be paid to any Person (other than any Company) owning a
beneficial interest in the assets subject to such Relevant Disposition; and (v)
any option exercise costs to acquire such Property.
"Newco" see the fourth recital to this Agreement.
"Non-U.S. Lender" see Section 5.06(b).
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"Notes" shall mean the Revolving Credit Notes, Term Loan Notes and
the Swing Loan Note.
"Notice of Assignment" shall mean a notice of assignment pursuant to
Section 13.06 substantially in the form of Exhibit H.
"Notice of Borrowing" shall mean a notice of borrowing substantially
in the form of Exhibit I.
"Obligations" shall mean all amounts, direct or indirect, contingent
or absolute, of every type or description (including interest accruing during
the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding), and
at any time existing, owing to any Creditor, or any of its Related Parties or
their respective permitted successors, transferees or assignees, or any
Indemnitee, pursuant to the terms of any Credit Document or any Swap Contract or
secured by any of the Security Documents, whether or not the right of such
Person to payment in respect of such obligations and liabilities is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured and whether or not
such claim is discharged, stayed or otherwise affected by any bankruptcy case or
insolvency or liquidation proceeding.
"Obligors" shall mean Borrower and the Guarantors.
"OFAC" see Section 8.23.
"Officer's Certificate" shall mean, as applied to any corporation, a
certificate executed on behalf of such corporation by its Chairman of the Board
(if an officer), its Chief Executive Officer, its Chief Financial Officer, its
President or one of its Vice Presidents (or an equivalent officer) or its
Treasurer or any Assistant Treasurer in their official (and not individual)
capacities; provided, however, that every Officer's Certificate with respect to
the compliance with a condition precedent to the making of any Loan or the
taking of any other action hereunder shall include (i) a statement that the
officers making or giving such Officer's Certificate have read such condition
and any definitions or other provisions contained in this Agreement relating
thereto, and (ii) a statement as to whether, in the opinion of the signers, such
condition has been complied with.
"Organic Document" shall mean, relative to any Person, its
certificate of incorporation, its by-laws, its partnership agreement, its
memorandum and articles of association, share designations or similar
organization documents and all shareholder agreements, voting trusts and similar
arrangements applicable to any of its authorized shares of Equity Interests.
"Other Taxes" see Section 5.06(c).
"Parent" shall mean Atrium Corporation, a Delaware corporation.
"Participant" see Section 13.06(c).
"Payment Account" shall mean the account specified by the
Administrative Agent to Borrower from time to time into which all payments by or
on behalf of Borrower to the Administrative Agent under the Credit Documents
shall be made.
"Payor" see Section 4.06.
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"PBGC" shall mean the United States Pension Benefit Guaranty
Corporation or any successor thereto.
"Perfection Certificate" shall mean a certificate in the form of
Exhibit F or any other form approved by the Collateral Agent.
"Permits" see Section 8.17.
"Permitted Acquisition" shall mean any Acquisition effected in
compliance with Section 9.06(i) or (m).
"Permitted Holders" shall mean (i) the LLC and any other investment
entity managed or controlled by Kenner & Company, Inc. and/or its Affiliates,
(ii) UBS Capital Americas II, LLC and/or its Affiliates, (iii) ML Global Private
Equity Fund, L.P. and/or its Affiliates, (iv) any partners, members or investors
(either directly or indirectly through any investment partnerships or entities)
in the entities described in clauses (i), (ii) and (iii) above who are
distributees of investments held by the entities described in clauses (i), (ii)
and (iii) above, (v) any immediate family members or lineal descendents, or
trusts or other entities for their benefit in respect of the Persons described
in clauses (i), (ii), (iii) and (iv) above, and (vi) any Affiliates in respect
of the Persons described in clauses (i), (ii), (iii) and (iv) above.
"Permitted Investments" shall mean, for any Person: (a) direct
obligations of the United States of America, or of any agency thereof, or
obligations guaranteed as to principal and interest by the United States of
America, or by any agency thereof, in either case maturing not more than one
year from the date of acquisition thereof by such Person; (b) time deposits,
certificates of deposit or bankers' acceptances (including eurodollar deposits)
issued by any bank or trust company organized under the laws of the United
States of America or any state thereof and having capital, surplus and undivided
profits of at least $500.0 million and a deposit rating of investment grade; (c)
commercial paper rated A-1 or better by S&P or P-1 or better by ▇▇▇▇▇'▇,
respectively, maturing not more than 180 days from the date of acquisition
thereof by such Person; (d) 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 a bank meeting the qualifications described in clause (b)
above; (e) securities with maturities of six months or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States of America, or by any political subdivision or taxing
authority thereof, and rated at least A by S&P or A by ▇▇▇▇▇'▇; or (f) money
market mutual funds that invest primarily in the foregoing items.
"Permitted Liens" see Section 9.07.
"Permitted Receivables Transaction" shall mean any transaction
providing for the sale or financing of Accounts (other than between Qualified
Companies) including the A/R Facility; provided, however, that (a) any such
transaction shall be consummated on material terms substantially as described on
Annex A, and such other terms and provisions that in Borrower's good faith
judgment are usual and customary for transactions of this type (including,
without limitation, representations warranties, covenants, indemnities and
defaults), or as the Majority Lenders may otherwise consent, such consent not to
be unreasonably withheld, and (b) the advance rate thereunder shall not be less
than 50% of face value of the Accounts subject thereto and the aggregate
purchase commitments thereunder by the parties other than any Company shall not
exceed $75,000,000, in the aggregate for all such transactions in effect from
time to time.
"Permitted Refinancing" shall mean, with respect to any Indebtedness
or Contingent Obligation, any refinancing thereof, provided, however, that (x)
no Event of Default shall have occurred and be continuing or would arise
therefrom, (y) any such refinancing Indebtedness shall (I) not be on financial
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and other terms that are, taken as a whole, materially more onerous to any
Company or Creditor than the Indebtedness or Contingent Obligation being
refinanced and shall not have defaults, rights or remedies that are, taken as a
whole, more burdensome to any Company or Creditor than the Indebtedness being
refinanced, (II) not have a final stated maturity or weighted average life that
is shorter than the Indebtedness or Contingent Obligation being refinanced,
(III) if the Indebtedness or Contingent Obligation being refinanced is
subordinated by its terms or by the terms of any agreement or instrument
relating to such Indebtedness or Contingent Obligation, be at least as
subordinate to the Obligations as the Indebtedness or Contingent Obligation
being refinanced (and, except as otherwise permitted pursuant to Section 9.07,
unsecured if the refinanced Indebtedness is unsecured), and (IV) be in an
aggregate principal amount that does not exceed the aggregate principal amount
so refinanced, plus the lesser of (1) the stated amount of any premium or other
payment required to be paid in connection with such refinancing pursuant to the
terms of the Indebtedness or Contingent Obligation being refinanced and (2) the
amount of premium or other payment actually paid at such time to refinance the
Indebtedness, plus, in either case, the amount of fees and reasonable expenses
of any Company incurred in connection with such refinancing, and (z) except as
otherwise permitted pursuant to Section 9.08, the sole obligor on such
refinancing Indebtedness or Contingent Obligation shall be the original obligor
on such Indebtedness or Contingent Obligation being refinanced; provided,
however, that any guarantor of the Indebtedness or Contingent Obligation being
refinanced shall be permitted to guarantee the refinancing Indebtedness.
"Permitted Securitization Fees" shall mean any fees or expenses
(other than interest or fees in the nature of interest or discount) paid in
connection with any Permitted Receivables Transaction, including without
limitation placement fees, attorney's fees, accountant's fees, rating agency
fees and other out-of-pocket costs.
"Person" shall mean any individual, corporation, company, voluntary
association, partnership, limited liability company, joint venture, trust,
unincorporated organization or government (or any agency, instrumentality or
political subdivision thereof).
"Plan" shall mean at any time an employee pension benefit plan
(other than a Multiemployer Plan) which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Code or
Section 302 of ERISA and is maintained or contributed to by any member of the
ERISA Group or with respect to which any Company could incur liability.
"Preferred Stock" shall mean, with respect to any Person, any and
all preferred or preference Equity Interests (however designated) of such
Person, whether now outstanding or issued after the Closing Date.
"Primary Syndication" shall mean the period commencing on or prior
to the Closing Date and ending on the earlier of (a) the date that is 60 days
following the Closing Date and (b) the date that the Lead Arranger has declared,
in its reasonable discretion, the primary syndication of the Commitments and
Loans to have ended.
"Prime Rate" shall mean for any day, a rate per annum that is equal
to the rate of interest which is identified and normally published by Bloomberg
Professional Service Page Prime as the "Prime Rate" (or, if more than one rate
is published as the Prime Rate, then the highest of such rates). Any change in
Prime Rate will become effective as of the date the rate of interest which is so
identified as the "Prime Rate" is different from that published on the preceding
Business Day. If Bloomberg Professional Service no longer reports the Prime
Rate, or if such Page Prime no longer exists, or the Administrative Agent
determines in good faith that the rate so reported no longer accurately reflects
an accurate determination of the prevailing Prime Rate, the Administrative Agent
may select a reasonably comparable index or source to use as the basis for the
Prime Rate.
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"Principal Office" shall mean the principal office of the
Administrative Agent, located on the Closing Date at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other office as may be designated
by the Administrative Agent.
"Principal Payment Date" shall mean, with respect to any Term Loan,
each Quarterly Date or other date set forth on Schedule 3.01(b) on which a
payment of principal is due with respect to such Term Loan.
"Pro Forma Basis" shall mean on a basis in accordance with GAAP.
"Pro Forma Data" see Section 7.01(i)(9).
"Pro Forma Financial Statements" see Section 7.01(i)(9).
"Proceeding" shall mean any claim, counterclaim, action, judgment,
suit, hearing, governmental investigation, arbitration or proceeding, including
by or before any Governmental Authority and whether judicial or administrative.
"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.
"Qualified Capital Stock" shall mean with respect to any Person any
Equity Interest of such Person that is not Disqualified Capital Stock.
"Qualified Subsidiary" shall mean any Wholly Owned Subsidiary that
is an Obligor.
"Quarterly Dates" shall mean the last Business Day of March, June,
September and December in each year, commencing with the last Business Day of
March 2005.
"Real Property" shall mean all right, title and interest of any
Company (including, without limitation, any leasehold estate) in and to a parcel
of real property owned or operated by any Company, whether by lease, license or
other use agreement, together with, in each case, all improvements and
appurtenant fixtures, equipment, personal property, easements and other property
and rights incidental to the ownership, lease or operation thereof or thereon.
"Receivables Co." shall mean any special purpose Wholly Owned
Subsidiary of Borrower (or such other Person reasonably agreed to by the
Administrative Agent) that purchases or otherwise acquires Accounts generated by
any Company in connection with a Permitted Receivables Transaction.
"redeem" shall mean redeem, repurchase, repay, defease or otherwise
acquire or retire for value; and "redemption" and "redeemed" have correlative
meanings.
"refinance" shall mean refinance, renew, extend, replace, defease or
refund, in whole or in part, including successively; and "refinancing" and
"refinanced" have correlative meanings.
"Refinanced Term Loans" see Section 13.04(iv).
"Refinancing" see the first recital to this Agreement.
"Refund" see Section 5.06(e).
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"Register" see Section 2.08(c).
"Regulation D" shall mean Regulation D (12 C.F.R. Part 204) of the
Board of Governors of the United States Federal Reserve System.
"Regulations T, U and X" shall mean, respectively, Regulation T (12
C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) and Regulation X (12 C.F.R.
Part 224) of the Board of Governors of the United States Federal Reserve System
(or any successor), as the same may be modified and supplemented and in effect
from time to time.
"Reimbursement Obligations" shall mean, at any time, the obligations
of Borrower then outstanding, or that may thereafter arise in respect of all
Letters of Credit then outstanding, to reimburse amounts paid by the Issuing
Lender in respect of any drawings under a Letter of Credit.
"Related Parties" see Section 11.01.
"Release" shall mean any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the Environment.
"Relevant Disposition" see the definition of "Net Cash Payments."
"Replaced Lender" see Section 2.11.
"Replacement Lender" see Section 2.11.
"Replacement Term Loans" see Section 13.04(iv).
"Required Payment" see Section 4.06.
"Requirement of Law" shall mean as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its Property or to which such Person or
any of its Property is subject.
"Reserve Requirement" shall mean, for any Interest Period for any
LIBOR Loan, the daily average during such Interest Period of the aggregate
maximum reserve requirement (expressed as a decimal) then imposed under
Regulation D of the Board of Governors of the Federal Reserve System (or any
successor thereto) for "Eurocurrency liabilities" (as such term is used in
Regulation D).
"Reset Date" shall mean the date on which Borrower shall have
delivered to the Administrative Agent the financial statements and Interest Rate
Certificates required pursuant to Sections 9.01(a) and (e) for the fiscal
quarter ended March 31, 2005.
"Responsible Officer" shall mean the Chairman of the Board of
Borrower (if an officer), the Chief Executive Officer of Borrower or the
President of Borrower or, with respect to financial matters, the Chief Financial
Officer of Borrower, any Vice President-Finance of Borrower or the Treasurer (or
an equivalent officer) of Borrower.
"Returns" see Section 8.09.
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"Revolving Credit Commitment" shall mean, for each Revolving Credit
Lender, the obligation of such Lender to make Revolving Credit Loans in an
aggregate principal amount at any one time outstanding up to but not exceeding
the amount recorded by the Administrative Agent in the Register on the Closing
Date (as the same may be reduced from time to time pursuant to Section 2.04 or
changed pursuant to Section 13.06(b)). The aggregate principal amount of the
Revolving Credit Commitments on the Closing Date is $50.0 million.
"Revolving Credit Commitment Percentage" shall mean, with respect to
any Revolving Credit Lender, the ratio of (a) the amount of the Revolving Credit
Commitment of such Lender to (b) the aggregate amount of the Revolving Credit
Commitments of all of the Lenders.
"Revolving Credit Commitment Termination Date" shall mean the
earlier of
(a) the Final Maturity Date with respect to Revolving Credit Loans;
and
(b) the date on which the Revolving Credit Commitments are
terminated in full or reduced to zero pursuant to the terms of this
Agreement.
"Revolving Credit Commitments" shall mean the aggregate sum of the
Revolving Credit Commitments of all of the Revolving Credit Lenders.
"Revolving Credit Facility" shall mean the credit facility
comprising the Revolving Credit Commitment of all of the Revolving Credit
Lenders.
"Revolving Credit Lenders" shall mean (a) on the Closing Date, the
Lenders having Revolving Credit Commitments and (b) thereafter, the Lenders from
time to time holding Revolving Credit Loans and Revolving Credit Commitments
after giving effect to any assignments thereof permitted by Section 13.06(b).
"Revolving Credit Loans" see Section 2.01(a).
"Revolving Credit Notes" shall mean the promissory notes provided
for by Section 2.08(a)(i) and all promissory notes delivered in substitution or
exchange therefor, in each case as the same shall be modified and supplemented
and in effect from time to time.
"S&P" shall mean Standard & Poor's Ratings Services, a division of
The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Security Agreement" shall mean a Security Agreement substantially
in the form of Exhibit E among the Obligors and the Collateral Agent, as the
same may be amended in accordance with the terms thereof and hereof, and such
other agreements reasonably acceptable to the Collateral Agent as shall be
necessary to comply with applicable Requirements of Law and effective to grant
to the Collateral Agent a perfected first priority security interest (subject to
Permitted Liens) in the Security Agreement Collateral covered thereby.
"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 9.12.
"Security Documents" shall mean the Security Agreement, the
Mortgages, the Perfection Certificate and each other security document, pledge
agreement or similar instrument permitted or required by applicable local law to
grant a valid, perfected security interest in any property or asset, and all
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UCC and other financing statements or instruments of perfection required by this
Agreement, the Security Agreement, any Mortgage or any other Security Document
to be filed with respect to the security interests in Property and fixtures
created pursuant to the Security Agreement, any Mortgage or any other Security
Document and any other document or instrument utilized to pledge as collateral
for the Obligations any Property of whatever kind or nature.
"Senior Leverage Ratio" shall mean, for any Test Date, the ratio of
(x) the difference of (i) the sum of Total Debt at such Test Date (including any
debt incurred by any Company in connection with a financing pursuant to any
Permitted Receivables Transaction which is outstanding at such Test Date) less
(ii) the sum of Subordinated Debt of Borrower and its Consolidated Subsidiaries
at such Test Date, to (y) Consolidated EBITDA for the Measurement Period ended
on or immediately prior to such Test Date.
"Settlement Date" see Section 11.07(a).
"Significant Subsidiary" shall mean (1) any Subsidiary of Borrower
that would be a "significant subsidiary" as defined in Regulation S-X
promulgated pursuant to the Securities Act as such Regulation is in effect on
the Closing Date and (2) any Subsidiary of Borrower that, when aggregated with
all other Subsidiaries of Borrower that are not otherwise Significant
Subsidiaries and as to which any event described in clause (e), (f), (g) or (l)
of Section 10 has occurred and is continuing, would constitute a Significant
Subsidiary under clause (1) of this definition.
"Solvent" and "Solvency" shall mean, for any Person on a particular
date, that on such date (a) the fair value of the Property of such Person is
greater than the total amount of liabilities, including, without limitation,
contingent liabilities, of such Person, (b) the present fair salable value of
the assets of such Person is not less than the amount that will be required to
pay the probable liability of such Person on its debts as they become absolute
and matured, (c) such Person does not intend to, and does not believe that it
will, incur debts and liabilities beyond such Person's ability to pay as such
debts and liabilities mature, (d) such Person is not engaged in a business or a
transaction, and is not about to engage in a business or a transaction, for
which such Person's Property would constitute an unreasonably small capital and
(e) such Person is able to pay its debts as they become due and payable.
"Sponsor" see the third recital to this Agreement.
"Subordinated Debt" shall mean the Existing Notes and any other
Indebtedness of any Company that is subordinated to any other Indebtedness of
such Company.
"Subordinated Debt Documents" shall mean, collectively, the Existing
Notes Indenture and each of the loan agreements, indentures, note purchase
agreements, promissory notes, guarantees, and other instruments (including the
Existing Notes) and agreements (including registration rights agreements)
evidencing the terms of Subordinated Debt, as amended, supplemented, amended and
restated or otherwise modified in accordance with this Agreement.
"Subordination Provisions" see Section 10(o).
"Subsidiary" shall mean, with respect to any Person, any
corporation, partnership or other entity of which at least a majority of the
securities or other ownership interests having by the terms thereof ordinary
voting power to elect a majority of the board of directors or other persons
performing similar functions of such corporation, partnership or other entity
(irrespective of whether or not at the time securities or other ownership
interests of any other class or classes of such corporation, partnership or
other entity shall have or might have voting power by reason of the happening of
any contingency) is at
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the time directly or indirectly owned or controlled by such Person or one or
more Subsidiaries of such Person or by such Person and one or more Subsidiaries
of such Person. Unless the context clearly requires otherwise, all references to
any Subsidiary shall mean a Subsidiary of Borrower.
"Subsidiary Guarantor" shall mean each Subsidiary listed on Schedule
1.01(b) and each direct and indirect Wholly Owned Subsidiary that guarantees the
payment of the Obligations of Borrower under the Credit Documents pursuant to
Section 9.20.
"Surety Instruments" shall mean all letters of credit (including
standby and commercial), bankers' acceptances, bank guarantees, surety bonds and
similar instruments.
"Survey" shall mean a survey of any Mortgaged Real Property (and all
improvements thereon) which is (a)(i) prepared by a surveyor or engineer
licensed to perform surveys in the state, province or country where such
Mortgaged Real Property is located, (ii) dated (or redated) not earlier than six
months prior to the date of delivery thereof unless there shall have occurred
after the date of such survey any exterior construction on the site of such
Mortgaged Real Property, in which event such survey shall be dated (or redated)
after the completion of such construction or, if such construction shall not
have been completed as of such date of delivery, not earlier than 20 days prior
to such date of delivery, (iii) certified by the surveyor (in a manner
reasonably acceptable to the Administrative Agent) to the Administrative Agent,
the Collateral Agent and the Title Company, (iv) complying in all material
respects with Requirements of Law, (v) complying in all respects with the
minimum detail requirements of the American Land Title Association as such
requirements are in effect on the date of preparation of such survey and (vi)
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 9.12 or (b) otherwise
reasonably acceptable to the Collateral Agent.
"Swap Contract" shall mean any agreement entered into in the
ordinary course of business (as a bona fide hedge and not for speculative
purposes) (including any master agreement and any agreement, whether or not in
writing, relating to any single transaction) that is an interest rate swap
agreement, basis swap, forward rate agreement, commodity swap, commodity option,
forward commodity purchase agreement, equity or equity index swap or option,
bond option, interest rate option, foreign exchange agreement, rate cap, collar
or floor agreement, currency swap agreement, cross-currency rate swap agreement,
swaption, currency option or any other similar agreement (including any option
to enter into any of the foregoing) and is designed to protect the Obligors
against fluctuations in interest rates, currency exchange rates, or similar
risks (including any Interest Rate Protection Agreement entered into pursuant to
Section 9.18) but excluding all forward commitments for the purchase of
materials and utilities used in the ordinary course of business of Borrower and
its Subsidiaries and not for speculative purposes.
"Swing Loan Commitment" shall mean the obligation of the Swing Loan
Lender to make or continue Swing Loans hereunder in an aggregate principal
amount up to but not exceeding $10.0 million, as the same may be reduced or
terminated pursuant to Section 2.04 or Section 10, it being understood that the
Swing Loan Commitment is part of the Revolving Credit Commitment of the Swing
Loan Lender, rather than a separate, independent commitment.
"Swing Loan Lender" shall mean ▇▇▇▇▇▇▇ ▇▇▇▇▇ and its successors and
assigns in such capacity.
"Swing Loan Maturity Date" shall mean the Revolving Credit
Commitment Termination Date.
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"Swing Loan Note" shall mean the promissory notes provided for by
Section 2.08(a)(iii) and all promissory notes delivered in substitution or
exchange therefor, in each case as the same shall be modified and supplemented
and in effect from time to time.
"Swing Loans" see Section 2.01(d).
"Syndication Agent" see the introduction to this Agreement.
"Taxes" shall mean any and all present or future taxes, imposts,
duties, charges, fees, levies or other charges or assessments of whatever
nature, including, but not limited to, income, gross receipts, excise, real or
personal property, sales, withholding, social security, retirement,
unemployment, occupation, use, service, license, net worth, payroll, franchise,
and transfer and recording, imposed by the Internal Revenue Service or any
taxing authority (whether domestic or foreign, including any federal, state,
U.S. possession, county, local or foreign government or any subdivision or
taxing agency thereof), whether computed on a separate, consolidated, unitary,
combined or any other basis, including interest, fines, penalties or additions
to tax attributable to or imposed on or with respect to any such taxes, charges,
fees, levies or other assessments.
"Tax Sharing Agreement" shall mean the Restated and Amended Tax
Sharing Agreement, dated as of October 25, 2000, among D and W Holdings, Inc.,
Borrower and the direct and indirect Subsidiaries of Borrower signatory thereto,
as amended in connection with the Transactions on or prior to the Closing Date,
as such may be amended and in effect from time to time in accordance with its
terms and this Agreement.
"Tender Offer" see the second recital to this Agreement.
"Term Loan Commitment" shall mean, for each Term Loan Lender, the
obligation of such Lender to make on the Closing Date a Term Loan in an amount
up to but not exceeding the amount recorded by the Administrative Agent in the
Register on the Closing Date (as the same may be changed pursuant to Section
13.06(b)). The aggregate principal amount of the Term Loan Commitments on the
Closing Date is $325.0 million.
"Term Loan Commitments" shall mean the aggregate sum of the Term
Loan Commitment of all of the Term Loan Lenders.
"Term Loan Lenders" shall mean (a) on the Closing Date, the Lenders
having Term Loan Commitments, and (b) thereafter, the Lenders from time to time
holding Term Loans and Term Loan Commitments after giving effect to any
assignments thereof permitted by Section 13.06(b).
"Term Loan Notes" shall mean the promissory notes provided for by
Section 2.08(a)(ii) and all promissory notes delivered in substitution or
exchange therefor, in each case as the same shall be modified and supplemented
and in effect from time to time.
"Term Loans" see Section 2.01(b).
"Test Date" shall mean, for any Financial Maintenance Covenant, the
last day of each fiscal quarter included within any period set forth in the
table for such Financial Maintenance Covenant and for the Senior Leverage Ratio,
the last day of each fiscal quarter. Compliance with the Financial Maintenance
Covenants shall be tested, as of each Test Date, on the date on which financial
statements pursuant to Section 9.01(a)(ii) or (b) have been, or should have
been, delivered for the applicable fiscal period.
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"Title Company" shall mean a nationally recognized title company
designated by the Collateral Agent.
"Title Policy" see Section 9.12.
"Total Debt" shall mean, at any date, and without duplication, the
aggregate amount of Indebtedness of Borrower and its Consolidated Subsidiaries
of the types described in clauses (a), (b), (c), (d), (e), (f), (h) (but only to
the extent any such letter of credit has been drawn and not reimbursed) and (j)
of the definition of "Indebtedness" and all Guaranty Obligations of the Borrower
and its Consolidated Subsidiaries in respect thereof as of such date and
determined on a consolidated basis in accordance with GAAP; provided that for
purposes of Section 9.11 only, Borrower will be permitted to exclude from Total
Debt any Indebtedness under any Existing Notes that have been called pursuant to
the Existing Notes Redemption Notice.
"Total Leverage Ratio" shall mean, for any Test Date, the ratio of
(x) the sum of Total Debt at such Test Date, excluding any debt incurred by any
Company in connection with a financing pursuant to any Permitted Receivables
Transaction which is outstanding at such Test Date, to (y) Consolidated EBITDA
for the Measurement Period ended on or immediately prior to such Test Date.
"Transaction Documents" shall mean, collectively, the Credit
Documents, the Holdings Notes Indenture, the Merger Agreement, the Existing
Notes Redemption Notice and all other agreements furnished pursuant to or in
connection with the Refinancing, the Existing Notes Redemption, the Tender
Offer, the Holdings Dividend, the Merger and the issuance of the Holdings Notes,
in each case as amended, supplemented, amended and restated or otherwise
modified from time to time in accordance with this Agreement.
"Transactions" shall mean the Refinancing, the initial borrowings of
Loans under this Agreement, the Tender Offer, the Holdings Notes Offering, the
Existing Notes Redemption, the Holdings Dividend, the Merger and the payments of
fees, commissions and expenses in connection with each of the foregoing.
"Type" see Section 1.03.
"UBS" shall mean UBS Loan Finance LLC.
"UBSS" see the introduction to this Agreement.
"UCC" shall mean the Uniform Commercial Code as in effect from time
to time in the State of New York; provided that if, with respect to any UCC
financing statement or by reason of any provisions of law, the perfection or the
effect of perfection or non-perfection of the security interests granted to the
Collateral Agent pursuant to the applicable Credit Document is governed by the
Uniform Commercial Code as in effect in a jurisdiction of the United States
other than New York, then "UCC" shall mean the Uniform Commercial Code as in
effect from time to time in such other jurisdiction for purposes of the
provisions of each Credit Document and any UCC financing statement relating to
such perfection or effect of perfection or non-perfection.
"Unaudited Financial Statements" see Section 7.01(i)(9).
"Unutilized Revolving Credit Commitment" shall mean, for any
Revolving Credit Lender, at any time, the excess of such Lender's Revolving
Credit Commitment at such time over the sum of (i) the aggregate outstanding
principal amount of Revolving Credit Loans made by such Lender, (ii)
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such Lender's Revolving Credit Commitment Percentage of the aggregate amount of
Letter of Credit Liabilities at such time and (iii) with respect to the Swing
Loan Lender only and only for purposes other than calculating any fee due
pursuant to Section 2.05(a), the aggregate principal amount of Swing Loans then
outstanding.
"U.S. Lender" see Section 5.06(b).
"Wholly Owned Subsidiary" shall mean, with respect to any Person,
any corporation, partnership or other entity of which all of the Equity
Interests (other than, in the case of a corporation, directors' qualifying
shares or nominee shares required under applicable law) are directly or
indirectly owned or controlled by such Person or one or more Wholly Owned
Subsidiaries of such Person or by such Person and one or more Wholly Owned
Subsidiaries of such Person. Unless the context clearly requires otherwise, all
references to any Wholly Owned Subsidiary shall mean a Wholly Owned Subsidiary
of Borrower.
"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 1 of Subtitle E of Title IV of ERISA.
"Working Capital" shall mean an amount determined for Borrower and
the Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP) equal to the sum of all current assets (other than cash)
less the sum of all current liabilities (other than the current portion of
long-term Indebtedness and the current portion of deferred tax assets or
liabilities).
1.02. Accounting Terms and Determinations. Except as otherwise
provided in this Agreement, all computations and determinations as to accounting
or financial matters (including financial covenants) shall be made in accordance
with GAAP consistently applied for all applicable periods, and all accounting or
financial terms shall have the meanings ascribed to such terms by GAAP. All
financial statements to be delivered pursuant to this Agreement shall be
prepared in accordance with GAAP. All financial covenants are to be calculated
in accordance with GAAP as in effect on the Closing Date unless such
modifications are agreed to by the parties hereto.
1.03. Classes and Types of Loans. Loans hereunder are distinguished
by "Class" and by "Type." The "Class" of a Loan (or of a Commitment to make a
Loan) refers to whether such Loan is a Revolving Credit Loan or Term Loan, each
of which constitutes a Class. The "Type" of a Loan refers to whether such Loan
is an ABR Loan or a LIBOR Loan, each of which constitutes a Type. Loans may be
identified by both Class and Type.
1.04. Rules of Construction. (a) In this Agreement and each other
Credit Document, unless the context clearly requires otherwise (or such other
Credit Document clearly provides otherwise), references to (i) the plural
include the singular, the singular the plural and the part the whole; (ii)
Persons include their respective permitted successors and assigns or, in the
case of governmental Persons, Persons succeeding to the relevant functions of
such Persons; (iii) agreements (including this Agreement), promissory notes and
other contractual instruments include subsequent amendments, assignments, and
other modifications thereto, but only to the extent such amendments, assignments
or other modifications thereto are not prohibited by their terms or the terms of
any Credit Document; (iv) statutes and related regulations include any
amendments of same and any successor statutes and regulations; and (v) time
shall be a reference to Chicago time. Where any provision herein refers to
action to be taken by any Person, or which such Person is prohibited from
taking, such provision shall be applicable whether such action is taken directly
or indirectly by such Person.
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(b) In this Agreement and each other Credit Document, unless the
context clearly requires otherwise (or such other Credit Document clearly
provides otherwise), (i) "amend" shall mean "amend, restate, amend and restate,
supplement or modify"; and "amended," "amending" and "amendment" shall have
meanings correlative to the foregoing; (ii) in the computation of periods of
time from a specified date to a later specified date, "from" shall mean "from
and including"; "to" and "until" shall mean "to but excluding"; and "through"
shall mean "to and including"; (iii) "hereof," "herein" and "hereunder" (and
similar terms) in this Agreement or any other Credit Document refer to this
Agreement or such other Credit Document, as the case may be, as a whole and not
to any particular provision of this Agreement or such other Credit Document;
(iv) "including" (and similar terms) shall mean "including without limitation"
(and similarly for similar terms); (v) "or" has the inclusive meaning
represented by the phrase "and/or"; (vi) "satisfactory to" any Creditor shall
mean in form, scope and substance and on terms and conditions reasonably
satisfactory to such Creditor; (vii) references to "the date hereof" shall mean
the Closing Date; and (viii) "asset" and "Property" shall have the same meaning
and effect and refer to all tangible and intangible assets and property, whether
real, personal or mixed and of every type and description.
(c) In this Agreement unless the context clearly requires otherwise,
any reference to (i) an Annex, Exhibit or Schedule is to an Annex, Exhibit or
Schedule, as the case may be, attached to this Agreement and constituting a part
hereof, and (ii) a Section or other subdivision is to a Section or such other
subdivision of this Agreement.
(d) No doctrine of construction of ambiguities in agreements or
instruments against the interests of the party controlling the drafting thereof
shall apply to any Credit Document.
Section 2. Commitments, Letters of Credit, Fees, Register,
Prepayments and Replacement of Lenders.
2.01. Loans.
(a) Revolving Credit Loans. Each Revolving Credit Lender severally
agrees, on the terms and conditions of this Agreement, to make revolving credit
loans (the "Revolving Credit Loans") to Borrower in Dollars during the period
from but not including the Closing Date to but not including the date that is
five days prior to the Revolving Credit Commitment Termination Date in an
aggregate principal amount at any one time outstanding not exceeding the amount
of the Revolving Credit Commitment of such Lender as in effect from time to
time; provided, however, that in no event shall (i) the sum of the aggregate
principal amount of Revolving Credit Loans then outstanding made by any
Revolving Credit Lender, plus such Lender's pro rata share (based on the
Revolving Credit Commitments) of the aggregate principal amount of Swing Loans
then outstanding, plus such Lender's pro rata share (based on the Revolving
Credit Commitments) of the aggregate amount of all Letter of Credit Liabilities
exceed such Lender's Revolving Credit Commitment at in effect at such time, or
(ii) the sum of the aggregate principal amount of (without duplication) all
Revolving Credit Loans then outstanding, plus the aggregate principal amount of
Swing Loans then outstanding, plus the aggregate amount of all Letter of Credit
Liabilities at any time exceed the aggregate amount of the Revolving Credit
Commitments as in effect at such time. Subject to the terms and conditions of
this Agreement, during such period Borrower may borrow, repay and reborrow the
amount of the Revolving Credit Commitments by means of ABR Loans and LIBOR Loans
and may Convert Revolving Credit Loans of one Type into Revolving Credit Loans
of another Type (as provided in Section 2.09) or Continue Revolving Credit Loans
of one Type as Revolving Credit Loans of the same Type (as provided in Section
2.09).
(b) Term Loans. Each Lender having a Term Loan Commitment severally
agrees, on the terms and conditions of this Agreement, to make a single term
loan (the "Term Loans") to Bor-
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rower in Dollars on the Closing Date in an aggregate principal amount equal to
its Term Loan Commitment, such loan to be used to finance a portion of the
Transactions and to pay related fees and expenses. Subject to the terms and
conditions of this Agreement, on and after the Closing Date, Borrower may
Convert Term Loans of one Type into Term Loans of another Type (as provided in
Section 2.09) or Continue Term Loans of one Type as Term Loans of the same Type
(as provided in Section 2.09). Term Loans that are repaid or prepaid may not be
reborrowed.
(c) Limit on LIBOR Loans. No more than 10 separate Interest Periods
in respect of LIBOR Loans of each Class may be outstanding at any one time.
Unless consented to by the Lead Arranger in its reasonable discretion, no LIBOR
Loans (other than one month LIBOR Loans) may be made prior to the completion of
the Primary Syndication.
(d) Swing Loans. Subject to the terms and conditions of this
Agreement, upon request of Borrower, the Swing Loan Lender agrees to make one or
more swing loans to Borrower from time to time from and including the Closing
Date to but excluding the date that is five days prior to the Swing Loan
Maturity Date, up to but not exceeding the amount of the Swing Loan Lender's
Swing Loan Commitment as then in effect. (Such swing loans referred to in this
Section 2.01(d) now or hereafter made by the Swing Loan Lender to Borrower from
and including the Closing Date to but excluding the Swing Loan Maturity Date are
hereinafter collectively called the "Swing Loans.") Prior to the Swing Loan
Maturity Date, Borrower may borrow, repay and reborrow Swing Loans up to the
Swing Loan Commitment in accordance with the terms of this Agreement. The Swing
Loan Lender shall not make any Swing Loans on or after the Swing Loan Maturity
Date. Notwithstanding anything to the contrary contained in this Section 2.01(d)
or elsewhere in this Agreement, the Swing Loan Lender shall not be obligated,
pursuant to this Section 2.01(d) or otherwise, to make any Swing Loan to or for
the account of Borrower, and Borrower shall not be entitled to borrow, pursuant
to this Section 2.01(d), if, after giving full effect to the requested Swing
Loan, the aggregate outstanding amount of Revolving Credit Loans, plus the
aggregate outstanding amount of Swing Loans, plus the aggregate outstanding
Letter of Credit Liabilities would exceed the aggregate amount of the Revolving
Credit Commitments as in effect at such time. Notwithstanding anything herein or
elsewhere to the contrary, the Swing Loans will be made and maintained only as
ABR Loans. The Swing Loan Lender shall not make any Swing Loan after receiving a
written notice from Borrower or the Majority Revolving Credit Lenders stating
that a Default exists and is continuing until such time as the Swing Loan Lender
shall have received written notice of (i) rescission of all such notices from
the party or parties originally delivering such notice, (ii) the waiver of such
Default by the Majority Lenders, or (iii) the Administrative Agent's good faith
determination that such Default has ceased to exist. Swing Loans shall be made
in minimum amounts of $100,000 and integral multiples of $50,000 above such
amount.
Upon the occurrence of a Default, each Revolving Credit Lender shall
be deemed to have purchased (and each Revolving Credit Lender hereby irrevocably
agrees to purchase on a pro rata basis (based upon each Revolving Credit
Lender's Revolving Credit Commitment)) an irrevocable participation in all
outstanding Swing Loans, together with all accrued interest thereon, without any
further action by or on behalf of the Swing Loan Lender, any other Lender,
Borrower or any other Person. Upon one Business Day's notice from the Swing Loan
Lender, each other Revolving Credit Lender shall deliver to the Swing Loan
Lender an amount equal to its respective participation in such Swing Loan (as
determined pursuant to the immediately preceding sentence) in cash. In order to
evidence such participation, each Revolving Credit Lender agrees to enter into a
participation agreement at the request of the Swing Loan Lender in form and
substance satisfactory to the Swing Loan Lender and the Revolving Credit Lender.
If any Revolving Credit Lender fails to make available to the Swing Loan Lender
the amount of such Revolving Credit Lender's participation as provided in this
paragraph, the Swing Loan Lender shall be entitled to recover such amount on
demand from such Revolving Credit Lender, together with interest thereon at the
Federal Funds Rate until such amount is paid in full in cash. In the event the
Swing Loan Lender
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receives a payment from Borrower or any other Obligor of any
amount in which the Revolving Credit Lenders have purchased participations as
provided in this paragraph, the Swing Loan Lender shall promptly distribute to
each Revolving Credit Lender its pro rata share of such payment. In the event
that any portion of any Swing Loan is not repaid when due, the Swing Loan Lender
shall promptly notify the Administrative Agent and the Administrative Agent
shall promptly, and in no event later than 12:00 p.m., Chicago time, two
Business Days after its receipt of such notice, notify each Revolving Credit
Lender in writing of the unreimbursed amount of such Swing Loan and of such
Revolving Credit Lender's percentage of such unreimbursed amount (to be pro rata
based upon the Revolving Credit Commitments). Each of the Revolving Credit
Lenders shall make a Revolving Credit Loan in an amount equal to such percentage
of the unreimbursed amount of such Swing Loan, together with accrued unpaid
interest thereon (to the extent that there is availability under the Revolving
Credit Commitments), and pay the proceeds thereof, in immediately available
funds, directly to the Administrative Agent for the account of the Swing Loan
Lender, not later than 12:00 p.m., Chicago time, on the next Business Day after
the date such Revolving Credit Lender is notified by the Administrative Agent.
Revolving Credit Loans made by the Lenders to repay unreimbursed Swing Loans
pursuant to this subsection shall constitute Revolving Credit Loans hereunder,
initially shall be ABR Loans and shall be subject to all of the provisions of
this Agreement concerning Revolving Credit Loans, except that such Revolving
Credit Loans shall be made upon demand by the Administrative Agent as set forth
above rather than upon notice by Borrower, and shall be made, notwithstanding
anything in this Agreement to the contrary, without regard to satisfaction of
conditions precedent to the making of Revolving Credit Loans set forth in
Section 7.02 of this Agreement; provided, however that no Lender shall be
obligated to make such Revolving Credit Loans if, prior to the date of the
borrowing of the Swing Loan to be refunded, the Swing Loan Lender had received
written notice from the Administrative Agent or any Lender of the existence and
continuance of a Default or an Event of Default. Anything contained in this
Agreement or otherwise to the contrary notwithstanding, (A) each Revolving
Credit Lender's obligation to comply with this paragraph shall be absolute and
unconditional and shall not be affected by any circumstances, including, without
limitation, (1) any setoff, counterclaim, recoupment, defense or other right
which such Revolving Credit Lender may now or hereafter have against the Swing
Loan Lender, Borrower or any other Person for any reason whatsoever, (2) the
occurrence or continuation of a Default or an Event of Default (except as set
forth in this paragraph), (3) any Material Adverse Change in the condition of
any Company, (4) any breach or default of this Agreement or any of the Security
Documents by any Person, or (5) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing, and (B) the Swing
Loan Lender shall not have any obligation to make any Swing Loans if (1)
Borrower fails for whatever reason to satisfy any of the conditions precedent
set forth in Section 7.02 or (2) any Revolving Credit Lender fails for whatever
reason to comply with its obligations under this Section 2.01(d).
2.02. Borrowings. Borrower shall give the Administrative Agent
notice of each borrowing hereunder as provided in Section 4.05. The form of such
notice of borrowing shall be substantially in the form of Exhibit I.
Administrative Agent shall make Loans available to Borrower, subject to the
terms and conditions of this Agreement, by depositing the same, in immediately
available funds, in an account designated by Borrower.
2.03. Letters of Credit. Subject to the terms and conditions hereof,
the Revolving Credit Commitments may be utilized, upon the request of Borrower,
in addition to the Revolving Credit Loans provided for by Section 2.01(a), for
standby and documentary letters of credit (herein collectively called "Letters
of Credit") issued by the Issuing Lender for the account of Borrower or any
Subsidiary which is an Obligor (provided, that Borrower shall be a co-applicant
(and jointly and severally liable) with respect to each Letter of Credit issued
for the account of any such Subsidiary) and notwithstanding anything in Section
2.01(a) or elsewhere herein to the contrary Letters of Credit may be issued on
the Closing Date; provided, however, that in no event shall (i) the aggregate
amount of all Letter of Credit Liabilities, plus the aggregate principal amount
of the Revolving Credit Loans then outstanding, plus the
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aggregate principal amount of Swing Loans then outstanding exceed at any time
the Revolving Credit Commitments as in effect at such time, (ii) the sum of the
aggregate principal amount of Revolving Credit Loans then outstanding made by
any Revolving Credit Lender, plus such Lender's pro rata share (based on the
Revolving Credit Commitments) of the aggregate principal amount of Swing Loans
then outstanding, plus such Lender's pro rata share (based on the Revolving
Credit Commitments) of the aggregate amount of all Letter of Credit Liabilities
exceed such Lender's Revolving Credit Commitment as in effect at such time,
(iii) the outstanding aggregate amount of all Letter of Credit Liabilities
exceed $20.0 million, (iv) the face amount of any Letter of Credit be less than
$10,000, (v) the expiration date of any Letter of Credit extend beyond the
earlier of (x) the fifth Business Day preceding the Revolving Credit Commitment
Termination Date and (y) the date twelve months following the date of such
issuance for standby Letters of Credit or 180 days after the date of such
issuance (or as otherwise agreed with the Issuing Lender) for documentary
Letters of Credit, unless the Majority Revolving Credit Lenders have approved
such expiry date in writing (but never beyond the fifth Business Day prior to
the Revolving Credit Commitment Termination Date); provided, however, that any
standby Letter of Credit may be automatically extendible for periods of up to
one year (but never beyond the fifth Business Day preceding the Revolving Credit
Commitment Termination Date) so long as such Letter of Credit provides that the
Issuing Lender retains an option satisfactory to the Issuing Lender to terminate
such Letter of Credit prior to each extension date, unless the Majority
Revolving Credit Lenders have approved such expiry date in writing, or (vi) the
Issuing Lender issue any Letter of Credit after it has received notice from
Borrower or the Majority Revolving Credit Lenders stating that a Default exists
until such time as the Issuing Lender shall have received written notice of (x)
rescission of such notice from the Majority Revolving Credit Lenders, (y) waiver
of such Default in accordance with this Agreement or (z) the Administrative
Agent's good faith determination that such Default has ceased to exist. The
following additional provisions shall apply to Letters of Credit:
(a) Borrower shall give the Administrative Agent at
least three Business Days' irrevocable prior notice (effective upon
receipt) specifying the date (which shall be no later than thirty
days preceding the Revolving Credit Termination Date) each Letter of
Credit is to be issued and describing in reasonable detail the
proposed terms of such Letter of Credit (including the beneficiary
thereof) (including whether such Letter of Credit is to be a
documentary Letter of Credit or a standby Letter of Credit). Upon
receipt of any such notice, the Administrative Agent shall advise
the Issuing Lender of the contents thereof. Each Lender hereby
authorizes, on the terms and conditions of this Agreement, the
Issuing Lender to issue, and perform its obligations under, Letters
of Credit. Letters of Credit shall be issued in accordance with the
customary procedures of the Issuing Lender, which may include an
application for Letters of Credit. The Issuing Lender may refuse to
issue any Letter of Credit the contents of which are not reasonably
satisfactory to it provided that it notifies Borrower of the reasons
for its refusal. If there is any conflict between the procedures
required by the Issuing Lender and this Agreement, this Agreement
shall govern.
(b) On each day during the period commencing with the
issuance by the Issuing Lender of any Letter of Credit and until
such Letter of Credit shall have expired or been terminated, the
Revolving Credit Commitment of each Revolving Credit Lender shall be
deemed to be utilized for all purposes hereof in an amount equal to
such Lender's Revolving Credit Commitment Percentage of the then
undrawn face amount of such Letter of Credit. Each Revolving Credit
Lender (other than the Issuing Lender) agrees that, upon the
issuance of any Letter of Credit hereunder, it shall automatically
acquire a participation in the Issuing Lender's liability under such
Letter of Credit in an amount equal to such Lender's Revolving
Credit Commitment Percentage of such liability, and each Revolving
Credit Lender (other than the Issuing Lender) thereby shall
absolutely, unconditionally and irrevocably assume, as primary
obligor and not as surety, and shall be unconditionally obligated to
the Issuing Lender to pay and discharge when
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due, its Revolving Credit Commitment Percentage of the Issuing
Lender's liability under such Letter of Credit. The Issuing Lender
shall be deemed to hold a Letter of Credit Liability in an amount
equal to its retained interest in the related Letter of Credit after
giving effect to such acquisition by the Revolving Credit Lenders
other than the Issuing Lender of their participation interests.
(c) Upon the making of any payment to the beneficiary of
any Letter of Credit, the Issuing Lender shall promptly notify
Borrower (through the Administrative Agent) of the amount paid by
the Issuing Lender and the date on which payment was made to such
beneficiary. Borrower hereby unconditionally agrees to pay and
reimburse the Issuing Lender for the amount of payment under such
Letter of Credit, together with interest thereon at the Alternate
Base Rate plus the Applicable Margin applicable to Revolving Credit
Loans from the date payment was made to such beneficiary to the date
on which payment is due, not later than the next Business Day after
the date on which Borrower receives such notice from the Issuing
Lender. Any such payment due from Borrower and not paid on the
required date shall bear interest at rates specified in Section
3.02(b).
(d) Forthwith upon its receipt of a notice referred to
in clause (c) of this Section 2.03, Borrower shall advise the
Issuing Lender (through the Administrative Agent) whether or not
Borrower intends to borrow hereunder to finance its obligation to
reimburse the Issuing Lender for the amount of the related demand
for payment and, if it does, submit a notice of such borrowing as
provided in Section 4.05. In the event that Borrower fails to so
advise the Issuing Lender (through the Administrative Agent), or if
Borrower fails to reimburse the Issuing Lender for a demand for
payment under a Letter of Credit by the next Business Day after the
date of such notice, the Administrative Agent shall give each
Revolving Credit Lender prompt notice of the amount of the demand
for payment, specifying such Lender's Revolving Credit Commitment
Percentage of the amount of the related demand for payment.
(e) Each Revolving Credit Lender (other than the Issuing
Lender) shall pay to the Administrative Agent for account of the
Issuing Lender at the Principal Office in Dollars and in immediately
available funds, the amount of such Lender's Revolving Credit
Commitment Percentage of any payment under a Letter of Credit upon
not less than one Business Day's notice by the Issuing Lender
(through the Administrative Agent) to such Revolving Credit Lender
requesting such payment and specifying such amount. Each such
Revolving Credit Lender's obligation to make such payments to the
Administrative Agent for account of the Issuing Lender under this
clause (e), and the Issuing Lender's right to receive the same,
shall be absolute and unconditional and shall not be affected by any
circumstance whatsoever, including (i) the failure of any other
Revolving Credit Lender to make its payment under this clause (e),
(ii) the financial condition of Borrower or the existence of any
Default or Event of Default or (iii) the termination of the
Commitments. Each such payment to the Issuing Lender shall be made
without any offset, abatement, withholding or reduction whatsoever.
(f) Upon the making of each payment by a Revolving
Credit Lender to the Issuing Lender pursuant to clause (e) above in
respect of any Letter of Credit, such Lender shall, automatically
and without any further action on the part of the Administrative
Agent, the Issuing Lender or such Lender, acquire (i) a
participation in an amount equal to such payment in the
Reimbursement Obligation owing to the Issuing Lender by Borrower
hereunder and under the Letter of Credit Documents relating to such
Letter of Credit and (ii) a participation in a percentage equal to
such Lender's Revolving Credit Commitment Percentage in any interest
or other amounts payable by Borrower hereunder and under such Letter
of Credit Documents in respect of such Reimbursement Obligation.
Upon receipt by the Issuing Lender from or for the account of
Borrower
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of any payment in respect of any Reimbursement Obligation or any
such interest or other amounts (including by way of setoff or
application of proceeds of any collateral security) the Issuing
Lender shall promptly pay to the Administrative Agent for account of
each Revolving Credit Lender which has satisfied its obligations
under clause (e) above (and the Administrative Agent shall promptly
pay to each such Revolving Credit Lender in accordance with Section
11.07(a) hereof), such Revolving Credit Lender's Revolving Credit
Commitment Percentage of such payment, each such payment by the
Issuing Lender to be made in the same money and funds in which
received by the Issuing Lender. In the event any payment received by
the Issuing Lender and so paid to the Revolving Credit Lenders
hereunder is rescinded or must otherwise be returned by the Issuing
Lender, each Revolving Credit Lender shall, upon the request of the
Issuing Lender (through the Administrative Agent), repay to the
Issuing Lender (through the Administrative Agent) the amount of such
payment paid to such Lender, with interest at the rate specified in
clause (i) of this Section 2.03.
(g) Borrower shall pay to the Administrative Agent for
the account of the Revolving Credit Lenders in respect of each
Letter of Credit a letter of credit commission in an amount equal to
(x) the rate per annum equal to the Applicable Margin for Revolving
Credit Loans that are LIBOR Loans in effect from time to time,
multiplied by (y) the daily average undrawn face amount of such
Letter of Credit for the period from and including the date of
issuance of such Letter of Credit (i) in the case of a Letter of
Credit which expires in accordance with its terms, to and including
such expiration date and (ii) in the case of a Letter of Credit
which is drawn in full or is otherwise terminated other than on the
stated expiration date of such Letter of Credit, to but excluding
the date such Letter of Credit is drawn in full or is terminated,
such fee to be non-refundable and to be paid in arrears quarterly,
on each Quarterly Date, and on the earlier of the Revolving Credit
Commitment Termination Date or the date of the termination of the
Revolving Credit Commitments or the date of such termination,
expiration or the Business Day subsequent to notice of a drawing.
The Administrative Agent shall pay for account of each Revolving
Credit Lender, from time to time at reasonable intervals (but in any
event at least quarterly), but only to the extent actually received
from Borrower (and the Administrative Agent shall promptly pay to
each such Revolving Credit Lender in accordance with Section
11.07(a) hereof), an amount equal to such Lender's Revolving Credit
Commitment Percentage of all letter of credit commissions referred
to in the first sentence of this clause (g). In addition, Borrower
shall pay to the Administrative Agent for its account only in
respect of each Letter of Credit a letter of credit issuance fee in
an amount equal to, in the case of standby Letters of Credit, 0.25%
per annum multiplied by the original face amount, and, in the case
of documentary Letters of Credit, 0.25% per annum multiplied by the
average daily outstanding amount, in each case from the issue date
through the expiry date of such Letter of Credit, and such other
fees as may be agreed by Borrower and the Issuing Lender, such
amount to be payable quarterly in arrears on each Quarterly Date,
plus all charges, costs and expenses in the amounts customarily
charged by the Issuing Lender from time to time in like
circumstances with respect to the issuance, amendment or transfer of
each Letter of Credit and drawings and other transactions relating
thereto.
(h) Upon the request of any Revolving Credit Lender from
time to time, the Issuing Lender shall deliver any other information
reasonably requested by such Lender with respect to each Letter of
Credit then outstanding.
(i) To the extent that any Revolving Credit Lender fails
to pay an amount required to be paid pursuant to clause (e) or (f)
of this Section 2.03 on the due date therefor, such Lender shall pay
interest to the Issuing Lender (through the Administrative Agent) on
such amount from and including such due date to but excluding the
date such payment is made (i) during the period from and including
such due date to but excluding the date three Business Days
thereafter, at a
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rate per annum equal to the Federal Funds Rate (as in effect from
time to time) and (ii) thereafter, at a rate per --- annum equal to
the post-default rate (as in effect from time to time) pursuant to
Section 3.02(b)(y).
(j) The issuance by the Issuing Lender of any
modification or supplement to any Letter of Credit hereunder that
would extend the expiry date or increase the face amount thereof
shall be subject to the same conditions applicable under this
Section 2.03 to the issuance of new Letters of Credit, and no such
modification or supplement shall be issued hereunder unless either
(x) the respective Letter of Credit affected thereby would have
complied with such conditions had it originally been issued
hereunder in such modified or supplemented form or (y) each
Revolving Credit Lender shall have consented thereto.
(k) Notwithstanding the foregoing, the Issuing Lender
shall not be under any obligation to issue any Letter of Credit if
at the time of such issuance, any order, judgment or decree of any
Governmental Authority or arbitrator shall purport by its terms to
enjoin or restrain the Issuing Lender from issuing such Letter of
Credit or any requirement of law applicable to the Issuing Lender or
any request or directive (whether or not having the force of law)
from any Governmental Authority shall prohibit, or request that the
Issuing Lender refrain from, the issuance of letters of credit
generally or such Letter of Credit in particular or shall impose
upon such Issuing Lender with respect to such Letter of Credit any
restriction or reserve or capital requirement (for which the Issuing
Lender is not otherwise compensated) not in effect on the date
hereof. At any time that the Issuing Lender shall not be under any
obligation to issue Letters of Credit pursuant to this paragraph
(k), the Issuing Lender may be replaced by Borrower with another
Lender reasonably acceptable to the Administrative Agent upon notice
to the Issuing Lender and the Administrative Agent. Upon any such
replacement, the Administrative Agent shall notify the Lenders of
any such replacement of the Issuing Lender and the replacement
Issuing Lender shall agree to be bound by the applicable provisions
of this Agreement. At the time any such replacement shall become
effective, Borrower shall pay all unpaid fees accrued for the
account of the replaced Issuing Lender pursuant to Section 2.03(g).
From and after the effective date of any such replacement, (i) the
successor Issuing Lender shall have all the rights and obligations
of the Issuing Lender under this Agreement with respect to Letters
of Credit to be issued thereafter and (ii) references herein to the
term "Issuing Lender" shall be deemed to refer to such successor or
to any previous Issuing Lender, or to such successor and all
previous Issuing Lenders, as the context shall require. After the
replacement of an Issuing Lender hereunder, the replaced Issuing
Lender shall remain a party hereto and shall continue to have all
the rights and obligations of an Issuing Lender under this Agreement
with respect to Letters of Credit issued by it prior to such
replacement, but shall not be required to issue additional Letters
of Credit.
The obligations of Borrower under this Agreement and any Letter of
Credit Document to reimburse the Issuing Lender for a drawing under a Letter of
Credit, and to repay any drawing under a Letter of Credit converted into
Revolving Credit Loans, shall be unconditional and irrevocable, and shall be
paid strictly in accordance with the terms of this Agreement and each such other
Letter of Credit Document under all circumstances, including the following: (i)
any lack of validity or enforceability of this Agreement or any Letter of Credit
Document; (ii) the existence of any claim, setoff, defense or other right that
Borrower may have at any time against any beneficiary or any transferee of any
Letter of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the Issuing Lender or any other Person, whether in
connection with this Agreement, the transactions contemplated hereby or by the
Letter of Credit Documents or any unrelated transaction; (iii) any draft,
demand, certificate or other document presented under any Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any loss or
delay in the transmission or otherwise of any document required in order to make
a drawing under any Letter of
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Credit; or any defense based upon the failure of any drawing under a Letter of
Credit to conform to the terms of the Letter of Credit or any non-application or
misapplication by the beneficiary of the proceeds of such drawing; or (iv) any
other circumstance or happening whatsoever, whether or not similar to any of the
foregoing, including any other circumstance that might otherwise constitute a
defense available to, or a discharge of, Borrower or a Guarantor; provided,
however, that Borrower shall not be obligated to reimburse the Issuing Lender
for any wrongful payment determined by a court of competent jurisdiction to have
been made by the Issuing Lender as a result of acts or omissions constituting
bad faith or gross negligence on the part of the Issuing Lender. To the extent
that any provision of any Letter of Credit Document is inconsistent with the
provisions of this Section 2.03, the provisions of this Section 2.03 shall
control.
2.04. Termination and Reductions of Commitments. (a) The aggregate
amount of the Revolving Credit Commitments shall be automatically and
permanently reduced to zero on the Revolving Credit Commitment Termination Date.
The aggregate amount of Revolving Credit Commitments shall be permanently
reduced on the date any required prepayments described in Section 2.10(a) are
required to be made in the amount specified in Section 2.10(b)(ii).
The aggregate amount of the Term Loan Commitments shall be
automatically and permanently reduced to zero immediately after the making of
the Term Loans on the Closing Date.
(b) Borrower shall have the right at any time or from time to time
(without premium or penalty except breakage costs (if any)) (i) so long as no
Revolving Credit Loans or Letter of Credit Liabilities will be outstanding as of
the date specified for termination, to terminate the Revolving Credit
Commitments, and (ii) to reduce the aggregate amount of the Unutilized Revolving
Credit Commitments of all the Revolving Credit Lenders; provided, however, that
(x) Borrower shall give notice of each such termination or reduction as provided
in Section 4.05, and (y) each partial reduction shall be in an aggregate amount
at least equal to $5.0 million (or a larger multiple of $1.0 million) or, if
less, the remaining Revolving Credit Commitments.
(c) The Commitments once terminated or reduced may not be
reinstated.
2.05. Fees. (a) Borrower shall pay to the Administrative Agent for
the account of each Revolving Credit Lender (and the Administrative Agent shall
promptly pay to each such Revolving Credit Lender in accordance with Section
11.07(a) hereof) a commitment fee on the daily average amount of such Lender's
Unutilized Revolving Credit Commitment, for the period from and including the
Closing Date to but not including the earlier of the date such Revolving Credit
Commitment is terminated and the Revolving Credit Commitment Termination Date,
at a rate per annum equal to 0.500%; provided, that at any time when the Total
Leverage Ratio set forth in the Interest Rate Certificate most recently
delivered by Borrower to the Administrative Agent is less than 2.75:1 such rate
per annum shall be 0.375%. Any accrued commitment fee under this Section 2.05(a)
shall be payable in arrears on each Quarterly Date and on the Revolving Credit
Commitment Termination Date.
(b) Borrower agrees to pay to the Lead Arranger and the
Administrative Agent, for their own account, the fees in the amounts and on the
dates set forth in the Fee Letter and the ▇▇▇▇▇▇▇ Fee Letter.
2.06. Lending Offices. The Loans of each Type made by each Lender
shall be made and maintained at such Lender's Applicable Lending Office for
Loans of such Type. No Lender shall (unless required by law or if the failure to
do so would adversely affect such Lender) change its Applicable Lending Office
for LIBOR Loans if such change would increase Borrower's net costs or expenses
hereunder materially (including withholding payments).
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2.07. Several Obligations of Lenders. The failure of any Lender to
make any Loan to be made by it on the date specified therefor shall not relieve
any other Lender of its obligation to make its Loan on such date, but neither
any Lender nor the Administrative Agent shall be responsible for the failure of
any other Lender to make a Loan to be made by such other Lender, and no Lender
shall have any obligation to the Administrative Agent or any other Lender for
the failure by such Lender to make any Loan required to be made by such Lender.
2.08. Notes; Register. (a) (i) Each Revolving Credit Lender may
request Notes to be issued in connection with its Revolving Credit Commitments
by written notice to the Administrative Agent. The Revolving Credit Loans made
or to be made by any Revolving Credit Lender who has requested a Note shall be
evidenced by one or more promissory notes of Borrower, substantially in the form
of Exhibit A-1, payable to such Lender and otherwise duly completed.
(ii) At the request of each Lender having Term Loan Commitments by
written notice to the Administrative Agent, the Term Loans made by such Lender
shall be evidenced by one or more promissory notes of Borrower, substantially in
the form of Exhibit A-2, payable to such Lender and otherwise duly completed.
(iii) At the request of the Swing Loan Lender by written notice to
the Administrative Agent, the Swing Loans made by the Swing Loan Lender shall be
evidenced by one or more promissory notes of Borrower, substantially in the form
of Exhibit A-3, payable to the Swing Loan Lender and otherwise duly completed.
(b) The date, amount, Type, interest rate and duration of Interest
Period (if applicable) of each Loan of each Class made by each Lender to
Borrower, and each payment made on account of the principal thereof, shall be
recorded by such Lender on its books and, prior to any transfer of any Note
evidencing the Loans of such Class held by it, endorsed by such Lender on the
schedule attached to such Note or any continuation thereof; provided, however,
that the failure of such Lender to make any such recordation or endorsement or
any error in making any such recordation or endorsement shall not affect the
obligations of Borrower to make a payment when due of any amount owing hereunder
or under such Note.
(c) Borrower hereby designates the Administrative Agent to serve as
its agent, solely for purposes of this Section 2.08, to maintain a register (the
"Register") on which it will record the name and address of each Lender, the
Commitment from time to time of each of the Lenders, the principal amount of the
Loans made by each of the Lenders and each repayment in respect of the principal
amount of the Loans of each Lender. Failure to make any such recordation or any
error in such recordation shall not affect Borrower's obligations in respect of
such Loans. The entries in the Register shall be conclusive, in the absence of
manifest error, and Borrower, the Administrative Agent and the Lenders shall
treat each Person whose name is recorded in the Register as the owner of a Loan
or other obligation hereunder as the owner thereof for all purposes of this
Agreement and the other Credit Documents, notwithstanding any notice to the
contrary. The Register shall be composed of the Administrative Agent's computer
records that show the current status of the Loans without reference as to status
on any previous date. The Register shall be available for inspection by Borrower
and (solely with respect to its Commitments and Loans) any Lender at any
reasonable time and from time to time upon reasonable prior notice.
2.09. Optional Prepayments and Conversions or Continuations of
Loans. Subject to Section 4.04, Borrower shall have the right to prepay Loans,
in whole or in part, without penalty or premium, or to Convert Loans of one Type
into Loans of another Type or to Continue Loans of one Type as Loans of the same
Type, at any time or from time to time to be applied as specified by Borrower;
provided, however, that: (a) Borrower shall give the Administrative Agent notice
of each such prepayment,
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Conversion or Continuation as provided in Section 4.05 (and, upon the date
specified in any such notice of prepayment, the amount to be prepaid shall
become due and payable hereunder); (b) if LIBOR Loans are prepaid or Converted
other than on the last day of an Interest Period for such Loans, Borrower shall
at such time pay all expenses and costs required by Section 5.05; and (c)
prepayments of the Term Loans pursuant to this Section 2.09 shall be applied to
scheduled Amortization Payments on a pro rata basis. Each notice of Conversion
or Continuation shall be substantially in the form of Exhibit J.
Notwithstanding the foregoing, and without limiting the rights and
remedies of the Lenders under Section 10, in the event that any Event of Default
shall have occurred and be continuing, the Administrative Agent may (and at the
request of the Majority Lenders shall) suspend the right of Borrower to Convert
any Loan into a LIBOR Loan, or to Continue any Loan as a LIBOR Loan, in which
event all Loans shall be Converted (on the last day(s) of the respective
Interest Periods therefor) or Continued, as the case may be, as ABR Loans.
2.10. Mandatory Prepayments. (a) Borrower shall prepay the Term
Loans (subject to Section 5.05, without penalty or premium) (and/or permanently
reduce Revolving Credit Commitments) as follows (each such prepayment and
reduction to be effected in each case in the manner, order and to the extent
specified in subsection (b) below of this Section 2.10):
(i) Casualty Events. On or prior to the third Business
Day after the date on which any Company receives any Net Available
Proceeds from any Casualty Event, in an aggregate principal amount
equal to 100% of such Net Available Proceeds; provided, however,
that (x) so long as no Event of Default then exists or would arise
therefrom, such Net Available Proceeds shall not be required to be
so applied on such date to the extent that Borrower has delivered an
Officer's Certificate to the Administrative Agent on or prior to
such date stating that such proceeds shall be used to (1) repair,
replace or restore any Property in respect of which such Net
Available Proceeds were paid or (2) fund the substitution of other
Property used or usable in the business of Borrower and the
Subsidiaries, in each case within 180 days following the date of the
receipt of such Net Available Proceeds and (y) if all or any portion
of such Net Available Proceeds not required to be applied to the
prepayment of Term Loans (or reduction of Revolving Credit
Commitments) pursuant to the preceding proviso is not so used within
180 days after the date of the receipt of such Net Available
Proceeds, such remaining portion shall be paid by Borrower to the
Administrative Agent and applied by the Administrative Agent on the
last day of such period as specified in Section 2.10(b), unless
prior to such 180th day a Company shall have entered into a binding
agreement to so use such Net Available Proceeds, in each case within
180 days after the date of such agreement (and if not so used, the
Net Available Proceeds shall be applied as specified in Section
2.10(b)).
(ii) Equity Issuance. On or prior to the third Business
Day after the date on which the Person consummating the relevant
Equity Issuance receives any Net Available Proceeds from any such
Equity Issuance that is consummated after the Closing Date, in an
aggregate principal amount equal to 50% of such Net Available
Proceeds; provided, however, that the Designated Equity Issuance
Proceeds to the extent contemporaneously applied pursuant to Section
9.06(i) need not be so applied.
(iii) Debt Issuance. On or prior to the third Business
Day after the date on which the Person consummating the relevant
Debt Issuance receives any Net Available Proceeds from any such Debt
Issuance that is consummated after the Closing Date, in an aggregate
principal amount equal to 100% of such Net Available Proceeds.
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(iv) Disposition Events. On or prior to the third
Business Day after the date of receipt by any Company of any Net
Available Proceeds from any Disposition Event on or after the
Closing Date, in an aggregate principal amount equal to 100% of the
Net Available Proceeds from such Disposition Event; provided,
however, that (x) the Net Available Proceeds from any Disposition
Event pursuant to Section 9.06(g) and 25% of the Net Available
Proceeds from any Disposition Event pursuant to Section 9.06(h)
shall not be required to be applied as provided herein on such date
if and to the extent that (1) no Event of Default then exists or
would arise therefrom and (2) Borrower delivers an Officer's
Certificate to the Administrative Agent on or prior to such date
stating that such Net Available Proceeds shall be reinvested in
capital assets of Borrower or any Subsidiary in each case within 180
days following the date of such Disposition Event (which certificate
shall set forth the estimates of the proceeds to be so expended) and
(y) if all or any portion of such Net Available Proceeds not so
applied as provided herein is not so used within such 180 day
period, such remaining portion shall be paid by Borrower to the
Administrative Agent and applied by the Administrative Agent on the
last day of such period as specified in Section 2.10(b), unless
prior to such 180th day a Company shall have entered into a binding
agreement to so use such Net Available Proceeds, in each case within
180 days after the date of such agreement (and if not so used, the
Net Available Proceeds shall be applied as specified in Section
2.10(b)).
(v) Excess Cash Flow. Not later than 100 days after the
end of each fiscal year of Borrower commencing with the fiscal year
ending December 31, 2005, in an aggregate principal amount equal to
the excess of (x) 50% of Excess Cash Flow for such fiscal year less
(y) an amount equal to all voluntary prepayments of Term Loans
pursuant to Section 2.09 made from internally generated funds during
such fiscal year.
(vi) Other Required Prepayments. If the terms of any
agreement, instrument or indenture pursuant to which any
Indebtedness pari passu with or junior in right of payment to the
Loans is outstanding (or pursuant to which such Indebtedness is
guaranteed) require prepayment of such Indebtedness out of the
proceeds of any Disposition or otherwise unless such proceeds are
used to prepay other Indebtedness, then, to the extent not otherwise
required by this Section 2.10(a), the Loans shall be repaid in an
amount not less than the minimum amount that would be required to be
prepaid not later than the latest time as and upon such terms so
that such other Indebtedness will not be required to be prepaid
pursuant to the terms of the agreement, indenture or instrument or
guarantee governing such other Indebtedness.
If the amount of funds actually used prior to the 33rd day after the
Closing Date to consummate the Refinancing, the Existing Notes Redemption
and the Tender Offer and to pay fees, expenses, interest and premiums in
connection therewith is less than $447.0 million, then on the first
Business Day after the 33rd day after the Closing Date Borrower shall
apply the difference between $447.0 million and the amount so applied to
repay the Loans in accordance with Section 2.10(b).
(b) Application. The amount of any required prepayments described in
Section 2.10(a) shall be applied as follows:
(i) first, the amount of the required prepayment shall
be applied to the reduction of Amortization Payments on the Term
Loans required by Section 3.01(b) pro rata to the remaining
Amortization Payments thereof; and
(ii) second, after such time as no Term Loans remain
outstanding, Revolving Credit Commitments shall be permanently
reduced (at the same time that the prepayment of the Term Loans
would have been made and assuming an unlimited amount thereof then
outstanding) pro
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rata in an amount equal to the remaining amount of any such required
prepayment that would have been applied to the Term Loans (assuming
an unlimited amount thereof then outstanding) and to the extent
that, after giving effect to such reduction, the aggregate principal
amount of Revolving Credit Loans, plus the aggregate principal
amount of Swing Loans, plus the aggregate amount of all Letter of
Credit Liabilities would exceed the Revolving Credit Commitments,
Borrower shall, first, prepay outstanding Swing Loans, second,
prepay outstanding Revolving Credit Loans and, third, provide cover
for Letter of Credit Liabilities in the manner provided by Section
2.10(d), in an aggregate amount equal to such excess.
Notwithstanding the foregoing, if the amount of any prepayment of
Loans required under this Section 2.10 shall be in excess of the amount of the
ABR Loans at the time outstanding, 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
required prepayment shall be either (i) deposited in an interest bearing account
over which the Collateral Agent has control satisfactory to it and applied to
the prepayment of LIBOR Loans on the last day of the then next expiring Interest
Period for LIBOR Loans or (ii) prepaid immediately, together with any amounts
owing to the Lenders under Section 5.05. Notwithstanding any deposit pursuant to
clause (i) of the preceding sentence, interest shall continue to accrue on such
Loans until prepayment.
(c) Revolving Credit Extension Reductions. Until the Revolving
Credit Commitment Termination Date, Borrower shall from time to time immediately
prepay the Swing Loans and the Revolving Credit Loans (and/or provide cover for
Letter of Credit Liabilities as specified in Section 2.10(d)) in such amounts as
shall be necessary so that at all times the aggregate outstanding amount of the
Revolving Credit Loans, plus the aggregate outstanding amount of Swing Loans,
plus the aggregate outstanding Letter of Credit Liabilities shall not exceed the
Revolving Credit Commitments as in effect at such time, such amount to be
applied, first, to Swing Loans, second, to Revolving Credit Loans outstanding
and, third, as cover for Letter of Credit Liabilities outstanding as specified
in Section 2.10(d).
(d) Cover for Letter of Credit Liabilities. In the event that
Borrower shall be required pursuant to this Section 2.10 to provide cover for
Letter of Credit Liabilities, Borrower shall effect the same by paying to the
Collateral Agent immediately available funds in an amount equal to the required
amount, which funds shall be retained by the Collateral Agent until such time as
all Letters of Credit shall have been terminated and all of the Letter of Credit
Liabilities have been paid in full.
2.11. Replacement of Lenders. Borrower shall have the right, if no
Default then exists, to replace any Lender (the "Replaced Lender") with one or
more other Eligible Persons reasonably acceptable to the Lead Arranger and the
Administrative Agent (collectively, the "Replacement Lender") if (x) such Lender
is charging Borrower increased costs pursuant to Section 5.01 or 5.06 in excess
of those being charged generally by the other Lenders or such Lender becomes
incapable of making LIBOR Loans as provided in Section 5.03 and/or (y) as
provided in Section 13.04(ii), such Lender refuses to consent to certain
proposed amendments, waivers or modifications with respect to this Agreement;
provided, however, that (i) at the time of any replacement pursuant to this
Section 2.11, the Replacement Lender shall enter into one or more assignment
agreements in accordance with Section 13.06(b) (and with all fees payable
pursuant to Section 13.06 to be paid by the Replacement Lender) pursuant to
which the Replacement Lender shall acquire all of the Commitments and
outstanding Loans of, and in each case Letter of Credit Interests for, the
Replaced Lender and, in connection therewith, shall pay to (x) the Replaced
Lender, an amount equal to the sum of (A) the principal of, and all accrued
interest on, all outstanding Loans of the Replaced Lender, (B) all Reimbursement
Obligations owing to such Replaced Lender, together with all then unpaid
interest with respect thereto at such time, and (C) all accrued, but theretofore
unpaid, fees owing to the Replaced Lender pursuant to Section 2.05, and (y) the
Issuing Lender an amount equal to such Replaced Lender's Revolving Credit
Commitment Percentage of any Reimbursement Obligations
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(which at such time remains a Reimbursement Obligation) to the extent such
amount was not theretofore funded by such Replaced Lender, and (ii) all
obligations of Borrower owing to the Replaced Lender (other than those
specifically described in clause (i) above in respect of which the assignment
purchase price has been, or is concurrently being, paid, but including any
amounts which would be paid to a Lender pursuant to Section 5.05 if Borrower
were prepaying a LIBOR Loan) shall be paid in full to such Replaced Lender
concurrently with such replacement. Upon the execution of the applicable
assignment agreement, the payment of amounts referred to in clauses (i) and (ii)
above and, if so requested by the Replacement Lender, delivery to the
Replacement Lender of Notes executed by Borrower, the Replacement Lender shall
become a Lender hereunder and the Replaced Lender shall cease to constitute a
Lender hereunder and be released of all its obligations as a Lender, except with
respect to indemnification provisions applicable to the Replaced Lender under
this Agreement, which shall survive as to such Replaced Lender.
Section 3. Payments of Principal and Interest.
3.01. Repayment of Loans.
(a) Revolving Credit and Swing Loans. Borrower hereby promises to
pay to the Administrative Agent for the account of each Lender the entire
outstanding principal amount of such Lender's Revolving Credit Loans, and each
Revolving Credit Loan shall mature, on the Revolving Credit Commitment
Termination Date. Borrower hereby promises to pay the Swing Loan Lender for its
account the entire outstanding principal amount of the Swing Loans, and the
Swing Loans shall mature, on the Swing Loan Maturity Date.
(b) Term Loans. Borrower hereby promises to pay to the
Administrative Agent for the account of the Term Loan Lenders, in repayment of
the principal of the Term Loans, the amounts set forth on Schedule 3.01(b) on
the dates set forth on Schedule 3.01(b) (subject to adjustment for any
prepayments required by Section 2.10 to the extent actually made).
3.02. Interest. (a) Borrower hereby promises to pay to the
Administrative Agent for the account of each Lender interest on the unpaid
principal amount of each Loan made by such Lender for the period from and
including the date of such Loan to but excluding the date such Loan shall be
paid in full at the following rates per annum:
(i) during such periods as such Loan is an ABR Loan, the
Alternate Base Rate (as in effect from time to time), plus the
Applicable Margin; and
(ii) during such periods as such Loan is a LIBOR Loan,
for each Interest Period relating thereto, the LIBOR Rate for such
Loan for such Interest Period, plus the Applicable Margin.
(b) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan and other overdue amounts owed by any Obligor
under the Credit Documents (including such interest accruing before and after
judgment) shall bear interest at a rate per annum equal to (x) in the case of
principal of any Loans, the rate which is 2% in excess of the rate then borne by
such Loans and (y) in the case of interest and such other amounts, the rate
which is 2% in excess of the rate otherwise applicable to ABR Loans which are
Revolving Credit Loans from time to time. Interest which accrues under this
paragraph shall be payable on demand.
(c) Accrued interest on each Loan shall be payable (i) in the case
of an ABR Loan, quarterly on the Quarterly Dates, (ii) in the case of a LIBOR
Loan, on the last day of each Interest Period therefor and, if such Interest
Period is longer than three months, at three-month intervals following
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the first day of such Interest Period and (iii) in the case of any LIBOR Loan,
upon the payment or prepayment thereof or the Conversion of such Loan to a Loan
of another Type (but only on the principal amount so paid, prepaid or
Converted), except that interest payable at the rate set forth in Section
3.02(b) shall be payable from time to time on demand.
Section 4. Payments; Pro Rata Treatment; Computations; Etc.
4.01. Payments. (a) Except to the extent otherwise provided herein,
all payments of principal, interest, Reimbursement Obligations and other amounts
to be made by Borrower under this Agreement and the Notes, and, except to the
extent otherwise provided therein, all payments to be made by the Obligors under
any other Credit Document, shall be made in Dollars, in immediately available
funds, without deduction, setoff or counterclaim, to the Administrative Agent at
its account at the Principal Office, not later than 12:00 p.m. Chicago time on
the date on which such payment shall become due (each such payment made after
such time on such due date to be deemed to have been made on the next succeeding
Business Day).
(b) Borrower shall, at the time of making each payment under this
Agreement or any Note for the account of any Lender, specify (in accordance with
Section 2.09 and 2.10, if applicable) to the Administrative Agent (which shall
so notify the intended recipient(s) thereof) the Loans, Reimbursement
Obligations or other amounts payable by Borrower hereunder to which such payment
is to be applied (and in the event that Borrower fails to so specify, or if an
Event of Default has occurred and is continuing, the Administrative Agent may
distribute such payment to the Lenders for application to the Obligations under
the Credit Documents in such manner as it or the Majority Lenders, subject to
Section 4.02, may determine to be appropriate).
(c) If the due date of any payment under this Agreement or any Note
would otherwise fall on a day that is not a Business Day, such date shall be
extended to the next succeeding Business Day, and interest shall be payable for
any principal so extended for the period of such extension.
4.02. Pro Rata Treatment. Except to the extent otherwise provided
herein: (a) each borrowing of Loans of a particular Class from the Lenders under
Section 2.01 shall be made from the relevant Lenders, each payment of commitment
fee under Section 2.05 in respect of Commitments of a particular Class shall be
made for account of the relevant Lenders, and each termination or reduction of
the amount of the Commitments of a particular Class under Section 2.04 shall be
applied to the respective Commitments of such Class of the relevant Lenders, pro
rata according to the amounts of their respective Commitments of such Class;
provided, however, that Swing Loans shall be made only by, and interest thereon
shall be paid by Borrower only to, the Swing Loan Lender (subject to such
Lender's obligations in respect of any participation therein purchased by the
other Revolving Credit Lenders as provided in Section 2.01(d)); (b) except as
otherwise provided in Section 5.04, LIBOR Loans of any Class having the same
Interest Period shall be allocated pro rata among the relevant Lenders according
to the amounts of their respective Revolving Credit and Term Loan Commitments
(in the case of the making of Loans) or their respective Revolving Credit and
Term Loans (in the case of Conversions and Continuations of Loans); (c) each
payment or prepayment of principal of Revolving Credit Loans or Term Loans by
Borrower shall be made for account of the relevant Lenders pro rata in
accordance with the respective unpaid outstanding principal amounts of the Loans
of such Class held by them; and (d) each payment of interest on Revolving Credit
Loans and Term Loans by Borrower shall be made for account of the relevant
Lenders pro rata in accordance with the amounts of interest on such Loans then
due and payable to the respective Lenders.
4.03. Computations. Interest on LIBOR Loans and commitment fees and
letter of credit fees shall be computed on the basis of a year of 360 days and
actual days elapsed (including the
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first day but excluding the last day) occurring in the period for which such
amounts are payable and interest on ABR Loans and Reimbursement Obligations
shall be computed on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed (including the first day but excluding the last day)
occurring in the period for which such amounts are payable. Notwithstanding the
foregoing, for each day that the Alternate Base Rate is calculated by reference
to the Federal Funds Rate, interest on ABR Loans and Reimbursement Obligations
shall be computed on the basis of a year of 360 days and actual days elapsed
(including the first day but excluding the last day).
4.04. Minimum Amounts. Except for mandatory prepayments made
pursuant to Section 2.10, Conversions or prepayments made pursuant to Section
5.04 and borrowings hereunder to finance any payment made in respect of a Letter
of Credit, each borrowing, Conversion and prepayment of principal of Loans
(other than Swing Loans, for which the minimum amounts thereof are in Section
2.01(d)) shall be in an amount at least equal to $500,000 (or, if less, the
remaining aggregate principal amount thereof) with respect to ABR Loans and
$1,000,000 (or, if less, the remaining aggregate principal amount thereof) with
respect to LIBOR Loans and in multiples of $100,000 in excess thereof
(borrowings, Conversions or prepayments of or into Loans of different Types or,
in the case of LIBOR Loans, having different Interest Periods at the same time
hereunder to be deemed separate borrowings, Conversions and prepayments for
purposes of the foregoing, one for each Type or Interest Period).
4.05. Certain Notices. Notices by Borrower to the Administrative
Agent of terminations or reductions of the Commitments, of borrowings,
Conversions, Continuations and optional prepayments of Loans and of Classes of
Loans, of Types of Loans and of the duration of Interest Periods shall be
irrevocable and shall be effective only if received by the Administrative Agent
not later than the Chicago time specified in the table below on the number of
Business Days prior to the date of the relevant termination, reduction,
borrowing, Conversion, Continuation or prepayment or the first day of such
Interest Period specified in the table below.
NOTICE PERIODS
Notice Number of Business Days Prior
------ -----------------------------
Termination or reduction of Commitments 3 (12:00 p.m.)
Borrowing or optional prepayment of, or
Conversions into, ABR Loans (other than
1 (11:00 a.m.)
Swing Loans)
Borrowing or optional prepayment of, Swing
Loans 0 (i.e., same day notice) (12:00
p.m.)
Borrowing or optional prepayment of,
Conversions into, Continuations as, or
duration of Interest Periods for, LIBOR
Loans 3 (11:00 a.m.)
Each such notice of termination or reduction shall specify the
amount and the Class of the Commitments to be terminated or reduced. Each such
notice of borrowing, Conversion, Continuation or prepayment shall specify the
Class of Loans to be borrowed, Converted, Continued or prepaid and the amount
(subject to Section 4.04) and Type of each Loan to be borrowed, Converted,
Continued or prepaid and the date of borrowing, Conversion, Continuation or
prepayment (which shall be a Business Day). Each such notice of the duration of
an Interest Period shall specify the Loans to which such Interest Period is to
relate. Unless otherwise consented to by UBSS in its sole discretion, prior to
the date on which Borrower has been notified by UBSS that the Primary
Syndication has been completed, no borrowing or Continuation of or Conversion
into any LIBOR Loan may be made having an Interest Period other than
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one month. In the event that Borrower fails to select the Type of Loan within
the time period and otherwise as provided in this Section 4.05, such Loan (if
outstanding as a LIBOR Loan) will be automatically Converted into an ABR Loan on
the last day of the then current Interest Period for such Loan or (if
outstanding as an ABR Loan) will remain as, or (if not then outstanding) will be
made as, an ABR Loan. In the event that Borrower fails to select an Interest
Period for any LIBOR Loan within the time period and otherwise as provided in
this Section 4.05, such Interest Period shall be for one month.
4.06. Non-Receipt of Funds by the Administrative Agent. Unless the
Administrative Agent shall have received written notice from a Lender or
Borrower (the "Payor") prior to the date on which the Payor is to make payment
to the Administrative Agent of (in the case of a Lender) the proceeds of a Loan
to be made by such Lender hereunder or a payment to the Administrative Agent for
the account of one or more of the Lenders hereunder (such payment being herein
called the "Required Payment"), which notice shall be effective upon receipt,
that the Payor does not intend to make the Required Payment to the
Administrative Agent, the Administrative Agent may assume that the Required
Payment has been made and may, in reliance upon such assumption (but shall not
be required to), make the amount thereof available to the intended recipient(s)
on such date; and, if the Payor has not in fact made the Required Payment to the
Administrative Agent, the recipient(s) of such payment shall, on demand, repay
to the Administrative Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date (the
"Advance Date") such amount was so made available by the Administrative Agent
until the date the Administrative Agent recovers such amount at a rate per annum
equal to the Federal Funds Rate for such day and, if such recipient(s) shall
fail promptly to make such payment, the Administrative Agent shall be entitled
to recover such amount, on demand, from the Payor, together with interest as
aforesaid; provided, however, that if neither the recipient(s) nor the Payor
shall return the Required Payment to the Administrative Agent within three
Business Days of the date such demand was made, then, retroactively to the
Advance Date, the Payor and the recipient(s) shall each be obligated to pay
interest on the Required Payment as follows (without double recovery):
(i) if the Required Payment shall represent a payment to
be made by Borrower to the Lenders, Borrower and the recipient(s)
shall each be obligated retroactively to the Advance Date to pay
interest in respect of the Required Payment at the rate set forth in
Section 3.02(b) (without duplication of the obligation of Borrower
under Section 3.02 to pay interest on the Required Payment at the
rate set forth in Section 3.02(b)), it being understood that the
return by the recipient(s) of the Required Payment to the
Administrative Agent shall not limit such obligation of Borrower
under Section 3.02 to pay interest at the rate set forth in Section
3.02(b) in respect of the Required Payment and
(ii) if the Required Payment shall represent proceeds of
a Loan to be made by the Lenders to Borrower, the Payor and Borrower
shall each be obligated retroactively to the Advance Date to pay
interest in respect of the Required Payment pursuant to Section
3.02, it being understood that the return by Borrower of the
Required Payment to the Administrative Agent shall not limit any
claim Borrower may have against the Payor in respect of such
Required Payment.
4.07. Right of Setoff; Sharing of Payments; Etc. (a) Each Obligor
agrees that, in addition to (and without limitation of) any right of setoff,
banker's lien or counterclaim a Lender may otherwise have, each Lender shall be
entitled, at its option (to the fullest extent permitted by law), to set off and
apply any deposit (general or special, time or demand, provisional or final), or
other indebtedness, held by it for the credit or account of such Obligor at any
of its offices, in Dollars or in any other currency, against any principal of or
interest on any of such Lender's Loans, Reimbursement Obligations or any other
amount payable to such Lender hereunder that is not paid when due (regardless of
whether such deposit or other indebtedness is then due to such Obligor), in
which case it shall promptly notify such Ob-
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ligor and the Administrative Agent thereof; provided, however, that such
Lender's failure to give such notice shall not affect the validity thereof.
(b) Each of the Lenders agrees that, if it should receive (other
than pursuant to Section 5) any amount hereunder (whether by voluntary payment,
by realization upon security, by the exercise of the right of setoff or banker's
lien, by counterclaim or cross action, by the enforcement of any right under the
Credit Documents, or otherwise) which is applicable to the payment of the
principal of, or interest on, the Loans, Reimbursement Obligations or fees, of a
sum which with respect to the related sum or sums received by other Lenders is
in a greater proportion than the total of such amounts then owed and due to such
Lender bears to the total of such amounts then owed and due to all of the
Lenders immediately prior to such receipt, then such Lender receiving such
excess payment shall purchase for cash without recourse or warranty from the
other Lenders an interest in the Obligations of the respective Obligor to such
Lenders in such amount as shall result in a proportional participation by all of
the Lenders in such amount; provided, however, that if all or any portion of
such excess amount is thereafter recovered from such Lender, such purchase shall
be rescinded and the purchase price restored to the extent of such recovery, but
without interest. Borrower consents to the foregoing arrangements.
(c) Borrower agrees that any Lender so purchasing such a
participation may exercise all rights of setoff, banker's lien, counterclaim or
similar rights with respect to such participation as fully as if such Lender
were a direct holder of Loans or other amounts (as the case may be) owing to
such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise
any such right or shall affect the right of any Lender to exercise, and retain
the benefits of exercising, any such right with respect to any other
indebtedness or obligation of any Obligor. If, under any applicable bankruptcy,
insolvency or other similar law, any Lender receives a secured claim in lieu of
a setoff to which this Section 4.07 applies, such Lender shall, to the extent
practicable, exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Lenders entitled under this Section 4.07 to
share in the benefits of any recovery on such secured claim.
Section 5. Yield Protection, Etc.
5.01. Additional Costs. (a) If the adoption of, or any change in,
any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority or the
NAIC made subsequent to the Closing Date:
(i) shall subject any Lender or Issuing Lender to any
tax of any kind whatsoever with respect to this Agreement, any Note,
any Letter of Credit or any Lender's participation therein, any
Letter of Credit Document or any LIBOR Loan made by it or change the
basis of taxation of payments to such Lender in respect thereof by
any Governmental Authority (except for taxes covered by or expressly
excluded from coverage by Section 5.06 and changes in the rate of
tax on the overall net income or taxable income for any applicable
minimum tax or alternative minimum tax of such Lender or its
Applicable Lending Office, or any affiliate thereof or franchise tax
by any Governmental Authority);
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, deposits or other liabilities in or for the
account of, advances, loans or other extensions of credit by, or any
other acquisition of funds by, any office of such Lender or Issuing
Lender which is not otherwise included in the determination of the
LIBOR Rate hereunder; or
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(iii) shall impose on such Lender or Issuing Lender any
other condition (excluding taxes);
and the result of any of the foregoing is to increase the cost to such Lender or
Issuing Lender, by an amount which such Lender or Issuing Lender deems to be
material, of making, converting into, continuing or maintaining LIBOR Loans or
issuing or participating in Letters of Credit or to reduce any amount receivable
hereunder in respect thereof then, in any such case, Borrower shall promptly pay
such Lender or Issuing Lender, upon its written demand, any additional amounts
necessary to compensate such Lender or Issuing Lender for such increased cost or
reduced amount receivable; provided, however, that a Lender that is an assignee
or transferee of an interest under this Agreement pursuant to Section 2.11 or
13.06 that was already a Lender hereunder immediately prior to such assignment
or transfer shall be entitled to additional amounts pursuant to this Section
5.01 on the assigned or transferred interest only to the same extent as the
assignor Lender. If any Lender or Issuing Lender becomes entitled to claim any
additional amounts pursuant to this subsection, it shall promptly notify
Borrower, through the Administrative Agent, of the event by reason of which it
has become so entitled. A certificate as to any additional amounts setting forth
the calculation of such additional amounts pursuant to this Section 5.01
submitted by such Lender or Issuing Lender, through the Administrative Agent, to
Borrower shall be conclusive in the absence of clearly demonstrable error.
Without limiting the survival of any other covenant hereunder, this Section 5.01
shall survive the termination of this Agreement and the payment of the Notes and
all other amounts payable hereunder.
(b) In the event that any Lender or Issuing Lender shall have
determined that the adoption of any law, rule, regulation or guideline regarding
capital adequacy (or any change after the date hereof therein or in the
interpretation or application thereof) or compliance by any Lender or Issuing
Lender or any corporation controlling such Lender or Issuing Lender with any
request or directive regarding capital adequacy (whether or not having the force
of law) from any central bank or Governmental Authority or the NAIC, in each
case, made subsequent to the date hereof including, without limitation, the
issuance of any final rule, regulation or guideline, does or shall have the
effect of reducing the rate of return on such Lender's or Issuing Lender's or
such corporation's capital as a consequence of its obligations hereunder or
under any Letter of Credit to a level below that which such Lender or Issuing
Lender or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or Issuing Lender's or such
corporation's policies with respect to capital adequacy) by an amount deemed by
such Lender or Issuing Lender to be material, then from time to time, after
submission by such Lender or Issuing Lender to Borrower (with a copy to the
Administrative Agent) of a written request therefor, Borrower shall promptly pay
to such Lender or Issuing Lender such additional amount or amounts as will
compensate such Lender or Issuing Lender for such reduction.
(c) Each Lender (and Issuing Lender) shall notify Borrower of any
event that will entitle such Lender (or Issuing Lender, as the case may be) to
compensation under paragraph (a) or (b) of this Section 5.01 as promptly as
practicable, but in any event within 90 days after such Lender (or Issuing
Lender, as the case may be) obtains actual knowledge thereof; provided, however,
that (i) if any Lender (or Issuing Lender, as the case may be) fails to give
such notice within 90 days after it obtains actual knowledge of such an event,
such Lender (or Issuing Lender, as the case may be) shall, with respect to
compensation payable pursuant to this Section 5.01 in respect of any costs
resulting from such event, only be entitled to payment under this Section 5.01
for costs incurred from and after the date 90 days prior to the date that such
Lender (or Issuing Lender, as the case may be) does give such notice and (ii)
each Lender (or Issuing Lender, as the case may be), will designate a different
Applicable Lending Office for the Loans of such Lender (or the Letters of
Credit, as the case may be) affected by such event if such designation will
avoid the need for, or reduce the amount of, such compensation and will not, in
the sole opinion of such Lender (or Issuing Lender, as the case may be), be
disadvantageous to such Lender (or Issuing Lender, as the case may be). Each
Lender (or Issuing Lender, as the case may be) will furnish to
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Borrower at the time of request for compensation under paragraph (a) or (b) of
this Section 5.01 a certificate setting forth the basis, amount and reasonable
detail of computation of each request by such Lender for compensation under
paragraph (a) or (b) of this Section 5.01, which certificate shall, except for
demonstrable error, be final, conclusive and binding for all purposes.
5.02. Limitation on Types of Loans. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of any LIBOR Base Rate for
any Interest Period:
(i) the Administrative Agent determines, which
determination shall be conclusive, absent manifest error, that
quotations of interest rates for the relevant deposits referred to
in the definition of "LIBOR Base Rate" in Section 1.01 are not being
provided in the relevant amounts or for the relevant maturities for
purposes of determining rates of interest for LIBOR Loans as
provided herein; or
(ii) if the related Loans are Revolving Credit Loans,
the Majority Revolving Credit Lenders or, if the related Loans are
Term Loans, the Majority Term Loan Lenders, determine, which
determination shall be conclusive, that the relevant rates of
interest referred to in the definition of "LIBOR Base Rate" in
Section 1.01 upon the basis of which the rate of interest for LIBOR
Loans for such Interest Period is to be determined are not likely
adequate to cover the cost to the applicable Lenders of making or
maintaining LIBOR Loans for such Interest Period,
then the Administrative Agent shall give Borrower and each Lender prompt notice
thereof, and so long as such condition remains in effect, the affected Lenders
shall be under no obligation to make additional LIBOR Loans (but shall make
their portion of any additional Borrowings as ABR Loans), to Continue LIBOR
Loans or to Convert ABR Loans into LIBOR Loans and Borrower shall, on the last
day(s) of the then current Interest Period(s) for the outstanding LIBOR Loans,
either prepay such Loans of such affected Lenders or Convert such Loans of such
affected Lenders into ABR Loans in accordance with Section 2.09.
5.03. Illegality. Notwithstanding any other provision of this
Agreement, in the event that any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender or
Issuing Lender or its Applicable Lending Office to honor its obligation to make
or maintain LIBOR Loans or issue Letters of Credit hereunder (and, in the sole
opinion of such Lender or Issuing Lender, the designation of a different
Applicable Lending Office would either not avoid such unlawfulness or would be
disadvantageous to such Lender or Issuing Lender), then such Lender or Issuing
Lender shall promptly notify Borrower thereof (with a copy to the Administrative
Agent) and such Lender's or Issuing Lender's obligation to make or Continue, or
to Convert Loans of any other Type into, LIBOR Loans or issue Letters of Credit
shall be suspended until such time as such Lender or Issuing Lender may again
make and maintain LIBOR Loans or issue Letters of Credit (in which case the
provisions of Section 5.04 shall be applicable).
5.04. Treatment of Affected Loans. If the obligation of any Lender
to make LIBOR Loans or to Continue, or to Convert ABR Loans into, LIBOR Loans
shall be suspended pursuant to Section 5.03, such Lender's LIBOR Loans shall be
automatically Converted into ABR Loans on the last day(s) of the then current
Interest Period(s) for such LIBOR Loans (or on such earlier date as such Lender
may specify to Borrower with a copy to the Administrative Agent as is required
by law) and, unless and until such Lender gives notice as provided below that
the circumstances specified in Section 5.03 which gave rise to such Conversion
no longer exist:
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(i) to the extent that such Lender's LIBOR Loans have
been so Converted, all payments and prepayments of principal which
would otherwise be applied to such Lender's LIBOR Loans shall be
applied instead to its ABR Loans; and
(ii) all Loans which would otherwise be made or
Continued by such Lender as LIBOR Loans shall be made or Continued
instead as ABR Loans and all ABR Loans of such Lender which would
otherwise be Converted into LIBOR Loans shall remain as ABR Loans.
If such Lender gives notice to Borrower with a copy to the Administrative Agent
that the circumstances specified in Section 5.03 which gave rise to the
Conversion of such Lender's LIBOR Loans pursuant to this Section 5.04 no longer
exist (which such Lender agrees to do promptly upon such circumstances ceasing
to exist) at a time when LIBOR Loans are outstanding, such Lender's ABR Loans
shall be automatically Converted, on the first day(s) of the next succeeding
Interest Period(s) for such outstanding LIBOR Loans, to the extent necessary so
that, after giving effect thereto, all Loans held by the Lenders holding LIBOR
Loans and by such Lender are held pro rata (as to principal amounts, Types and
Interest Periods) in accordance with their respective Commitments.
5.05. Compensation. (a) Borrower agrees to indemnify each Lender and
to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (1) default by Borrower in payment when due
of the principal amount of or interest on any LIBOR Loan, (2) default by
Borrower in making a borrowing of, Conversion into or Continuation of LIBOR
Loans after Borrower has given a notice requesting the same in accordance with
the provisions of this Agreement, (3) default by Borrower in making any
prepayment after Borrower has given a notice thereof in accordance with the
provisions of the Agreement, or (4) the making of a payment or a prepayment of
LIBOR Loans on a day which is not the last day of an Interest Period with
respect thereto, including in each case, any such loss (excluding loss of
margin) or expense arising from the reemployment of funds obtained by it or from
fees payable to terminate the deposits from which such funds were obtained.
(b) For the purpose of calculation of all amounts payable to a
Lender under this Section 5.05 each Lender shall be deemed to have actually
funded its relevant LIBOR Loan through the purchase of a deposit bearing
interest at the LIBOR Rate in an amount equal to the amount of the LIBOR Loan
and having a maturity comparable to the relevant Interest Period; provided,
however, that each Lender may fund each of its LIBOR Loans in any manner it sees
fit, and the foregoing assumption shall be utilized only for the calculation of
amounts payable under this subsection. Any Lender requesting compensation
pursuant to this Section 5.05 will furnish to the Administrative Agent and
Borrower a certificate setting forth the basis and amount of such request and
such certificate, absent manifest error, shall be conclusive. Without limiting
the survival of any other covenant hereunder, this covenant shall survive the
termination of this Agreement and the payment of the Notes and all other amounts
payable hereunder.
5.06. Net Payments. (a) All payments made by Borrower or any
Guarantor hereunder or under any Note or any Guarantee will be made without
setoff, counterclaim or other defense. Except as provided in Section 5.06(b),
all such payments will be made free and clear of, and without deduction or
withholding for, any Taxes now or hereafter imposed by any Governmental
Authority or by any political subdivision or taxing authority thereof or therein
with respect to such payments (but excluding any Excluded Tax) and all interest,
penalties or similar liabilities with respect thereto (all such Taxes (other
than Excluded Taxes) being referred to collectively as "Covered Taxes"). If any
Covered Taxes are so levied or imposed, Borrower and each Guarantor, as the case
may be, agrees (on a joint and several basis) to pay the full amount of such
Covered Taxes, and such additional amounts as may be necessary so that every
payment of all amounts due under this Agreement, the Guarantees or under any
Note, after withholding or deduction for or on account of any Covered Taxes
(including any Covered Taxes attributable to any amounts under this Section
5.06), will not be less than the amount provided for herein or in such Note or
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Guarantee. Borrower and each Guarantor, as the case may be, will furnish to the
Administrative Agent within 45 days after the date the payment of any Covered
Taxes is due pursuant to applicable law certified copies of tax receipts or
other documentation reasonably satisfactory to such Lender or Administrative
Agent, as the case may be, evidencing such payment by Borrower or any Guarantor.
Borrower and the Guarantors agree (jointly and severally) to indemnify and hold
harmless each Lender, and the Administrative Agent and reimburse such Lender or
Administrative Agent, promptly upon its written request, for the amount of any
Covered Taxes so levied or imposed and paid by such Lender or Administrative
Agent and any liability (including penalties, additions to tax, interest and
expenses) arising therefrom or with respect thereto whether or not such Covered
Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority; provided that if any Obligor determines in good faith that a
reasonable basis exists for contesting any Covered Taxes or Other Taxes for
which an increase in the amount of such payment is made or for which
indemnification has been demanded pursuant to this Section 5.06, such Lender or
the Administrative Agent, as applicable, shall cooperate with such Obligor in
challenging such Covered Taxes or Other Taxes at such Obligor's expense if so
requested by such Obligor in writing.
"Excluded Taxes" shall mean any Tax (other than any Other Taxes)
imposed on or measured by the net income or net profits of a Lender pursuant to
the laws of the jurisdiction in which it is organized or the jurisdiction in
which the principal office or Applicable Lending Office of such Lender is
located or any jurisdiction in which such Lender conducts business (other than a
business deemed to arise solely from the transactions contemplated herein) or
any subdivision thereof or therein.
(b) Each Lender that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for U.S. federal income tax purposes
(a "Non-U.S. Lender") agrees to deliver to Borrower and the Administrative Agent
on or prior to the Closing Date or, in the case of a Non-U.S. Lender that is an
assignee or transferee of an interest under this Agreement pursuant to Section
2.11 or 13.06 (unless the respective Non-U.S. Lender was already a Lender
hereunder immediately prior to such assignment or transfer), on the date of such
assignment or transfer to such Non-U.S. Lender, (i) two accurate and complete
original signed copies of Internal Revenue Service Form W-8ECI or W-8BEN
claiming eligibility of the Non-U.S. Lender for benefits of an income tax treaty
to which the United States is a party (or successor forms) certifying to such
Non-U.S. Lender's entitlement to a complete exemption from United States
withholding tax with respect to payments to be made under this Agreement and
under any Note (or, with respect to any assignee Lender, an exemption at least
as extensive as the assigning Lender), or (ii) if the Non-U.S. Lender is not a
"bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver
either Internal Revenue Service Form W-8BEN or W-8ECI pursuant to clause (i)
above, (x) a certificate substantially in the form of Exhibit L (any such
certificate, a "Section 5.06 Certificate") and (y) two accurate and complete
original signed copies of Internal Revenue Service Form W-8 BEN (or successor
form) certifying to such Lender's entitlement to a complete exemption from
United States withholding tax with respect to payments to be made under this
Agreement and under any Note (or, with respect to any assignee Lender, an
exemption at least as extensive as the assigning Lender). At the request of
Borrower, each Lender that is a United States person (as such term is defined in
Section 7701(a)(30) of the Code) for U.S. federal income tax purposes (a "U.S.
Lender"), other than a U.S. Lender that is a corporation or financial
institution (an "Exempt Lender"), agrees to deliver to Borrower and the
Administrative Agent as soon as practicable after the Closing Date, or in the
case of a U.S. Lender that is not an Exempt Lender and that is an assignee or
transferee of an interest under this Agreement pursuant to Section 2.11 or 13.06
(unless the respective U.S. Lender was already a Lender hereunder immediately
prior to such assignment or transfer), on the date of such assignment or
transfer to such U.S. Lender, two accurate and complete original signed copies
of Internal Revenue Service Form W-9 (or successor form) in order to demonstrate
such Lender's entitlement to a complete exemption from United States back-up
withholding tax with respect to payments to be made under this Agreement and
under any Note. In addition, each Lender agrees that from time to time after the
Closing Date, when a lapse in time or change in circumstances renders the
previous certification obsolete or inaccurate in any material re-
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spect, it will deliver to Borrower and the Administrative Agent two new accurate
and complete original signed copies of Internal Revenue Service Form W-8ECI,
Form W-8BEN, and a Section 5.06 Certificate, or Form W-9 (if a Form W-9 was
previously provided to Borrower and the Administrative Agent pursuant to
Borrower's request), as the case may be, and such other forms as may be required
in order to confirm or establish the entitlement of such Lender to a continued
exemption from or reduction in United States withholding tax with respect to
payments under this Agreement and any Note, or it shall immediately notify
Borrower and the Administrative Agent of its inability to deliver any such form
or certificate, in which case such Lender shall not be required to deliver any
such form or certificate pursuant to this Section 5.06(b). Notwithstanding,
anything to the contrary in this Section 5.06, no Lender shall be required under
this Section 5.06(b) to deliver any such form or certificate if a change any
applicable law, treaty, regulation, or administrative order, notice or
pronouncement, or in the official interpretation thereof, has occurred prior to
the date on which such delivery would otherwise be required that renders any
such form or certificate inapplicable or would prevent the Lender from duly
completing and delivering any such form or certificate with respect to it and
such Lender so advises Borrower. Neither Borrower nor any Guarantor shall be
required to indemnify any Non-U.S. Lender, or to pay any additional amounts to
any Non-U.S. Lender, in respect of any Covered Taxes to the extent that the
obligation to pay such Covered Taxes would not have arisen but for a failure by
such Non-U.S. Lender to comply with the provisions of this Section 5.06(b).
Notwithstanding anything to the contrary contained in the preceding sentence or
elsewhere in this Section 5.06 and except as set forth in Section 13.06(b),
Borrower agrees to pay additional amounts and to indemnify each Lender in the
manner set forth in Section 5.06(a) (without regard to the identity of the
jurisdiction requiring the deduction or withholding) in respect of any amounts
deducted or withheld by it as described in the immediately preceding sentence as
a result of any changes after the Closing Date in any applicable law, treaty,
governmental rule, regulation, guideline or order, or in the interpretation
thereof, relating to the deducting or withholding of income or similar Covered
Taxes.
(c) In addition, Borrower agrees to pay and indemnify and hold
harmless each Lender and Administrative Agent from any and all present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or under the Notes or
from the execution, delivery, enforcement or registration of, or otherwise with
respect to, this Agreement or the Notes or Guarantee, and all interest and
penalties or similar liabilities and related expenses with regard thereto
(hereinafter referred to as "Other Taxes").
(d) Any Lender claiming any additional amounts payable pursuant to
this Section 5.06 agrees to use (at the Obligors' expense) reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
change the jurisdiction of its Applicable Lending Office if it would avoid the
need for, or reduce the amount of, any such additional amounts that may
thereafter accrue; provided, however, that such change of the Applicable Lending
Office, and the filing of any certificates or forms contemplated by the
immediately succeeding sentence, would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender. Each Lender shall submit to
Borrower or any applicable Governmental Authority all certificates or forms
relating to Taxes reasonably requested of it by Borrower pursuant to applicable
provisions of the Code, treaties or regulations; provided that no Lender shall
have any obligation under this paragraph (d) with respect to any Tax imposed by
any jurisdiction other than the United States if in the reasonable judgment of
such Lender such compliance would subject such Lender to any material
unreimbursed cost or expense or would otherwise be disadvantageous to such
Lender in any material respect.
(e) If Borrower or any Guarantor pays any amount under this Section
5.06 to a Lender and such Lender determines in its sole and absolute discretion
that it has actually received in connection therewith any refund (a "Refund"),
such Lender shall pay to such Borrower or such Guarantor, as the case may be, an
amount that the Lender shall, in its sole and absolute discretion, determine is
equal to the net of all out-of-pocket expenses and after tax, which was obtained
by the Lender as a consequence of
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such Refund; provided, however, that (i) Borrower and the Guarantors (jointly
and severally), upon the request of the applicable Lender, agree to repay as
soon as reasonably practicable the amount paid over to such Borrower or
Guarantor (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to such Lender in the event such Lender is required to
repay such refund to such Governmental Authority, or such Lender loses the
benefits of the Refund in question; (ii) such Lender shall not be required to
make any payment under this Section 5.06(e) if an Event of Default shall have
occurred and be continuing; (iii) any taxes that are imposed on a Lender as a
result of a disallowance or reduction (including through the expiration of any
tax credit carryover or carryback of such Lender that otherwise would not have
expired) of any Refund with respect to which such Lender has made a payment to
Borrower or any Guarantor pursuant to this Section 5.06(e) shall be treated as a
tax for which Borrower or any Guarantor is obligated to indemnify such Lender
pursuant to this Section 5.06 without any exclusions or defenses; and (iv)
nothing in this Section 5.06(e) shall require the Lender to disclose any
confidential information to Borrower or any Guarantor (including its tax
returns).
Section 6. Guarantee.
6.01. The Guarantee. The Guarantors hereby jointly and severally
guarantee as a primary obligor and not as a surety to each Lender, Issuing
Lender and Agent and their respective successors and assigns the prompt payment
in full when due (whether at stated maturity, 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 Bankruptcy Code after any
bankruptcy or insolvency petition under the Bankruptcy Code) on the Loans made
by the Lenders to, and the Notes held by each Lender of, Borrower and all other
Obligations from time to time owing to the Lenders, Indemnitees, Issuing Lender
or Agents by Borrower under this Agreement and under the Notes and by any
Obligor under any of the other Credit Documents, and all obligations of Borrower
or any Subsidiary to any Lender or any Affiliate of any Lender in respect of any
Swap Contract and all Obligations owing to the Issuing Lender under the Letter
of Credit Documents, 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 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, 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.
6.02. Obligations Unconditional. The obligations of the Guarantors
under Section 6.01 are absolute, irrevocable and unconditional, joint and
several, irrespective of the value, genuineness, validity, regularity or
enforceability of the obligations of Borrower under this Agreement, the Notes 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, to the fullest extent permitted by
applicable law, 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 or any other agreement or instrument
referred to herein or therein shall be done or omitted;
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(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 this Agreement, the Notes
or any other Credit Document 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, the Issuing Lender 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.
The Guarantors hereby expressly waive diligence, presentment, demand
of payment, protest and all notices whatsoever, and any requirement that the
Issuing Lender or any Agent or any Lender exhaust any right, power or remedy or
proceed against Borrower under this Agreement or the Notes 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 the Issuing Lender, any Lender or any
Agent 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 Issuing Lender, Lenders and Agents 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 the Issuing Lender, Lenders and Agents, and the obligations and
liabilities of the Guarantors hereunder shall not be conditioned or contingent
upon the pursuit by the Issuing Lender, Lenders or Agents 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.
6.03. Reinstatement. The obligations of the Guarantors under this
Section 6 shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of Borrower 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 (and whether as a result of any demand,
settlement, litigation or otherwise). The Guarantors jointly and severally agree
that they will indemnify the Issuing Lender, each Agent and each Lender on
demand for all reasonable costs and expenses (including reasonable fees of
counsel) incurred by the Issuing Lender, such Agent or such Lender in connection
with such rescission or restoration, including any such costs and expenses
incurred in defending against any claim alleging that such payment constituted a
preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law, other than any costs or expenses resulting from the
gross negligence or bad faith of such Creditor.
6.04. 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 not exercise any right or remedy
arising by reason of any performance by it of its guarantee in Section 6.01,
whether by subrogation or
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otherwise, against Borrower or any other Guarantor of any of the Guaranteed
Obligations or any security for any of the Guaranteed Obligations. The payment
of any amounts due with respect to any indebtedness of Borrower or any other
Guarantor now or hereafter owing to any Guarantor by reason of any payment by
such Guarantor under the Guarantee in this Section 6 is hereby subordinated to
the prior indefeasible payment in full in cash of the Guaranteed Obligations.
Each Guarantor agrees that it will not demand, ▇▇▇ for or otherwise attempt to
collect any such indebtedness of Borrower to such Guarantor until the
Obligations shall have been indefeasibly paid in full in cash and all
Commitments of the Lenders under this Agreement have expired or been terminated.
If, notwithstanding the foregoing sentence, any Guarantor shall prior to the
indefeasible payment in full in cash of the Guaranteed Obligations and
expiration or termination of all Commitments of the Lenders under this Agreement
collect, enforce or receive any amounts in respect of such indebtedness, such
amounts shall be collected, enforced and received by such Guarantor as trustee
for the Lead Arranger, the Agents, the Issuing Lender and the Lenders and be
paid over to the Administrative Agent on account of the Guaranteed Obligations
without affecting in any manner the liability of such Guarantor under the other
provisions of the guaranty contained herein.
6.05. 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 may be declared to be forthwith due and payable as
provided in Section 10 (and shall be deemed to have become automatically due and
payable in the circumstances provided in said Section 10) for purposes of
Section 6.01 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 6.01.
6.06. Instrument for the Payment of Money. Each Guarantor hereby
acknowledges that the guarantee in this Section 6 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.
6.07. Continuing Guarantee. The guarantee in this Section 6 is a
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
6.08. General Limitation on Guarantee Obligations. In any action or
proceeding involving any state corporate law, or any state, Federal or foreign
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Guarantor under Section 6.01
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 6.01, then, notwithstanding any
other provision to the contrary, the amount of such liability shall, without any
further action by such Guarantor, any Lender, any Agent or any other Person, be
automatically limited and reduced to the highest amount that is valid and
enforceable and not subordinated to the claims of other creditors as determined
in such action or proceeding.
Section 7. Conditions Precedent.
7.01. Effectiveness of Credit Agreement and Initial Extension of
Credit Under the Credit Agreement. The effectiveness of the Credit Documents and
the obligation of the Lenders to make any initial extension of credit hereunder
(whether by making a Loan or issuing a Letter of Credit) is subject to the
satisfaction of the conditions precedent that:
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(i) Documentation and Evidence of Certain Matters. The Lead Arranger
shall have received the following documents, each duly executed where
appropriate (with sufficient conformed copies for each Lender), each of which
shall be reasonably satisfactory to the Lead Arranger (and to the extent
specified below, to each Lender) in form and substance:
(1) Corporate Documents. Certified true and complete
copies of the charter and by-laws and all amendments thereto (or
equivalent documents) of each Person to become an Obligor on the
Closing Date and of all corporate authority for each Obligor
(including board of director resolutions and evidence of the
incumbency, including specimen signatures, of officers) with respect
to the execution, delivery and performance of such of the Credit
Documents to which such Obligor is intended to be a party and each
other document to be delivered by such Obligor from time to time in
connection herewith and the extensions of credit hereunder and the
consummation of the Transactions, certified as of the Closing Date
as complete and correct copies thereof by the Secretary or an
Assistant Secretary of such Obligor.
(2) Officer's Certificate. An Officer's Certificate of
Borrower, dated the Closing Date, to the effect set forth in clauses
(a) and (b) of Section 7.02(i) and to the effect that all conditions
precedent to the making of such extension of credit have been
satisfied (except to the extent that any such condition is required
to be satisfactory to, or determined by, any Agent, the Lead
Arranger, the Lenders or the Majority Lenders).
(3) Opinions of Counsel. (i) Opinion of Paul, Hastings,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Obligors, substantially in the
form of Exhibit G and (ii) opinions of local counsel to the Obligors
in the states of Alabama, Connecticut, Colorado and Texas reasonably
acceptable to the Lead Arranger (and each Obligor hereby instructs
each such counsel to deliver such opinion to the Lenders and the
Administrative Agent).
(4) The Credit Agreement. This Agreement, (i) executed
and delivered by a duly authorized officer of each Obligor with a
counterpart for each Lender, and (ii) executed and delivered by a
duly authorized officer of each Lender and Agent.
(5) Notes. The Notes, duly completed and executed for
each Lender that has requested Notes by written notice to the
Administrative Agent prior to the Closing Date.
(6) Solvency Certificate. A certificate from the chief
financial officer of Borrower substantially in the form of Exhibit M
with respect to the Solvency of Borrower (on a consolidated basis)
immediately after giving effect to the Transactions.
(7) Insurance. A copy of, or a certificate as to
coverage under, the insurance policies required by Section 9.04 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 endorsement and to name the
Collateral Agent as additional insured, in form and substance
satisfactory to the Lead Arranger.
(8) Transaction Documents, etc. Copies of each of the
Transaction Documents (as well as all other closing documentation
executed or delivered in connection therewith), any management or
similar agreement entered into by any Obligor or any executive
officer or director thereof with Parent or any of its Affiliates,
and all exhibits, appendices, annexes and schedules to any thereof,
each certified by a senior officer of Bor-
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rower as true, complete and correct copies thereof and each in form
and substance reasonably satisfactory to the Lead Arranger.
(9) Financial Statements. The following documents
satisfactory to the Lenders: (i) unaudited consolidated balance
sheets and related statements of income, and, in the case of fiscal
quarters, stockholders' equity and cash flows of Borrower prepared
in accordance with GAAP for (a) each fiscal quarter ending on or
after September 30, 2004 and prior to 30 days prior to the Closing
Date and (b) each month ending after October 31, 2004 and prior to
30 days prior to the Closing Date and, in each case, for the
comparable periods of the preceding fiscal year (the "Unaudited
Financial Statements") (in the case of clause (a), with respect to
which the independent auditors shall have performed a SAS 100
review), (ii) a pro forma consolidated balance sheet at September
30, 2004 and pro forma consolidated statements of income for
Borrower (the "Pro Forma Financial Statements"), as well as pro
forma levels of EBITDA and other operating data (the "Pro Forma
Data"), for the fiscal year ended December 31, 2003 and for the nine
and twelve month periods ended September 30, 2004, in each case
after giving effect to the Transactions, and (iii) forecasts of the
financial performance of Borrower and its Subsidiaries. The Pro
Forma Financial Statements and the Pro Forma Data shall be
consistent in all material respects with the sources and uses
described in the Commitment Letter and the forecasts previously
provided to the Lenders. The Pro Forma Financial Statements shall be
prepared on a basis consistent with pro forma financial statements
set forth in a registration statement filed with the Securities and
Exchange Commission. The Unaudited Financial Statements and the Pro
Forma Financial Statements shall be certified by the chief financial
or accounting Responsible Officer of Borrower.
(10) A/R Facility Documentation. Evidence satisfactory
to the Lenders that the A/R Facility Documentation shall have been
amended in order to permit, or there shall have been a waiver under
the A/R Facility Documentation with respect to, the Transactions.
(ii) Date of Closing. Such extension of credit shall be made on or
before February 28, 2005.
(iii) Consummation of Transactions. (a) The Transactions (other than
that portion of the Tender Offer taking place after the early consent closing
and the Existing Notes Redemption (other than the Existing Notes Redemption
Notice)) shall have been or shall simultaneously be consummated in accordance
with the terms hereof and the terms of each Transaction Document and the other
documentation therefor, without any waiver or amendment thereof which is
material or otherwise adverse to the Lenders, unless consented to by the Lead
Arranger.
(b) Holdings shall have received not less than $125.0 million of
gross proceeds (before taking into account the payment of any fees, costs or
other miscellaneous expenses) from the issuance of the Holdings Notes and shall
have contributed such gross proceeds to Borrower in cash as common equity. The
terms of and documentation for the Holdings Notes shall be reasonably
satisfactory in form and substance to the Lead Arranger.
(c) The Lenders shall have reviewed, and be reasonably satisfied
with, the ownership, corporate, legal, tax, management and capital structure of
Holdings, Borrower and their respective Subsidiaries (after giving effect to the
Transactions) and any securities issued, and any indemnities and other
arrangements entered into, in connection with the Transactions.
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(iv) Good Standing Certificates. The Lead Arranger shall have
received from each Obligor a copy of a good standing certificate (from such
Obligor's jurisdiction of organization and each jurisdiction in which such
Obligor is qualified to do business) dated a date reasonably close to the
Closing Date and, from each Obligor's jurisdiction of organization only, a
bring-down good standing certificate dated the date prior to the Closing Date.
(v) No Other Debt or Preferred Stock. All Indebtedness of the
Obligors identified on Schedule 7.01(v), together with all interest, all
prepayment premiums and other amounts due and payable with respect thereto,
shall have been paid in full and the commitments in respect of such Indebtedness
shall have been terminated, and all Liens securing payment of any such
Indebtedness shall have been released and the Administrative Agent shall have
received all Uniform Commercial Code Form UCC-3 termination statements or other
instruments as may be reasonably necessary in connection therewith. All of the
Existing Notes shall have either been (a) redeemed or repurchased and be no
longer outstanding or (b) called for redemption in accordance with the terms of
the Existing Notes Indenture and sufficient cash and Permitted Investments for
the repayment or redemption of such Existing Notes shall have been set aside in
a segregated account pending repayment of the Existing Notes. After giving
effect to the Transactions, none of Holdings or any of its Subsidiaries shall
have outstanding any Indebtedness or Preferred Stock, other than Indebtedness
under (a) this Agreement, (b) Existing Notes not tendered pursuant to the Tender
Offer that have been irrevocably called pursuant to the Existing Notes
Redemption Notice, (c) the Holdings Notes, (d) Indebtedness under the A/R
Facility, (e) the Existing Letters of Credit and (f) other Indebtedness
permitted under this Agreement and identified and reasonably acceptable to the
Lead Arranger and the Administrative Agent.
(vi) No Material Adverse Effect. There shall not have occurred since
September 30, 2004 any event or circumstance which has had or could be
reasonably expected to have (a) a Material Adverse Effect, (b) a material
adverse effect on the ability of the Obligors to consummate, in a timely manner,
the Transactions or (c) an adverse effect on the legality, binding effect or
enforceability of any material provision of any of the Transaction Documents or
the Transactions.
(vii) Approvals. All requisite Governmental Authorities and third
parties shall have approved or consented to the Transactions and the other
transactions contemplated hereby to the extent required and all applicable
appeal periods shall have expired. There shall be no governmental or judicial
action or Proceeding, actual or threatened, that has had the effect of (or could
reasonably be expected to have the effect of) restraining, preventing or
imposing materially burdensome conditions on any of the Transactions or the
other transactions contemplated hereby.
(viii)Payment of Fees and Expenses of Agents. All accrued fees
(including without limitation fees under the Fee Letter and fees owing to the
Administrative Agent and the Collateral Agent referenced in the ▇▇▇▇▇▇▇ Fee
Letter) and expenses (including without limitation the reasonable fees and
expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel to the Lead Arranger
and the Agents (and appropriate local counsel in respect of security interest
matters) and the fees and expenses of Goldberg, Kohn, ▇▇▇▇, Black Rosenblom &
Moritz Ltd., counsel to the Administrative Agent and the Collateral Agent,
appraisers, consultants and other advisors) of the Lead Arranger and the Agents
in connection with the Credit Documents shall have been paid, in the case of
expenses to the extent invoiced through the Closing Date.
(ix) Compliance with Applicable Laws. The Transactions and the
extensions of credit under this Agreement shall be in compliance in all material
respects with all applicable laws and regulations (including Regulations T, U
and X). Holdings and its Subsidiaries shall be
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in compliance, in all material respects, with all applicable foreign and U.S.
federal, state and local laws and regulations, including all applicable
Environmental Laws.
(x) Personal Property Requirements. The Collateral Agent shall have
received:
(a) the Security Agreement duly executed by the
Obligors;
(b) all certificates, agreements or instruments
representing or evidencing the Pledged Securities and the
Intercompany Notes (each as defined in the Security Agreement)
accompanied by instruments of transfer and stock powers endorsed in
blank;
(c) control agreements with respect to each Deposit
Account and Securities Account (as such terms are defined in the
Security Agreement) listed on Schedule 7.01(x)(c) and all other
certificates, acknowledgments, agreements, including control
agreements, or instruments necessary to perfect the Collateral
Agent's security interest in all Chattel Paper, all Instruments and
all Investment Property of each Obligor (as each such term is
defined in the Security Agreement and to the extent required by the
Security Agreement);
(d) UCC termination statements and UCC financing
statements in appropriate form for filing under the UCC, filings
with the United States Patent, Trademark and Copyright offices and
such other documents under applicable Requirements of Law in each
jurisdiction as may be necessary or appropriate or, in the opinion
of the Collateral Agent, desirable to perfect the Liens created, or
purported to be created, by the Security Documents;
(e) certified copies of UCC, 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 Obligor as debtor and that are filed in those state and county
jurisdictions listed on Schedule 4(a) annexed to the Perfection
Certificate dated December 28, 2004, none of which encumber the
Collateral covered or intended to be covered by the Security
Documents (other than those relating to Liens acceptable to the
Collateral Agent or those that will be terminated pursuant to UCC
termination statements described in clause (d) above);
(f) with respect to each lease set forth on Schedule
7.01(x)(f), such Obligor shall use its commercially reasonable
efforts to obtain a Landlord Access Agreement in the form of Exhibit
O or such other form reasonably acceptable to the Collateral Agent
from the landlord thereunder; and
(g) payment (or arrangement for payment in a manner
reasonably acceptable to the Collateral Agent) by the Obligors of
all applicable recording taxes, fees, charges, costs and expenses
required for the filings contemplated by clause (d) above.
(xi) Conditions Relating to Real Property. On or prior to the
Closing Date, each Obligor shall have caused to be delivered to the Collateral
Agent, on behalf of the Creditors, copies of all Leases with respect to any Real
Property in which Borrower or any Subsidiary holds the lessor's interest or
other agreements relating to possessory interests, if any.
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(xii) Other Matters. The Administrative Agent and the Lenders shall
have received such other legal opinions, corporate documents and other
instruments and/or certificates as the Administrative Agent or the Majority
Lenders may request in their reasonable discretion.
(xiii)Officer's Certificate. A Officer's Certificate dated the
Closing Date stating that as of the Closing Date:
(a) None of the execution, delivery and performance by
each of the Obligors of any Transaction Document to which it is a
party and the consummation of the transactions herein and therein
contemplated will (i) conflict with or result in a breach of, or
require any consent (which has not been obtained and is in full
force and effect) under (a) any Organic Document of any Company, or
(b) any applicable Requirement of Law or any order, writ, injunction
or decree of any Governmental Authority binding on any Company, or
any term or provision of any Contractual Obligation of any Company,
or (ii) constitute (with due notice or lapse of time or both) a
default under any such Contractual Obligation, or (iii) result in
the creation or imposition of any Lien (except for the Liens created
pursuant to the Security Documents) upon any Property of any Company
pursuant to the terms of any such Contractual Obligation, except
with respect to each of the foregoing (other than (i)(a)) which is
not (either individually or in the aggregate) reasonably likely to
have a Material Adverse Effect.
(b) Each of the Obligors has all necessary corporate
power, authority and legal right to execute, deliver and perform its
obligations under each Transaction Document to which it is a party
and to consummate the transactions herein and therein contemplated;
the execution, delivery and performance by each of the Obligors of
each Transaction Document to which it is a party and the
consummation of the transactions herein and therein contemplated
have been duly authorized by all necessary corporate action on its
part; each of the Transaction Documents to which it is a party when
executed and delivered by such Obligor will constitute, its legal,
valid and binding obligation, enforceable against each of the
Obligors in accordance with its terms, except as such enforceability
may be limited by (a) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar laws of general applicability
from time to time in effect affecting the enforcement of creditors'
rights and remedies and (b) the application of general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(c) No authorizations, approvals or consents of, and no
filings or registrations with, any Governmental Authority or any
securities exchange are necessary for the execution, delivery or
performance by any Obligor of the Transaction Documents to which it
is a party or for the legality, validity or enforceability thereof
or for the consummation of the transactions therein contemplated,
except for filings and recordings in respect of the Liens created
pursuant to the Security Documents and, in connection with the
Transactions, except for consents, filings and authorizations that
have been maintained or made and are in full force and effect.
(d) There does not exist any judgment, order or
injunction prohibiting or imposing material adverse conditions upon
any of the Transactions or the performance by any Obligor of its
obligations under the Transaction Documents.
(xiv) Financial Officer Certificate. A certificate dated the Closing
Date signed by the Chief Financial Officer of Borrower stating that as of the
Closing Date:
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(a) Borrower has heretofore furnished 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, 2003, 2002 and 2001, audited by
and accompanied by the opinion of PricewaterhouseCoopers LLP,
independent public accountants, and (ii) as of and for the three,
six and nine month periods ended March 31, June 30 and September 30,
2004 and for the comparable periods of the preceding fiscal year.
Such financial statements have been prepared in accordance with GAAP
consistently applied and present fairly and accurately the financial
condition and results of operations and cash flows of Borrower and
its Subsidiaries as of such dates and for such periods.
(b) The financial statements delivered pursuant to
Section 7.01(i)(9) have been prepared in good faith by the Obligors,
based on the assumptions stated therein (which assumptions are
believed by the Obligors on the date hereof and on the Closing Date
to be reasonable), are based on the best information available to
the Obligors as of the date of delivery thereof, accurately reflect
all adjustments required to be made to give effect to the
Transactions, and present fairly on a pro forma basis the estimated
consolidated financial position and results of operations of
Borrower as of and for such dates, assuming that the Transactions
had actually occurred at such dates, subject to period end audit
adjustments that would be made in audited financial statements.
(c) Except as set forth in the financial statements or
other information referred to in Section 7.01(xi)(a), as of the
Closing Date there are no material liabilities of any Company of any
kind, whether accrued, contingent, absolute, determined,
determinable or otherwise, and there is no existing condition,
situation or set of circumstances which is reasonably likely to
result in such a liability, other than:
(i) liabilities incurred in the ordinary
course of business consistent with past practice since
September 30, 2004 which in the aggregate are not
reasonably likely to have a Material Adverse Effect; and
(ii) liabilities under this Agreement and
the other Credit Documents or the Transaction Documents
or liabilities incurred in connection with the
transactions contemplated hereby.
7.02. Initial and Subsequent Extensions of Credit Under This
Agreement. The obligation of the Lenders to make any Loan or otherwise extend
any credit to Borrower upon the occasion of each borrowing or other extension of
credit hereunder (including the initial borrowing on the Closing Date) is
subject to the further conditions precedent that:
(i) No Default; Representations and Warranties True.
Both immediately prior to the making of such Loan or other extension
of credit and also after giving pro forma effect thereto and to the
intended use thereof:
(a) no Default shall have occurred and be
continuing; and
(b) the representations and warranties made
by the Obligors in Section 8, and by each Obligor in
each of the other Credit Documents to which it is a
party, shall be true and correct in all material
respects (except that any representation or 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 the making of such
Loan or other extension of credit
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with the same force and effect as if made on and as of
such date (or, if any such representation or warranty is
expressly stated to have been made as of a specific
date, as of such specific date).
(ii) No Legal Bar. The Loans and the use of proceeds
thereof shall not contravene, violate or conflict with, nor involve
any Lender in a violation of, any law, rule, injunction, or
regulation or determination of any court of law or other
Governmental Authority.
(iii) No Material Adverse Change. Since September 30,
2004, there shall not have been any Material Adverse Change with
respect to Holdings and its Subsidiaries taken as a whole.
7.03. Certifications. (a) Each notice of borrowing or request for
the issuance of a Letter of Credit by Borrower hereunder shall constitute a
certification by Borrower to the effect set forth in Section 7.02(i) (as of the
date of such notice or request and, unless Borrower otherwise notifies
Administrative Agent prior to the date of such borrowing or issuance, as of the
date of such borrowing or issuance).
(b) Each notice submitted by Borrower hereunder for an extension of
credit or issuance of a Letter of Credit hereunder shall constitute a
representation and warranty by Borrower, as of the date of such notice and as of
the relevant borrowing date or date of issuance of a Letter of Credit, as
applicable, that the applicable conditions in Sections 7.01 and 7.02 have been
satisfied or waived in accordance with the terms hereof.
Section 8. Representations and Warranties.
Each of the Obligors represents and warrants to the Creditors that,
on the Closing Date and at and as of each Funding Date (in each case immediately
before and immediately after giving effect to the transactions contemplated to
occur on such date (including the Transactions)):
8.01. Corporate Existence. Each Obligor and each Subsidiary: (a) is
a corporation, partnership or other entity duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization; (b) has
all requisite corporate or other power and authority, and has all governmental
licenses, authorizations, consents and approvals necessary to own its Property
and carry on its business as now being conducted, except as would not,
individually or in the aggregate, be reasonably likely to have a Material
Adverse Effect; and (c) is qualified to do business and is in good standing in
all jurisdictions in which the nature of the business conducted by it makes such
qualification necessary and where failure to be so qualified and in good
standing individually or in the aggregate is reasonably likely to have a
Material Adverse Effect.
8.02. Financial Condition; Etc. Except as set forth in the financial
statements referred to in Section 7.01(xi)(a), since September 30, 2004, there
has been no Material Adverse Effect or any event, change or circumstance which
could reasonably be expected to cause or evidence, either individually or
together with any other events, changes and circumstances, a Material Adverse
Effect.
8.03. Litigation. Except as disclosed on Schedule 8.03, there is no
Proceeding pending against, or to the knowledge of any Company threatened in
writing against or affecting, any Company or any of its respective Properties
before any Governmental Authority that has a reasonable likelihood of being
adversely determined and that, if determined or resolved adversely to such
Company in accordance with the plaintiff's demands, is reasonably likely to have
(individually or in the aggregate) a Material Adverse Effect.
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8.04. No Breach; No Default. (a) None of the execution, delivery and
performance by each of the Obligors of any Credit Document to which it is a
party and the consummation of the transactions herein and therein contemplated
will (i) conflict with or result in a breach of, or require any consent (which
has not been obtained and is in full force and effect) under (a) any Organic
Document of any Company, or (b) any applicable Requirement of Law or any order,
writ, injunction or decree of any Governmental Authority binding on any Company,
or any term or provision of any Contractual Obligation of any Company, or (ii)
constitute (with due notice or lapse of time or both) a default under any such
Contractual Obligation, or (iii) result in the creation or imposition of any
Lien (except for the Liens created pursuant to the Security Documents) upon any
Property of any Company pursuant to the terms of any such Contractual
Obligation, except with respect to each of the foregoing (other than (i)(a))
which is not (either individually or in the aggregate) reasonably likely to have
a Material Adverse Effect.
(b) No Company is in default under or with respect to any
Contractual Obligation or any order, award or decree of any Governmental
Authority or arbitrator binding upon it or any of its Property in any respect
which is likely to have (individually or in the aggregate) a Material Adverse
Effect.
(c) No Default has occurred and is continuing.
8.05. Action. Each of the Obligors has all necessary corporate
power, authority and legal right to execute, deliver and perform its obligations
under each Credit Document to which it is a party and to consummate the
transactions herein and therein contemplated; the execution, delivery and
performance by each of the Obligors of each Credit Document to which it is a
party and the consummation of the transactions herein and therein contemplated
have been duly authorized by all necessary corporate action on its part; and
this Agreement has been duly and validly executed and delivered by each of the
Obligors and constitutes, and each of the Notes and the other Credit Documents
to which it is a party when executed and delivered by such Obligor (in the case
of the Notes, for value) will constitute, its legal, valid and binding
obligation, enforceable against each of the Obligors in accordance with its
terms, except as such enforceability may be limited by (a) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or similar laws of
general applicability from time to time in effect affecting the enforcement of
creditors' rights and remedies and (b) the application of general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
8.06. Approvals. No authorizations, approvals or consents of, and no
filings or registrations with, any Governmental Authority or any securities
exchange are necessary for the execution, delivery or performance by any Obligor
of the Credit Documents to which it is a party or for the legality, validity or
enforceability hereof or thereof or for the consummation of the transactions
herein and therein contemplated, except for filings and recordings in respect of
the Liens created pursuant to the Security Documents.
8.07. Representations and Warranties in Transaction Documents. The
representations and warranties of each Company set forth in each Transaction
Document were, in each case, true and correct in all material respects as of the
time such representations and warranties were made or deemed made. As of the
Closing Date, to the best knowledge of each Company, the representations and
warranties of each party other than the Companies to each Transaction Document
contained therein were true and correct in all material respects on the date
made.
8.08. ERISA. No ERISA Event has occurred or is reasonably expected
to occur that, when taken together with all other such ERISA Events for which
liability could be reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations of all underfunded Plans (based on the assumptions used for
purposes of
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Statement of Financial Accounting Standards No. 87) did not, as of the date of
the most recent financial statements reflecting such amounts, exceed the fair
market value of the assets of all such underfunded Plans by an amount that could
reasonably be expected to have a Material Adverse Effect. Each Company is in
compliance in all material respects with the presently applicable provisions of
ERISA and the Code with respect to each Employee Benefit Plan maintained by such
Company. Using actuarial assumptions and computation methods consistent with
subpart 1 of subtitle E of Title IV of ERISA, the aggregate liabilities of any
ERISA Entity 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, would not reasonably be expected to result in a Material
Adverse Effect.
Each Foreign Plan has been maintained in substantial compliance with
its terms and with the requirements of any and all applicable laws, statutes,
rules, regulations and orders and has been maintained, where required, in good
standing with applicable regulatory authorities, except where failure to do so
would not be expected to have a Material Adverse Effect. Neither Borrower nor
any Subsidiary have incurred any obligation in connection with the termination
of or withdrawal from any Foreign Plan which could reasonably be expected to
result in a Material Adverse Effect. The present value of the accrued benefit
liabilities (whether or not vested) under each Foreign Plan which is funded,
determined as of the end of the most recently ended fiscal year of Borrower or
Subsidiary, as applicable, on the basis of actuarial assumptions, each of which
is, and which collectively are, reasonable, did not exceed the current value of
the assets of such Foreign Plan by an amount that could reasonably be expected
to have a Material Adverse Effect, and for each Foreign Plan which is not
funded, the obligations of such Foreign Plan, to the extent such obligations are
material, are properly accrued.
8.09. Taxes. (i) Each Company has timely filed or caused to be
timely filed all U.S. federal income tax returns and all other returns,
statements, forms and reports for taxes (the "Returns"), domestic or foreign,
required to be filed by it, except for those returns the failure of which to be
filed would not reasonably be expected to have a Material Adverse Effect, and
has timely paid all Taxes payable by it which have become due or any assessments
made against it or any of its Property and all other Taxes, fees or other
charges imposed on it or any of its Property (including the Mortgaged Real
Property) by any Governmental Authority (other than those which, in the
aggregate, are not substantial in amount or those the amount or validity of
which is currently being contested in good faith by appropriate proceedings and
with respect to which reserves in conformity with GAAP have been provided on the
books of the relevant Company, as the case may be, and which contested Tax
individually or in the aggregate could not reasonably be expected to result in a
Material Adverse Effect); the Returns accurately reflect in all material
respects all liability for Taxes of the relevant Company for the periods covered
thereby; and no Tax lien has been filed (except with respect to taxes not yet
due and payable) and, to the best knowledge of the Obligors, no action, suit,
proceeding, investigation, audit or claim is being asserted or has been
threatened in writing or otherwise by any authority with respect to any such
Tax, fee or other charge, except as could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect and (ii) no Company
has entered into an agreement or waiver extending any statute of limitations
relating to the payment or collection of Taxes of any Company.
8.10. Investment Company Act; Public Utility Holding Company Act;
Other Restrictions. No Company is an "investment company," or a company
"controlled" by an "investment company," within the meaning of the United States
Investment Company Act of 1940, as amended. No Company is a "holding company,"
or an "affiliate" of a "holding company" or a "subsidiary company" of a "holding
company," within the meaning of the United States Public Utility Holding Company
Act of 1935, as amended. No Obligor is subject to regulation under any law or
regulation which limits its ability to incur Indebtedness, other than Regulation
X of the Board of Governors of the Federal Reserve System.
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8.11. Environmental Matters. Except as disclosed on Schedule 8.11
and except as would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect: (i) each Company is in
compliance with and in the last two years has been in compliance with, and is
not subject to liability under, any Environmental Laws applicable to it and
there are no Environmental Laws which would reasonably be expected to result in
material expenditures by any Company, and no such Environmental Laws would
reasonably be expected to interfere in any material way with current or
projected operations of any Company; (ii) no Company has received written notice
that it or any of its predecessors in interest has been or may be identified as
a potentially responsible party under the United States Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended
("CERCLA"), or any other Environmental Law, nor has any Company received notice
that any Hazardous Materials that it or any of its predecessors in interest has
used, generated, stored, treated, handled, transported or disposed of, or
arranged for disposal or treatment of, have been found at any site at which any
Person is conducting or plans to conduct any action pursuant to any
Environmental Law, and no Company, or to the knowledge of the Obligors, any of
their respective predecessors in interest, has disposed of, arranged for the
disposal or treatment of, or otherwise released Hazardous Materials at any site
at which any Person is conducting or plans to conduct any action under
Environmental Law; (iii) no properties now or formerly owned, leased or operated
by any Company or any of their respective predecessors in interest, are (x)
listed or proposed for listing on the National Priorities List under CERCLA or
(y) listed on the Comprehensive Environmental Response, Compensation and
Liability Information System List promulgated pursuant to CERCLA or (z) included
on any similar lists maintained by any Governmental Authority; (iv) there are no
past or present events, conditions, activities, practices or actions, or any
agreements, judgments, decrees or orders by which any Company or any of its
predecessors in interest is bound, which would reasonably be expected to prevent
any Company's compliance with any Environmental Law, or which would reasonably
be expected to give rise to any liability of any Company under any Environmental
Law, including, without limitation, liability under CERCLA or similar state or
foreign laws; (v) no Lien has been asserted or recorded, or to the knowledge of
the Obligors, threatened, under any Environmental Law with respect to any asset,
facility, inventory or property currently owned, leased or operated by any
Company; (vi) there has been no Release or threat of Release of Hazardous
Material at, on, from, under or affecting any real property now or previously
owned, operated or leased by any Company or, to the knowledge of the Obligors,
any predecessor in interest; and (vii) no Company is subject to any
Environmental Claim and, to the knowledge of the Obligors, no Environmental
Claim is threatened.
8.12. Environmental Investigations. All material environmental
investigations, studies, audits, assessments and data which are in the
possession, custody or control of any Company relating (i) to the current or
prior business, operations, facilities or Property of any Company or any of
their respective predecessors in interest or (ii) to any facility, Property or
other asset now or previously owned, operated, leased or used by any Company or
any of their respective predecessors in interest have been made available to the
Lead Arranger and the Lenders.
8.13. Use of Proceeds. No Company is engaged principally, or as one
of its important activities, in the business of extending credit for the
purpose, whether immediate, incidental or ultimate, of buying or carrying Margin
Stock and no part of the proceeds of any extension of credit hereunder will be
used directly or indirectly and whether immediately, incidentally or ultimately
to purchase or carry any Margin Stock or to extend credit to others for such
purpose or to refund Indebtedness originally incurred for such purpose. Borrower
will use the proceeds of (A) all Term Loans made on the Closing Date to finance
a portion of the Refinancing and to pay related fees, costs and expenses and (B)
all Revolving Credit Loans, Swing Loans and Letters of Credit for working
capital and general corporate purposes of Borrower and its Subsidiaries.
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Following application of the proceeds of each extension of credit
hereunder, not more than 25 percent of the value of the assets (either of
Borrower only or of Borrower and its Consolidated Subsidiaries) will be Margin
Stock. If requested by any Lender or the Lead Arranger, Borrower will furnish to
the Administrative Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of FR Form U-1 referred to in Regulation U.
8.14. Subsidiaries. As of the Closing Date (after giving effect to
the Transactions), none of Borrower or Holdings has any Subsidiaries or
interests in partnerships, joint ventures or business trusts other than the
entities set forth on Schedule 8.14. Borrower and Holdings own, as of the
Closing Date, the percentage of the issued and outstanding Equity Interests or
other evidences of the ownership of each of their respective Subsidiaries,
partnerships or joint ventures listed on Schedule 8.14 as set forth on such
Schedule. Except as set forth on Schedule 8.14, no such Subsidiary, partnership
or joint venture has issued any securities convertible into shares of its Equity
Interests (or other evidence of ownership) or any Equity Rights to acquire such
shares or securities convertible into such shares (or other evidence of
ownership), and the outstanding stock and securities (or other evidence of
ownership) of such Subsidiaries, partnerships or joint ventures are owned by
Borrower or Holdings free and clear of all Liens and Equity Rights of others of
any kind whatsoever, except for Liens pursuant to the Security Documents.
Holdings does not have any direct equity interest in any Person other than
Borrower.
8.15. Properties. Each of the Companies (i) has good title to and
beneficial ownership of all Property owned by it, including all the Property
reflected in the most recent financial statements provided hereunder (except
Property sold or otherwise disposed of since the date thereof in the ordinary
course of business or as otherwise not prohibited by the Credit Documents), or
acquired after the date thereof, free and clear of all Liens, except Permitted
Liens and (ii) is the lessee of all leasehold estates and, except as disclosed
on Schedule 8.15, is in possession of the Properties purported to be leased
thereunder, and each such lease is valid without default thereunder by the
lessee or, to the knowledge of the Obligors, the lessor. Title to all Property
of any Company is held by such Company free and clear of all Liens except for
Permitted Liens. The Real Property listed on Schedule 8.15 constitutes, as of
the Closing Date, all of the Real Property owned or leased by any Company as of
the Closing Date and such schedule describes the type of interest therein held
by such Company.
8.16. Security Documents. (a) The Security Agreement is effective to
create in favor of the Collateral Agent for the benefit of the Creditors, a
legal, valid and enforceable security interest in and Lien on the Security
Agreement Collateral and, when (i) financing statements and other filings in
appropriate form are filed in the offices specified on Schedule 6 to the
Perfection Certificate and (ii) upon the taking of possession or control by the
Collateral Agent of the Security Agreement Collateral with respect to which a
security interest may be perfected only by possession or control (which
possession or control shall be given to the Collateral Agent to the extent
possession or control by the Collateral Agent is required by the Security
Agreement), the Lien created by the Security Agreement shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest of
the grantors thereunder in the Security Agreement Collateral (other than the
Intellectual Property Collateral (as defined in the Security Agreement)), in
each case subject to no Liens other than Permitted Liens (it being understood
that no representation is being made as to the perfection of any Lien or
security interest under laws other than those of the United States or any state
thereof).
(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 Lien created by such Security Agreement shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest of
the grantors thereunder in the Intellectual Property Collateral (as defined in
such Security Agreement), in each case subject to no Liens other than Permitted
Liens.
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(c) Each Mortgage executed and delivered by the relevant Obligor
pursuant to Sections 9.12 and 9.13 will be effective to create, in favor of the
Collateral Agent, for the benefit of the Creditors, a legal, valid and
enforceable first priority Lien on and security interest in all of the Obligors'
right, title and interest in and to the Mortgaged Real Properties thereunder and
the proceeds thereof, and 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 9.12 and 9.13, the Mortgages shall constitute fully
perfected Liens on, and security interests in, all right, title and interest of
the Obligors in the Mortgaged Real Properties and the proceeds thereof, in each
case prior and superior in right to any other person, other than Liens
reasonably acceptable to Collateral Agent.
(d) Each Security Document delivered pursuant to Sections 9.12 and
9.13 will, upon execution and delivery thereof, be effective to create in favor
of the Collateral Agent, for the benefit of the Creditors, a legal, valid and
enforceable security interest in and Lien on all of the Obligors' 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 or the Collateral Agent obtains control of the Collateral,
as applicable, such Security Document will constitute a fully perfected Lien on,
and security interest in, all right, title and interest of the Obligors in such
Collateral, in each case subject to no Liens other than the applicable Permitted
Liens.
8.17. Licenses and Permits; Compliance with Laws. The Companies hold
all governmental permits, licenses, authorizations, consents and approvals
necessary for the Companies to own, lease, and operate their respective
Properties and to operate their respective businesses as now being conducted
(collectively, the "Permits"), except for Permits the failure of which to obtain
is not reasonably likely to have a Material Adverse Effect. None of the Permits
has been modified in any way that is reasonably likely to have a Material
Adverse Effect. All Permits are in full force and effect except where the
failure to be in full force and effect is not reasonably likely to have a
Material Adverse Effect.
Each Company is in material compliance with all applicable statutes,
laws, ordinances, rules, orders and regulations of any Governmental Authority in
all jurisdictions in which it is presently doing business, and each Company will
comply with all such laws and regulations which may be imposed in the future in
jurisdictions in which it may then be doing business, in each case other than
those the non-compliance with which would not (individually or in the aggregate)
reasonably be expected to have a Material Adverse Effect. There does not exist
any judgment, order or injunction prohibiting or imposing material adverse
conditions upon the performance by any Obligor of its obligations under the
Credit Documents and all applicable laws.
8.18. True and Complete Disclosure. The information, reports,
financial statements, exhibits and schedules furnished in writing by or on
behalf of any Obligor to any Creditor in connection with the negotiation,
preparation or delivery of this Agreement and the other Credit Documents or
included herein or therein or delivered pursuant hereto or thereto or pursuant
to any information memorandum distributed in connection with the syndication of
the Commitments and Loans, including all filings made with the Commission by
Borrower or any Company but in each case excluding all projections, whether
prior to or after the Closing Date, when taken as a whole, do not, as of the
date such information was furnished, contain any untrue statement of material
fact or omit to state a material fact necessary in order to make the statements
herein or therein, in light of the circumstances under which they were made, not
materially misleading. The projections and pro forma financial information
furnished at any time by any Obligor to any Creditor pursuant to this Agreement
have been prepared in good faith based on assumptions believed by Borrower to be
reasonable at the time made, it being recognized by the Lenders that such
financial information as it relates to future events is not to be viewed as fact
and that actual results during the period or periods covered by such financial
information may differ from the projected results set forth therein by a
material amount and no Obligor makes any representation as to the ability of
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any Company to achieve the results set forth in any such projections. Each
Obligor understands that all such statements, representations and warranties
shall be deemed to have been relied upon by the Lenders as a material inducement
to make each extension of credit hereunder.
8.19. Solvency; Etc. The Companies, taken as a whole, are Solvent.
8.20. Contracts. No Company is in default under any material
contract or agreement to which it is a party or by which it is bound, nor, to
Borrower's knowledge, does any condition exist that, with notice or lapse of
time or both, would constitute such default, excluding in any case such defaults
that are not reasonably likely to have a Material Adverse Effect. Schedule 8.20
accurately and completely lists (x) all agreements, if any, among the
stockholders (or any of their Affiliates other than any Company) of Holdings,
Parent or the LLC on the one hand and any Company on the other in effect on the
date hereof and (y) all material agreements which are in effect on the date
hereof in connection with the conduct of the business of the Companies.
8.21. Labor Matters. Set forth on Schedule 8.21 is a list and
description (including dates of termination) of all collective bargaining or
similar agreements between or applicable to any Company as of the date hereof
and any union, labor organization or other bargaining agent in respect of the
employees of any Company on the date indicated on Schedule 8.21. Except as set
forth on Schedule 8.21, there are no strikes or other labor disputes against any
Company pending or, to the knowledge of any Obligor, threatened which could
reasonably be expected to result in a Material Adverse Effect.
8.22. Intellectual Property.
(a) Ownership/No Claims. Each Company owns, or is licensed to use,
all patents, patent applications, trademarks, trade names, service marks,
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. Except as disclosed on Schedule
8.22, no claim has been asserted and is pending against any Company by any
person challenging or questioning any Company's use of any such Intellectual
Property or the validity or effectiveness of any such Intellectual Property, nor
does any Obligor know of any valid basis for any such claim. To each Obligor's
knowledge, the use of such Intellectual Property by each Company 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 Obligor in the ordinary course of business that
are listed on Schedules 13(a) and 13(b) annexed to the Perfection Certificate,
on and as of the date hereof (i) each Obligor 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 on Schedules 13(a), 13(b), 13(c) and 13(d) annexed to the
Perfection Certificate and (ii) all registrations listed on Schedules 13(a),
13(b), 13(c) and 13(d) annexed to the Perfection Certificate are valid and in
full force and effect.
(c) No Violations or Proceedings. To each Obligor's knowledge, on
and as of the date hereof, (i) except as set forth on Schedule 8.22, there is no
material violation by others of any right of such Obligor with respect to any
Copyright, Patent or Trademark listed on Schedules 13(a), 13(b), 13(c) and 13(d)
annexed to the Perfection Certificate, respectively, pledged by it under the
name of such Obligor, (ii) such Obligor is not infringing upon any Copyright,
Patent or Trademark of any other person other than such infringement that,
individually or in the aggregate, would not (or would not reasonably be expected
to) result in a Material Adverse Effect on the value or utility of the
Intellectual Property or any
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portion thereof material to the use and operation of the Collateral and (iii) no
proceedings have been instituted or are pending against such Obligor or, to such
Obligor's knowledge, threatened, and no claim against such Obligor has been
received by such Obligor, alleging any such violation, except as may be set
forth on Schedule 8.22.
8.23. Anti-Terrorism Laws. No Obligor and, to the knowledge of the
Obligors, none of its Affiliates is in violation of any Requirement of Law
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. No Obligor and to the knowledge of the Obligors, no Affiliate
or broker or other agent of any Obligor acting or benefiting in any capacity in
connection with the Loans is any of the following:
(a) a person that is listed in the annex to, or is otherwise subject
to the provisions of, the Executive Order;
(b) 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;
(c) a person with which any Lender is prohibited from dealing or
otherwise engaging in any transaction by any Anti-Terrorism Law;
(d) a person that commits, threatens or conspires to commit or
supports "terrorism" as defined in the Executive Order; or
(e) 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.
No Obligor and, to the knowledge of the Obligors, no broker or other
agent of any Obligor acting in any capacity in connection with the Loans (i)
conducts any business or engages in making or receiving any contribution of
funds, goods or services to or for the benefit of any person described in
paragraph (b) above, (ii) deals in, or otherwise engages in any transaction
relating to, any property or interests in property blocked pursuant to the
Executive Order, or (iii) engages in or conspires to engage in any transaction
that evades or avoids, or has the purpose of evading or avoiding, or attempts to
violate, any of the prohibitions set forth in any Anti-Terrorism Law.
Section 9. Covenants.
Each Obligor, for itself and on behalf of its Subsidiaries,
covenants and agrees with the Creditors that, so long as any Commitment, Loan or
Letter of Credit Liability is outstanding and until payment in full of all
amounts payable by Borrower hereunder:
9.01. Financial Statements, Etc. The Companies shall deliver to the
Administrative Agent (and the Administrative Agent shall deliver to each Lender
within three Business Days after the receipt thereof):
(a) Quarterly Financials. As soon as available and in
any event within 45 days (or, if SEC Form 12b-25 is filed in respect
of such fiscal quarter, 50 days) after the end of each of the first
three quarterly fiscal periods of each fiscal year, consolidated
statements of operations of
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Borrower and its Consolidated Subsidiaries for such period,
consolidated statements of operations, cash flows and stockholders'
equity of Borrower and its Consolidated Subsidiaries for the period
from the beginning of the respective fiscal year to the end of such
period, and the related consolidated balance sheet of Borrower and
its Consolidated Subsidiaries as of the end of such period, setting
forth in each case in comparative form the corresponding
consolidated statements of operations and cash flows for the
corresponding periods in the preceding fiscal year accompanied by a
certificate of a Responsible Officer of Borrower, which certificate
shall state that said consolidated financial statements fairly
present the consolidated financial condition, results of operations
and cash flows of Borrower and its Consolidated Subsidiaries in
accordance with GAAP, consistently applied, as at the end of, and
for, such period (subject to normal year-end audit adjustments);
(b) Annual Financials. As soon as available and in any
event within 90 days (or, if SEC Form 12b-25 is filed in respect of
such fiscal year, 105 days) after the end of each fiscal year,
consolidated statements of operations, cash flows and stockholders'
equity of Borrower and its Consolidated Subsidiaries for such year
and the related consolidated balance sheet of Borrower and its
Consolidated Subsidiaries as of the end of such year, setting forth
in each case in comparative form the corresponding consolidated
information as of the end of and for the preceding fiscal year,
accompanied by an opinion, without material qualification, thereon
of independent certified public accountants of recognized national
standing, which opinion shall state that said consolidated financial
statements fairly present the consolidated financial condition,
results of operations and cash flows of Borrower and its
Consolidated Subsidiaries as at the end of, and for, such fiscal
year in accordance with GAAP, consistently applied; Borrower shall
supply such additional information and detail as to any item or
items contained on any such statement that Lenders (to the extent
applicable) may reasonably require; all such information will be
prepared in accordance with GAAP consistently applied;
(c) Compliance Certificate. (i) Concurrently with the
delivery of the financial statements referred to in Section 9.01(b),
a certificate of the independent certified public accountants
reporting on such financial statements stating that in making the
examination necessary therefor no knowledge was obtained of any
Event of Default relating to the Financial Maintenance Covenants,
except as specified in such certificate; and
(ii) at the time it furnishes each set of financial
statements pursuant to paragraph (a) or (b) above, a certificate of
a senior financial officer of Borrower (I) to the effect that no
Default has occurred and is continuing (or, if any Default has
occurred and is continuing, describing the same in reasonable detail
and describing the action that Borrower has taken and proposes to
take with respect thereto) and (II) setting forth in reasonable
detail the computations necessary (to the extent applicable) to
determine whether each Company is in compliance with Sections 9.07,
9.08, 9.09, 9.10 and 9.11 as of the end of the respective quarterly
fiscal period or fiscal year;
(d) Other Financial Information. Promptly upon delivery
thereof to the stockholders of any Company generally or to the
holders of the Holdings Notes, copies of all financial statements
and reports and proxy statements so delivered, and within five days
after the same are filed, copies of all financial statements and
reports which any Company may make to or file with the Commission or
any successor or analogous Governmental Authority or any national
securities exchange;
(e) Interest Rate Certificates. Together with the
financial statements delivered pursuant to clause (a) or (b) of this
Section 9.01, an Interest Rate Certificate;
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(f) Notice of Default. Promptly after any Company knows
or has reason to believe that any Default has occurred or that
Holdings is in default of any material term or provision of any of
the Transaction Documents or any other agreement or instrument
relating to or evidencing Material Indebtedness of any Company, a
notice of such Default or other default describing the same in
reasonable detail and, together with such notice or as soon
thereafter as possible, a description of the action that the
Companies have taken and propose to take with respect thereto;
(g) Environmental Matters. Written notice of any (i)
Environmental Claim materially affecting any Company, any Real
Property or the operations of any Company, (ii) the occurrence of
any Release of any Hazardous Material that is reportable under any
Environmental Law, (iii) the commencement of any investigation or
clean-up pursuant to or in accordance with any Environmental Law of
any Hazardous Material at, on, under, within or emanating from the
Real Property or any part thereof, (iv) any matters relating to
Hazardous Materials or Environmental Laws that may impair, or
threaten to impair, Lenders' security interest in the Real Property
or any Obligor's ability to perform any of its obligations under
this Agreement when such performance is due or (v) any other
condition, circumstance, occurrence or event which could reasonably
be expected to result in a material liability of any Company under
any Environmental Law;
(h) Auditors' Reports. Promptly upon receipt thereof,
copies of all reports submitted to any Company by independent
certified public accountants in connection with each annual, interim
or special audit of such Company's books made by such accountants,
including, without limitation, any management letter commenting on
any Company's internal controls submitted by such accountants to
management at any time;
(i) Annual Budgets. As soon as practicable and in any
event within 60 days after the beginning of each fiscal year of
Borrower, a consolidated plan and financial forecast for such fiscal
year, including without limitation (a) a forecasted consolidated
balance sheet and forecasted consolidated statements of income and
cash flows of Borrower and its Consolidated Subsidiaries for such
fiscal year, together with an Officer's Certificate demonstrating
pro forma compliance for such fiscal year with Section 9.11 and an
explanation of the assumptions on which such forecasts are based and
(b) forecasted consolidated statements of income and cash flows of
Borrower and its Consolidated Subsidiaries for each month of each
such fiscal year, together with an explanation of the assumptions on
which such forecasts are based;
(j) Lien Matters. Written notice of (1) the incurrence
of any Lien (other than Permitted Liens) on, or claim asserted
against any of, the Collateral or (2) the occurrence of any other
event which is reasonably likely to result in a Material Adverse
Effect of the type described in clause (d) of the definition
thereof;
(k) Notice of Material Adverse Effect or Material
Adverse Change. Written notice of the occurrence of any event or
condition which has had or has resulted in any Material Adverse
Effect or any Material Adverse Change;
(l) Governmental Filings and Notices. Promptly after
request by the Administrative Agent, copies of any other reports or
documents that were filed by any Company with any Governmental
Agency;
(m) ERISA Information. Promptly upon the occurrence of
any ERISA Event that, alone or together with any other ERISA Events
that have occurred, is reasonably likely to result in liability to
the Companies in an aggregate amount exceeding $250,000, a written
notice specifying the nature thereof, what action Borrower, its
Subsidiaries or other ERISA Entity have taken,
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are taking or propose to take with respect thereto, and, when known,
any action taken or threatened by the Internal Revenue Service,
Department of Labor, PBGC or Multiemployer Plan sponsor with respect
thereto;
(n) ERISA Filings, Etc. Upon request by the
Administrative Agent, copies of: (i) each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series) filed by
Borrower, its Subsidiaries or ERISA Affiliates 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 Borrower or any of its Subsidiaries or ERISA Affiliates 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 Employee Benefit Plan as the
Administrative Agent shall reasonably request;
(o) Subordinated Debt Notices. Promptly following the
mailing or receipt of any notice or report delivered under the terms
of any Subordinated Debt, copies of such notice or report;
(p) Name and Location Changes. Promptly, written notice
of any change (i) in such Company's corporate name or in any trade
name used to identify it in the conduct of its business or in the
ownership of its properties, (ii) in the location of such Obligor's
chief executive office, its principal place of business, any office
in which it maintains books or records relating to Collateral owned
by it or any office or facility at which Collateral owned by it is
located (including the establishment of any such new office or
facility), (iii) in such Company's identity or corporate structure,
(iv) resulting in any tangible Collateral being located in any
jurisdiction in which a financing statement must be, but has not
been, filed in order to perfect the Collateral Agent's Liens, or (v)
in such Company's Federal Taxpayer Identification Number (to the
extent applicable); each Company will not effect or permit any
change referred to in the preceding sentence unless all filings have
been made under the UCC or otherwise that are required in order for
the Collateral Agent to continue at all times following such change
to have a valid, legal and perfected security interest in all the
Collateral; and
(q) Miscellaneous. Promptly, such financial and other
information with respect to any Company as any Creditor may from
time to time reasonably request.
9.02. Litigation, Etc. Borrower shall promptly give to the
Administrative Agent and each Lender notice of all Proceedings, and any material
development thereof, affecting any Company, except Proceedings which could not
reasonably be expected to have (individually or in the aggregate) a Material
Adverse Effect.
9.03. Existence; Compliance with Law; Payment of Taxes; Inspection
Rights; Performance of Obligations; Etc. Each Company shall (i) preserve and
maintain its legal existence and all of its material rights, privileges and
franchises (provided, however, that nothing in this Section 9.03 shall prohibit
any transaction expressly permitted under Section 9.06); (ii) except as is not
reasonably likely to have (individually or in the aggregate) a Material Adverse
Effect, comply with the requirements of all applicable laws, rules, regulations
and orders of Governmental Authorities; (iii) except as is not reasonably likely
to have (individually or in the aggregate) a Material Adverse Effect, timely
file true, accurate and complete tax returns required by all Governmental
Authorities and pay and discharge all Taxes, assessments and governmental
charges or levies imposed on it or on its income or profits or on any of its
Property prior to the date on which any penalties attach thereto (except for any
such Tax, assessment, charge or levy the payment of which is being contested in
good faith and by proper proceedings and against which adequate reserves are
being maintained in accordance with GAAP); (iv) maintain all of its Properties
used or useful in its business in good working order and condition, ordinary
wear and tear ex-
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cepted, except to the extent that the failure to do so with respect to any such
Property is not reasonably likely to have (individually or in the aggregate) a
Material Adverse Effect; (v) permit representatives of any Creditor during
normal business hours and upon reasonable notice to examine, copy and make
extracts from its books and records, to inspect its Properties, and to discuss
its business and affairs with its officers and employees, all to the extent
reasonably requested by such Creditor; (vi) allow the Lead Arranger and
Administrative Agent to consult with Borrower's independent public accountants
and auditors with respect to the financial affairs of the Companies (and the
Lead Arranger are expressly authorized to disclose any information obtained to
the Lenders) and authorize such accountants to disclose to the Lead Arranger and
the Lenders any and all financial statements and other supporting financial
documents and schedules including copies of any management letter with respect
to the business, financial condition and other affairs of the Companies; at the
request of the Lead Arranger, Borrower shall deliver a letter addressed to such
accountants instructing them to comply with the provisions of this Section
9.03(vi); (vii) perform in all respects all of its Contractual Obligations,
except where such failure to so perform, singly or in the aggregate with all
other such failures, is not reasonably likely to have a Material Adverse Effect;
and (viii) keep proper books of record and accounts, in which full and correct
entries shall be made of all financial transactions and the Property and
business of each Company in accordance with GAAP in effect from time to time or
as otherwise required by applicable rules and regulations of any Governmental
Authority having jurisdiction over such Company.
9.04. Insurance. (a) Each Company shall maintain, with financially
sound and reputable insurers, insurance of the kinds and in the amounts
customarily insured against by companies engaged in the same or similar
businesses and similarly situated (including business interruption insurance)
and any insurance required by law. Each Company shall pay all insurance premiums
payable by it as and when due. Borrower will advise the Administrative Agent and
the Collateral Agent promptly of any material policy cancellation, reduction or
amendment. Borrower will not, and will not permit any Subsidiary to, materially
modify any of the provisions of any policy with respect to casualty insurance
without delivering the original copy of the endorsement reflecting such
modification to the Administrative Agent and the Collateral Agent. With respect
to the Collateral, each Company shall also maintain all insurance coverage that
may be required under any other Credit Document in such form, amounts and
coverage as is reasonably satisfactory to the Administrative Agent and the
Collateral Agent.
(b) All policies of insurance required to be maintained by any
Obligor must name the Collateral Agent on behalf of the Creditors as loss payee
(in the case of property insurance) or additional insured (in the case of
liability insurance), as applicable, or certificate holder (in the case of
workers' compensation insurance) and must provide that no cancellation,
non-renewal or modification (including reduced coverage) of the policies will be
made without thirty days' prior written notice to the Collateral Agent and if
the insurance carrier shall have received written notice from the Administrative
Agent of the occurrence and continuance of an Event of Default, the insurance
carrier shall pay all proceeds otherwise payable to any Obligor under such
policies directly to the Collateral Agent.
(c) The Obligors shall give immediate written notice of any loss in
excess of $10.0 million to the insurance carrier and to Administrative Agent and
the Collateral Agent. Each Obligor hereby irrevocably authorizes and empowers
the Administrative Agent, as its attorney-in-fact coupled with an interest, if
any Default shall have occurred or such loss is reasonably likely to be
materially adverse to the Lenders, to make proof of loss, to adjust and
compromise any claim under insurance policies, to appear in and prosecute any
action rising from such insurance policies, to collect and receive insurance
proceeds, and to deduct therefrom the Administrative Agent's expenses incurred
in the collection of such proceeds. Nothing contained in this Section 9.04(c),
however, shall require the Administrative Agent to incur any expense or take any
action hereunder.
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(d) Each policy of insurance obtained or maintained by any Company
shall: (i) be written by financially responsible companies selected by Borrower
and having an A.M. Best rating of "A" or better and being in a financial size
category of XII or larger, or by other companies reasonably acceptable to the
Administrative Agent; (ii) waive all rights of subrogation of the insurers
against the Creditors; (iii) waive any right of the insurers to set off or
counterclaim or to make any other deduction, whether by way of attachment or
otherwise, as against any Creditor; (iv) waive all claims for insurance premiums
or commissions or additional premiums or assessments against the Creditors; and
(v) provide that, except in the case of third-party liability insurance, the
proceeds of any loss affecting any Property which is Collateral (including Real
Property) or interests therein shall be applied in accordance with the terms of
this Agreement.
(e) If at any time the area in which any Mortgaged Real Property is
located is designated (i) a "flood hazard area" on any Flood Insurance Rate Map
published by the Federal Emergency Management Agency (or any successor agency),
Borrower shall obtain flood insurance in such total amount as the Administrative
Agent or the Majority Lenders may from time to time reasonably require, 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, or (ii) a
"Zone 1" area, Borrower shall obtain earthquake insurance in such total amount
as the Administrative Agent or the Majority Lenders may reasonably require;
provided, however, that Borrower shall not, unless required by applicable law
pertaining to Borrower or any Creditor, be required to obtain any insurance
described in this Section 9.04(e) if not available at commercially reasonable
rates.
9.05. Limitation on Lines of Business. No Company shall directly or
indirectly engage to any material extent in any line or lines of business
activity other than the business of the type conducted by Borrower and the
Subsidiaries as of the Closing Date or any business related, ancillary or
complementary thereto.
9.06. Limitation on Fundamental Changes, Acquisitions and
Dispositions. No Company shall, directly or indirectly, in a single transaction
or series of transactions, on or after the Closing Date, (1) merge, consolidate
or amalgamate with or into any Person (other than pursuant to the Transactions
on the Closing Date), or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), (2) effect any Acquisition, or (3) effect any
Disposition (or agree to do any of the foregoing). Notwithstanding the foregoing
provisions of this Section 9.06, each of the following shall be permitted:
(a) purchases and sales of Property to be sold or used
in the ordinary course of business;
(b) the pledge of the Collateral pursuant to the
Security Documents and the incurrence of any Permitted Lien;
(c) the merger, consolidation, dissolution or
liquidation of (1) any Subsidiary with or into (i) Borrower if
Borrower shall be the continuing or surviving corporation or (ii)
any Qualified Subsidiary if such Qualified Subsidiary shall be the
continuing or surviving corporation, and (2) any Subsidiary that is
not a Qualified Subsidiary with or into any other Subsidiary that is
not a Qualified Subsidiary;
(d) Dispositions by (1) any Company to Borrower or to
any Qualified Subsidiary or (2) any Subsidiary that is not a
Qualified Subsidiary to any other Subsidiary that is not a Qualified
Subsidiary;
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(e) Dispositions of used, worn out, obsolete or surplus
Property by any Company in the ordinary course of business;
(f) sale or discount, in each case without recourse, of
accounts receivable past due arising in the ordinary course of
business, but only in connection with the compromise or collection
thereof; provided, however, that in no event may any Company enter
into any factoring or securitization program with respect to
receivables other than pursuant to Section 9.06(o);
(g) any Disposition by Borrower or any Subsidiary for
fair market value not to exceed $15.0 million in the aggregate in
any fiscal year of Borrower and $50.0 million in the aggregate since
the Closing Date; provided, however, that the Net Available Proceeds
therefrom are applied as specified in Section 2.10(a)(iv);
(h) (x) any Disposition of all of the Equity Interests
of, or all or substantially all of the assets of, Thermal
Industries, Inc. and (y) Dispositions of the building products
assets of Superior Engineered Products Corporation, a California
corporation, resulting in no more than $10.0 million in aggregate
proceeds; provided, however, in each case (x) and (y), that the Net
Available Proceeds therefrom are applied as specified in Section
2.10(a)(iv);
(i) Acquisitions by Borrower or any
Qualified Subsidiary; provided, however, that each
Acquisition under this Section 9.06(i) shall satisfy
each of the following conditions:
(i) the Loans to be made on the Closing Date
shall have been made, and the Transactions shall have
been consummated;
(ii) no Default then exists or would result
therefrom;
(iii) immediately after giving effect to
such Acquisition, Borrower would be in compliance with
Section 9.05;
(iv) after giving effect to such Acquisition
on a Pro Forma Basis, (1) Borrower shall be in
compliance with all of the Financial Maintenance
Covenants, and, if the Acquisition Consideration for
such Acquisition, together with the aggregate amount of
the Acquisition Consideration for all Acquisitions
(other than Acquisitions made pursuant to Section
9.06(m)) effected pursuant to this Section 9.06(i) since
the Closing Date, exceeds $25.0 million, the Senior
Leverage Ratio shall be less than 3.00:1:00, as of the
Test Date immediately prior to the consummation thereof
(assuming, for purposes of the Financial Maintenance
Covenants and the Senior Leverage Ratio, that such
Acquisition, and all other Acquisitions consummated
since the first day of the relevant Measurement Period
for each of the Financial Maintenance Covenants and the
Senior Leverage Ratio ending on or prior to the date of
such Acquisition, had occurred on the first day of such
relevant Measurement Period), and the Lenders shall have
been provided reasonably detailed calculations of such
compliance and reasonable supporting data and
information with respect thereto), and (2) as reasonably
determined in good faith by Borrower at such time based
on available information then known by Borrower,
Borrower and the Subsidiaries can reasonably be expected
to remain in compliance with the Financial Maintenance
Covenants through the Final Maturity Date and to have
sufficient cash liquidity to conduct their respective
business and pay their respective debts and other
liabilities as they come due;
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(v) no Company shall, in connection with any
such Acquisition, assume or remain liable with respect
to any Indebtedness or other liability (including any
tax or ERISA liability) of the related seller, except
(1) to the extent permitted under Section 9.08 and, if
after giving pro forma effect thereto, the
representations and warranties of each Obligor in
Section 8 would be true in all material respects, and
(2) obligations of the seller or acquired Person or
business incurred in the ordinary course of business and
necessary or desirable to the continued operation of the
underlying properties, and any other such liabilities or
obligations not permitted to be assumed or otherwise
supported by any of the Companies hereunder shall be
paid in full or released as to the assets being so
acquired on or before the consummation of such
Acquisition;
(vi) the Properties acquired in connection
with any such Acquisition shall be free and clear of any
Liens, other than Permitted Liens;
(vii) the board of directors of the acquired
Person shall not have indicated privately to any Company
or publicly its opposition to the consummation of such
Acquisition;
(viii) either (x) such Acquisition shall be
effected through Borrower or a Qualified Subsidiary and
the Person or business acquired shall at the time of
consummation of such Acquisition be merged or combined
or consolidated with or into a domestic Qualified
Subsidiary or shall be at the time of consummation
thereof a domestic Qualified Subsidiary or (y) the
Acquisition Consideration for such Acquisition, together
with the aggregate amount of the Acquisition
Consideration for all other Acquisitions (other than
Acquisitions made pursuant to Section 9.06(m)) effected
pursuant to this Section 9.06(i) that do not comply with
clause (x) of this subparagraph (viii) since the Closing
Date, shall not exceed $5.0 million;
(ix) with respect to any Acquisition
involving Acquisition Consideration of more than $15.0
million, Borrower shall have provided not fewer than 30
days prior to the proposed closing thereof the
Administrative Agent and the Lenders with (1) written
notice thereof and a brief description of the material
terms thereof and a brief description of the business or
Person to be acquired, (2) historical financial
statements for the last three fiscal years (or, if less,
for the period of such Person's existence) of the Person
or business to be acquired (audited if available without
undue cost or delay) and unaudited financial statements
thereof for the most recent interim period which are
available, (3) reasonably detailed projections for the
succeeding five years (or, if earlier, through the year
in which the Final Maturity Date occurs) pertaining to
the Person or business to be acquired, (4) copies of all
material documentation pertaining to such Acquisition,
and (5) all such other information and data relating to
such Acquisition or the Person or business to be
acquired as may be reasonably requested by the
Administrative Agent or the Majority Lenders;
(x) Borrower shall have delivered to the
Administrative Agent and the Lenders (x) an Officer's
Certificate at least ten days prior to the date of
consummation of such Acquisition (but in any event not
earlier than a date which would result in the Test Date
occurring on or immediately prior to the consummation of
such Acquisition being more than 135 days prior to the
date of consummation of such Acquisition) certifying
that (1) such Acquisition complies with this Section
9.06(i) (which shall have attached thereto reasonably
detailed backup data and calculations showing such
compliance), and (2) such Acquisition is not reasonably
likely to have a Material Adverse Effect and (y)
financial
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statements referred to in clause (ix) of this Section
9.06(i) for the most recently ended fiscal period if the
latest financial statements previously delivered
pursuant to clause (ix) cover a period ending more than
135 days before the date of consummation of such
Acquisition; and
(xi) the Acquisition Consideration for such
Acquisition, together with the aggregate amount of the
Acquisition Consideration for all Acquisitions (other
than Acquisitions made pursuant to Section 9.06(m)
below) effected pursuant to this Section 9.06(i) since
the Closing Date, shall not exceed $100.0 million, plus
the then available amount of the Designated Equity
Issuance Proceeds but not to exceed $30.0 million;
(j) transfers resulting from any casualty or
condemnation of Property;
(k) licenses or sublicenses by any Company of software,
trademarks and other intellectual property and general intangibles
and leases, licenses or subleases of other property in the ordinary
course of business and which do not materially interfere with the
business of any Company, and any lease or sublease of the properties
listed on Schedule 9.06(k);
(l) any consignment arrangements or similar arrangements
for the sale of assets in the ordinary course of business of any
Company;
(m) Acquisitions not otherwise permitted hereunder by
Borrower or any Subsidiary; provided, however, that (1) the sole
consideration provided therefor by any Company is Qualified Capital
Stock of Parent, and (2) such Acquisition shall comply with each of
clauses (i), (ii), (iii), (iv), (v), (vi), (vii), (viii)(x), (ix)
and (x) of Section 9.06(i) (with references therein to Section
9.06(i) being deemed references to this Section 9.06(m));
(n) the making of Investments permitted by Section 9.09
and the liquidation in the ordinary course of business of (A)
Permitted Investments and (B) Investments made pursuant to Section
9.09(a);
(o) the sale, transfer or discount of Accounts and
related assets pursuant to any Permitted Receivables Transaction;
provided, however, that no Default or Event of Default shall then
exist or would arise therefrom; and
(p) Dispositions pursuant to Section 9.30.
To the extent the Majority Lenders waive the provisions of this Section 9.06
with respect to the sale or other disposition of any Collateral, or any
Collateral is sold or otherwise disposed of as permitted by this Section 9.06
(other than to any Obligor), such Collateral in each case shall be sold or
otherwise disposed of free and clear of the Liens created by the Security
Documents and the Administrative Agent shall take such actions as are
appropriate in connection therewith.
9.07. Limitation on Liens and Related Matters. No Company shall,
directly or indirectly, create, incur, assume or suffer to exist any Lien upon
or with respect to any of its Property, whether now owned or hereafter acquired,
or assign any right to receive income, or file or permit the filing of any
financing statement under the UCC or any other similar notice of Lien under any
similar recording or notice statute, except the following, which are herein
collectively referred to as "Permitted Liens":
(a) [Reserved];
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(b) Liens imposed by any Governmental Authority for
taxes, assessments or charges not yet due or which are being
contested in good faith and by appropriate proceedings if adequate
reserves with respect thereto are maintained on the books of the
relevant Company, in accordance with GAAP;
(c) Liens imposed by law which were incurred in the
ordinary course of business, such as carriers', warehousemen's,
landlords' and mechanics' Liens and other similar Liens arising in
the ordinary course of business, in each case for sums the payment
of which is not required by Section 9.03;
(d) pledges or deposits under workers' compensation,
unemployment insurance and other social security legislation or the
deposits securing the liability to insurance carriers and entered
into in the ordinary course of business;
(e) pledges or deposits to secure the performance of
bids, trade contracts (other than for borrowed money), leases,
statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature incurred in the ordinary
course of business;
(f) easements, rights-of-way, restrictions or minor
defects or irregularities in title incurred in the ordinary course
of business and encumbrances consisting of zoning restrictions,
easements, licenses, restrictions on the use of Real Property or
minor imperfections in title thereto which, in the aggregate, are
not material in amount, and which do not in any case materially
detract from the value of the Real Property subject thereto or
interfere with the ordinary conduct of the business of any Company;
(g) Liens upon tangible personal Property acquired after
the Closing Date by Borrower or any Subsidiary, each of which Liens
either (A) existed on such Property before the time of its
acquisition and was not created in anticipation thereof, or (B) was
created solely for the purpose of securing Indebtedness
representing, or incurred to finance or refinance, the cost of such
Property or improvements thereon; provided, however, that (1) no
such Lien shall extend to or -------- ------- cover any Property of
any Company other than the Property so acquired and improvements
thereon and proceeds thereof, and (2) the principal amount of
Indebtedness secured by any such Lien shall at no time exceed 100%
of the fair market value of such Property at the time it was
acquired;
(h) Liens existing on any Property of any Person at the
time such Property is acquired or such Person becomes a Subsidiary
or is merged or consolidated with or into a Subsidiary and, in each
case, not created in contemplation of or in connection with such
event; provided, however, that such Liens do not extend to any other
Property of any Company;
(i) Liens not otherwise permitted hereunder securing
obligations of Borrower or any Subsidiary at any time not exceeding
in the aggregate $7.5 million;
(j) Liens securing obligations under Swap Contracts with
any Creditor to the extent such Swap Contract relates to the Loans
and only so long as the Obligations are secured by the same
collateral on at least a pari passu basis;
(k) Liens consisting of judgment or judicial attachment
Liens (including prejudgment attachment) in existence less than 60
days after the entry thereof or the enforcement of which is
effectively stayed or payment of which is covered in full (subject
to a customary de-
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ductible) by insurance or which do not otherwise result in an Event
of Default under Section 10(h);
(l) Liens securing obligations in respect of Capital
Leases solely on Property subject to such Capital Leases;
(m) leases or subleases granted to third Persons not
interfering in any material respect with the business of any
Company;
(n) Liens arising from UCC financing statements
regarding leases permitted by this Agreement;
(o) any interest or title of a lessor or sublessor under
any lease permitted by this Agreement;
(p) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of custom duties in
connection with the importation of goods so long as such Liens
attach only to the imported goods;
(q) Liens arising out of consignment or similar
arrangements for the sale of goods entered into by any Company in
the ordinary course of business;
(r) Liens created under the Credit Documents securing
the obligations owing to the Creditors;
(s) any extension, renewal or replacement of the
foregoing; provided, however, that the Liens permitted by this
Section 9.07(s) shall not cover any additional principal amount of
Indebtedness or Property (other than like Property substituted for
Property covered by such Lien);
(t) Liens on Accounts or related assets of any
Receivables Co. created in connection with a Permitted Receivables
Transaction;
(u) Liens in connection with sale and leaseback
transactions permitted pursuant to Section 9.30 that are customarily
incurred in connection with such transactions; and
(v) Liens created solely by the deposit of, and solely
on, cash and Permitted Investments deposited to consummate the
Existing Notes Redemption or the Tender Offer in favor of the
trustee under the Existing Notes Indenture or the holders of the
Existing Notes;
provided, however, that no consensual Liens shall be permitted to exist,
directly or indirectly, on any Pledged Securities (as defined in the Security
Agreement), other than Liens granted pursuant to the Security Documents.
Except with respect to (i) specific Property encumbered pursuant to
a Permitted Lien or (ii) specific Property to be sold pursuant to an executed
agreement with respect to a Disposition consummated in accordance with this
Agreement, no Company will directly or indirectly enter into any agreement on or
after the Closing Date prohibiting or restricting in any manner (directly or
indirectly and including by way of covenant, representation or warranty or event
of default) the creation or assumption of any Lien upon its Property, whether
now owned or hereafter acquired, except pursuant to the Credit Documents and the
Transaction Documents, and any Permitted Refinancing of any thereof (so long as
such Permitted Refinancing is not more restrictive in such regard than the
Indebtedness being refinanced)
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so long as not directly or indirectly restricting the granting of any Lien
securing the Obligations, and any agreements in connection with any Permitted
Receivables Transaction permitted hereby (in which case, any prohibition or
limitation shall only be effective against the Accounts and related cash which
are the subject thereof).
9.08. Prohibition on Disqualified Capital Stock; Limitation on
Indebtedness and Contingent Obligations. No Company shall directly or indirectly
issue or permit to be outstanding any of its Disqualified Capital Stock, other
than Disqualified Capital Stock issued to and held by Borrower or any Qualified
Subsidiary. No Company shall, directly or indirectly, incur any Indebtedness or
any Contingent Obligation, except (each of which shall be given independent
effect) for the following:
(a) the Loans and the other Obligations (including the
Guarantees) under the Credit Documents;
(b) (i) the Holdings Notes (less all repayments and
prepayments thereof) and (ii) Permitted Refinancings of the Holdings
Notes;
(c) (i) Existing Notes not tendered pursuant to the
Tender Offer that have been irrevocably called pursuant to the
Existing Notes Redemption Notice;
(d) [Reserved];
(e) (x) Indebtedness and Contingent Obligations of
Borrower or any Subsidiary owing to Borrower or any Qualified
Subsidiary and (y) Indebtedness and Contingent Obligations of any
Subsidiary that is not a Qualified Subsidiary owed to any other
Subsidiary that is not a Qualified Subsidiary; provided, however,
that (1) such Indebtedness shall be evidenced by an Intercompany
Note which (other than if issued by or held by a Foreign Subsidiary)
shall be pledged to the Collateral Agent on behalf of the Creditors
pursuant to the Security Agreement and (2) such Indebtedness and
Contingent Obligations shall not be held by any Person other than
Borrower or a Qualified Subsidiary and shall not be subordinate to
any other Indebtedness or Contingent Obligations or other obligation
of the obligor unless also subordinated to the Loans on terms no
less favorable to the Lenders than that of any other creditor;
(f) Contingent Obligations in respect of operating
leases;
(g) Indebtedness and Contingent Obligations arising from
honoring a check, draft or similar instrument against insufficient
funds; provided, however, that such Indebtedness is extinguished
within two Business Days of its incurrence;
(h) Swap Contracts;
(i) Contingent Obligations of Borrower, Holdings or any
Subsidiary in respect of Indebtedness or other liabilities of
Borrower or any Subsidiary to the extent that the existence of such
Indebtedness or other liabilities is not prohibited under this
Agreement;
(j) Contingent Obligations in connection with
Dispositions permitted under Section 9.06, arising in connection
with indemnification and other agreements in respect of any contract
relating to such Disposition, not to exceed the consideration
received by Borrower or any Subsidiary in connection with such sale
and excluding, however, in all cases any Contingent Obligation with
respect to any obligation of any third person incurred in connection
with the acquisition of the Property which is the subject of such
Disposition;
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(k) Indebtedness and Contingent Obligations of Borrower
and the Subsidiaries (including Permitted Refinancings thereof)
secured by Liens permitted under Section 9.07(g) or (l) (and
extensions, renewals or replacements thereof pursuant to Section
9.07(s)) not exceeding (together with any Permitted Refinancing
thereof) $25.0 million in the aggregate at any time outstanding for
Borrower and the Subsidiaries collectively;
(l) Indebtedness of a Person that becomes a Subsidiary
after the date hereof; provided, however, that (1) such Indebtedness
existed at the time such Person became a Subsidiary and was not
created in connection with or in anticipation thereof, (2)
immediately after giving effect to the acquisition of such Person by
Borrower no Default shall have occurred and be continuing, and (3)
the aggregate amount of Indebtedness outstanding at any time
pursuant to this Section 9.08(l) shall not exceed $10.0 million for
all Subsidiaries;
(m) Indebtedness and Contingent Obligations incurred by
Borrower or any Subsidiary, and any Permitted Refinancing thereof,
not to exceed in the aggregate at any time outstanding the excess of
(1) $15.0 million over (2) the aggregate amount of Indebtedness
outstanding pursuant to Section 9.08(l);
(n) Indebtedness and Contingent Obligations of any
Receivables Co. incurred in connection with a Permitted Receivables
Transaction consisting of (i) Indebtedness in an aggregate amount at
any time not to exceed $75.0 million and (ii) Indebtedness of any
Company to any Receivables Co. in connection with any Permitted
Receivables Transaction;
(o) Guaranty Obligations of any Company in respect of
recourse events in connection with any Permitted Receivables
Transaction; and
(p) Subordinated Debt of Holdings incurred to redeem
Equity Interests (other than Disqualified Capital Stock) held by
current or former employees, directors or consultants of any Company
(or their estates or beneficiaries of their estates) in an aggregate
amount at any time not to exceed the excess of (1) $20.0 million
less (2) the aggregate cash consideration paid, or distributions
made, pursuant to Section 9.10(b)(ii); provided that (i) no such
Subordinated Debt shall permit or require the payment of cash
interest, (ii) the subordination terms of such Subordinated Debt
shall be at least as favorable to the Creditors as the subordination
terms contained in an Intercompany Note and (iii) any such
Subordinated Debt shall at all times be held by the Person (or their
estates or beneficiaries of their estates) whose Equity Interests
were redeemed through the incurrence of such Subordinated Debt.
All intercompany debt shall be unsecured and subordinate in right of
payment (to the same extent as the subordination provisions set forth in Exhibit
B hereto) to the Obligations. Each Obligor, by its execution and delivery of
this Agreement, hereby agrees to subordinate its right of payment under any
intercompany debt owed to it by Borrower or any Subsidiary to the full and
complete payment and performance of the Obligations. No Obligor shall incur any
Subordinated Debt unless such Subordinated Debt shall be subordinated to the
Obligations at least to the same extent and for so long as such Subordinated
Debt is subordinated to any other Indebtedness pursuant to documentation
reasonably acceptable to the Administrative Agent.
9.09. Limitation on Investments; Limitation on Creation of
Subsidiaries. No Company shall, directly or indirectly, make or permit to remain
outstanding any Investment, except for the following:
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(a) operating deposit accounts and certificates of
deposit with banks in the ordinary course of business;
(b) Permitted Investments;
(c) Investments by any Company in Borrower or any
Qualified Subsidiary or in any Subsidiary if as a result thereof or
in connection therewith such Subsidiary becomes a Qualified
Subsidiary (provided, that no Investment will be permitted in
respect of any Subsidiary with respect to which Borrower has not
complied with Section 9.20);
(d) Investments outstanding on the Closing Date and
identified on Schedule 9.09 and any renewals, amendments and
replacements thereof that do not increase the amount thereof;
(e) Investments that constitute Indebtedness or
Contingent Obligations permitted under Section 9.08;
(f) advances, loans or extensions of credit by any
Company to (1) employees of any Company in the ordinary course of
business; provided, however, that the aggregate amount of all such
loans, advances and extensions of credit shall not at any time
exceed in the aggregate $2.0 million (without giving effect to any
write-down or write-off thereof) and (2) employees of any Company in
connection with stock option plans so long as (x) such loans do not
involve cash payments by any Company and (y) no Company incurs any
obligations at any time to repurchase the stock so purchased;
(g) extensions of credit in the nature of accounts
receivable or notes receivable arising from the sale or lease of
goods or services in the ordinary course of business;
(h) pledges or deposits required in the ordinary course
of business in connection with workers' compensation, unemployment
insurance and other social security or similar legislation;
(i) pledges or deposits in connection with (i) the
non-delinquent performance of bids, trade contracts (other than for
borrowed money), leases or statutory obligations, (ii) contingent
obligations on surety or appeal bonds, and (iii) other
non-delinquent obligations of a like nature, in each case incurred
in the ordinary course of business;
(j) Investments (including debt obligations) received in
connection with the bankruptcy or reorganization of suppliers and
customers and in settlement of delinquent obligations of, and other
disputes with, customers and suppliers arising in the ordinary
course of business;
(k) Borrower and the Subsidiaries may hold additional
Investments in any Subsidiary which is not a Qualified Subsidiary to
the extent that such Investments reflect an increase in the
stockholders' equity of such Subsidiary resulting from retained
earnings of such Subsidiary;
(l) Investments by any Subsidiary (other than a
Qualified Subsidiary) in any other Subsidiary (other than a
Qualified Subsidiary);
(m) Capital Expenditures permitted by Section 9.11(e);
(n) Investments by any Company in any Subsidiary which
is not a Qualified Subsidiary to the extent made in the ordinary
course to fund or support the ordinary course operations of such
Subsidiary so long as no Default shall have occurred and be
continuing; provided, however,
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that (1) the amount of such Investments made pursuant to this clause
(n) shall not exceed $5.0 million in the aggregate outstanding at
any time (without giving effect to any write-down or write-off
thereof), and (2) all such Investments which are Indebtedness shall
be evidenced by Intercompany Notes, which shall be pledged to
Collateral Agent pursuant to the Security Agreement;
(o) Borrower or any Subsidiary may hold the Equity
Interests of any Subsidiary existing on the Closing Date or created
or acquired thereafter in accordance with the provisions hereof and
any additional Equity Interests issued in exchange therefor or as a
dividend thereon;
(p) Investments for the creation of any Wholly Owned
Foreign Subsidiary which is a foreign sales corporation consisting
of de minimis capitalization;
(q) Investments consisting of non-cash consideration
received in the form of securities, notes or similar obligations in
connection with any Disposition permitted by Section 9.06(g) (which
shall not be subordinated by its terms to any obligations of the
issuer thereof); provided, however, that (1) the aggregate amount of
such non-cash consideration received in connection with any such
Disposition shall not exceed 20% of the total consideration received
in connection with such Disposition, (2) such non-cash consideration
is pledged pursuant to the appropriate Security Document, and (3)
the aggregate amount of such Investments made and outstanding at any
time shall not exceed $10.0 million (without giving effect to any
write-downs or write-offs thereof);
(r) Investments by Foreign Subsidiaries in high quality
investments of the type similar to Permitted Investments made
outside the United States;
(s) Permitted Acquisitions;
(t) Investments by Borrower or any Subsidiary in any
joint venture so long as after giving effect thereto Borrower shall
be in compliance with Section 9.05 and the aggregate amount thereof
outstanding at any time (without giving effect to any write-downs or
write-offs thereof, but net of any cash returns of capital, cash
dividends and cash distributions received in respect thereof) does
not exceed $10.0 million;
(u) in addition to the foregoing, other Investments by
Borrower or any Subsidiary not exceeding in the aggregate
outstanding at any time (without giving effect to any write-downs or
write-offs thereof, but net of any cash returns of capital, cash
dividends and cash distributions received in respect thereof) $10.0
million; and
(v) any Investment which, in the good faith judgment of
such Company, is reasonably necessary in connection with, and
pursuant to, any Permitted Receivables Transaction.
No Company shall, directly or indirectly, create or acquire any
Subsidiary without the prior written consent of the Majority Lenders, which
consent shall not be unreasonably withheld; provided, however, that the
provisions of this paragraph shall not require any consent hereunder for (I) the
creation or acquisition of direct or indirect Wholly Owned Subsidiaries so long
as Section 9.20 is complied with at the time of formation or acquisition
thereof, (II) the creation or acquisition of any Subsidiary which is not a
Wholly Owned Subsidiary so long as the Investment made in connection therewith
complies with this Section 9.09 at the time of formation or acquisition thereof
and (III) the creation of any Receivables Co. in connection with a Permitted
Receivables Transaction.
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9.10. Limitation on Dividend Payments. No Company shall, directly or
indirectly, declare or make any Dividend Payment (other than the Holdings
Dividend on the Closing Date) at any time, except:
(a) any Subsidiary may declare and make Dividend
Payments to Borrower or any Subsidiary to the extent made pro rata
to all holders of Equity Interests thereof; and
(b) so long as no Default has occurred and is continuing
or would arise therefrom, Borrower may make Dividend Payments to
Holdings and Holdings may make Dividend Payments to Parent if the
proceeds thereof are used at the time of such Dividend Payment by
Holdings or Parent, as applicable (and Holdings may use such
Dividend Payments by Borrower as set forth below):
(i) to pay out-of-pocket expenses, for
administrative, legal and accounting services provided
by third parties that are reasonable and customary and
incurred in the ordinary course of business for the
professional services, or to pay franchise fees and
similar costs, in any such case of either Holdings or
Parent; (ii) to redeem Equity Interests (other than
Disqualified Capital Stock) of Parent held by current or
former employees, directors or consultants of any
Company (or their estates or beneficiaries of their
estates); provided, however, that the aggregate cash
consideration paid, or distributions made, pursuant to
this clause (b)(ii) shall not exceed $15.0 million in
the aggregate since the Closing Date, plus, in each
case, the proceeds of any Excluded Equity Issuance
consummated substantially contemporaneously with such
purchase or redemption; and
(iii) to fund a portion of the Transactions
on the Closing Date in the manner contemplated by the
Transaction Documents; and
(c) so long as no Default has occurred and is continuing or would
arise therefrom and the covenants in Section 9.11 would be satisfied on a Pro
Forma Basis as of the most recent Test Date after giving effect thereto,
Borrower may make Dividend Payments to Holdings if the proceeds thereof are used
at the time of such Dividend Payment by Holdings (and Holdings may use such
Dividend Payments by Borrower) to service cash interest on the Holdings Notes,
once such interest is required to be paid in cash, in the amount required to be
so paid at the rate in effect on the Closing Date.
9.11. Financial Covenants.
(a) Maximum Total Leverage Ratio. The Total Leverage Ratio shall
not, as of any Test Date during any period set forth in the table below, exceed
the ratio set forth opposite such period in the table below:
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Period Ratio
------ -----
Closing Date through December 31, 2005 4.25x
January 1, 2006 through December 31, 2006 4.00x
January 1, 2007 through December 31, 2007 3.75x
January 1, 2008 through December 31, 2008 3.50x
January 1, 2009 through December 31, 2009 3.25x
January 1, 2010 through December 31, 2010 3.00x
January 1, 2011 and thereafter 2.75x
(b) [Reserved].
(c) Minimum Interest Coverage Ratio. The Interest Coverage Ratio
shall not, as of any Test Date during any period set forth in the table below,
be less than the ratio set forth opposite such period in the table below:
Period Ratio
------ -----
Closing Date through December 31, 2005 2.50x
January 1, 2006 through December 31, 2006 2.50x
January 1, 2007 through December 31, 2007 2.50x
January 1, 2008 through December 31, 2008 2.50x
January 1, 2009 through December 31, 2009 2.75x
January 1, 2010 through December 31, 2010 3.00x
January 1, 2011 and thereafter 3.00x
(d) Minimum Fixed Charge Coverage Ratio. The Fixed Charge Coverage
Ratio shall not, as of any Test Date during any period set forth in the table
below, be less than the ratio set forth opposite such period in the table below:
Period Ratio
------ -----
Closing Date through December 31, 2005 2.50x
January 1, 2006 through December 31, 2006 2.50x
January 1, 2007 through December 31, 2007 2.50x
January 1, 2008 through December 31, 2008 2.50x
January 1, 2009 through December 31, 2009 2.75x
January 1, 2010 through December 31, 2010 3.00x
January 1, 2011 and thereafter 3.00x
(e) Capital Expenditures. Borrower shall not permit the aggregate
amount of Capital Expenditures made by Borrower and the Subsidiaries to exceed
(a) $27.0 million in the aggregate for the fiscal year ended December 31, 2005,
(b) $28.0 million in the aggregate for the fiscal year ended December 31, 2006,
(c) $29.0 million for the fiscal year ended December 31, 2007, (d) $30.0 million
for the fiscal year ended December 31, 2008, (e) $31.0 million for the fiscal
year ended December 31, 2009, (f) $32.0 million for the fiscal year ended
December 31, 2010 and (g) $33.0 million for the fiscal year ended December 31,
2011; provided, however, that (x) if the aggregate amount of Capital
Expenditures for any fiscal year shall be less than the amount permitted for
such fiscal year (before giving effect to any carryover), then 75% of the amount
of such shortfall may be added to the amount of Capital Expenditures permitted
for the immediately succeeding (but not any other) fiscal year and (y) in
determining whether
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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 year before any
carryover.
9.12. Pledge or Mortgage of Additional Collateral. Promptly, and in
any event within 30 days, after the acquisition of any Property (other than Real
Property) of the type that would have constituted Collateral at the Closing Date
(including the Equity Interests of any Subsidiary hereafter created or acquired
owned directly by Borrower or any Qualified Subsidiary) (the "Additional
Collateral") and after the creation or acquisition of any Wholly Owned
Subsidiary or other Subsidiary (so long as such creation or acquisition is by
Borrower or any Qualified Subsidiary), each Obligor shall take all action
reasonably necessary or desirable, if any, including the execution and delivery
of all such agreements, assignments, documents, registers and instruments
(including amendments to the Credit Documents) and the filing of appropriate
financing statements or other documents under the provisions of the UCC or
applicable requirements of any Governmental Authority in each of the offices
where such filing is necessary or appropriate, and the delivery of appropriate
equity certificates or control agreements, to grant (in the reasonable judgment
of the Collateral Agent or the Majority Lenders) to the Collateral Agent for the
benefit of the Creditors a duly perfected first priority Lien on such Property
pursuant to the appropriate Security Documents subject to Liens permitted under
Section 9.07(g) or (h); provided, however, that not more than 65% of the capital
stock of any Foreign Subsidiary (limited to "first-tier" Foreign Subsidiaries)
need be pledged. Notwithstanding the foregoing, the provisions of this paragraph
shall not apply to any Receivables Co. or any Equity Interest therein, so long
as any Permitted Receivables Transaction with respect thereto is in effect.
In the event that, after the Closing Date, any Obligor (including
any Qualified Subsidiary created or acquired on or after the Closing Date)
acquires or holds a fee interest with a market or book value of $1.0 million or
more in any Real Property, such Obligor shall promptly and in any event within
90 days of the date of acquisition of such Real Property by any Obligor (i) take
such actions and execute such documents as the Collateral Agent shall reasonably
require to confirm the Lien of an existing Mortgage, if applicable, or to create
a new Mortgage on such additional Real Property in favor of the Collateral Agent
and (ii) cause to be delivered to the Collateral Agent, on behalf of the
Creditors, the documents and instruments reasonably requested by the Collateral
Agent, including, without limitation, the following items:
(a) a Mortgage in favor of the Collateral Agent, for the
benefit of the Creditors, duly executed and acknowledged by each
Obligor that is the owner of or holder of any interest in such
Mortgaged Real Property, and otherwise in form for recording in the
recording office of each political subdivision where each such
Mortgaged Real 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 Lien under applicable law, and such UCC financing
statements, all of which shall be in form and substance reasonably
satisfactory to the Collateral Agent, and any other instruments
necessary to grant a mortgage lien under the laws of any applicable
jurisdiction;
(b) with respect to each Mortgaged Real Property, such
consents, approvals, amendments, supplements, estoppels, tenant
subordination agreements or other instruments as shall reasonably be
deemed necessary by the Collateral Agent in order for the owner or
holder of the fee interest constituting such Mortgaged Real Property
to grant the Lien contemplated by the Mortgage with respect to such
Mortgaged Real Property;
(c) with respect to each Mortgage, a policy (or
commitment to issue a policy) of title insurance insuring (or
committing to insure) the Lien of such Mortgage as a valid first
mortgage Lien on the Mortgaged Real Property and fixtures described
therein in the amount of 115% of the fair market value of such
Mortgaged Real Property which policies (or commitments) (each, a
"Ti-
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tle Policy") shall (A) be issued by the Title Company, (B) to the
extent necessary, include such reinsurance arrangements (with
provisions for direct access, if necessary) as shall be reasonably
acceptable to the Collateral Agent, (C) contain a "tie-in" or
"cluster" endorsement (if available under applicable law) (i.e.,
policies which insure against losses regardless of location or
allocated value of the insured property up to a stated maximum
coverage amount), (D) have been supplemented by such endorsements
(or where such endorsements are not available, opinions of special
counsel, architects or other professionals reasonably acceptable to
the Collateral Agent to the extent that such opinions can be
obtained at a cost which is reasonable with respect to the value of
the Mortgaged Real Property subject to such Mortgage) as shall be
reasonably requested by the Collateral Agent (including, without
limitation, 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, separate tax lot, subdivision, lender
non-imputation and so-called comprehensive coverage over covenants
and restrictions), and (E) contain no exceptions to title other than
exceptions reasonably acceptable to the Collateral Agent;
(d) with respect to each Mortgaged Real Property, such
affidavits, certificates, information (including financial data) and
instruments of indemnification (including, without limitation, a
so-called "gap" indemnification) as shall be required to induce the
Title Company to issue the Title Policy/ies (or commitment) and
endorsements contemplated in subparagraph (c) above;
(e) evidence reasonably acceptable to the Collateral
Agent of payment by Borrower of all Title Policy premiums, search
and examination charges, and related charges, mortgage recording
taxes, fees, charges, costs and expenses required for the recording
of the Mortgages and issuance of the Title Policies referred to
subparagraph (c) above;
(f) with respect to each Mortgaged Real 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; such agreement shall be subordinate to the Lien of the Mortgage
to be recorded against such Mortgaged Real Property, either
expressly by its terms or pursuant to a subordination,
non-disturbance and attornment agreement, and shall otherwise be
acceptable to the Collateral Agent;
(g) with respect to each Mortgaged Real Property,
Borrower and each of its Subsidiaries 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 Real Property;
(h) Surveys with respect to each Mortgaged Real
Property; and
(i) with respect to each Mortgage and Mortgaged Real
Property, a legal opinion from counsel licensed in the state in
which the Mortgaged Real Property is located in form and substance
reasonably satisfactory to Collateral Agent.
If requested by the Administrative Agent or the Majority Lenders, Borrower shall
obtain at its sole expense and as soon as practicable but in any event not later
than 45 days after request therefor, Phase 1 environmental reports from an
environmental engineering firm reasonably acceptable to the Administrative Agent
with respect to any Real Property owned by any Company if not delivered on or
prior to the Closing Date.
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The costs of all actions taken by the parties in connection with the
pledge of Additional Collateral or in connection with any Mortgage, including
reasonable costs of counsel for the Agents, shall be paid by the Obligors
promptly following written demand.
9.13. Security Interests; Further Assurances. Each Obligor shall,
promptly, upon the reasonable request of the Collateral Agent or any Lender, at
Borrower's expense, execute, acknowledge and deliver, or cause the execution,
acknowledgment and delivery of, and thereafter register, file or record, or
cause to be registered, filed or recorded, in an appropriate governmental
office, any document or instrument supplemental to or confirmatory of the
Security Documents or otherwise deemed by the Collateral Agent reasonably
necessary or desirable for the continued validity, perfection and priority of
the Liens on the Collateral covered thereby, or obtain any consents, including,
without limitation, landlord or similar lien waivers and consents, as may be
reasonably necessary or appropriate in connection therewith.
Each Obligor shall deliver or cause to be delivered to the
Collateral Agent from time to time such other documentation, consents,
authorizations, approvals and orders in form and substance reasonably
satisfactory to the Collateral Agent as the Collateral Agent shall reasonably
deem necessary to perfect or maintain the Liens on the Collateral.
If any Lender determines in good faith that it is required by any
Governmental Authority or any Requirement of Law to obtain appraisals as to the
market value of any Real Property constituting Collateral, Borrower shall obtain
such appraisals as soon as practicable but in any event not less than 60 days
after request therefor, at the sole cost and expense of Borrower and in
conformity with the requirements of such Governmental Authority and all
Requirements of Law, as from time to time in effect.
If an Event of Default shall have occurred and be continuing, upon
the reasonable request of the Administrative Agent, Borrower will obtain and
deliver to the Administrative Agent appraisal reports in form and substance and
from appraisers satisfactory to the Administrative Agent, stating (a) the then
current fair market, orderly liquidation and forced liquidation values of all or
any portion of the equipment or real estate owned by any Company and (b) the
then current business value of each Company. All such appraisals shall be
conducted and made at the reasonable expense of Borrower.
Upon the exercise by any Agent or the Lenders of any power, right,
privilege or remedy pursuant to any Credit Document which requires any consent,
approval, registration, qualification or authorization of any Governmental
Authority, each Obligor shall execute and deliver all applications,
certifications, instruments and other documents and papers that the Agents or
the Lenders may be so required to obtain.
9.14. Compliance with Environmental Laws. (a) Each Company shall
comply with all Environmental Laws, and will keep or cause all Property to be
kept free of any Liens under Environmental Laws, unless failure to do so could
not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect or subject any Agent, Lender or Issuing Lender to any material
risk of damages or liability; (b) in the event of the presence of any Hazardous
Material at, on, under, within or emanating from any Real Property which would
reasonably be expected to result in liability under or a violation of any
Environmental Law, in each case which could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect, each Company shall
undertake, and/or use their best efforts to cause any of their respective
tenants or occupants to undertake, at no expense to any Lender, any action
required pursuant to Environmental Laws to mitigate and eliminate such adverse
effect; provided, however, that no Company shall be required to comply with any
order or directive of a Governmental Authority which is being contested in good
faith and by proper proceedings so long as it has maintained adequate reserves
with respect to such compliance to the extent required in accordance with GAAP;
(c) each Company shall promptly notify the Administrative Agent of the
occurrence of any event
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specified in clause (b) of this Section 9.14 and shall periodically thereafter
keep the Administrative Agent informed of any material actions taken in response
to such event and the results of such actions; and (d) at the written request of
the Administrative Agent at any time and from time to time, each Obligor will
provide, at such Obligor's sole cost and expense, an environmental site
assessment (including, without limitation, the results of any soil or
groundwater or other testing, conducted if the Administrative Agent directs that
such testing be conducted) concerning any Real Property now or hereafter owned,
leased or operated by any Company, conducted by an environmental consulting firm
proposed by such Obligor and approved by the Administrative Agent indicating the
presence or absence of Hazardous Materials and the potential cost of any
required investigation or other response or any corrective action in connection
with any Hazardous Materials on, at, under, within or emanating from such Real
Property and the potential cost of any required investigation, response or
corrective action to address any such Hazardous Materials; provided, however,
that such request may be made only if (a) there has occurred and is continuing
an Event of Default, (b) the Administrative Agent reasonably believes that any
Company or any such Real Property or operations are not in material compliance
with Environmental Law or (c) circumstances exist that reasonably could be
expected to form the basis of an Environmental Claim against such Company or any
such Real Property or result in material expenditures by any Company, in each
case which could, individually or in the aggregate, have a Material Adverse
Effect. If any Obligor fails to provide the same within 60 days after such
request was made, the Administrative Agent may but is under no obligation to
conduct the same, and such Obligor shall grant and hereby grants to the
Administrative Agent and its agents access to such Real Property and
specifically grants the Administrative Agent an irrevocable non-exclusive
license, subject to the rights of tenants, to undertake such an assessment, all
at such Obligor's sole cost and expense.
9.15. Limitation on Transactions with Affiliates. No Company shall,
directly or indirectly, enter into or permit to exist any transaction
(including, without limitation, the purchase, sale, lease or exchange of any
Property, the rendering of any service, or a merger or consolidation) with or
for the benefit of any Affiliate (an "Affiliate Transaction") unless such
Affiliate Transaction is (i) otherwise not prohibited under this Agreement; (ii)
in the ordinary course of such Company's business, and (iii) on fair and
reasonable terms that are not less favorable to such Company than those that are
reasonably obtainable at the time in an arm's-length transaction with a Person
that is not such an Affiliate; provided, however, that, other than with respect
to clauses (b), (d) or (f) of this Section 9.15, so long as no Default under
Section 10(a), (e), (f), (g) or (j) or Section 10(d) arising by virtue of a
default in the performance of any obligation in Section 9.05, 9.06, 9.07, 9.08,
9.09, 9.10, 9.11, 9.15, 9.25, 9.28, 9.29 or 9.30 shall have occurred and be
continuing or would arise therefrom, the following shall be permitted: (a)
Dividend Payments permitted by Section 9.10; (b) reasonable fees and
compensation paid to, and customary indemnity and reimbursement provided on
behalf of, officers, directors and employees of any Company in the ordinary
course of business; (c) loans or advances to employees permitted by Section
9.09; (d) transactions and agreements contemplated by the Management Agreement
and, so long as the annual fees thereunder are no greater than $500,000, any
amendments thereof permitted by Section 9.17 (including any payment of accrued
fees thereunder for any prior period during which the payment thereof was not
permitted by this Section 9.15); provided, further, however, so long as any
Default under Section 10(a) has not been cured or waived, payments pursuant to
agreements (including the Management Agreement) described in clause (d) of this
Section 9.15 shall not be permitted, but shall be permitted to (and shall)
accrue thereunder on a subordinated basis until such Default is cured or waived;
(e) transactions and agreements pursuant to and payments under the Tax Sharing
Agreement and any amendments thereof permitted by Section 9.27; (f) transactions
and agreements in existence on the Closing Date and described with particularity
on Schedule 9.15 (as such agreements are in effect on the Closing Date, the
"Existing Affiliate Agreements") and the transactions pursuant to the Existing
Affiliate Agreements; (g) other transactions with the Sponsor or its Affiliates
in the ordinary course of business of the Companies or with an aggregate value
for all such transactions not to exceed $1,000,000; (h) any Permitted
Receivables Transaction; (i) payments to directors not to exceed $25,000 per
annum plus reimbursement of directors out-of-pocket
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expenses; or (j) (i) buy-sell agreements entered into by Parent, KAT Holdings,
L.P. and certain officers, directors, employees and management of Parent and any
of its Subsidiaries and (ii) stock option agreements entered into by Parent and
certain officers, directors, employees and management of Parent and any of its
Subsidiaries, in each case in form and substance substantially similar to those
buy-sell agreements and stock option agreements referred to on Schedule 9.15.
9.16. Limitation on Accounting Changes; Limitation on Investment
Company Status. No Company shall make or permit, any change in (i) accounting
policies or reporting practices, except immaterial changes and except as
required by GAAP or (ii) its fiscal year end (December 31 of each year). No
Obligor shall be or become an investment company subject to the registration
requirements under the United States Investment Company Act of 1940, as amended.
9.17. Limitation on Modifications of Certain Documents, Etc.(a) No
Company shall, directly or indirectly, consent to any modification, supplement
or waiver of, or amend, in any manner which could reasonably be expected to be
materially adverse to the Lenders, any of the provisions of any Organic
Document, Transaction Document or the Management Agreement.
9.18. Interest Rate Protection Agreements. Borrower shall obtain, on
or within 90 days after the Closing Date, Interest Rate Protection Agreements
having terms and with counterparties reasonably satisfactory to the
Administrative Agent as shall result in at least 50% of the aggregate principal
amount of then outstanding Total Debt of Borrower either bearing interest at a
fixed rate or being hedged for a period of at least two years from the date the
initial Interest Rate Protection Agreements were obtained.
9.19. Limitation on Certain Restrictions Affecting Subsidiaries. No
Company (other than a Foreign Subsidiary) shall, directly or indirectly, create
or otherwise cause or suffer to exist or become effective any direct or indirect
encumbrance or restriction on the ability of such Company to (a) pay dividends
or make any other distributions on such Company's Equity Interests or any other
interest or participation in its profits owned by any other Company, or pay any
Indebtedness or any other obligation owed to any other Company, (b) make
Investments in or to any other Company, or (c) transfer any of its Property to
any other Company. The foregoing shall not prohibit (i) any such encumbrances or
restrictions existing under or by reason of (A) applicable law, (B) the Credit
Documents, (C) the Subordinated Debt Documents or the Holdings Notes Indenture
as in effect on the Closing Date, (D) any Permitted Refinancing of the Holdings
Notes so long as such restriction in such Permitted Refinancing is not more
disadvantageous to the Lenders or Borrower than the Holdings Notes Indenture as
in effect on the Closing Date and (E) any agreement entered into by any
Receivables Co. in connection with any Permitted Receivables Transaction, (ii)
restrictions on the transfer of assets subject to a Permitted Lien, (iii)
customary restrictions on subletting or assignment of any lease governing a
leasehold interest of any Company, and (iv) with respect to restrictions
described in clause (c) only, restrictions on the transfer of any Property
subject to a Disposition permitted under this Agreement.
9.20. Additional Obligors. Upon any Obligor creating or acquiring
any Wholly Owned Subsidiary (other than a Foreign Subsidiary) after the Closing
Date, Borrower shall (i) cause each such Wholly Owned Subsidiary to execute and
deliver all such agreements, guarantees, documents and certificates (including
any amendments to the Credit Documents and a Joinder Agreement) as the
Administrative Agent may reasonably request and do such other acts and things as
the Administrative Agent may reasonably request in order to have such Wholly
Owned Subsidiary guarantee the Obligations in accordance with the terms of the
Credit Documents, (ii) promptly (I) execute and deliver to the Administrative
Agent such amendments to the Security Documents as the Administrative Agent
deems necessary or advisable in order to grant to the Collateral Agent, for the
benefit of the Creditors, a perfected first priority security interest in the
Equity Interests and debt securities of such new Wholly Owned Subsidiary which
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are owned by Borrower or any Wholly Owned Subsidiary and required to be pledged
pursuant to the Security Agreement, (II) deliver to the Collateral Agent the
certificates representing such Equity Interests and debt securities, together
with (A) in the case of such Equity Interests, undated stock powers endorsed in
blank, and (B) in the case of such debt securities, endorsed in blank, in each
case executed and delivered by a responsible officer of Borrower or such
Subsidiary, as the case may be, (III) cause such new Wholly Owned Subsidiary to
take such actions necessary or advisable to grant to the Collateral Agent for
the benefit of the Creditors a perfected first priority security interest in the
collateral described in the Security Agreement with respect to such new Wholly
Owned Subsidiary (subject to Permitted Liens), including, without limitation,
the filing of Uniform Commercial Code financing statements in such jurisdictions
as may be required by the Security Agreement or by law or as may be reasonably
requested by the Collateral Agent, and (IV) if reasonably requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent. Notwithstanding the foregoing, the provisions of this Section 9.20 shall
not apply to any Receivables Co., so long as any Permitted Receivables
Transaction with respect thereto is in effect.
9.21. Limitation on Designation of Designated Senior Indebtedness.
Borrower shall not, nor shall it permit any Subsidiary to, designate any
Indebtedness or other obligation, other than Indebtedness under the Credit
Documents, as "Designated Senior Indebtedness," as such term is defined in the
Existing Notes Indenture as in effect on the Closing Date, or any comparable
designation that confers upon the holders of such Indebtedness or other
obligation (or any Person acting on their behalf) the right to initiate blockage
periods under the Existing Notes Indenture or any other Indebtedness or other
obligation of Borrower and its Subsidiaries.
9.22. Foreign Subsidiaries' Security. If following a change in the
relevant sections of the Code or the regulations, rules, rulings, notices or
other official pronouncements issued or promulgated thereunder, counsel for
Borrower reasonably acceptable to the Administrative Agent does not within 30
days after a request from the Administrative Agent or the Majority Lenders
deliver evidence, in form and substance mutually satisfactory to the
Administrative Agent and Borrower, with respect to any Foreign Subsidiary which
has not already had all of its stock pledged pursuant to the Security Agreement
that (i) a pledge of more than 65% of the total combined voting power of all
classes of capital stock of such Foreign Subsidiary entitled to vote and (ii)
the entering into by such Foreign Subsidiary of a Joinder Agreement, in any such
case could reasonably be expected to cause the undistributed earnings of such
Foreign Subsidiary as determined for Federal income tax purposes to be treated
as a deemed dividend to such Foreign Subsidiary's United States parent for
Federal income tax purposes, then in the case of a failure to deliver the
evidence described in clause (i) above, that portion of such Foreign
Subsidiary's outstanding capital stock so issued by such Foreign Subsidiary and
not theretofore pledged pursuant to the Security Agreement shall be pledged to
the Collateral Agent for the benefit of the Creditors pursuant to the Security
Agreement (or another security agreement in substantially similar form, if
needed), and in the case of a failure to deliver the evidence described in
clause (ii) above, such Foreign Subsidiary shall execute and deliver a Joinder
Agreement, guaranteeing the Obligations of Borrower under the Credit Documents
and granting the Collateral Agent for the benefit of the Creditors a security
interest in all of such Foreign Subsidiary's assets securing the Obligations of
such Foreign Subsidiary under its Guarantee, in each case to the extent that the
entering into of such Joinder Agreement is permitted by the laws of the
respective foreign jurisdiction and with all documents delivered pursuant to
this Section 9.22 to be in form and substance reasonably satisfactory to the
Administrative Agent.
9.23. Limitation on Activities of Holdings. Holdings shall not
conduct any business, incur any obligations (other than the Credit Documents,
the agreements contemplated by Section 9.15 to which it is a party, as in effect
on the Closing Date, and corporate overhead (including, without limitation, fees
and expenses incidental to an Initial Public Offering) and Indebtedness incurred
pursuant to Section
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9.08(b) or (p)) or hold or acquire any assets (other than (i) the Equity
Interests of Borrower or any other Person of which Borrower is a Wholly Owned
Subsidiary and (ii) cash received in accordance with this Agreement) and shall
have no operations other than holding such Equity Interests and activities
reasonably related thereto.
9.24. Limitation on Issuance or Dispositions of Equity Interests of
Companies. Borrower shall not issue any of its Equity Interests or Equity Rights
or permit any Person to own any of its Equity Interests or Equity Rights other
than Holdings or any parent or indirect parent thereof. Holdings shall not,
directly or indirectly, effect any Disposition of any Equity Interests or Equity
Rights of Borrower other than the pledge thereof pursuant to the Security
Agreement. No Company shall effect the Disposition of any Equity Interests of
any Subsidiary unless (i) all Equity Interests owned by such Company are sold
pursuant thereto in accordance with the Credit Documents, upon which sale the
Guarantee of such Subsidiary shall be automatically deemed to be released, or
(ii) an Investment in an amount equal to the fair market value of the remaining
Equity Interests owned by such Company in such Subsidiary after giving effect to
such Disposition would have been permitted to be made at such time pursuant to
Section 9.09 (at the time of such sale an Investment shall be deemed made in
such Subsidiary in an amount equal to the fair market value of such Equity
Interests).
9.25. Limitation on Payments or Prepayments of Subordinated Debt or
Modification of Debt Documents. No Company shall, directly or indirectly:
(a) make any payment or prepayment (optional or
otherwise) on or redemption of or any payments in redemption,
defeasance or repurchase of any Subordinated Debt or the Holdings
Notes (whether in cash, securities or other Property) except (1)
regularly scheduled mandatory payments of interest, but only to the
extent permitted under Section 9.10 and the subordination
provisions, if any, applicable thereto, (2) any Permitted
Refinancing thereof effected in accordance with this Agreement, (3)
the conversion or exchange of any Indebtedness into shares of common
Equity Interests of Holdings and (4) the redemption of the Existing
Notes in accordance with the Existing Notes Redemption Notice or the
Tender Offer; or
(b) amend, supplement, waive or otherwise modify any of
the provisions of any Subordinated Debt or the Holdings Notes (or
any Permitted Refinancing of any thereof):
(i) which shortens the fixed maturity, or
increases the rate or shortens the time of payment of
interest on, or increases the amount or shortens the
time of payment of any principal or premium payable
whether at maturity, at a date fixed for prepayment or
by acceleration or otherwise of such Subordinated Debt
or Holdings Notes, or increases the amount of, or
accelerates the time of payment of, any fees payable in
connection therewith;
(ii) which relates to the affirmative or
negative covenants, events of default, redemption or
repurchase provisions, or remedies under the documents
or instruments evidencing any such Indebtedness and the
effect of which is to subject any Company to any more
onerous or more restrictive provisions taken as a whole;
or
(iii) which otherwise materially adversely
affects the interests of the Lenders as senior creditors
or the interests of the Lenders under this Agreement or
any other Credit Document in any respect.
9.26. Casualty and Condemnation. Each Obligor will furnish to the
Administrative Agent and the Lenders prompt written notice of any casualty or
other insured damage to any material por-
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tion of the Collateral or the commencement of any action or proceeding for the
taking of any material portion of the Collateral or any part thereof or interest
therein under power of eminent domain or by condemnation or similar proceeding.
9.27. Tax Sharing Arrangements. No Company shall enter into or
permit to exist any amendment to the Tax Sharing Agreement or any other tax
sharing agreement or similar arrangement that is material or is adverse to the
Lenders unless the same shall have been reviewed by, and consented to, by the
Administrative Agent.
9.28. Use of Proceeds. Borrower shall apply the proceeds of the
credit extensions as follows:
(a) in the case of the Term Loans to finance a portion
of the Refinancing and the fees, costs and expenses in connection
therewith;
(b) in the case of the Revolving Credit Loans, for
working capital and general corporate purposes of Borrower and its
Subsidiaries; and
(c) in the case of the Swing Loans and Letters of
Credit, for working capital and general corporate purposes of
Borrower and its Subsidiaries.
9.29. Rating of Loans. Borrower shall (i) provide each of ▇▇▇▇▇'▇
and S&P with information, to the extent reasonably obtainable by Borrower, and
take all commercially reasonable action necessary, to enable ▇▇▇▇▇'▇ and S&P to
provide and maintain credit ratings on the Loans and (ii) pay such ongoing fees
of ▇▇▇▇▇'▇ and S&P as such entities may reasonably request to monitor their
respective ratings of the Loans.
9.30. Sale and Leaseback. No Company shall, directly or indirectly
enter into any agreement or arrangement providing for the sale or transfer by it
of any property (now owned or hereafter acquired) to a Person and the subsequent
lease or rental of such property or other similar property from such Person
unless (i) the proceeds therefrom are applied in accordance with Section
2.10(a)(iv) and (ii) the aggregate amount of all such transactions pursuant to
this Section 9.30 on and after the Closing Date is not in excess of $20.0
million. Notwithstanding anything to the contrary in the definition of "Excluded
Disposition," any such sale or transfer shall be considered a "Disposition."
9.31. Account Maintenance. ▇.▇. ▇▇▇▇▇ Company, Inc. and Total Trim,
Inc. shall not have cash available for withdrawal in excess of $500,000 in the
aggregate in all of their Deposit Accounts, Securities Accounts and Commodities
Accounts (each as defined in the Security Agreement) at Compass Bank that are
not subject to Control Agreements for a period in excess of one Business Day. No
Company shall have cash available for withdrawal in excess of $200,000 at any
time in any Deposit Account, Securities Account or Commodities Account that is
not subject to a Control Agreement and is not specified in the first sentence of
this Section 9.31 and all Companies shall not have cash available for withdrawal
in excess of $2.0 million in the aggregate in all such accounts at any time.
Notwithstanding anything else herein or in any other Credit Document to the
contrary, the Collateral Agent and the Creditors agree they will not exercise
any rights under the Control Agreement related to Borrower's Securities Account
with Bank of America (or its Affiliate) existing on the Closing Date until the
35th day after the Closing Date so long as nothing is deposited in such account
other than items deposited in such account on the Closing Date in order to
effect the Tender Offer and the Existing Notes Redemption. The Companies agree
that they will not use any such amounts deposited in such Securities Account on
the Closing Date for any purpose other than consummating the Existing Notes
Redemption or the Tender Offer.
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9.32. Anti-Terrorism Law; Anti-Money Laundering. No Obligor shall
(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 8.23, (ii) knowingly deal in, or
otherwise engage in any transaction relating to, any property or interests in
property blocked pursuant to the Executive Order or any other Anti-Terrorism
Law, or (iii) knowingly engage in or conspire to engage in any transaction that
evades or avoids, or has the purpose of evading or avoiding, or attempts to
violate, any of the prohibitions set forth in any Anti-Terrorism Law (and the
Obligors shall deliver to the Lenders any certification or other evidence
requested from time to time by any Lender in its reasonable discretion,
confirming the Obligor's compliance with this Section 9.32) or (b) cause or
permit any of the funds of such Obligor 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 any Requirement of Law.
9.33. Embargoed Person. No Obligor shall cause or permit (a) any of
the funds or properties of the Obligors 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" maintained by OFAC and/or
on any other similar 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 Requirement of Law promulgated thereunder,
with the result that the investment in the Obligors (whether directly or
indirectly) is prohibited by a Requirement of Law, or the Loans made by the
Lenders would be in violation of a Requirement 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 Obligors, with the result that the investment in the Obligors
(whether directly or indirectly) is prohibited by a Requirement of Law or the
Loans are in violation of a Requirement of Law.
9.34. Post-Closing Obligations. The relevant Obligor shall use its
commercially reasonable efforts to obtain a Landlord Access Agreement, in the
form of Exhibit O or such other form reasonably acceptable to the Collateral
Agent, from the landlord under each lease set forth on Schedule 7.01(x)(f) for
which such a Landlord Access Agreement has not been obtained on or prior to the
Closing Date.
Section 10. Events of Default.
If one or more of the following events (herein called "Events of
Default") shall occur and be continuing:
(a) (i) Borrower shall default in the payment when due
(whether at stated maturity upon prepayment or repayment or
acceleration or otherwise) of any principal of any Loan or
Reimbursement Obligation, or (ii) Borrower shall default in the
payment when due of interest on any Loan or any Reimbursement
Obligation or any fee or any other amount payable by it hereunder or
under any other Credit Document when due and such default under this
clause (ii) shall have continued unremedied for three or more
Business Days; or
(b) Any Company shall default in the payment when due of
any principal of or interest on any of its Indebtedness (other than
the Loans) aggregating $5.0 million or more, beyond the period of
grace, if any, provided in the instrument or agreement under which
such Indebtedness was created, after giving effect to any consents
or waivers relating thereto obtained before
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the expiration of any such period of grace; or any event specified
in any note, agreement, indenture or other document evidencing or
relating to any Indebtedness aggregating $5.0 million or more if the
effect of such event (after giving effect to any consents or waivers
relating thereto obtained before the expiration of any such period
of grace) is to cause, or (with the giving of any notice or the
lapse of time or both) to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause, such Indebtedness to become due, or to be prepaid
in full (whether by redemption, purchase, offer to purchase or
redeem, defeasance or otherwise), prior to its stated maturity; or
(c) Any representation or warranty made or deemed made
in any Credit Document (or in any modification or supplement
thereto) by any Obligor or in any certificate furnished to any
Creditor pursuant to the provisions thereof, shall prove to have
been false or misleading as of the time made, deemed made or
furnished in any material respect; or
(d) Any Obligor shall default in the performance of any
of its obligations under any of Sections 9.01(f), 9.05 through 9.13,
9.15, 9.16, 9.18, 9.19, 9.21, 9.23 through 9.25, 9.28 or 9.30 or the
last sentence of Section 9.31; or any Obligor shall default in the
performance of its obligations under Section 9.31 (other than the
last sentence thereof) and such default shall continue unremedied
for five Business Days; or Borrower or any other Obligor shall
default in the performance of any of its other obligations in this
Agreement, the Security Documents, the Fee Letter, the ▇▇▇▇▇▇▇ Fee
Letter or the Letter of Credit Documents and such default shall
continue unremedied for a period of thirty days after written notice
thereof to such Obligor or Borrower by the Administrative Agent or
any Lender; or
(e) Any Company, other than any Insignificant
Subsidiary, shall not, or shall admit in writing its inability to,
or be generally unable to, pay its debts as such debts become due;
or
(f) Any Company other than an Insignificant Subsidiary
shall (i) apply for or consent to the appointment of, or the taking
of possession by, a receiver, custodian, trustee or liquidator of
itself or of all or a substantial part of its Property, (ii) make a
general assignment for the benefit of its creditors, (iii) commence
or consent to any Insolvency Proceeding, (iv) file a petition
seeking to take advantage of any other law relating to bankruptcy,
insolvency, reorganization, winding-up, or composition or
readjustment of debts, (v) fail to controvert within 60 days or in a
timely and appropriate manner, or acquiesce in writing to, any
petition filed against it in an involuntary Insolvency Proceeding,
or (vi) take any corporate action for the purpose of effecting any
of the foregoing; or
(g) (i) Any Insolvency Proceeding is commenced or filed
against any Company, other than an Insignificant Subsidiary, or any
writ, judgment, warrant of attachment, execution or similar process
is issued or levied against any such Company, and either (1) such
proceeding or petition shall not be dismissed, or such writ,
judgment, warrant of attachment, execution or similar process shall
not be released, vacated or fully bonded, within 60 days after
commencement, filing or levy or (2) such proceeding shall not be
actively contested by such Company; (ii) any such Company admits the
material allegations of a petition against it in any Insolvency
Proceeding, or an order for relief (or similar order under non-U.S.
law) is ordered in any Insolvency Proceeding; (iii) any such Company
acquiesces in the appointment of a receiver, receiver and manager,
trustee, custodian, conservator, liquidator, mortgagee in possession
(or agent therefor), or other similar person for itself or a
substantial portion of its Property or business; or (iv) an order of
relief against any such Company shall be entered in any involuntary
Insolvency Proceeding; or
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(h) A final judgment or judgments for the payment of
money in excess of $5.0 million in the aggregate (exclusive of
judgment amounts to the extent covered by insurance) shall be
rendered by one or more courts, administrative tribunals or other
bodies having jurisdiction against any Company and the same shall
not be discharged (or provision shall not be made for such
discharge), vacated or bonded pending appeal, or a stay of execution
thereof shall not be procured, within 60 days from the date of entry
thereof and such Company shall not, within said period of 60 days,
or such longer period during which execution of the same shall have
been stayed, appeal therefrom and cause the execution thereof to be
stayed during such appeal; or
(i) An ERISA Event or noncompliance with respect to
Foreign Plans shall have occurred that, when taken together with all
other ERISA Events and noncompliance with respect to Foreign Plans
that have occurred, is reasonably likely to result in liability of
any Company in an aggregate amount exceeding $5.0 million; or
(j) Any Change of Control shall occur; or
(k) Any Security Document after delivery thereof by any
Obligor at any time (other than by reason of the express release
thereof pursuant to Section 13.04(i)(d)) shall cease to be in full
force and effect or shall for any reason fail to create or cease to
maintain a valid and duly perfected first priority security interest
in and Lien upon (subject to Permitted Liens) any material portion
of the Collateral, or any such Lien or security interest shall be
asserted by any Obligor not to be a valid, perfected, first priority
(subject to Permitted Liens) security interest in or Lien on the
Collateral covered thereby; provided that there shall be no Event of
Default under this clause (k) to the extent such Event of Default
arises solely from the gross negligence or willful misconduct of the
Collateral Agent; or
(l) Any Guarantee of an Obligor, other than an
Insignificant Subsidiary, ceases to be in full force and effect
(other than by reason of the express release thereof pursuant to
Section 13.04(i)(d)) or any of the Guarantors repudiates or attempts
to repudiate, any of its obligations under any of the Guarantees; or
(m) Any Credit Document or any material provision
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 Obligor, or by any Governmental Authority,
seeking to establish the invalidity or unenforceability thereof
(exclusive of questions of interpretation of any provision thereof),
or any Obligor shall repudiate or deny that it has any liability or
obligation for the payment of principal or interest or other
obligations purported to be created under any Credit Document; or
(n) Any non-monetary judgment, order or decree is
entered against any Company which is reasonably likely to have a
Material Adverse Effect, and there shall be any period of 60
consecutive days during which a stay of enforcement of such judgment
or order, by reason of a pending appeal or otherwise, shall not be
in effect; or
(o) The subordination provisions relating to any
Subordinated Debt (the "Subordination Provisions") shall fail in any
material respect to be enforceable by the Lenders (which have not
effectively waived the benefits thereof) in accordance with the
terms thereof, or any Obligation shall fail to constitute Senior
Debt or any similar or comparable designation (as defined in any
Subordinated Debt), or any Obligor shall, directly or indirectly,
disavow or contest in any manner any of the Subordination
Provisions; or
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(p) Any event or circumstance shall occur which permits
or requires the persons purchasing, or financing the purchase of,
Accounts under a Permitted Receivables Transaction (the Indebtedness
or obligations under which aggregates to $5.0 million or more) to
stop so purchasing or financing such Accounts, other than by reason
of the occurrence of the stated expiry date of such Permitted
Receivables Transaction, the operation of "clean down" provisions
thereof or the voluntary termination thereof by any Company;
provided that (A) any notices or cure periods that are conditions to
the rights of such Persons to stop purchasing, or financing the
purchase of, such Accounts have been given or have expired, as the
case may be and (B) such event or circumstance is not cured or
waived or otherwise ceases to exist (other than by termination of
the relevant Permitted Receivables Transaction) by the 45th day
after the later of the occurrence of such event or circumstance or
the date of the giving of such notice and the end of such cure
period; or
(q) Borrower fails to make the Holdings Dividend,
consummate the Merger, make or cause to be made the Delaware filings
necessary to cause it to become a Wholly Owned Subsidiary of
Holdings or fails to become a Wholly Owned Subsidiary of Holdings,
in each case on or before the first Business Day following the
Closing Date;
THEREUPON: (1) in the case of an Event of Default other than one referred to in
clause (f) (other than clause (vi) thereof) or (g) with respect to Borrower of
this Section 10, the Administrative Agent may, and upon written direction of the
Majority Lenders shall, by notice to Borrower, terminate the Commitments and/or
declare the principal amount then outstanding of, and the accrued interest on,
the Loans, the Reimbursement Obligations and all other amounts payable by
Borrower hereunder and under the Notes (including any amounts payable under
Section 5.05 or 5.06) to be forthwith due and payable, whereupon such amounts
shall be immediately due and payable without presentment, demand, protest or
other formalities of any kind, all of which are hereby expressly waived by
Borrower, reduce any claim to judgment, take any other action permitted by law
and/or take any action permitted to be taken by the Security Documents during
the existence of an Event of Default; and (2) in the case of the occurrence of
an Event of Default referred to in clause (f) (other than clause (vi) thereof)
or (g) of this Section 10 with respect to Borrower, the Commitments shall
automatically be terminated and the principal amount then outstanding of, and
the accrued interest on, the Loans, the Reimbursement Obligations and all other
amounts payable by Borrower hereunder and under the Notes (including any amounts
payable under Section 5.05 or 5.06) shall automatically become immediately due
and payable without presentment, demand, protest or other formalities of any
kind, all of which are hereby expressly waived by Borrower.
In addition, Borrower agrees, upon the occurrence and during the
continuance of any Event of Default if the Administrative Agent has declared the
principal amount then outstanding of, and accrued interest on, the Revolving
Credit Loans, and all other amounts payable to the Revolving Credit Lenders
hereunder and under the Notes evidencing such Loans to be due and payable, it
may and shall, if requested by the Majority Revolving Credit Lenders through the
Administrative Agent (and, in the case of any Event of Default referred to in
clause (f) (other than clause (vi) thereof) or (g) of this Section 10 with
respect to Borrower, forthwith, without any demand or the taking of any other
action by the Administrative Agent or such Lenders) provide cover for the Letter
of Credit Liabilities by paying to the Collateral Agent immediately available
funds in an amount equal to the then aggregate undrawn face amount of all
Letters of Credit.
Section 11. The Agents.
11.01. General Provisions. Each of the Lenders and the Issuing
Lender hereby irrevocably appoints the Administrative Agent and the Collateral
Agent as its agent in each such capacity and authorizes the Administrative Agent
and the Collateral Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent and the Collateral Agent by
the terms
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hereof and the Security Documents, together with such actions and powers as are
reasonably incidental thereto.
The Lender or other financial institution serving as any Agent or
Issuing Lender 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
such Agent or Issuing Lender, and such bank and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
any Company or other Affiliate thereof as if it were not such Agent or Issuing
Lender hereunder.
No Agent or Issuing Lender shall have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, (a) no Agent or Issuing Lender shall be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) no Agent or Issuing Lender shall have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that such Agent or Issuing
Lender is required to exercise in writing by the Majority Lenders (or such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 13.04), and (c) except as expressly set
forth herein, no Agent or Issuing Lender shall have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to any
Company that is communicated to or obtained by the financial institution serving
as such Agent or Issuing Lender or any of its Affiliates in any capacity. No
Agent or Issuing Lender shall be liable for any action taken or not taken by it
with the consent or at the request of the Majority Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 13.04) or in the absence of its own gross negligence, bad
faith or willful misconduct. No Agent shall be deemed to have knowledge of any
Default or Event of Default unless and until written notice thereof is given to
the Administrative Agent and such Agent by Borrower or a Lender, and no Agent or
Issuing Lender 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
this Agreement or any other Credit Document, (ii) the contents of any
certificate, report or other document delivered hereunder or under any other
Credit Document or in connection herewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth
herein, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement or any other Credit Document or any other agreement, instrument or
document or any lien purported to be created thereby, (v) the satisfaction of
any condition set forth in Section 7 or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to such Agent, (vi) the
existence or non-existence of any Event of Default or Default or (vii) the
financial condition of any Obligor.
Each Agent and Issuing Lender 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 the proper Person. Each
Agent and Issuing Lender also may rely upon any statement made to it orally or
by telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. Each Agent and Issuing Lender may
consult with legal counsel (who may be counsel for Borrower), independent
accountants and other experts 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 experts. Each Agent and Issuing Lender may deem and
treat the payee of any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with such Agent or Issuing Lender. Each Agent and Issuing Lender shall be
fully justified in failing or refusing to take any action under this Agreement
or any other Credit Document unless it shall first receive such advice or
concurrence of the Majority Lenders (or, if so specified by this Agreement, all
Lenders) as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action (it
being understood that this provision shall not release the Administrative Agent
from performing any action with respect to Borrower
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expressly required to be performed by it pursuant to the terms hereof) under
this Agreement. Each Agent and Issuing Lender shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the
other Credit Documents in accordance with a request of the Majority Lenders (or,
if so specified by this Agreement, all Lenders), and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the Lenders
and all future holders of the Loans. Notwithstanding the instructions of the
Majority Lenders (or such other applicable portion of the Lenders), the
Administrative Agent shall have no obligation to take any action if it believes
in good faith that such action would violate applicable law or expose the
Administrative Agent to any liability for which it has not received satisfactory
indemnification. In addition, the Administrative Agent shall not be liable for
any apportionment or distribution of payments made by it in good faith and if
any such apportionment or distribution is subsequently determined to have been
made in error the sole recourse of any Lender to whom payment was due but not
made, shall be to recover from other Lenders any payment in excess of the amount
to which they are determined to be entitled (and such other Lenders hereby agree
to return to such Lender any such erroneous payments received by them).
Each Agent and Issuing Lender 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 or Issuing Lender and reasonably acceptable to Borrower.
Each Agent, Issuing Lender and any such sub-agent may perform any and all its
duties and exercise its rights and powers through their respective Affiliates,
directors, officers, employees, agents and advisors ("Related Parties"). The
exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Related Parties of each Agent and Issuing Lender 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 of such Agent or Issuing Lender.
Subject to the appointment and acceptance of a successor Agent as
provided in this paragraph, any Agent may resign at any time by notifying the
Lenders, the Issuing Lender (with respect to the Administrative Agent only) and
Borrower. Upon any such resignation, the Majority Lenders shall have the right
to appoint a successor which, so long as no Event of Default is continuing,
shall be reasonably acceptable to Borrower. If no successor shall have been so
appointed by the Majority 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 Lender, appoint
a successor Agent which, so long as no Event of Default is continuing, shall be
reasonably acceptable to Borrower. Upon the acceptance of its appointment as
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 the Agent's resignation hereunder, the provisions of this
Section 11 shall continue in effect for the benefit of such retiring Agent, its
sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while it was acting as such Agent.
Each Lender acknowledges that it has, independently and without
reliance upon any Agent, Issuing Lender 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,
Issuing Lender 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
related agreement or any document furnished hereunder or thereunder. No Agent or
Issuing Lender shall be deemed a trustee or other fiduciary on behalf of any
party.
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11.02.Indemnification. Each Lender agrees to indemnify and hold
harmless each Agent and the Issuing Lender (to the extent not reimbursed under
Section 13.03, but without limiting the obligations of Borrower under Section
13.03), ratably in accordance with the aggregate principal amount of the
respective Commitments of and/or Loans and Reimbursement Obligations held by the
Lenders (or, if all of the Commitments shall have been terminated or expired,
ratably in accordance with the aggregate outstanding amount of the Loans and
Reimbursement Obligations held by the Lenders), for any and all liabilities
(including, without limitation, pursuant to any Environmental Law), obligations,
losses, damages, fines, penalties, actions, judgments, deficiencies, claims,
demands, suits, costs, expenses (including reasonable attorneys' and experts'
fees) or disbursements of any kind and nature whatsoever that may be imposed on,
incurred by or asserted against such Agent or Issuing Lender (including by any
Lender) arising out of or by reason of any investigation in or in any way
relating to or arising out of any Credit Document or any other documents
contemplated by or referred to therein for any action taken or omitted to be
taken by such Agent or Issuing Lender under or in respect of any of the Credit
Documents or other such documents or the transactions contemplated thereby
(including the costs and expenses that Borrower is obligated to pay under
Section 13.03, but excluding, unless a Default (including, without limitation,
under Section 10(d)) has occurred and is continuing, normal administrative costs
and expenses incident to the performance of its agency duties hereunder) or the
enforcement of any of the terms hereof or thereof or of any such other
documents; provided, however, that no Lender shall be liable for any of the
foregoing to the extent they are determined by a court of competent jurisdiction
in a final and nonappealable judgment to have resulted from the gross
negligence, bad faith or willful misconduct of the party to be indemnified. The
agreements set forth in this Section 11.02 shall survive the payment of all
Loans and other obligations hereunder and shall be in addition to and not in
lieu of any other indemnification agreements contained in any other Credit
Document. If any indemnity furnished to the Administrative Agent for any purpose
shall, in the reasonable opinion of the Administrative Agent, be insufficient or
become impaired, the Administrative Agent may call for additional indemnity and
cease, or not commence, to do the acts indemnified against even if so directed
by the Majority Lenders until such additional indemnity is furnished.
11.03.Consents Under Other Credit Documents. Except as otherwise
provided in this Agreement and the other Credit Documents, the Administrative
Agent may, with the prior consent of the Majority Lenders (but not otherwise),
consent to any modification, supplement or waiver under any of the other Credit
Documents.
11.04.Assistance by Lenders. Each of the Lenders shall provide full
assistance and cooperation to the Agents and each Lender hereby grants express
and exclusive foreclosing and mortgage enforcement authority to the Collateral
Agent with respect to the Collateral.
▇▇.▇▇.▇▇▇▇▇▇ for Perfection. The Administrative Agent and each
Lender hereby appoint each other Lender as agent for the purpose of perfecting
the Administrative Agent's security interest in assets which, in accordance with
the UCC in any applicable jurisdiction, can be perfected by possession or
control. Should any Lender (other than the Administrative Agent) obtain
possession or control of any such assets, such Lender shall notify the
Administrative Agent thereof, and, promptly upon the Administrative Agent's
request therefor, shall deliver such assets to the Administrative Agent in
accordance with the Administrative Agent's instructions or transfer control to
the Administrative Agent in accordance with the Administrative Agent's
instructions. Each Lender agrees that it will not have any right individually to
enforce or seek to enforce any Security Document or to realize upon any
Collateral for the Loans unless instructed to do so by the Administrative Agent,
it being understood and agreed that such rights and remedies may be exercised
only by the Administrative Agent.
11.06.Right to Perform, Preserve and Protect. If any Obligor fails
to perform any obligation hereunder or under any other Credit Document, the
Administrative Agent itself may, but shall not
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be obligated to, cause such obligation to be performed at Borrower's expense.
The Administrative Agent is further authorized by Borrower and the Lenders to
make expenditures from time to time which the Administrative Agent, in its
reasonable business judgment, deems necessary to (i) preserve or protect the
business conducted by Borrower, the Collateral, or any portion thereof and/or
(ii) enhance the likelihood of, or maximize the amount of, repayment of the
Loans and other Obligations. Borrower hereby agrees to reimburse the
Administrative Agent on demand for any and all costs, liabilities and
obligations incurred by the Administrative Agent pursuant to this Section 11.06.
Each Lender hereby agrees to indemnify the Administrative Agent upon demand for
any and all costs, liabilities and obligations incurred by the Administrative
Agent pursuant to this Section 11.06, in accordance with the provisions of
Section 11.02.
11.07. Disbursements of Revolving Credit Loans; Payment.
(a) Revolving Credit Loan Advances, Payments and Settlements;
Interest and Fee Payments.
(i) The Administrative Agent shall have the right, on
behalf of the Revolving Credit Lenders (other than any non-funding
Revolving Credit Lenders who have given prior notice to the
Administrative Agent in accordance with Section 4.06) to disburse
funds to Borrower for all Revolving Credit Loans requested or deemed
requested by Borrower pursuant to the terms of this Agreement. The
Administrative Agent shall be conclusively entitled to assume in
accordance with Section 4.06, for purposes of the preceding
sentence, that each Revolving Credit Lender, other than any
non-funding Revolving Credit Lenders who have given prior notice to
the Administrative Agent pursuant to Section 4.06, will fund its pro
rata share of all Revolving Credit Loans requested by Borrower. Each
Revolving Credit Lender (other than any non-funding Revolving Credit
Lender who has given prior notice to the Administrative Agent
pursuant to Section 4.06) shall reimburse the Administrative Agent
on demand, in accordance with the provisions of the immediately
following paragraph, for all funds disbursed on its behalf by the
Administrative Agent pursuant to the first sentence of this clause
(i), or if the Administrative Agent so requests, each Revolving
Credit Lender will remit to the Administrative Agent its pro rata
share of any Revolving Credit Loan before the Administrative Agent
disburses the same to Borrower. If the Administrative Agent elects
to require that each Revolving Credit Lender make funds available to
the Administrative Agent, prior to a disbursement by the
Administrative Agent to Borrower, the Administrative Agent shall
advise each Revolving Credit Lender by telephone, facsimile or
e-mail of the amount of such Revolving Credit Lender's pro rata
share of the Revolving Credit Loan requested by Borrower no later
than 12:00 p.m. (Chicago time) on the date of funding of such
Revolving Credit Loan, and each such Revolving Credit Lender shall,
subject to the provisions of Article 7, pay the Administrative Agent
on such date such Revolving Credit Lender's pro rata share of such
requested Revolving Credit Loan, in same day funds, by wire transfer
to such account as may be identified by the Administrative Agent to
Revolving Credit Lenders from time to time. If any Lender fails to
pay the amount of its pro rata share within one (1) Business Day
after the Administrative Agent's demand, the Administrative Agent
shall promptly notify Borrower, and Borrower shall promptly repay
such amount to the Administrative Agent. Any repayment required by
Borrower pursuant to this Section 11.07 shall be accompanied by
accrued interest thereon from and including the date such amount is
made available to Borrower to but excluding the date of payment at
the rate of interest then applicable to Revolving Credit Loans which
are ABR Loans. Nothing in this Section 11.07 or elsewhere in this
Agreement or the other Credit Documents shall be deemed to require
the Administrative Agent to advance funds on behalf of any Lender or
to relieve any Lender from its obligation to fulfill its commitments
hereunder or to prejudice any rights that the Administrative Agent
or Borrower may have against any Lender as a result of any default
by such Lender hereunder.
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(ii) On a Business Day of each week as selected from
time to time by the Administrative Agent, or more frequently
(including daily), if the Administrative Agent so elects (each such
day being a "Settlement Date"), the Administrative Agent will advise
each Revolving Credit Lender by telephone, facsimile or e-mail of
the amount of each such Revolving Credit Lender's pro rata share of
the Revolving Credit Loan balance as of the close of business of the
Business Day immediately preceding the Settlement Date. In the event
that payments are necessary to adjust the amount of such Revolving
Credit Lender's actual pro rata share of the Revolving Credit Loan
balance to such Lender's required pro rata share of the Revolving
Credit Loan balance as of any Settlement Date, the party from which
such payment is due shall pay the Administrative Agent, without
setoff or discount, to the Payment Account not later than 12:00 p.m.
(Chicago time) on the Business Day following the Settlement Date the
full amount necessary to make such adjustment. Any obligation
arising pursuant to the immediately preceding sentence shall be
absolute and unconditional and shall not be affected by any
circumstance whatsoever. In the event settlement shall not have
occurred by the date and time specified in the second preceding
sentence, interest shall accrue on the unsettled amount as specified
in Section 4.06.
(iii) On each Settlement Date, the Administrative Agent
shall advise each Revolving Credit Lender by telephone, facsimile or
e-mail of the amount of such Revolving Credit Lender's pro rata
share of principal, interest and fees paid for the benefit of
Revolving Credit Lenders with respect to each applicable Revolving
Credit Loan, to the extent of such Revolving Credit Lender's credit
exposure with respect thereto, and shall make payment to such
Revolving Credit Lender not later than 12:00 p.m. (Chicago time) on
the Business Day following the Settlement Date of such amounts in
accordance with wire instructions delivered by such Revolving Credit
Lender to the Administrative Agent, as the same may be modified from
time to time by written notice to the Administrative Agent;
provided, that, in the case such Revolving Credit Lender is a
Defaulted Lender, the Administrative Agent shall be entitled to set
off the funding short-fall against that Defaulted Lender's
respective share of all payments received from Borrower.
(iv) The provisions of this Section 11.07(a) shall be
deemed to be binding upon the Administrative Agent and the Lenders
notwithstanding the occurrence of any Default or Event of Default,
or any insolvency or bankruptcy proceeding pertaining to Borrower or
any other Obligor.
(b) Term Loan Payments. Payments of principal, interest and fees in
respect of the Term Loans will be settled on the date of receipt if received by
Administrative Agent on the last Business Day of a month or on the Business Day
immediately following the date of receipt if received on any day other than the
last Business Day of a month.
(c) Return of Payments. If the Administrative Agent determines at
any time that any amount received by the Administrative Agent under this
Agreement must be returned to Borrower or paid to any other Person pursuant to
any insolvency law or otherwise, then, notwithstanding any other term or
condition of this Agreement or any other Credit Document, the Administrative
Agent will not be required to distribute any portion thereof to any Lender. In
addition, each Lender will repay to the Administrative Agent on demand any
portion of such amount that Administrative Agent has distributed to such Lender,
together with interest at such rate, if any, as the Administrative Agent is
required to pay to Borrower or such other Person, without setoff, counterclaim
or deduction of any kind.
(d) Defaulted Lenders. The failure of any Defaulted Lender to make
any Revolving Credit Loan or any payment required by it hereunder shall not
relieve any other Lender of its obligations to make such Revolving Credit Loan
or payment, but neither any other Lender nor the Administrative Agent shall be
responsible for the failure of any Defaulted Lender to make a Revolving Credit
Loan or make any other payment required hereunder. Notwithstanding anything set
forth herein to the contrary, a
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Defaulted Lender shall not have any voting or consent rights under or with
respect to any Credit Document or constitute a "Lender" (or be included in the
calculation of "Majority Lenders" or "Majority Revolving Credit Lenders" or
"Majority Term Loan Lender" hereunder) for any voting or consent rights under or
with respect to any Credit Document.
11.08.Syndication Agent and the Documentation Agents. The
Syndication Agent and the Documentation Agents shall not have any right, power,
obligation, liability, responsibility or duty under this Agreement (or any other
Credit Document) other than those applicable to all Lenders as such. Without
limiting the foregoing, the Syndication Agent and the Documentation Agents shall
not have or be deemed to have any fiduciary relationship with any other Lender.
Each Lender acknowledges that it has not relied, and will not rely, on the
Syndication Agent or any Documentation Agent in deciding to enter into this
Agreement and each other Credit Document to which it is a party or in taking or
not taking action hereunder or thereunder.
Section 12. Application of Proceeds.
The proceeds received by the Collateral Agent in respect of any sale
of, collection from or other realization upon all or any part of the Collateral
pursuant to the exercise by the Collateral Agent of its remedies shall be
applied, in full or in part, together with any other sums then held by the
Collateral Agent pursuant to this Agreement, promptly by the Collateral Agent as
follows:
(a) First, to the payment of all reasonable costs and
expenses, fees, commissions and taxes of such sale, collection or
other realization including compensation to the Collateral Agent and
its agents and counsel, and all reasonable expenses, liabilities and
advances made or incurred by the Collateral Agent in connection
therewith and all amounts for which the Collateral Agent is entitled
to indemnification pursuant to the provisions of any Credit
Document, together with interest on each such amount at the highest
rate then in effect under this Agreement from and after the date
such amount is due, owing or unpaid until paid in full;
(b) Second, to the payment of all other reasonable costs
and expenses of such sale, collection or other realization including
compensation to the other Creditors and their agents and counsel and
all reasonable costs, liabilities and advances made or incurred by
the other Creditors in connection therewith, in each case, equally
and ratably in accordance with the respective amounts thereof then
due and owing, together with interest on each such amount at the
highest rate then in effect under this Agreement from and after the
date such amount is due, owing or unpaid until paid in full;
(c) Third, without duplication of amounts applied
pursuant to clauses (a) and (b) above, to the indefeasible payment
in full in cash, pro rata, of interest and other amounts
constituting Obligations (other than principal) in each case equally
and ratably in accordance with the respective amounts thereof then
due and owing;
(d) Fourth, to the indefeasible payment in full in cash,
pro rata, of principal amount of the Obligations; and
(e) Fifth, the balance, if any, to the person lawfully
entitled thereto (including the applicable Obligor or its successors
or assigns) or as a court of competent jurisdiction may direct.
In the event that any such proceeds are insufficient to pay in full
the items described in clauses (a) through (e) of this Section 12, the Obligors
shall remain liable, jointly and severally, for any deficiency.
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Section 13. Miscellaneous.
13.01. Waiver. No failure on the part of any Creditor to exercise
and no delay in exercising, and no course of dealing with respect to, any right,
power or privilege under any Credit Document shall operate as a waiver thereof,
nor shall any single or partial exercise of any right, power or privilege under
any Credit Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The remedies provided herein
are cumulative and not exclusive of any remedies provided by law.
13.02. Notices. (a) All notices, requests and other communications
provided for herein and under the Security Documents (including any
modifications of, or waivers, requests or consents under, this Agreement) shall
be given or made in writing (including by facsimile) delivered to the intended
recipient at its address, facsimile number or email address set forth as the
"Address for Notices" specified below its name on the signature pages hereof (or
as to any Guarantor, as so specified for Borrower) or, as to any party, at such
other address, facsimile number or email address as shall be designated by such
party in a notice to each other party. Except as otherwise provided in this
Agreement, all such communications shall be deemed to have been duly given when
transmitted by facsimile or personally delivered or, in the case of a mailed
notice, upon receipt, in each case given or addressed as aforesaid. Any Notice
of Borrowing or Notice of Continuation/Conversion shall be deemed to have been
received when actually received.
(b) Notices and other communications to the parties hereto may be
delivered or furnished by electronic communication (including e-mail and
internet or intranet websites) pursuant to procedures approved from time to time
by the Administrative Agent, provided, that the foregoing shall not apply to
notices sent directly to any Lender if such Lender has notified the
Administrative Agent that it is incapable of receiving notices by electronic
communication. The Administrative Agent or Borrower may, in its discretion,
agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it, provided, that approval of
such procedures may be limited to particular notices or communications.
(c) Unless the Administrative Agent otherwise prescribes, (i)
notices and other communications sent to an e-mail address shall be deemed
received upon the sender's receipt of an acknowledgment from the intended
recipient (such as by the "return receipt requested" function, as available,
return e-mail or other written acknowledgment), and (ii) notices or
communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail address
as described in the foregoing clause (i) of notification that such notice or
communication is available and identifying the website address therefor,
provided, that if any such notice or other communication is not sent or posted
during normal business hours, such notice or communication shall be deemed to
have been sent at the opening of business on the next Business Day.
13.03. Expenses, Indemnification, Etc. (a) The Obligors, jointly and
severally, agree to pay or reimburse:
(i) the Issuing Lender, the Lead Arranger, the
Administrative Agent, the Collateral Agent and each other Agent for
all of their reasonable out-of-pocket costs and expenses (including
the reasonable fees and expenses of one legal counsel and one legal
counsel in each applicable locality and independent appraisers and
consultants reasonably retained by the Administrative Agent) in
connection with (1) the negotiation, preparation, execution and
delivery of the Credit Documents, including this Agreement and the
extension of credit hereunder, (2) the negotiation or preparation of
any modification, supplement or waiver of any of the terms of any
Credit
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Document (whether or not consummated or effective) and (3) the
syndication of the Loans and Commitments;
(ii) each of the Lenders, the Issuing Lender and each
Agent for all reasonable out-of-pocket costs and expenses of the
Lenders, the Issuing Lender and each Agent (including the reasonable
fees and expenses of legal counsel) in connection with (1) any
enforcement or collection proceedings resulting from any Default,
including all manner of participation in or other involvement with
(x) bankruptcy, insolvency, receivership, foreclosure, winding up or
liquidation proceedings, (y) judicial or regulatory proceedings and
(z) workout, restructuring or other negotiations or proceedings
(whether or not the workout, restructuring or transaction
contemplated thereby is consummated), (2) the enforcement of this
Section 13.03 and (3) any documentary taxes; and
(iii) each Agent for all reasonable costs, expenses,
taxes, assessments and other charges incurred in connection with any
filing, registration, recording or perfection of any security
interest contemplated by any Credit Document or any other document
referred to therein.
(b) The Obligors, jointly and severally, hereby agree to indemnify
each Creditor and their respective Affiliates, directors, trustees, investment
advisors, officers, employees, investment advisors, collateral managers,
servicers, counsel and agents (each, an "Indemnitee") from, and hold each of
them harmless against, and that no Indemnitee will have any liability for, any
and all Losses incurred by any of them (including any and all Losses incurred by
any Agent, the Lead Arranger or the Issuing Lender to any Lender, whether or not
any Creditor is a party thereto) directly or indirectly arising out of or by
reason of or relating to the negotiation, execution, delivery, performance,
administration or enforcement of any Credit Document, any of the transactions
contemplated by the Credit Documents, any breach by any Obligor of any
representation, warranty, covenant or other agreement contained in any of the
Credit Documents in connection with any of the Transactions, the use or proposed
use of any of the Loans or Letters of Credit, the issuance of or performance
under any Letter of Credit or the use of any collateral security for the Loans
(including the exercise by any Creditor of the rights and remedies or any power
of attorney with respect thereto and any action or inaction in respect thereof),
but excluding (i) any such Losses to the extent finally determined by a court of
competent jurisdiction in a final and nonappealable judgment to have arisen
primarily from the gross negligence or bad faith of the Indemnitee and (ii)
claims among the Agents and the Lenders other than to the extent arising out of
or as a result of any direct or indirect act or omission of any Obligor or any
Affiliate, director, officer, employee or agent thereof.
Without limiting the generality of the foregoing, the Obligors,
jointly and severally, will indemnify each Creditor and each other Indemnitee
from, and hold each Creditor and each other Indemnitee harmless against, any
Losses described in the preceding sentence, including, without limitation,
reasonable expenses of investigation by engineers, environmental consultants and
similar technical personnel reasonably retained by such Creditor, arising under
any Environmental Law as a result of (A) the past, present or future operations
of any Company (or any predecessor in interest to any Company), (B) the past,
present or future condition of any site or facility owned, operated, leased or
used at any time by any Company (or any such predecessor in interest), or (C)
any Release or threatened Release of any Hazardous Materials at, on, under,
within or emanating from any such site or facility, including any such Release
or threatened Release that shall occur during any period when any Creditor shall
be in possession of any such site or facility following the exercise by such
Creditor of any of its rights and remedies hereunder or under any of the
Security Documents (except to the extent such Release or threatened Release is
caused by the actions of such Creditor); provided, however, that the indemnity
hereunder shall be subject to the exclusions from indemnification set forth in
the preceding paragraph.
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To the extent that the undertaking to indemnify and hold harmless
set forth in this Section 13.03 or any other provision of any Credit Document
providing for indemnification is unenforceable because it is violative of any
law or public policy or otherwise, the Obligors, jointly and severally, shall
contribute the maximum portion that each of them is permitted to pay and satisfy
under applicable law to the payment and satisfaction of all indemnified
liabilities incurred by any of the Persons indemnified hereunder.
The Obligors also agree that no Indemnitee shall have any liability
(whether direct or indirect, in contract or tort or otherwise) for any Losses to
any Obligor or any Obligor's security holders or creditors resulting from,
arising out of, in any way related to or by reason of any matter referred to in
any indemnification or expense reimbursement provisions set forth in this
Agreement or any other Credit Document, except to the extent that any Loss is
determined by a court of competent jurisdiction in a final nonappealable
judgment to have resulted primarily from the gross negligence or bad faith of
such Indemnitee.
The Obligors agree that, without the prior written consent of the
Agents, the Lead Arranger and the Majority Lenders which consent shall not be
unreasonably withheld, no Obligor will settle, compromise or consent to the
entry of any judgment in any pending or threatened Proceeding in respect of
which indemnification is reasonably likely to be sought under the
indemnification provisions of this Section 13.03 (whether or not any Indemnitee
is an actual or potential party to such Proceeding), unless such settlement,
compromise or consent includes an unconditional written release of each
Indemnitee from all liability arising out of such Proceeding and does not
include any statement as to an admission of fault, culpability or failure to act
by or on behalf of any Indemnitee and does not involve any payment of money or
other value by any Indemnitee or any injunctive relief or factual findings or
stipulations binding on any Indemnitee.
13.04.Amendments, Etc. (i) No provision of any Credit Document may
be amended, modified or supplemented except by an instrument in writing signed
by the Obligors party thereto and the Majority Lenders, or by the Obligors party
thereto and the Administrative Agent acting with the written consent of the
Majority Lenders, and no provision of any Credit Document may be waived except
by an instrument in writing signed by the Obligors party thereto and the
Majority Lenders, or by the Obligors party thereto and the Administrative Agent
acting with the written consent of the Majority Lenders; provided, however,
that:
(a) no amendment or waiver shall, unless by an
instrument signed by all of the Lenders or by the Administrative
Agent acting with the written consent of each Lender (or, in the
case of clauses (I), (II), (III) or (IV), only such Lenders with
Obligations directly affected (it being understood that the consent
of no other Lender or Agent is needed in each such case)): (I) other
than as provided for in this Agreement, extend the scheduled final
maturity of any Loan or Note held by such Lenders, or extend the
stated expiration date of any Letter of Credit beyond the Revolving
Credit Commitment Termination Date, or reduce the rate of interest
(other than any waiver of any increase in the interest rate
applicable to any of the Loans held by such Lenders pursuant to
clause (b) of Section 3.02) or fees thereon, or extend the time of
payment of interest or fees thereon (other than in connection with
the extension of any scheduled payment hereunder otherwise permitted
hereby), or forgive or reduce the principal amount or the amount due
and owing thereof or any other amount due and owing under any Credit
Document, or make any change to the definition of Applicable Margin
or Revolving Credit Commitment Percentage, (II) extend the final
maturity of any of the Commitments (or reinstate any Commitment
terminated pursuant to Section 10) of such Lenders, (III) change the
currency in which any Obligation owing to such Lenders is payable,
(IV) amend the terms of this Section 13.04 or Section 4.02, 4.07, 5,
11.03 or 12.03, (V) reduce the percentages specified in the
definition of the term "Majority Lenders" or
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amend any provision of any Credit Document requiring the consent of
all the Lenders or reduce any other percentage of the Lenders
required to make any determinations or waive any rights hereunder or
to modify any provision hereof (it being understood that, with the
consent of the Majority Lenders, additional extensions of credit or
commitments for the extension of credit pursuant to this Agreement
may be included in the determination of the Majority Lenders without
notice to or consent of any other Lender or Agent on substantially
the same basis as the Commitments (and related extensions of credit)
are included on the Closing Date), (VI) release any Guarantor from
its obligations under Section 6 (unless permitted by this Agreement,
including, without limitation, clause (d) of this proviso to this
Section 13.04(i)), (VII) consent to the assignment or transfer by
any Obligor of any of its rights and obligations under any Credit
Document, (VIII) release all or substantially all the Collateral or
terminate the Lien under any Credit Document in respect of all or
substantially all the Collateral (except as permitted by the Credit
Documents, including, without limitation, clause (d) of this proviso
to this Section 13.04(i)) or agree to additional obligations (other
than the Obligations and other extensions of credit under this
Agreement consented to by the Majority Lenders) being secured by the
Collateral, (IX) waive the requirement that nine and twelve month
LIBOR Interest Periods require the consent of all Lenders, or (X)
amend Section 13.03 or any other indemnification and expense
reimbursement provision set forth in any Credit Document (it being
understood that any prepayment required by Section 2.10(a) (and any
corresponding reduction of the Revolving Credit Commitments), other
than pursuant to Section 2.10(a)(v), may be waived or amended by the
Majority Lenders);
(b) no such amendment, modification, supplement or
waiver shall increase the Commitments of any Lender over the amount
thereof then in effect without the consent of such Lender (it being
understood that amendments, modifications or waivers of conditions
precedent, covenants, Defaults or Events of Default shall not
constitute an increase of the Commitment of any Lender);
(c) any modification or supplement of or waiver with
respect to Section 11 which affects any Agent in their respective
capacities as such shall require the consent of such Agent;
(d) no consent of any Lender need be obtained, and the
Administrative Agent or the Collateral Agent, as applicable, is
hereby authorized, to release any Lien securing the Obligations on
Property which is the subject of any Disposition permitted by the
Credit Documents and to release any Guarantee of a Subsidiary upon
the sale of all of the Equity Interests of such Subsidiary in
accordance with the Credit Documents;
(e) subject to clause (a)(I) above of this proviso to
this Section 13.04(i), the consent of the Majority Term Loan Lenders
shall be required with respect to any extension of any scheduled
Amortization Payment or any reduction in the amount of any scheduled
Amortization Payment or any change to Section 3.01(b) (it being
understood that, subject to clause (f) below of this Section
13.04(i), any prepayment required by Section 2.10 (and any
corresponding reduction of the Revolving Credit Commitments), other
than pursuant to Section 2.10(a)(v), may be modified, supplemented
or waived by the Majority Lenders);
(f) no modification, supplement or waiver shall, unless
by an instrument signed by the Majority Term Loan Lenders or by the
Administrative Agent acting with the written consent of such
Lenders, change the timing of the receipt or the order in which any
such prepayment is applied to the Term Loans (although any required
prepayment set forth in Section 2.10 (and any corresponding
reduction of the Revolving Credit Commitments), other than pursuant
to Section 2.10(a)(v), may otherwise be modified, supplemented or
waived by the Majority Lenders);
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(g) no reduction of the percentage specified in the
definition of "Majority Revolving Credit Lenders" or "Majority Term
Loan Lenders," shall be made without the consent of each Revolving
Credit Lender or each Term Loan Lender, respectively (it being
understood that, only the Class of such Loan to which such
definition relates need consent to any such reduction and that with
the consent of the Majority Lenders, other additional extensions of
credit pursuant to this Agreement may be included in any such
definition without notice to or consent of any other Lender or Agent
on substantially the same terms as the Commitments (and related
extensions of credit) are included on the Closing Date);
(h) waive any Event of Default under Section 10(a)
without the consent of all affected Lenders;
(i) no amendment or waiver shall make any change to
Section 2.01(d) or the definitions of "Swing Loan Commitment,"
"Swing Loan Maturity Date" or "Swing Loans" or the Swing Loan Note
without the consent of the Swing Loan Lender;
(j) no amendment or waiver shall affect the rights or
duties of the Issuing Lender in its capacity as such or alter the
obligation of any Revolving Credit Lender pursuant to Section
2.03(e) or 2.03(f) without the consent of the Issuing Lender;
(k) no consent of any Lender need be obtained to effect
any amendment of any Credit Document necessary to comply with
Section 9.12 or Section 9.20;
(l) [Reserved];
(m) [Reserved];
(n) no amendment, modification, supplement or waiver may
be made to any condition precedent to any extension of credit under
the Revolving Credit Facility set forth in Section 7.02 without the
written consent of the Majority Revolving Credit Lenders, it being
understood that no amendment to or waiver of any representation or
warranty or any covenant contained in this Agreement or any other
Credit Document, or of any Default, shall be deemed to be effective
for purposes of determining whether the conditions precedent set
forth in Section 7.02 to the making of any extension of credit under
the Revolving Credit Loans have been satisfied unless the Majority
Revolving Credit Lenders shall have consented to such amendment or
waiver; and
(o) any waiver, amendment or modification of this
Agreement that by its terms affects the rights or duties under this
Agreement of the Revolving Credit Lenders (but not the Term Loan
Lenders) or the Term Loan Lenders (but not the Revolving Credit
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.
(ii) If, in connection with any proposed change, waiver, discharge or
termination to any of the provisions of this Agreement as contemplated by
Section 13.04(i)(a), the consent of the Majority 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 each such non-consenting
Lender or Lenders so long as all non-consenting Lenders are so replaced (or, at
the option of Borrower if the respective non-consenting Lenders' consent is
required with respect to less than all Classes of Loans (or related
Commitments), to replace only the Commitments and/or Loans of the respective
non-consenting Lender that gave rise to the need to obtain such Lender's
individual consent), with one or more Replacement Lenders
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pursuant to Section 2.11 so long as at the time of such replacement each such
Replacement Lender consents to the proposed change, waiver, discharge or
termination.
(iii) Notwithstanding anything in Section 13.04(i) to the contrary,
this Agreement and the other Credit Documents may be amended at any time, and
from time to time, after the Closing Date and prior to the date that is two
years thereafter, to increase the aggregate Revolving Credit Commitments and/or
to establish additional Term Loans under this Agreement, at the mutual
discretion of Borrower and the Lead Arranger (the "Greenshoe Option"), by an
agreement in writing entered into by Borrower, the Administrative Agent, the
Collateral Agent, the Lead Arranger and each Person (including any Lender) that
shall agree to provide such Commitment or make a Term Loan (and each such Person
that shall not already be a Lender shall, at the time such agreement becomes
effective, become a Lender with the same effect as if it had originally been a
Lender under this Agreement with the Commitment and/or Term Loans set forth in
such agreement); provided that (i) the aggregate principal amount of the
additional Term Loans and the new Revolving Credit Commitments established
pursuant to this paragraph shall not exceed $100,000,000, (ii) no Default or
Event of Default shall have occurred and be continuing at the time of such
increase, (iii) no Commitment of any Lender shall be increased without the
consent of such Lender, (iv) if the Term Loans are increased pursuant to the
Greenshoe Option, the remaining scheduled payments set forth in Section 3.01(b)
shall be increased pro rata and (v) if the Applicable Margin on the Term Loans
then outstanding is less than the Applicable Margin on the additional Term Loans
established pursuant to the Greenshoe Option, the Applicable Margin on such
outstanding Term Loans will be increased to the extent necessary to make such
Applicable Margin equal to the Applicable Margin on such additional Term Loans.
The Loans and Commitments established pursuant to this paragraph shall
constitute Loans and Commitments under, and shall be entitled to all the
benefits afforded by, this Agreement and the other Credit Documents, and shall,
without limiting the foregoing, benefit equally and ratably from the Guarantees
and security interests created by the Security Documents.
(iv) In addition, notwithstanding the foregoing, this Agreement may
be amended with the written consent of the Administrative Agent, Holdings,
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 "B" 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.
13.05. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
13.06. Assignments and Participations. (a) No Obligor may assign its
respective rights or obligations hereunder or under the Notes or any other
Credit Document without the prior written consent of all of the Lenders.
(b) Each Lender may assign to any Eligible Person any of its Loans,
its Notes, its Letter of Credit Interests and its Commitments (but only with the
consent (which shall not be unreasonably withheld, delayed or conditioned) of
Borrower, the Lead Arranger and the Administrative Agent and, in the case of the
Revolving Credit Commitments, the Issuing Lender); provided, however, that (i)
no
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such consent by Borrower, the Issuing Lender, the Lead Arranger or the
Administrative Agent shall be required in the case of any assignment to another
Lender or any Lender's Affiliate or an Approved Fund of any Lender (in which
case, the assignee and assignor Lenders shall give a Notice of Assignment to
Borrower, the Lead Arranger and the Administrative Agent); (ii) no consent of
Borrower need be obtained prior to the completion of the Primary Syndication or
if any Event of Default shall have occurred and be continuing; (iii) each
assignment, other than to a Lender or any Lender's Affiliate or an Approved Fund
of any Lender and other than any assignment effected by the Lead Arranger or any
of its Affiliates in connection with the Primary Syndication of the Commitments
and/or Loans or otherwise, shall be in an aggregate amount at least equal to
$1.0 million unless the assigning Lender's exposure is reduced to $0 or unless
Borrower and the Administrative Agent otherwise agree; and (iv) in no event may
any such assignment be made to any Obligor or any of its Affiliates without
consent of all Lenders. Any assignment of a Loan shall be effective only upon
appropriate entries with respect thereto being made in the Register (and each
Note shall expressly so provide). Any assignment or transfer of a Loan shall be
registered on the Register only upon surrender for registration of assignment or
transfer of the Note evidencing such Loan (if a Note was issued in respect
thereof), accompanied by a Notice of Assignment, and upon consent thereto by
Borrower, the Lead Arranger, the Administrative Agent and the Issuing Lender to
the extent required above (none of which consents to be unreasonably withheld),
one or more new Notes (if requested by the new Lender) in the same aggregate
principal amount shall be issued to the designated assignee and the old Notes
shall be returned by the Administrative Agent to Borrower marked "cancelled."
Upon execution and delivery by the assignee to Borrower, the Lead Arranger and
the Administrative Agent of a Notice of Assignment, and upon consent thereto by
Borrower, the Lead Arranger, the Administrative Agent and the Issuing Lender to
the extent required above (none of which consents to be unreasonably withheld),
and in the case of a Loan, upon appropriate entries being made in the Register
the assignee shall have, to the extent of such assignment (unless otherwise
provided in such assignment with the consent of the Administrative Agent), the
obligations, rights and benefits of a Lender hereunder holding the
Commitment(s), Loans (or portions thereof) and Letter of Credit Interests
assigned to it (in addition to the Commitment(s), Letter of Credit Interests and
Loans, if any, theretofore held by such assignee) and the assigning Lender
shall, to the extent of such assignment, be released from the Commitment(s) (or
portion(s) thereof) so assigned. The parties to each assignment shall execute
and deliver to the Administrative Agent an agreement substantially in the form
of Exhibit N, together with a processing and recordation fee of $3,500 (except,
in the case of (i) an assignment to an Affiliate of the assigning Lender or an
Approved Fund of the assigning Lender, the processing and recordation fee shall
be $1,000 and (ii) an assignment involving the Lead Arranger, there shall be no
fee required). Upon any such assignment, certain rights and obligations of the
assigning Lender shall survive as set forth in Section 13.07. At the time of
each assignment pursuant to this Section 13.06(b) to any Eligible Person that is
not already a Lender hereunder, the respective assignee Lender shall provide to
Borrower and the Administrative Agent the appropriate Internal Revenue Service
forms (and, if applicable, a Section 5.06 Certificate) described in Section
5.06(b). Notwithstanding the foregoing, Borrower shall be entitled to any
consultation rights granted to it by the Commitment Letter with respect to the
syndication of the Loans. In addition, notwithstanding anything to the contrary
set forth herein or in any of the other Credit Documents, any assignment to an
Affiliate of the assigning Lender or to an Approved Fund of the assigning Lender
shall be effective between such Lender and its Affiliate or Approved Fund
immediately without compliance with the conditions for assignment under this
Section 13.06(b), but shall not be effective with respect to Borrower, any
Agent, any Issuing Lender, the Swing Loan Lender or any Lender, and Borrower,
each Agent, each Issuing Lender, the Swing Loan Lender and each Lender shall be
entitled to deal solely and directly with such assigning Lender under any such
assignment, in each case, until the conditions for assignment under this Section
13.06(b) have been complied with.
(c) A Lender may sell or agree to sell to one or more other Eligible
Persons a participation in all or any part of any Loans and Letter of Credit
Interests held by it, or in its Commitments, in which event each purchaser of a
participation (a "Participant") shall be entitled to the rights and bene-
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fits of the provisions of Section 5 (provided, however, that no Participant
shall be entitled to receive any greater amount pursuant to Section 5 than the
transferor Lender would have been entitled to receive in respect of the
participation effected by such transferor Lender had no participation occurred,
except in the case of Section 5.06, where (a) the sale of the participation to
such Participant is made with Borrower's prior written consent (which shall not
be unreasonably withheld) or (b) where the entitlement to greater payments
results from a change in law after such Participant became a Participant) with
respect to its participation in such Loans, Letter of Credit Interests and
Commitments as if such Participant were a "Lender" for purposes of said Section,
but, except as otherwise provided in Section 4.07(c), shall not have any other
rights or benefits under this Agreement or any Note or any other Credit Document
(the Participant's rights against such Lender in respect of such participation
to be those set forth in the agreements executed by such Lender in favor of the
Participant). Except as otherwise expressly provided above in this Section
13.06(c), all amounts payable by Borrower to any Lender under Section 5 in
respect of Loans, Letter of Credit Interests and its Commitments shall be no
greater than the amount that would have applied if such Lender had not sold or
agreed to sell any participation in such Loans, Letter of Credit Interests and
Commitments, and as if such Lender were funding each of such Loan, Letter of
Credit Interests and Commitments in the same way that it is funding the portion
of such Loan, Letter of Credit Interests and Commitments in which no
participations have been sold. In no event shall a Lender that sells a
participation agree with the Participant to take or refrain from taking any
action hereunder or under any other Credit Document, except that such Lender may
agree with the Participant that it will not, without the consent of the
Participant, agree to any modification or amendment set forth in subclause (I),
(II), (III) or (VIII) of clause (a) of the proviso to Section 13.04(i).
(d) In addition to the assignments and participations permitted
under the foregoing provisions of this Section 13.06, any Lender may assign and
pledge all or any portion of its Loans and its Notes to any United States
Federal Reserve Bank as collateral security pursuant to Regulation A of the
Board of Governors of the Federal Reserve System and any Operating Circular
issued by such Federal Reserve Bank and, in the case of a Lender that is an
investment fund, any such Lender may assign or pledge all or any portion of its
Loans and its Notes to its trustee or other creditors in support of its
obligations to its trustee or such other creditors, without notice to or consent
of Borrower, the Administrative Agent, Lead Arranger or Issuing Lender. No such
assignment shall release the assigning Lender from its obligations hereunder.
(e) A Lender may furnish any information concerning any Company in
the possession of such Lender from time to time to assignees and participants
(including prospective assignees and participants) subject, however, to and so
long as the recipient agrees in writing to be bound by the provisions of Section
13.11. In addition, each Agent and the Lead Arranger may furnish any information
concerning any Obligor or any of its Affiliates in such Agent's or the Lead
Arranger's possession to any Affiliate of such Agent or the Lead Arranger,
subject, however, to the provisions of Section 13.11. The Obligors shall assist
any Lender in effectuating any assignment or participation pursuant to this
Section 13.06 (including during the Primary Syndication) in whatever manner such
Lender reasonably deems necessary, including participation in meetings with
prospective transferees.
13.07. Survival. The obligations of the Obligors under Sections
5.01, 5.05, 5.06 and 13.03, the obligations of each Guarantor under Section
6.03, and the obligations of the Lenders under Sections 5.06 and 11.02, shall
survive the repayment of the Loans and Reimbursement Obligations and the
termination of the Commitments and, in the case of any Lender that may assign
any interest in its Commitments, Loans or Letter of Credit Interest hereunder,
shall (to the extent relating to such time as it was a Lender) survive the
making of such assignment, notwithstanding that such assigning Lender may cease
to be a "Lender" hereunder. In addition, each representation and warranty made,
or deemed to be made by a notice of any extension of credit, herein or pursuant
hereto shall be considered to have been relied upon by the other parties hereto
and shall survive the execution and delivery of this Agreement and
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the Notes and the making of any extension of credit hereunder, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default or incorrect representation or warranty.
13.08. Captions. The table of contents and captions and section
headings appearing herein are included solely for convenience of reference and
are not intended to affect the interpretation of any provision of this
Agreement.
13.09. Counterparts; Interpretation; 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 and the other
Credit Documents and the Fee Letter 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, other than the provisions of the
Commitment Letter, which by their express terms survive the execution of this
Agreement or the termination of the Commitment Letter pursuant to the terms
thereof. Except as provided in Section 7.01, 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 facsimile shall be effective as
delivery of a manually executed counterpart of this Agreement.
13.10. Governing Law; Submission to Jurisdiction; Waivers; Etc. Each
Credit Document shall be governed by, and construed in accordance with, the laws
of the State of New York, without regard to the principles of conflicts of laws
thereof to the extent that the application of the laws of another jurisdiction
would be required thereby (except in the case of the other Credit Documents, to
the extent otherwise expressly stated therein). Each Obligor hereby irrevocably
and unconditionally: (I) submits for itself and its Property in any Proceeding
relating to any Credit Document to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the Supreme Court of the State of New York sitting in New York
County, the courts of the United States of America for the Southern District of
New York, and appellate courts from any thereof; (II) consents that any such
Proceeding may be brought in any such court and waives trial by jury and any
objection that it may now or hereafter have to the venue of any such Proceeding
in any such court or that such Proceeding was brought in an inconvenient court
and agrees not to plead or claim the same; (III) agrees that service of process
in any such Proceeding may be effected by mailing a copy thereof by registered
or certified mail (or any substantially similar form of mail), postage prepaid,
to Borrower at its address set forth in Section 13.02 or at such other address
of which Administrative Agent shall have been notified pursuant thereto; and
(IV) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right to ▇▇▇ in
any other jurisdiction.
13.11. Confidentiality. Each Lender agrees to keep confidential
information obtained by it pursuant hereto and the other Credit Documents
confidential in accordance with such Lender's customary practices for treatment
of its confidential information and agrees that it will only use such
information in connection with the transactions contemplated by this Agreement
and not disclose any of such information other than (a) to such Lender's
Affiliates and its and its Affiliates' respective employees, representatives,
directors, attorneys, auditors, agents, professional advisors, trustees or
affiliates who are advised of the confidential nature of such information or to
any direct or indirect contractual counterparty in swap agreements or such
contractual counterparty's professional advisor (so long as such contractual
counterparty or professional advisor to such contractual counterparty agrees to
be bound by the provision of this Section 13.11), (b) to the extent such
information presently is or hereafter becomes available to
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such Lender on a non-confidential basis from any source of such information that
is in the public domain at the time of disclosure, (c) to the extent disclosure
is required by law (including applicable securities laws), regulation, subpoena
or judicial order or process (provided that notice of such requirement or order
shall be promptly furnished to Borrower unless such notice is legally
prohibited) or requested or required by bank, securities, insurance or
investment company regulations or auditors or any administrative body or
commission (including the Securities Valuation Office of the NAIC) to whose
jurisdiction such Lender may be subject, (d) to any rating agency to the extent
required in connection with any rating to be assigned to such Lender, (e) to
assignees or participants or prospective assignees or participants who agree to
be bound by the provisions of this Section 13.11, (f) to the extent required in
connection with any litigation between any Obligor and any Lender with respect
to the Loans or this Agreement and the other Credit Documents or (g) with
Borrower's prior written consent.
Notwithstanding the foregoing and any other express or implied
agreement or understanding to the contrary, any party to this Agreement (and
each Affiliate, director, officer, employee, agent or representative of the
foregoing or such Affiliate) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions
contemplated herein and all materials of any kind (including opinions or other
tax analyses) that are provided to such party relating to such tax treatment or
tax structure (it being understood that this authorization is retroactively
effective to the commencement of the first discussions between or among any of
the parties hereto regarding the transactions contemplated herein). The
foregoing language is not intended to waive any confidentiality obligations
otherwise applicable under this Agreement except with respect to the information
and materials specifically referenced in the preceding sentence. This
authorization does not extend to disclosure of any other information, including
(a) the identity of participants or potential participants in the transactions
contemplated herein, (b) the existence or status of any negotiations, or (c) any
financial, business, legal or personal information of or regarding a party or
its Affiliates, or of or regarding any participants or potential participants in
the transactions contemplated herein (or any of their respective Affiliates), in
each case to the extent such other information is not related to the tax
treatment or tax structure of the transactions contemplated herein.
13.12. Independence of Representations, Warranties and Covenants.
The representations, warranties and covenants contained herein shall be
independent of each other and no exception to any representation, warranty or
covenant shall be deemed to be an exception to any other representation,
warranty or covenant contained herein unless expressly provided, nor shall any
such exception be deemed to permit any action or omission that would be in
contravention of applicable law.
13.13. Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provisions or the remaining provisions of this Agreement.
13.14. Acknowledgments. The Obligors hereby acknowledge that: (a)
this Agreement and the other Credit Documents are the result of negotiation and
each of the Obligors has been advised by counsel in connection with the
negotiation, execution and delivery of this Agreement and the other Credit
Documents; (b) no Creditor has any fiduciary or similar relationship to any
Obligor and the relationship between the Creditors on the one hand, and the
Obligors, on the other hand, is solely that of debtor and creditor; and (c) no
joint venture exists among the Creditors or among the Obligors and the
Creditors.
13.15. Limitation on Interest. The Obligors, the Agents and the
Lenders intend to contract in strict compliance with applicable usury laws from
time to time in effect. In furtherance thereof such Persons stipulate and agree
that none of the terms and provisions contained in the Credit Documents
-115-
shall ever be construed to create a contract to pay, for the use, forbearance or
detention of money, interest in excess of the maximum amount of interest
permitted to be charged by applicable law from time to time in effect. No
Obligor, endorser or other Person hereafter becoming liable for payment of any
Obligation shall ever be liable for unearned interest thereon or shall ever be
required to pay interest thereon in excess of the maximum amount that may be
lawfully contracted for, charged or received under applicable law from time to
time in effect, and the provisions of this section shall control over all other
provisions of the Credit Documents that may be in conflict or apparent conflict
herewith. The Agents and the Lenders expressly disavow any intention to contract
for, charge or collect excessive unearned interest or finance charges in the
event the maturity of any Obligation is accelerated. If (a) the maturity of any
Obligation is accelerated for any reason, (b) any Obligation is prepaid and as a
result any amounts held to constitute interest are determined to be in excess of
the legal maximum, or (c) an Agent or a Lender shall otherwise collect moneys
that are determined to constitute interest that would otherwise increase the
interest on any or all of the Obligations to an amount in excess of that
permitted to be charged by applicable law then in effect, then all sums
determined to constitute interest in excess of such legal limit shall, without
penalty, be promptly applied to reduce the then outstanding principal of the
related Obligations or, at the option of such Agent or such Lender, as
applicable, promptly returned to Borrower upon such determination. In
determining whether or not the interest paid or payable, under any specific
circumstance, exceeds the maximum amount permitted under applicable law, the
Agents and the Lenders and Borrower shall to the greatest extent permitted under
applicable law, (i) characterize any non-principal payment as an expense, fee or
premium rather than as interest, (ii) exclude voluntary prepayments and the
effects thereof, and (iii) amortize, prorate, allocate and spread the total
amount of interest throughout the entire contemplated term of instruments
evidencing the Obligations in accordance with the amounts outstanding from time
to time thereunder and the maximum legal rate of interest from time to time in
effect under applicable law in order to lawfully contract for, charge, or
receive the maximum amount of interest permitted under applicable law. In the
event applicable law provides for an interest ceiling under Chapter 303 of the
Texas Finance Code, as amended, for that day, the ceiling shall be the "weekly
ceiling" as defined in Chapter 303 of the Texas Finance Code, as amended;
provided that if any applicable law permits greater interest, the law permitting
the greatest interest shall apply. As used in this section the term "applicable
law" means the laws of the State of Texas or the laws of the United States,
whichever allow the greater interest, as such laws now exist or may be changed
or amended or come into effect in the future.
13.16. USA PATRIOT Act Notice. Each Lender that is subject to the
Act (as hereinafter defined) and the Administrative Agent (for itself and not on
behalf of any Lender) hereby notifies Borrower that pursuant to the requirements
of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the "Act"), it is required to obtain, verify and record information that
identifies Borrower, which information includes the name, address and tax
identification number of Borrower and other information regarding Borrower that
will allow such Lender or the Administrative Agent, as applicable, to identify
Borrower in accordance with the Act. This notice is given in accordance with the
requirements of the Act and is effective as to the Lenders and the
Administrative Agent.
13.17. Publication; Advertisement. (a) No Obligor will directly or
indirectly publish, disclose or otherwise use in any public disclosure,
advertising material, promotional material, press release or interview, any
reference to the name, logo or any trademark of ▇▇▇▇▇▇▇ ▇▇▇▇▇, the Lead Arranger
or any of their respective Affiliates or any reference to this Agreement or the
financing evidenced hereby, in any case except (i) as required by law, subpoena
or judicial or similar order, in which case the applicable Obligor shall give
the Administrative Agent or the Lead Arranger, as applicable, prior written
notice of such publication or other disclosure or (ii) with ▇▇▇▇▇▇▇ ▇▇▇▇▇'▇ or
the Lead Arranger's, as applicable, prior written consent.
(b) Each Lender and each Obligor hereby authorizes ▇▇▇▇▇▇▇ ▇▇▇▇▇ to
publish the name of any Obligor (but not any Lender), the existence of the
financing arrangements referenced under
-116-
this Agreement, the primary purpose and/or structure of those arrangements, the
amount of credit extended under each facility, the title and role of each party
to this Agreement, and the total amount of the financing evidenced hereby in any
"tombstone," comparable advertisement or press release which ▇▇▇▇▇▇▇ ▇▇▇▇▇
elects to submit for publication. In addition, each Lender and each Obligor
agrees that ▇▇▇▇▇▇▇ ▇▇▇▇▇ may provide lending industry trade organizations with
information necessary and customary for inclusion in league table measurements
after the Closing Date. With respect to any of the foregoing, ▇▇▇▇▇▇▇ ▇▇▇▇▇
shall provide Borrower and the Lead Arranger with an opportunity to review and
confer with ▇▇▇▇▇▇▇ ▇▇▇▇▇ regarding the contents of any such tombstone,
advertisement or information, as applicable, prior to its submission for
publication and, following such review period, ▇▇▇▇▇▇▇ ▇▇▇▇▇ may, from time to
time, publish such information in any media form desired by ▇▇▇▇▇▇▇ ▇▇▇▇▇, until
such time that Borrower shall have requested ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ any such
further publication.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and year first above
written.
ATRIUM COMPANIES, INC.
By:
-------------------------------------
Name:
Title:
Address for Notices:
Atrium Companies, Inc.
5th Floor
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail Address: ▇▇▇▇.▇▇▇▇@▇▇▇▇▇▇.▇▇▇
[Credit Agreement]
GUARANTORS:
ACIH, INC.
ATRIUM DOOR AND WINDOW COMPANY - WEST
COAST
ATRIUM DOOR AND WINDOW COMPANY OF THE
NORTHEAST
ATRIUM DOOR AND WINDOW COMPANY OF THE
NORTHWEST
ATRIUM DOOR AND WINDOW COMPANY OF
ARIZONA
ATRIUM DOOR AND WINDOW COMPANY OF THE
ROCKIES
▇.▇. ▇▇▇▇▇ COMPANY, INC.
TOTAL TRIM, INC.
ATRIUM SHUTTERS, INC.
ATRIUM VINYL, INC.
THERMAL INDUSTRIES, INC.
ATRIUM EXTRUSION SYSTEMS, INC.
ALUMINUM SCREEN MANUFACTURERS, INC.
MD CASTING, INC.
SUPERIOR ENGINEERED PRODUCTS
CORPORATION
ATRIUM WINDOWS AND DOORS FLORIDA, LLC
By:
-------------------------------------
Name:
Title:
[Credit Agreement]
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL, a division of
▇▇▇▇▇▇▇ ▇▇▇▇▇ Business Financial
Services Inc.,
as Administrative Agent, Collateral
Agent and a Lender
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
Address for Notices:
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Account Manager
for Atrium transaction
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail Address: ▇▇▇▇▇_▇▇▇▇▇▇▇▇@▇▇.▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Group Senior Transaction
Attorney, Corporate Finance, for Atrium
transaction
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail Address: ▇▇▇▇▇_▇▇▇▇▇@▇▇.▇▇▇
[Credit Agreement]
UBS SECURITIES LLC,
as Sole Lead Arranger, Sole Bookrunner
and Syndication Agent
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
Address for Notices:
UBS Securities LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail Address: ▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇.▇▇▇
[Credit Agreement]
UBS LOAN FINANCE LLC,
as a Lender
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
Lending Office for all Loans:
c/o UBS AG, Stamford Branch
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
UBS Loan Finance LLC
c/o UBS AG, Stamford Branch
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail Address: ▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇.▇▇▇
[Credit Agreement]
CITICORP NORTH AMERICA, INC.
as a Lender and Co-Documentation Agent
By:
-------------------------------------
Name:
Title:
Address for Notices:
Citigroup
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇)▇▇▇-▇▇▇▇
E-mail Address: ▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
[Credit Agreement]
ANTARES CAPITAL CORPORATION,
as a Lender and Co-Documentation Agent
By:
-------------------------------------
Name:
Title:
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail Address: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
[Credit Agreement]
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Lender and Co-Documentation Agent
By:
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Duly Authorized Signatory
Address for Notices:
Corporate Financial Services
▇▇▇ ▇▇▇▇▇▇▇ ▇, ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Corporate
Financial Services
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail Address: ▇▇▇▇▇.▇▇▇▇▇@▇▇.▇▇▇
[Credit Agreement]
ANNEX A
GENERAL TERMS OF PERMITTED RECEIVABLES TRANSACTION
--------------------------------------------------
Originators:
Atrium Companies, Inc. ("Atrium") and/or its
subsidiaries.
Transferor: A special purpose, bankruptcy remote entity,
Atrium Funding Corp. ("Atrium Funding" and the
"SPC"), established solely for the purposes
outlined in this Discussion Term Sheet. Atrium
Funding will (i) satisfy certain criteria
acceptable to the Administrative Agent designed
to ensure that the assets and liabilities of SPC
will not be substantively consolidated with those
of the Atrium and Originators and (ii) purchase
Receivables and related property from the
Originators in "true sale" transactions as
described below.
Servicer: Atrium will provide its unconditional obligation to
act as Servicer to administer the Receivables on the
Buyers' behalf until the Receivables have been
collected in full. Provisions will be made for
revocation of Atrium's role as Servicer upon the
occurrence of a servicer default.
Sub-Servicers: TBD, if necessary.
Facility: Purchases of any undivided ownership interests in
a revolving pool of domestic trade receivables
("Receivables") generated by the Originators and
transferred to Atrium Funding. The transfer
between the Originators and Atrium Funding will
be characterized as legal true sales (discount of
receivables at fair market value) supported by
appropriate legal opinions to that effect.
The Originators will sell the Receivables in
existence on the closing date and arising on each
day thereafter to the SPC pursuant to Purchase
and Sale Agreements. The SPC will then transfer
Receivables to the Buyers pursuant to a
Receivables Purchase Agreement or incur debt
secured by the Receivables.
Buyers: "To be named," a multi-seller asset backed
commercial paper conduit administered by "to be
named," other multi-seller asset backed commercial
paper conduits, collectively the "Purchasers,"
and/or the respective Liquidity Providers.
Maximum Net Investment: $75,000,000
RPA Term: The term of the underlying RPA will be five
years, subject to the availability of the supporting
liquidity facility.
Annex A-1
Obligors: A diversified pool of customers of the
Originators.
Liquidity Providers: A1/P1 rated institutions.
Liquidity Term: The liquidity facilities provided by each
financial institution will be available on a
committed basis for up to 364 days. The liquidity
facility can be extended for additional periods not
to exceed 364 days from the extension date upon the
mutual consent of the Originator, Transferor, Buyers
and the Liquidity providers.
Annex A-2
SCHEDULE 1.01(b)
----------------
SUBSIDIARY GUARANTORS
---------------------
Atrium Door and Window Company - West Coast
Atrium Door and Window Company of the Northeast
Atrium Door and Window Company of the Northwest
Atrium Door and Window Company of Arizona
Atrium Door and Window Company of the Rockies
▇.▇. ▇▇▇▇▇ Company, Inc.
Total Trim, Inc.
Atrium Shutters, Inc.
Atrium Vinyl, Inc.
Thermal Industries, Inc.
Atrium Extrusion Systems, Inc.
Aluminum Screen Manufacturers, Inc.
MD Casting, Inc.
Superior Engineered Products Corporation
Atrium Windows and Doors of Florida, LLC
SCHEDULE 3.01(b)
----------------
TERM LOAN AMORTIZATION PAYMENTS
-------------------------------
DATE* PAYMENT
--------------- ----------------------------
March 2005 $ 812,500
June 2005 812,500
September 2005 812,500
December 2005 812,500
March 2006 812,500
June 2006 812,500
September 2006 812,500
December 2006 812,500
March 2007 812,500
June 2007 812,500
September 2007 812,500
December 2007 812,500
March 2008 812,500
June 2008 812,500
September 2008 812,500
December 2008 812,500
March 2009 812,500
June 2009 812,500
September 2009 812,500
December 2009 812,500
March 2010 812,500
June 2010 812,500
September 2010 812,500
December 2010 812,500
March 2011 76,375,000
June 2011 76,375,000
September 2011 76,375,000
December 28, 2011 76,375,000
-----------------
$ 325,000,000
=================
-------------------------
* Unless otherwise indicated, such date is the last Business Day of the
specified month.