SECOND AMENDED AND RESTATED TERM LOAN CREDIT AGREEMENT Dated as of April 3, 2007, Among BERRY PLASTICS GROUP, INC., BERRY PLASTICS HOLDING CORPORATION, as Borrower, THE LENDERS PARTY HERETO, CREDIT SUISSE, CAYMAN ISLANDS BRANCH as Collateral Agent and...
Exhibit
10.1(b)
$1,200,000,000
SECOND
AMENDED AND RESTATED TERM LOAN CREDIT AGREEMENT
Dated
as
of April 3, 2007,
Among
▇▇▇▇▇
PLASTICS GROUP, INC.,
▇▇▇▇▇
PLASTICS HOLDING CORPORATION,
as
Borrower,
THE
LENDERS PARTY HERETO,
CREDIT
SUISSE, CAYMAN ISLANDS BRANCH
as
Collateral Agent and Administrative Agent
DEUTSCHE
BANK TRUST COMPANY AMERICAS,
as
Syndication Agent,
BANK
OF
AMERICA, N.A.
CITICORP
NORTH AMERICA, INC.
▇▇▇▇▇▇▇
▇▇▇▇▇ CREDIT PARTNERS L.P.
J.P.
▇▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇
BROTHERS INC.
as
Co-Documentation Agents
BANC
OF
AMERICA SECURITIES LLC
CITIGROUP
GLOBAL MARKETS INC.
CREDIT
SUISSE SECURITIES (USA) LLC
DEUTSCHE
BANK SECURITIES INC.
▇▇▇▇▇▇▇
SACHS CREDIT PARTNERS L.P.
J.P.
▇▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇
BROTHERS INC.
as
Joint
Bookrunners
_________________
CREDIT
SUISSE SECURITIES (USA) LLC
and
DEUTSCHE
BANK SECURITIES INC.,
as
Joint
Lead Arrangers
_________________
EXECUTION
VERSION
TABLE
OF
CONTENTS
ARTICLE
I
Definitions
|
SECTION
1.01.
|
Defined
Terms
|
2 |
|
SECTION
1.02.
|
Terms
Generally
|
45 |
|
SECTION
1.03.
|
Effectuation
of Transactions
|
45 |
|
SECTION
1.04.
|
Senior
Debt
|
45 |
ARTICLE
II
The
Credits
|
SECTION
2.01.
|
Commitments
|
45 |
|
SECTION
2.02.
|
Loans
and Borrowings
|
46 |
|
SECTION
2.03.
|
Requests
for Borrowings
|
46 |
|
SECTION
2.04.
|
[Reserved]
|
47 |
|
SECTION
2.05.
|
[Reserved]
|
47 |
|
SECTION
2.06.
|
Funding
of Borrowings
|
47 |
|
SECTION
2.07.
|
Interest
Elections
|
47 |
|
SECTION
2.08.
|
Termination
of Term C Loan Commitments
|
49 |
|
SECTION
2.09.
|
Repayment
of Loans; Evidence of Debt
|
49 |
|
SECTION
2.10.
|
Repayment
of Term C Loans
|
50 |
|
SECTION
2.11.
|
Prepayment
of Loans
|
51 |
|
SECTION
2.12.
|
Fees
|
52 |
|
SECTION
2.13.
|
Interest
|
53 |
|
SECTION
2.14.
|
Alternate
Rate of Interest
|
53 |
|
SECTION
2.15.
|
Increased
Costs
|
54 |
|
SECTION
2.16.
|
Break
Funding Payments
|
55 |
|
SECTION
2.17.
|
Taxes
|
55 |
|
SECTION
2.18.
|
Payments
Generally; Pro Rata Treatment;
Sharing of Set-offs
|
57 |
|
SECTION
2.19.
|
Mitigation
Obligations; Replacement of Lenders
|
59 |
|
SECTION
2.20.
|
Illegality
|
60 |
|
SECTION
2.21.
|
Incremental
Commitments
|
60 |
ARTICLE
III
Representations
and Warranties
|
SECTION
3.04.
|
Governmental
Approvals
|
62 |
|
SECTION
3.05.
|
Financial
Statements
|
62 |
|
SECTION
3.06.
|
No
Material Adverse Effect
|
62 |
|
SECTION
3.07.
|
Title
to Properties; Possession Under Leases
|
62 |
|
SECTION
3.08.
|
Subsidiaries
|
63 |
|
SECTION
3.09.
|
Litigation;
Compliance with Laws
|
63 |
|
SECTION
3.10.
|
Federal
Reserve Regulations
|
63 |
|
SECTION
3.11.
|
Investment
Company Act
|
64 |
|
SECTION
3.12.
|
Use
of Proceeds
|
64 |
|
SECTION
3.13.
|
Tax
Returns
|
65 |
|
SECTION
3.14.
|
No
Material Misstatements
|
65 |
|
SECTION
3.15.
|
Employee
Benefit Plans
|
65 |
|
SECTION
3.16.
|
Environmental
Matters
|
65 |
|
SECTION
3.17.
|
Security
Documents
|
66 |
|
SECTION
3.18.
|
Location
of Real Property and Leased Premises
|
66 |
|
SECTION
3.19.
|
Solvency
|
66 |
|
SECTION
3.20.
|
Labor
Matters
|
67 |
|
SECTION
3.21.
|
Insurance
|
68 |
|
SECTION
3.22.
|
No
Default
|
68 |
|
SECTION
3.23.
|
Intellectual
Property; Licenses, Etc.
|
69 |
|
SECTION
3.24.
|
Senior
Debt
|
70 |
-i-
ARTICLE
IV
Conditions
of Lending
ARTICLE
V
Affirmative
Covenants
|
SECTION
5.01.
|
Existence;
Businesses and Properties
|
73 |
|
SECTION
5.02.
|
Insurance
|
74 |
|
SECTION
5.03.
|
Taxes
|
75 |
|
SECTION
5.04.
|
Financial
Statements, Reports, etc.
|
75 |
|
SECTION
5.05.
|
Litigation
and Other Notices
|
77 |
|
SECTION
5.06.
|
Compliance
with Laws
|
78 |
|
SECTION
5.07.
|
Maintaining
Records; Access to Properties and Inspections
|
78 |
|
SECTION
5.08.
|
Use
of Proceeds
|
78 |
|
SECTION
5.09.
|
Compliance
with Environmental Laws
|
78 |
|
SECTION
5.10.
|
Further
Assurances; Additional Security
|
79 |
-ii-
ARTICLE
VI
Negative
Covenants
|
SECTION
6.01.
|
Indebtedness
|
81 |
|
SECTION
6.02.
|
Liens
|
85 |
|
SECTION
6.03.
|
Sale
and Lease-Back Transactions
|
89 |
|
SECTION
6.04.
|
Investments,
Loans and Advances
|
90 |
|
SECTION
6.05.
|
Mergers,
Consolidations, Sales of Assets and Acquisitions
|
93 |
|
SECTION
6.06.
|
Dividends
and Distributions
|
96 |
|
SECTION
6.07.
|
Transactions
with Affiliates
|
98 |
|
SECTION
6.08.
|
Business
of the Borrower and the Subsidiaries
|
101 |
|
SECTION
6.09.
|
Limitation
on Modifications of Indebtedness; Modifications of Certificate
of
Incorporation, By-Laws and Certain Other Agreements; etc.
|
101 |
|
SECTION
6.10.
|
Fiscal
Year; Accounting
|
103 |
|
SECTION
6.11.
|
Qualified
CFC Holding Companies
|
103 |
|
SECTION
6.12.
|
Rating
|
103 |
ARTICLE
VI-A
Holdings
Covenants
ARTICLE
VII
Events
of
Default
|
SECTION
7.01.
|
Events
of Default
|
104 |
|
SECTION
7.02.
|
Exclusion
of Immaterial Subsidiaries
|
107 |
ARTICLE
VIII
The
Agents
|
SECTION
8.01.
|
Appointment
|
107 |
|
SECTION
8.02.
|
Delegation
of Duties
|
109 |
|
SECTION
8.03.
|
Exculpatory
Provisions
|
109 |
|
SECTION
8.04.
|
Reliance
by Administrative Agent
|
110 |
|
SECTION
8.05.
|
Notice
of Default
|
111 |
|
SECTION
8.06.
|
Non-Reliance
on Agents and Other Lenders
|
111 |
|
SECTION
8.07.
|
Indemnification
|
112 |
|
SECTION
8.08.
|
Agent
in Its Individual Capacity
|
112 |
|
SECTION
8.09.
|
Successor
Administrative Agent
|
112 |
|
SECTION
8.10.
|
Agents
and Arrangers
|
113 |
-iii-
ARTICLE
IX
Miscellaneous
|
SECTION
9.01.
|
Notices;
Communications
|
113 |
|
SECTION
9.02.
|
Survival
of Agreement
|
114 |
|
SECTION
9.03.
|
Binding
Effect
|
115 |
|
SECTION
9.04.
|
Successors
and Assigns
|
115 |
|
SECTION
9.05.
|
Expenses;
Indemnity
|
118 |
|
SECTION
9.06.
|
Right
of Set-off
|
120 |
|
SECTION
9.07.
|
Applicable
Law
|
120 |
|
SECTION
9.08.
|
Waivers;
Amendment
|
120 |
|
SECTION
9.09.
|
Interest
Rate Limitation
|
123 |
|
SECTION
9.10.
|
Entire
Agreement
|
123 |
|
SECTION
9.11.
|
WAIVER
OF JURY TRIAL
|
123 |
|
SECTION
9.12.
|
Severability
|
123 |
|
SECTION
9.13.
|
Counterparts
|
123 |
|
SECTION
9.14.
|
Headings
|
124 |
|
SECTION
9.15.
|
Jurisdiction;
Consent to Service of Process
|
124 |
|
SECTION
9.16.
|
Confidentiality
|
124 |
|
SECTION
9.17.
|
Platform;
Borrower Materials
|
125 |
|
SECTION
9.18.
|
Release
of Liens and Guarantees
|
125 |
|
SECTION
9.19.
|
PATRIOT
Act Notice
|
126 |
|
SECTION
9.20.
|
Intercreditor
Agreements and Collateral Agreement
|
126 |
Exhibits
and Schedules
|
Exhibit
A
|
Form
of Assignment and Acceptance
|
|
Exhibit B
|
Form
of Solvency Certificate
|
|
Exhibit C
|
Form
of Borrowing Request
|
|
Exhibit D
|
[Reserved]
|
|
Exhibit E
|
Form
of Collateral Agreement
|
|
Schedule 1.01(a)
|
Certain
U.S. Subsidiaries
|
|
Schedule 1.01(c)
|
Mortgaged
Properties
|
|
Schedule 1.01(d)
|
Immaterial
Subsidiaries
|
|
Schedule 1.01(i)
|
Unrestricted
Subsidiaries
|
|
Schedule 2.01
|
Commitments
|
|
Schedule 3.01
|
Organization
and Good Standing
|
|
Schedule 3.04
|
Governmental
Approvals
|
|
Schedule 3.07(b)
|
Possession
under Leases
|
|
Schedule 3.08(a)
|
Subsidiaries
|
|
Schedule 3.08(b)
|
Subscriptions
|
|
Schedule 3.13
|
Taxes
|
|
Schedule 3.16
|
Environmental
Matters
|
|
Schedule 3.21
|
Insurance
|
|
Schedule 3.23
|
Intellectual
Property
|
|
Schedule 4.02(d)
|
Post-Closing
Interest Deliveries
|
|
Schedule 6.01
|
Indebtedness
|
|
Schedule 6.02(a)
|
Liens
|
|
Schedule 6.04
|
Investments
|
|
Schedule
6.05
|
Mergers,
Consolidations, Sales of Assets and
Acquisitions
|
|
Schedule 6.07
|
Transactions
with Affiliates
|
|
Schedule 9.01
|
Notice
Information
|
-v-
This
SECOND AMENDED AND RESTATED TERM LOAN CREDIT AGREEMENT is entered into as of
April 3, 2007 (this “Agreement”),
among
▇▇▇▇▇ PLASTICS GROUP, INC., a Delaware corporation (“Holdings”),
COVALENCE SPECIALTY MATERIALS CORP. (“Covalence”),
which
on the Closing Date shall be merged with and into ▇▇▇▇▇ Plastics Holding
Corporation, a Delaware corporation (“▇▇▇▇▇”),
with
▇▇▇▇▇ surviving such merger as the borrower (the “Borrower”),
the
LENDERS party hereto from time to time, CREDIT SUISSE, CAYMAN ISLANDS BRANCH,
as
administrative agent and collateral agent (in such capacities, the “Administrative
Agent”)
for
the Lenders, DEUTSCHE BANK SECURITIES INC., as syndication agent (in such
capacity, the “Syndication
Agent”),
and
BANC OF AMERICA, N.A., CITIGROUP NORTH AMERICA, INC., ▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT
PARTNERS L.P., ▇.▇. ▇▇▇▇▇▇ SECURITIES INC., and ▇▇▇▇▇▇ BROTHERS INC. as
co-documentation agents (in such capacities, the “Documentation
Agents”).
WHEREAS,
this Agreement has been titled the “Second Amended and Restated Term Loan Credit
Agreement” for convenience of reference only and is, and is intended to be, a
new term loan credit agreement.
WHEREAS,
Covalence Holdings, Covalence, the lenders and agents named therein, and Bank
of
America, N.A., as administrative agent for such lenders, are parties to that
certain Amended and Restated Credit Agreement dated as of May 18, 2006 (the
“Existing
Credit Agreement”);
WHEREAS,
among Covalence Holdings, Covalence, the other borrowers party thereto from
time
to time, the lenders party thereto from time to time, Bank of America, N.A.,
as
administrative agent, and the other parties thereto are parties to that certain
Revolving Credit Agreement dated as of May 18, 2006 (the “Existing
ABL Agreement”);
WHEREAS,
▇▇▇▇▇ Holdings, BPC Acquisition Corp., which was merged with and into ▇▇▇▇▇
(formerly known as BPC Holding Corporation), the lenders and agents named
therein, and Credit Suisse, Cayman Islands Branch, as administrative agent
and
collateral agent for such lenders, are parties to that certain Credit Agreement
dated as of September 20, 2006 (the “▇▇▇▇▇
Credit Agreement”);
WHEREAS,
on the Closing Date, ▇▇▇▇▇ and Covalence shall enter into a business combination
(the “Business
Combination”)
pursuant to which (i) immediately prior to the effectiveness of this Agreement,
▇▇▇▇▇ Holdings shall merge with and into Covalence Holdings, and Covalence
Holdings being renamed ▇▇▇▇▇ Plastics Group, Inc., (ii) substantially
simultaneously with the effectiveness of this Agreement, Covalence Holdings
shall contribute all of the capital stock of ▇▇▇▇▇ to Covalence (the
“Contribution”),
and
(iii) immediately following the effectiveness of this Agreement, Covalence
shall
merge with and into ▇▇▇▇▇, with ▇▇▇▇▇ as the surviving corporation, pursuant
to
an Agreement and Plan of Merger and Corporate Reorganization between Covalence
and Holdings and ▇▇▇▇▇ Holdings dated March 9, 2007 (the “Merger
Agreement”);
WHEREAS,
in connection with the Business Combination, the Borrower desires to obtain
Term
C Loans hereunder in a principal amount of $1,200,000,000, the proceeds of
which
will be used (i) to refinance (the “Refinancing”):
(w)
the “Term B Loans” (as defined in
the
▇▇▇▇▇
Credit Agreement); (x) the “Term C Loans” (as defined in the Existing Credit
Agreement); (y) the “Loans” as defined in the Second Lien Credit Agreement,
dated as of February 16, 2006, among Covalence, the lenders party thereto from
time to time,
Bank
of
America, N.A., as administrative agent, and the other parties thereto; and
(z)
the “Revolving Facility” (as defined in the Existing ABL Agreement) and the
“Revolving Facility” (as defined in the ▇▇▇▇▇ Credit Agreement), and (ii) for
general corporate purposes.
NOW,
THEREFORE, the Borrower, the Lenders and the other parties hereto hereby agree
that, effective as of the Closing Date and upon fulfillment of the conditions
set forth herein, the Existing Credit Agreement is hereby amended and restated
in its entirety to read as follows:
ARTICLE
I
Definitions
SECTION
1.01. Defined
Terms
.
As used
in this Agreement, the following terms shall have the meanings specified
below:
“ABL
Assets”
shall
mean any Accounts and Inventory (as such terms are defined in the Revolving
Credit Agreement) of the Borrower or any Subsidiary.
“ABR”
shall
mean, for any day, a fluctuating rate per annum equal to the higher of (a)
the
Federal Funds Effective Rate plus 1/2 of 1% and (b) the rate of interest in
effect for such day as publicly announced from time to time by Credit Suisse
as
its “prime rate” at its principal office in New York, New York. Any change in
such rate announced by Credit Suisse shall take effect at the opening of
business on the day specified in the public announcement of such
change.
“ABR
Borrowing”
shall
mean a Borrowing comprised of ABR Loans.
“ABR
Loan”
shall
mean any Term Loan bearing interest at a rate determined by reference to the
ABR
in accordance with the provisions of Article II.
“Acquisition
Agreement”
shall
mean that certain Stock and Asset Purchase Agreement (as amended by that certain
Closing Agreement dated as of February 16, 2006) by and among Tyco Group
S.a.r.l., a Luxembourg company, Covalence and, for purposes of Section 11.15
thereof only, Tyco International Group S.A.
“Act”
shall
have the meaning assigned to such term in Section 9.19.
“Additional
Mortgage”
shall
have the meaning assigned to such term in Section 5.10(c).
“Adjusted
LIBO Rate”
shall
mean, with respect to any Eurocurrency Borrowing for any Interest Period, an
interest rate per annum equal to (a) the LIBO Rate in effect for
such
Interest
Period divided by (b) one minus the Statutory Reserves applicable to such
Eurocurrency Borrowing, if any.
“Administrative
Agent”
shall
have the meaning assigned to such term in the introductory paragraph of this
Agreement.
“Administrative
Agent Fees”
shall
have the meaning assigned to such term in Section 2.12(a).
“Administrative
Questionnaire”
shall
mean an Administrative Questionnaire in a form supplied by the Administrative
Agent.
“Affiliate”
shall
mean, when used with respect to a specified person, another person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the person specified.
“Agents”
shall
mean the Administrative Agent and the Collateral Agent.
“Agreement”
shall
have the meaning assigned to such term in the introductory paragraph of this
Agreement.
“Applicable
Margin”
shall
mean for any day, 2.00% per annum in the case of any Eurocurrency Loan and
1.00%
per annum in the case of any ABR Loan.
Notwithstanding
the foregoing, the Applicable Margin with respect to any Incremental Term Loan
and any Incremental Term Loan Commitment of any Series means the rate per annum
for such Incremental Term Loan and Incremental Term Loan Commitment agreed
to by
the Borrower and the respective Incremental Term Lender or Lenders in the
related Incremental Assumption Agreement for such Series, except that in the
event Incremental Term Loans are effected through an increase in Term C Loans
(as contemplated in Section 2.21), the Applicable Margin for such Incremental
Term Loans shall be the Applicable Margin for Term C Loans in effect at the
time
the respective Incremental Assumption Agreement is executed.
“Applicable
Period”
means
an Excess Cash Flow Period or an Excess Cash Flow Interim Period, as the case
may be.
“Approved
Fund”
shall
have the meaning assigned to such term in Section 9.04(b).
“Asset
Sale”
shall
mean any loss, damage, destruction or condemnation of, or any sale, transfer
or
other disposition (including any sale and leaseback of assets and any mortgage
or lease of real property) to any person of any asset or assets of the Borrower
or any Subsidiary.
“Assignee”
shall
have the meaning assigned to such term in Section 9.04(b).
“Assignment
and Acceptance”
shall
mean an assignment and acceptance entered into by a Lender and an Assignee,
and
accepted by the Administrative Agent and the Borrower
(if
required by such assignment and acceptance), in the form of Exhibit A
or such
other form as shall be approved by the Administrative Agent.
“▇▇▇▇▇”
shall
have the meaning assigned to such term in the introductory paragraph of this
Agreement.
“▇▇▇▇▇
Credit Agreement”
shall
have the meaning assigned to such term in the recitals hereto.
“▇▇▇▇▇
Holdings”
shall
mean ▇▇▇▇▇ Plastics Group, Inc., which prior to the Closing Date was merged
with
and into Covalence Holdings.
“▇▇▇▇▇
Senior Subordinated Note Documents”
shall
mean the ▇▇▇▇▇ Senior Subordinated Notes and the ▇▇▇▇▇ Senior Subordinated
Notes
Indenture.
“▇▇▇▇▇
Senior Subordinated Notes”
shall
mean the 11% Senior Subordinated Notes due 2016, issued pursuant to the ▇▇▇▇▇
Senior Subordinated Notes Indenture and any notes issued in exchange for, and
as
contemplated by, the ▇▇▇▇▇ Senior Subordinated Notes and the related
registration rights agreement with substantially identical terms as the ▇▇▇▇▇
Senior Subordinated Notes.
“▇▇▇▇▇
Senior Subordinated Notes Indenture”
shall
mean the Indenture dated as of September 20, 2006 under which the ▇▇▇▇▇ Senior
Subordinated Notes were issued, among ▇▇▇▇▇ and certain of its subsidiaries
party thereto and the trustee named therein from time to time, as in effect
on
the Closing Date and as amended, restated, supplemented or otherwise modified
from time to time in accordance with the requirements thereof and of this
Agreement.
“Board”
shall
mean the Board of Governors of the Federal Reserve System of the United States
of America.
“Board
of Directors”
shall
mean as to any person, the board of directors or other governing body of such
person, or, if such person is owned or managed by a single entity, the board
of
directors or other governing body of such person.
“Borrower”
shall
have the meaning assigned to such term in the introductory paragraph of this
Agreement.
“Borrower
Materials”
shall
have the meaning assigned to such term in Section 9.17.
“Borrowing”
shall
mean a group of Loans of a single Type and made on a single date and, in the
case of Eurocurrency Loans, as to which a single Interest Period is in
effect.
“Borrowing
Minimum”
shall
mean $5.0 million.
“Borrowing
Multiple”
shall
mean $1.0 million.
“Borrowing
Request”
shall
mean a request by a Borrower in accordance with the terms of Section 2.03
and substantially in the form of Exhibit C.
“Budget”
shall
have the meaning assigned to such term in Section 5.04(e).
“Business
Day”
shall
mean any day that is not a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to remain closed;
provided,
that
when used in connection with a Eurocurrency Loan, the term “Business Day” shall
also exclude any day on which banks are not open for dealings in deposits in
the
applicable currency in the London interbank market.
“Business
Combination”
shall
have the meaning assigned to such term in the recitals hereto.
“Capital
Expenditures”
shall
mean, for any person in respect of any period, the aggregate of all expenditures
incurred by such person during such period that, in accordance with GAAP, are
or
should be included in “additions to property, plant or equipment” or similar
items reflected in the statement of cash flows of such person, provided,
however,
that
Capital Expenditures for the Borrower and the Subsidiaries shall not
include:
(a) expenditures
to the extent they are made with proceeds of the issuance of Equity Interests
of
Holdings after the Closing Date or funds that would have constituted any Net
Proceeds under clause (a) of the definition of the term “Net Proceeds” (but
for the application of the first proviso to such clause (a)),
(b) expenditures
with proceeds of insurance settlements, condemnation awards and other
settlements in respect of lost, destroyed, damaged or condemned assets,
equipment or other property to the extent such expenditures are made to replace
or repair such lost, destroyed, damaged or condemned assets, equipment or other
property or otherwise to acquire, maintain, develop, construct, improve, upgrade
or repair assets or properties useful in the business of the Borrower and the
Subsidiaries within 15 months of receipt of such proceeds (or, if not made
within such period of 15 months, are committed to be made during such
period),
(c) interest
capitalized during such period,
(d) expenditures
that are accounted for as capital expenditures of such person and that actually
are paid for by a third party (excluding Holdings, the Borrower or any
Subsidiary thereof) and for which neither Holdings, the Borrower nor any
Subsidiary has provided or is required to provide or incur, directly or
indirectly, any consideration or obligation to such third party or any other
person (whether before, during or after such period),
(e) the
book
value of any asset owned by such person prior to or during such period to the
extent that such book value is included as a capital expenditure during such
period as a result of such person reusing or beginning to reuse such asset
during such period without a corresponding expenditure actually having been
made
in such period; provided,
that
(i) any expenditure necessary in order to permit such asset to be
reused
shall
be
included as a Capital Expenditure during the period that such expenditure
actually is made and (ii) such book value shall have been included in Capital
Expenditures when such asset was originally acquired,
(f) the
purchase price of equipment purchased during such period to the extent the
consideration therefor consists of any combination of (i) used or surplus
equipment traded in at the time of such purchase and (ii) the proceeds of a
concurrent sale of used or surplus equipment, in each case, in the ordinary
course of business,
(g) Investments
in respect of a Permitted Business Acquisition,
(h) the
Business Combination, or
(i) the
purchase of property, plant or equipment made within 15 months of the sale
of
any asset to the extent purchased with the proceeds of such sale (or, if not
made within such period of 15 months, to the extent committed to be made during
such period).
“Capital
Lease Obligations”
of
any
person shall mean the obligations of such person to pay rent or other amounts
under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required
to
be classified and accounted for as capital leases on a balance sheet of such
person under GAAP and, for purposes hereof, the amount of such obligations
at
any time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
“Cash
Interest Expense”
shall
mean, with respect to the Borrower and the Subsidiaries on a consolidated basis
for any period, Interest Expense for such period, less the sum of, without
duplication, (a) pay in kind Interest Expense or other noncash Interest Expense
(including as a result of the effects of purchase accounting), (b) to the extent
included in Interest Expense, the amortization of any financing fees paid by,
or
on behalf of, the Borrower or any Subsidiary, including such fees paid in
connection with the Transactions or upon entering into a Permitted Receivables
Financing, (c) the amortization of debt discounts, if any, or fees in respect
of
Swap Agreements and (d) cash interest income of Borrower and its Subsidiaries
for such period; provided,
that
Cash Interest Expense shall exclude any one time financing fees, including
those
paid in connection with the Transactions, or upon entering into a Permitted
Receivables Financing or any amendment of this Agreement.
A
“Change
in Control”
shall
be deemed to occur if:
(a) at
any
time, (i) Holdings shall fail to own, directly or indirectly, beneficially
and
of record, 100% of the issued and outstanding Equity Interests of the Borrower,
(ii) a majority of the seats (other than vacant seats) on the Board of Directors
of Holdings shall at any time be occupied by persons who were neither (A)
nominated by the board of directors of Holdings or a Permitted Holder, (B)
appointed by directors so nominated nor (C) appointed by a Permitted Holder
or
(iii) a “change of control” (or similar event) shall occur under the Second Lien
Notes Indenture, either of the Senior Subordinated Notes Indentures, any
Material Indebtedness or any Permitted Refinancing
Second
Amended and Restated Term Loan Credit Agreement
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Indebtedness
in respect of any of the foregoing or any Disqualified Stock (to the extent
the
aggregate amount of the applicable Disqualified Stock exceeds $35
million);
(b) at
any
time prior to a Qualified IPO, any combination of Permitted Holders shall fail
to own beneficially (within the meaning of Rule 13d-5 of the Exchange Act as
in
effect on the Closing Date), directly or indirectly, in the aggregate Equity
Interests representing at least a majority of the aggregate ordinary voting
power represented by the issued and outstanding Equity Interests of Holdings;
or
(c) at
any
time after a Qualified IPO, any person or “group” (within the meaning of
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934 as in
effect on the Closing Date), other than any combination of the Permitted Holders
or any “group” including any Permitted Holders, shall have acquired beneficial
ownership of 35% or more on a fully diluted basis of the voting interest in
Holdings’ Equity Interests and the Permitted Holders shall own, directly or
indirectly, less than such person or “group” on a fully diluted basis of the
voting interest in Holdings’ Equity Interests.
“Change
in Law”
shall
mean (a) the adoption of any law, rule or regulation after the Closing Date,
(b)
any change in law, rule or regulation or in the interpretation or application
thereof by any Governmental Authority after the Closing Date or (c) compliance
by any Lender (or, for purposes of Section 2.15(b), by any Lending Office
of such Lender or by such Lender’s holding company, if any) with any written
request, guideline or directive (whether or not having the force of law) of
any
Governmental Authority made or issued after the Closing Date.
“Charges”
shall
have the meaning assigned to such term in Section 9.09.
“Closing
Date”
shall
mean April 3, 2007.
“Code”
shall
mean the Internal Revenue Code of 1986, as amended from time to time and the
regulations promulgated and rulings issued thereunder.
“Collateral”
shall
mean all the “Collateral” as defined in any Security Document and shall also
include the Mortgaged Properties and all other property that is subject to
any
Lien in favor of the Collateral Agent or any Subagent for the benefit of the
Lenders pursuant to any Security Documents.
“Collateral
Agent”
means
the party acting as collateral agent for the Secured Parties under the Security
Documents. On the Closing Date, the Collateral Agent is the same person as
the
Administrative Agent. Unless the context otherwise requires, the term
“Administrative Agent” as used herein shall, unless the context otherwise
requires, include the Collateral Agent, notwithstanding various specific
references to the Collateral Agent herein.
“Collateral
Agreement”
shall
mean the Second Amended and Restated First Lien Guarantee and Collateral
Agreement, dated as of the date hereof, as amended, supplemented or otherwise
modified from time to time, in the form of Exhibit E,
among
Holdings, the Borrower, each Subsidiary Loan Party, the Collateral Agent and
Bank of America, N.A., as collateral agent.
“Collateral
and Guarantee Requirement”
shall
mean the requirement that:
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Amended and Restated Term Loan Credit Agreement
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(a) on
the
Closing Date, the Collateral Agent shall have received (i) from Holdings, the
Borrower and each Subsidiary Loan Party, a counterpart of the Collateral
Agreement duly executed and delivered on behalf of such person and (ii) an
Acknowledgment and Consent in the form attached to the Collateral Agreement,
executed and delivered by each issuer of Pledged Collateral (as defined in
the
Collateral Agreement), if any, that is not a Loan Party;
(b) on
or
before the Closing Date, (i) the Collateral Agent shall have received (A) a
pledge of all the issued and outstanding Equity Interests of (x) the Borrower
and (y) each Domestic Subsidiary (other than Subsidiaries listed on Schedule 1.01(a))
owned
on the Closing Date directly by or on behalf of the Borrower or any Subsidiary
Loan Party and (B) a pledge of 65% of the outstanding Equity Interests of (1)
each “first tier” Foreign Subsidiary directly owned by any Loan Party (except
for NIM Holdings Limited, ▇▇▇▇▇ Plastics Asia Pte. Ltd., and Ociesse s.r.l.,
▇▇▇▇▇ Plastics Acquisition Corporation II, and ▇▇▇▇▇ Plastics Acquisition
Corporation XIV, LLC), and (2) each “first tier” Qualified CFC Holding Company
directly owned by any Loan Party and (ii) the Collateral Agent shall have
received all certificates or other instruments (if any) representing such Equity
Interests, together with stock powers or other instruments of transfer with
respect thereto endorsed in blank;
(c) (i)
all
Indebtedness of the Borrower and each Subsidiary having, in the case of each
instance of Indebtedness, an aggregate principal amount in excess of $5.0
million (other than (A) intercompany current liabilities incurred in the
ordinary course of business in connection with the cash management operations
of
Holdings and its Subsidiaries or (B) to the extent that a pledge of such
promissory note or instrument would violate applicable law) that is owing to
any
Loan Party shall be evidenced by a promissory note or an instrument and shall
have been pledged pursuant to the Collateral Agreement (or other applicable
Security Document as reasonably required by the Administrative Agent) (which
pledge, in the case of any intercompany note evidencing debt owed by a Foreign
Subsidiary to a Loan Party, shall be limited to 65% of the amount outstanding
thereunder), and (ii) the Collateral Agent shall have received all such
promissory notes or instruments, together with note powers or other instruments
of transfer with respect thereto endorsed in blank;
(d) in
the
case of any person that becomes a Subsidiary Loan Party after the Closing Date,
the Collateral Agent shall have received a supplement to each of the Collateral
Agreement, the Intercreditor Agreement and the Senior Lender Intercreditor
Agreement, in the form specified therein, duly executed and delivered on behalf
of such Subsidiary Loan Party;
(e) in
the
case of any person that becomes a “first tier” Foreign Subsidiary directly owned
by the Borrower or a Subsidiary Loan Party after the Closing Date, the
Collateral Agent shall have received, as promptly as practicable following
a
request by the Collateral Agent, a Foreign Pledge Agreement, duly executed
and
delivered on behalf of such Foreign Subsidiary and the direct parent company
of
such Foreign Subsidiary;
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Amended and Restated Term Loan Credit Agreement
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(f) after
the
Closing Date, (i) all the outstanding Equity Interests of (A) any person that
becomes a Subsidiary Loan Party after the Closing Date and (B) subject to
Section 5.10(g), all the Equity Interests that are acquired by a Loan Party
after the Closing Date (including, without limitation, the Equity Interests
of
any Special Purpose Receivables Subsidiary established after the Closing Date),
shall have been pledged pursuant to the Collateral Agreement; provided,
that in
no event shall more than 65% of the issued and outstanding Equity Interests
of
any “first tier” Foreign Subsidiary or any “first tier” Qualified CFC Holding
Company directly owned by such Loan Party be pledged to secure Obligations,
and
in no event shall any of the issued and outstanding Equity Interests of any
Foreign Subsidiary that is not a “first tier” Foreign Subsidiary of a Loan Party
or any Qualified CFC Holding Company that is not a “first tier” Subsidiary of a
Loan Party be pledged to secure Obligations, and (ii) a collateral agent under
the Collateral Agreement shall have received all certificates or other
instruments (if any) representing such Equity Interests, together with stock
powers or other instruments of transfer with respect thereto endorsed in
blank;
(g) except
as
otherwise contemplated by any Security Document, all documents and instruments,
including Uniform Commercial Code financing statements, required by law or
reasonably requested by the Collateral Agent to be filed, registered or recorded
to create the Liens intended to be created by the Security Documents (in each
case, including any supplements thereto) and perfect such Liens to the extent
required by, and with the priority required by, the Security Documents, shall
have been filed, registered or recorded or delivered to the Collateral Agent
for
filing, registration or the recording concurrently with, or promptly following,
the execution and delivery of each such Security Document;
(h) within
90
days (or such longer period as the Administrative Agent may determine) after
the
Closing Date, the Collateral Agent shall have received (i) counterparts of
each
Mortgage to be entered into with respect to each Mortgaged Property set forth
on
Schedule 1.01(c)
duly
executed and delivered by the record owner of such Mortgaged Property and
suitable for recording or filing and (ii) such other documents including, but
not limited to, any consents, agreements and confirmations of third parties,
as
the Collateral Agent may reasonably request with respect to any such Mortgage
or
Mortgaged Property;
(i) within
90
days (or such longer period as the Administrative Agent may determine) after
the
Closing Date, the Collateral Agent shall have received, except as otherwise
set
forth in clause (m) below, a policy or policies or marked-up unconditional
binder of title insurance or foreign equivalent thereof, as applicable, paid
for
by the Borrower, issued by a nationally recognized title insurance company
insuring the Lien of each Mortgage to be entered into on or after the Closing
Date as a valid first Lien on the Mortgaged Property described therein, free
of
any other Liens except as permitted by Section 6.02 and Liens arising by
operation of law, together with such customary endorsements (including zoning
endorsements where reasonably appropriate and available), coinsurance and
reinsurance as the Collateral Agent may reasonably request, and with respect
to
any such property located in a state in which a zoning endorsement
is
Second
Amended and Restated Term Loan Credit Agreement
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not
available, a zoning compliance letter from the applicable municipality in a
form
reasonably acceptable to the Collateral Agent;
(j) at
or
prior to delivery of any Mortgages, evidence of the insurance required by the
terms of the Mortgages;
(k) except
as
otherwise contemplated by any Security Document, each Loan Party shall have
obtained all consents and approvals required to be obtained by it in connection
with (i) the execution and delivery of all Security Documents (or supplements
thereto) to which it is a party and the granting by it of the Liens thereunder
and (ii) the performance of its obligations thereunder; and
(l) after
the
Closing Date, the Administrative Agent shall have received (i) such other
Security Documents as may be required to be delivered pursuant to Section 5.10,
and (ii) upon reasonable request by the Administrative Agent, evidence of
compliance with any other requirements of Section 5.10.
“Commitments”
shall
mean, with respect to any Lender, such Lender’s Term C Loan Commitment and
Incremental Term Loan Commitment.
“Conduit
Lender”
shall
mean any special purpose corporation organized and administered by any Lender
for the purpose of making Loans otherwise required to be made by such Lender
and
designated by such Lender in a written instrument; provided,
that
the designation by any Lender of a Conduit Lender shall not relieve the
designating Lender of any of its obligations to fund a Loan under this Agreement
if, for any reason, its Conduit Lender fails to fund any such Loan, and the
designating Lender (and not the Conduit Lender) shall have the sole right and
responsibility to deliver all consents and waivers required or requested under
this Agreement with respect to its Conduit Lender; provided,
further,
that no
Conduit Lender shall (a) be entitled to receive any greater amount pursuant
to
Section 2.15, 2.16, 2.17 or 9.05 than the designating Lender would have
been entitled to receive in respect of the extensions of credit made by such
Conduit Lender or (b) be deemed to have any Commitment.
“Consolidated
Debt”
at
any
date shall mean the sum of (without duplication) all Indebtedness consisting
of
Capital Lease Obligations, Indebtedness for borrowed money (other than letters
of credit to the extent undrawn but including all bankers’ acceptances issued
under the Revolving Credit Agreement), Disqualified Stock and Indebtedness
in
respect of the deferred purchase price of property or services of the Borrower
and its Subsidiaries determined on a consolidated basis on such date in
accordance with GAAP.
“Consolidated
Net Income”
shall
mean, with respect to any person for any period, the aggregate of the Net Income
of such person and its subsidiaries for such period, on a consolidated basis;
provided,
however,
that,
without duplication,
(i)any
net
after-tax extraordinary, nonrecurring or unusual gains or losses or income
or
expense or charge (less all fees and expenses relating thereto) including,
without limitation, any severance, relocation or other restructuring expenses,
any expenses relating to any reconstruction, recommissioning or reconfiguration
of fixed assets for alternative uses and fees, expenses or charges relating
to
new product lines,
Second
Amended and Restated Term Loan Credit Agreement
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plant
shutdown costs, acquisition integration costs, and fees, expenses or charges
related to any offering of Equity Interests of Holdings, any Investment,
acquisition or Indebtedness permitted to be incurred hereunder (in each case,
whether or not successful), including any such fees, expenses, charges or change
in control payments related to the Transactions (including any
transition-related expenses incurred before, on or after the Original Agreement
Date), in each case, shall be excluded,
(ii)any
net
after-tax income or loss from discontinued operations and any net after-tax
gain
or loss from disposed, abandoned, transferred, closed or discontinued operations
shall be excluded,
(iii)any
net
after-tax gain or loss (less all fees and expenses or charges relating thereto)
attributable to business dispositions or asset dispositions other than in the
ordinary course of business (as determined in good faith by the Board of
Directors of the Borrower) shall be excluded,
(iv)any
net
after-tax income or loss (less all fees and expenses or charges relating
thereto) attributable to the early extinguishment of indebtedness shall be
excluded,
(v)(A)
the
Net Income for such period of any person that is not a subsidiary of such
person, or is an Unrestricted Subsidiary, or that is accounted for by the equity
method of accounting, shall be included only to the extent of the amount of
dividends or distributions or other payments paid in cash (or to the extent
converted into cash) to the referent person or a subsidiary thereof in respect
of such period and (B) the Net Income for such period shall include any ordinary
course dividend distribution or other payment in cash received from any person
in excess of the amounts included in clause (A),
(vi)Consolidated
Net Income for such period shall not include the cumulative effect of a change
in accounting principles during such period,
(vii)any
increase in amortization or depreciation or any one-time non-cash charges
resulting from purchase accounting (or similar accounting, in the case of the
Transactions) in connection with the Transactions or any acquisition that is
consummated after the Original Agreement Date shall be excluded,
(viii)any
non-cash impairment charges or asset write-off resulting from the application
of
GAAP, and the amortization of intangibles arising pursuant to GAAP, shall be
excluded,
(ix)any
non-cash expenses realized or resulting from stock option plans, employee
benefit plans or post-employment benefit plans, grants of stock appreciation
or
similar rights, stock options, restricted stock grants or other rights to
officers, directors and employees of such person or any of its subsidiaries
shall be excluded,
(x)accruals
and reserves that are established within twelve months after the Closing Date
and that are so required to be established in accordance with GAAP shall be
excluded,
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Amended and Restated Term Loan Credit Agreement
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(xi)
non-cash
gains, losses, income and expenses resulting from fair value accounting required
by Statement of Financial Accounting Standards No. 133 shall be excluded,
(xii)
non-cash
charges for deferred tax asset valuation allowances shall be excluded,
and
(xiii)any
expenses realized in respect of the obligations under Sections 2.9 or 5.4 of
the
Acquisition Agreement shall in each case be excluded.
“Consolidated
Total Assets”
shall
mean, as of any date, the total assets of the Borrower and the consolidated
Subsidiaries, determined in accordance with GAAP, as set forth on the
consolidated balance sheet of the Borrower as of such date.
“Contribution”
shall
have the meaning assigned to such term in the recitals hereto.
“Control”
shall
mean the possession, directly or indirectly, of the power to direct or cause
the
direction of the management or policies of a person, whether through the
ownership of voting securities, by contract or otherwise, and “Controlling”
and
“Controlled”
shall
have meanings correlative thereto.
“Covalence”
shall
have the meaning assigned to such term in the introductory paragraph of this
Agreement.
“Covalence
Holdings”
shall
mean Covalence Specialty Materials Holding Corp., which immediately prior to
the
Closing Date was merged with ▇▇▇▇▇ Holdings, with Covalence Specialty Materials
Holding Corp. surviving and being renamed ▇▇▇▇▇ Plastics Group,
Inc.
“Covalence
Senior Subordinated Note Documents”
shall
mean the Covalence Senior Subordinated Notes and the Covalence Senior
Subordinated Notes Indenture.
“Covalence
Senior Subordinated Notes”
shall
mean the Borrower’s 10¼% Senior Subordinated Notes due 2016, issued pursuant to
the Covalence Senior Subordinated Notes Indenture and any notes issued by the
Borrower in exchange for, and as contemplated by, the Covalence Senior
Subordinated Notes and the related registration rights agreement with
substantially identical terms as the Covalence Senior Subordinated
Notes.
“Covalence
Senior Subordinated Notes Indenture”
shall
mean the Indenture dated as of February 16, 2006 among the Borrower and certain
of the Subsidiaries party thereto and the trustee named therein from time to
time, as in effect on the Closing Date and as amended, restated, supplemented
or
otherwise modified from time to time in accordance with the requirements thereof
and of this Agreement.
“Credit
Suisse”
means
Credit Suisse, Cayman Islands Branch, and its successors.
“Cumulative
Credit”
shall
mean, at any date, an amount, not less than zero in the aggregate, determined
on
a cumulative basis equal to, without duplication:
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Amended and Restated Term Loan Credit Agreement
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(a)
$100.0 million, plus:
(b)
the
Cumulative Retained Excess Cash Flow Amount at such time, plus
(c)
the
aggregate amount of proceeds received after the Original Agreement Date and
prior to such time that would have constituted Net Proceeds pursuant to clause
(a) of the definition thereof except for the operation of clause (A), (B) or
(C)
of the second proviso thereof (the “Below
Threshold Asset Sale Proceeds”),
plus
(d)
the
cumulative amount of proceeds (including cash and the fair market value of
property other than cash) from the sale of Equity Interests of Holdings or
any
Parent Entity after the Original Agreement Date and on or prior to such time
(including upon exercise of warrants or options) which proceeds have been
contributed as common equity to the capital of the Borrower and common Equity
Interests of the Borrower issued upon conversion of Indebtedness of the Borrower
or any Subsidiary owed to a person other than the Borrower or a Subsidiary
not
previously applied for a purpose other than use in the Cumulative Credit,
plus
(e)
100%
of the aggregate amount of contributions to the common capital of the Borrower
received in cash (and the fair market value of property other than cash) after
the Original Agreement Date (subject to the same exclusions as are applicable
to
clause (d) above) plus
(f)
the
principal amount of any Indebtedness (including the liquidation preference
or
maximum fixed repurchase price, as the case may be, of any Disqualified Stock)
of Borrower or any Subsidiary thereof issued after the Original Agreement Date
(other than Indebtedness issued to a Subsidiary), which has been converted
into
or exchanged for Equity Interests (other than Disqualified Stock) in Holdings
or
any Parent Entity, plus
(g)
100%
of the aggregate amount received by Borrower or any Subsidiary in cash (and
the
fair market value of property other than cash received by Borrower or any
Subsidiary) after the Original Agreement Date from:
(A) the
sale
(other than to Borrower or any Subsidiary) of the Equity Interests of an
Unrestricted Subsidiary, or
(B) any
dividend or other distribution by an Unrestricted Subsidiary, plus
(h)
in
the event any Unrestricted Subsidiary has been redesignated as a Subsidiary
or
has been merged, consolidated or amalgamated with or into, or transfers or
conveys its assets to, or is liquidated into, Holdings, Borrower or any
Subsidiary, the fair market value of the Investments of Holdings, Borrower
or
any Subsidiary in such Unrestricted Subsidiary at the time of such Subsidiary
Redesignation, combination or transfer (or of the assets transferred or
conveyed, as applicable), plus
(i)
an
amount equal to any returns (including dividends, interest, distributions,
returns of principal, profits on sale, repayments, income and similar amounts)
actually received by the Borrower or any Subsidiary in respect of any
Investments made pursuant to Section
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Amended and Restated Term Loan Credit Agreement
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6.04(j)
(or the corresponding provision of the senior secured bank credit facility
then
applicable to such entity) after the Original Agreement Date, minus
(j)
any
amounts thereof used to make Investments pursuant to Section 6.04(b)(y) (or
the
corresponding provision of the senior secured bank credit facility then
applicable to such entity) after the Original Agreement Date prior to such
time,
minus
(k)
any
amounts thereof used to make Investments pursuant to Section 6.04(j)(ii) (or
the
corresponding provision of the senior secured bank credit facility then
applicable to such entity) after the Original Agreement Date prior to such
time,
minus
(l)
the
cumulative amount of dividends paid and distributions made pursuant to Section
6.06(e) (or the corresponding provision of the senior secured bank credit
facility then applicable to such entity) after the Original Agreement Date
prior
to such time, minus
(m)
payments or distributions in respect of Junior Financings pursuant to Section
6.09(b)(i) (or the corresponding provision of the senior secured bank credit
facility then applicable to such entity) (other than payments made with proceeds
from the issuance of Equity Interests that were excluded from the calculation
of
the Cumulative Credit pursuant to clause (d) above) after the Original Agreement
Date;
provided,
however,
for
purposes of Section 6.06(e), the calculation of the Cumulative Credit shall
not
include any Below Threshold Asset Sale Proceeds except to the extent they are
used as contemplated in clauses (j) and (k) above.
“Cumulative
Retained Excess Cash Flow Amount”
shall
mean, at any date, an amount, not less than zero in the aggregate, determined
on
a cumulative basis equal to:
(a) the
aggregate cumulative sum of the Retained Percentage of Excess Cash Flow for
all
Excess Cash Flow Periods ending after the Original Agreement Date and prior
to
such date, plus
(b) for
each
Excess Cash Flow Interim Period ended prior to such date but as to which the
corresponding Excess Cash Flow Period has not ended, an amount equal to the
Retained Percentage of Excess Cash Flow for such Excess Cash Flow Interim
Period, minus
(c)
the
cumulative amount of all Retained Excess Cash Flow Overfundings as of such
date.
“Current
Assets”
shall
mean, with respect to the Borrower and the Subsidiaries on a consolidated basis
at any date of determination, the sum of (a) all assets (other than cash and
Permitted Investments or other cash equivalents and amounts receivable under
Sections 2.9 and 5.4 of the Acquisition Agreement) that would, in accordance
with GAAP, be classified on a consolidated balance sheet of the Borrower and
the
Subsidiaries as current assets at such date of determination, other than amounts
related to current or deferred Taxes based on income or profits, and (b) in
the
event that a Permitted Receivables Financing is accounted for off balance sheet,
(x) gross accounts receivable comprising part of the Receivables Assets subject
to such
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Amended and Restated Term Loan Credit Agreement
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Permitted
Receivables Financing less (y) collections against the amounts sold pursuant
to
clause (x).
“Current
Liabilities”
shall
mean, with respect to the Borrower and the Subsidiaries on a consolidated basis
at any date of determination, all liabilities that would, in accordance with
GAAP, be classified on a consolidated balance sheet of the Borrower and the
Subsidiaries as current liabilities at such date of determination, other than
(a) the current portion of any Indebtedness, (b) accruals of Interest Expense
(excluding Interest Expense that is due and unpaid), (c) accruals for current
or
deferred Taxes based on income or profits, (d) accruals, if any, of transaction
costs resulting from the Transactions and obligations under Sections 2.9 and
5.4
of the Acquisition Agreement, (e) accruals of any costs or expenses related
to
(i) severance or termination of employees prior to the Original Agreement Date
or (ii) bonuses, pension and other post-retirement benefit obligations, and
(f)
accruals for add-backs to EBITDA included in clauses (a)(iv) through
(a)(vi) of the definition of such term.
“Debt
Service”
shall
mean, with respect to the Borrower and the Subsidiaries on a consolidated basis
for any period, Cash Interest Expense for such period plus scheduled principal
amortization of Consolidated Debt for such period.
“Declining
Lender”
shall
have the meaning assigned to such term in Section 2.11(d).
“Default”
shall
mean any event or condition that upon notice, lapse of time or both would
constitute an Event of Default.
“Defaulting
Lender”
shall
mean any Lender with respect to which a Lender Default is in
effect.
“Designated
Non-Cash Consideration”
mean
the fair market value of non-cash consideration received by the Borrower or
one
of its Subsidiaries in connection with an Asset Sale that is so designated
as
Designated Non-Cash Consideration pursuant to a certificate of a Responsible
Officer, setting forth the basis of such valuation, less the amount of cash
equivalents received in connection with a subsequent sale of such Designated
Non-Cash Consideration.
“Disqualified
Stock”
shall
mean, with respect to any person, any Equity Interests of such person that,
by
its terms (or by the terms of any security or other Equity Interests into which
it is convertible or for which it is redeemable or exchangeable), or upon the
happening of any event or condition (a) matures or is mandatorily redeemable
(other than solely for Qualified Equity Interests), pursuant to a sinking fund
obligation or otherwise (except as a result of a change of control or asset
sale
so long as any rights of the holders thereof upon the occurrence of a change
of
control or asset sale event shall be subject to the prior repayment in full
of
the Loans and all other Obligations that are accrued and payable and the
termination of the Commitments), (b) is redeemable at the option of the holder
thereof (other than solely for Qualified Equity Interests), in whole or in
part,
(c) provides for the scheduled payments of dividends in cash, or (d) is or
becomes convertible into or exchangeable for Indebtedness or any other Equity
Interests that would constitute Disqualified Stock, in each case, prior to
the
date that is ninety-one (91) days after the Term Facility Maturity Date;
provided,
however,
that
only the portion of the
Second
Amended and Restated Term Loan Credit Agreement
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Equity
Interests that so mature or are mandatorily redeemable, are so convertible
or
exchangeable or are so redeemable at the option of the holder thereof prior
to
such date shall be deemed to be Disqualified Stock; provided further,
however,
that if
such Equity Interests are issued to any employee or to any plan for the benefit
of employees of the Borrower or the Subsidiaries or by any such plan to such
employees, such Equity Interests shall not constitute Disqualified Stock solely
because they may be required to be repurchased by the Borrower in order to
satisfy applicable statutory or regulatory obligations or as a result of such
employee’s termination, death or disability.
“Documentation
Agents”
shall
have the meaning assigned to such term in the introductory paragraph of this
Agreement.
“Dollars”
or
“$”
shall
mean the lawful currency of the United States of America.
“Domestic
Subsidiary”
shall
mean any Subsidiary that is not a Foreign Subsidiary, a Qualified CFC Holding
Company or a subsidiary listed on Schedule 1.01(a).
“EBITDA”
shall
mean, with respect to the Borrower and the Subsidiaries on a consolidated basis
for any period, the Consolidated Net Income of the Borrower and the Subsidiaries
for such period plus
(a) the
sum of (in each case without duplication and to the extent the respective
amounts described in subclauses (i) through (vii) of this clause (a)
reduced such Consolidated Net Income (and were not excluded therefrom) for
the
respective period for which EBITDA is being determined):
(i)provision
for Taxes based on income, profits or capital of the Borrower and the
Subsidiaries for such period, including, without limitation, state, franchise
and similar taxes,
(ii)Interest
Expense of the Borrower and the Subsidiaries for such period (net of interest
income of the Borrower and its Subsidiaries for such period),
(iii)depreciation
and amortization expenses of the Borrower and the Subsidiaries for such
period,
(iv)business
optimization expenses and other restructuring charges (which, for the avoidance
of doubt, shall include, without limitation, the effect of inventory
optimization programs, plant closure, retention, severance, systems
establishment costs and excess pension charges); provided,
that
with respect to each business optimization expense or other restructuring
charge, the Borrower shall have delivered to the Administrative Agent an
officers’ certificate specifying and quantifying such expense or
charge,
(v)any
other
non-cash charges; provided,
that,
for purposes of this subclause (v) of this clause (a), any non-cash
charges or losses shall be treated as cash charges or losses in any subsequent
period during which cash disbursements attributable thereto are made,
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Amended and Restated Term Loan Credit Agreement
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(vi)the
amount of management, consulting, monitoring, transaction and advisory fees
and
related expenses paid to any Fund or any Fund Affiliates (or any accruals
related to such fees and related expenses) during such period; provided,
that
such amount shall not exceed in any four quarter period the sum of (i) the
greater of $7.5 million and 2.0% of EBITDA for such four quarter period,
plus
(ii) the
amount of deferred fees (to the extent such fees would otherwise have been
permitted to be included in clause (i) if paid, but were not included in such
clause (i)), plus
(iii)
2.0% of the value of transactions permitted hereunder and entered into by the
Borrower or any of the Subsidiaries with respect to which any Fund or any Fund
Affiliate provides any of the aforementioned types of services, and
(vii)non-operating
expenses.
minus
(b) the
sum of (without duplication and to the extent the amounts described in this
clause (b) increased such Consolidated Net Income for the respective period
for which EBITDA is being determined) non-cash items increasing Consolidated
Net
Income of the Borrower and the Subsidiaries for such period (but excluding
any
such items (A) in respect of which cash was received in a prior period or will
be received in a future period or (B) which represent the reversal of any
accrual of, or cash reserve for, anticipated cash charges in any prior
period).
For
purposes of determining EBITDA under this Agreement for any quarter ending
prior
to the first full quarter ending after the Closing Date, EBITDA for such fiscal
quarter shall be calculated on a Pro Forma Basis giving effect to the Business
Combination and the other Transactions occurring on the Closing
Date.
“environment”
shall
mean ambient and indoor air, surface water and groundwater (including potable
water, navigable water and wetlands), the land surface or subsurface strata,
natural resources such as flora and fauna, the workplace or as otherwise defined
in any Environmental Law.
“Environmental
Laws”
shall
mean all applicable laws (including common law), rules, regulations, codes,
ordinances, orders, decrees or judgments, promulgated or entered into by any
Governmental Authority, relating in any way to the environment, preservation
or
reclamation of natural resources, the generation, management, Release or
threatened Release of, or exposure to, any Hazardous Material or to occupational
health and safety matters (to the extent relating to the environment or
Hazardous Materials).
“Equity
Interests”
of
any
person shall mean any and all shares, interests, rights to purchase or otherwise
acquire, warrants, options, participations or other equivalents of or interests
in (however designated) equity or ownership of such person, including any
preferred stock, any limited or general partnership interest and any limited
liability company membership interest, and any securities or other rights or
interests convertible into or exchangeable for any of the
foregoing.
“ERISA”
shall
mean the Employee Retirement Income Security Act of 1974, as the same may be
amended from time to time and any final regulations promulgated and the rulings
issued thereunder.
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Amended and Restated Term Loan Credit Agreement
-17-
“ERISA
Affiliate”
shall
mean any trade or business (whether or not incorporated) that, together with
Holdings, the Borrower or a Subsidiary, 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
Event”
shall
mean (a) any Reportable Event or
the
requirements of Section 4043(b) of ERISA apply with respect to a
Plan;
(b) the
existence with respect to any Plan of an “accumulated funding deficiency” (as
defined in Section 412 of the Code or Section 302 of ERISA), whether
or not waived; (c) the 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, the failure to make by its due date
a
required installment under Section 412(m) of the Code with respect to any
Plan or the failure to make any required contribution to a Multiemployer Plan;
(d) the incurrence by Holdings, the Borrower, a Subsidiary or any ERISA
Affiliate of any liability under Title IV of ERISA with respect to the
termination of any Plan or Multiemployer Plan; (e) the receipt by Holdings,
the
Borrower, a Subsidiary or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan
or to
appoint a trustee to administer any Plan under Section 4042 of ERISA; (f)
the incurrence by Holdings, the Borrower, a Subsidiary or any ERISA Affiliate
of
any liability with respect to the withdrawal or partial withdrawal from any
Plan
or Multiemployer Plan; (g) the receipt by Holdings, the Borrower, a Subsidiary
or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan
from Holdings, the Borrower, a Subsidiary or any ERISA Affiliate of any notice,
concerning the impending 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
conditions for imposition of a lien under Section 302(f) of ERISA shall have
been met with respect to any Plan; or (i) the adoption of an amendment to a
Plan
requiring the provision of security to such Plan pursuant to Section 307 of
ERISA.
“Eurocurrency
Borrowing”
shall
mean a Borrowing comprised of Eurocurrency Loans.
“Eurocurrency
Loan”
shall
mean any Term Loan bearing interest at a rate determined by reference to the
Adjusted LIBO Rate in accordance with the provisions of
Article II.
“Event
of Default”
shall
have the meaning assigned to such term in Section 7.01.
“Excess
Cash Flow”
shall
mean, with respect to the Borrower and its Subsidiaries on a consolidated basis
for any Applicable Period, EBITDA of the Borrower and its Subsidiaries on a
consolidated basis for such Applicable Period, minus,
without
duplication,
(a)Debt
Service for such Applicable Period,
(b)the
amount of any voluntary prepayment permitted hereunder (or, if made prior to
the
Closing Date, permitted under the senior secured bank credit facility then
applicable to such entity) of term Indebtedness during such Applicable Period
(other than
Second
Amended and Restated Term Loan Credit Agreement
-18-
any
voluntary prepayment of the Loans), so long as the amount of such prepayment
is
not already reflected in Debt Service,
(c)(i)
Capital Expenditures by the Borrower and the Subsidiaries on a consolidated
basis during such Applicable Period that are paid in cash (to the extent
permitted under this Agreement) and (ii) the aggregate consideration paid in
cash during the Applicable Period in respect of Permitted Business Acquisitions
and other Investments permitted hereunder less
any
amounts received in respect thereof as a return of capital,
(d)Capital
Expenditures that the Borrower or any Subsidiary shall, during such Applicable
Period, become obligated to make but that are not made during such Applicable
Period (to the extent permitted under this Agreement or if prior to the Closing
Date, the senior secured bank credit facility then applicable to such entity);
provided,
that
(i) Holdings shall deliver a certificate to the Administrative Agent not later
than 90 days after the end of such Applicable Period, signed by a Responsible
Officer of the Borrower and certifying that such Capital Expenditures and the
delivery of the related equipment will be made in the following Applicable
Period, and (ii) any amount so deducted shall not be deducted again in a
subsequent Applicable Period,
(e)Taxes
paid in cash by Holdings and its Subsidiaries on a consolidated basis during
such Applicable Period or that will be paid within six months after the close
of
such Applicable Period; provided,
that
with respect to any such amounts to be paid after the close of such Applicable
Period, (i) any amount so deducted shall not be deducted again in a subsequent
Applicable Period, and (ii) appropriate reserves shall have been established
in
accordance with GAAP,
(f)an
amount
equal to any increase in Working Capital of the Borrower and its Subsidiaries
for such Applicable Period,
(g)cash
expenditures made in respect of Swap Agreements during such Applicable Period,
to the extent not reflected in the computation of EBITDA or Interest
Expense,
(h)permitted
dividends or distributions or repurchases of its Equity Interests paid in cash
by the Borrower during such Applicable Period and permitted dividends paid
by
any Subsidiary to any person other than Holdings, the Borrower or any of the
Subsidiaries during such Applicable Period, in each case in accordance with
Section 6.06 hereof (or the corresponding provision of the senior secured
bank credit facility then applicable to such entity) (other than Section 6.06(e)
or the corresponding provision of the senior secured bank credit facility then
applicable to such entity),
(i)amounts
paid in cash during such Applicable Period on account of (A) items that were
accounted for as noncash reductions of Net Income in determining Consolidated
Net Income or as noncash reductions of Consolidated Net Income in determining
EBITDA of the Borrower and its Subsidiaries in a prior Applicable Period and
(B)
reserves or accruals established in purchase accounting,
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Amended and Restated Term Loan Credit Agreement
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(j)to
the
extent not deducted in the computation of Net Proceeds in respect of any asset
disposition or condemnation giving rise thereto, the amount of any mandatory
prepayment of Indebtedness (other than Indebtedness created hereunder or under
any other Loan Document), together with any interest, premium or penalties
required to be paid (and actually paid) in connection therewith,
(k)the
aggregate amount of items that were added to or not deducted from Net Income
in
calculating Consolidated Net Income or were added to or not deducted from
Consolidated Net Income in calculating EBITDA to the extent such items
represented a cash payment (which had not reduced Excess Cash Flow upon the
accrual thereof in a prior Applicable Period), or an accrual for a cash payment,
by the Borrower and its Subsidiaries or did not represent cash received by
the
Borrower and its Subsidiaries, in each case on a consolidated basis during
such
Applicable Period, and
(l)amounts
paid in cash during such Applicable Period in respect of obligations under
Sections 2.9 and 5.4 of the Acquisition Agreement.
plus,
without
duplication,
(i)an
amount
equal to any decrease in Working Capital for such Applicable
Period,
(ii)all
amounts referred to in clauses (b), (c), (d) and (h) above to the extent
funded with the proceeds of the issuance or the incurrence of Indebtedness
(including Capital Lease Obligations and purchase money Indebtedness, but
excluding, solely as relating to Capital Expenditures, proceeds of Revolving
Facility Loans (or, if prior to the Closing Date, revolving loans pursuant
to
the senior secured bank credit facility then applicable to such entity)), the
sale or issuance of any Equity Interests (including any capital contributions)
and any loss, damage, destruction or condemnation of, or any sale, transfer
or
other disposition (including any sale and leaseback of assets and any mortgage
or lease of Real Property) to any person of any asset or assets, in each case
to
the extent there is a corresponding deduction from Excess Cash Flow
above,
(iii)to
the
extent any permitted Capital Expenditures referred to in clause (d) above
and the delivery of the related equipment do not occur in the following
Applicable Period of the Borrower specified in the certificate of the Borrower
provided pursuant to clause (d) above, the amount of such Capital
Expenditures that were not so made in such following Applicable
Period,
(iv)cash
payments received in respect of Swap Agreements during such Applicable Period
to
the extent (i) not included in the computation of EBITDA or (ii) such payments
do not reduce Cash Interest Expense,
(v)any
extraordinary or nonrecurring gain realized in cash during such Applicable
Period (except to the extent such gain consists of Net Proceeds subject to
Section 2.11(b)),
Second
Amended and Restated Term Loan Credit Agreement
-20-
(vi)to
the
extent deducted in the computation of EBITDA, cash interest income,
and
(vii)the
aggregate amount of items that were deducted from or not added to Net Income
in
connection with calculating Consolidated Net Income or were deducted from or
not
added to Consolidated Net Income in calculating EBITDA to the extent either
(i)
such items represented cash received by the Borrower or any Subsidiary or (ii)
such items do not represent cash paid by the Borrower or any Subsidiary, in
each
case on a consolidated basis during such Applicable Period.
“Excess
Cash Flow Interim Period”
shall
mean, (x) during any Excess Cash Flow Period, any one-, two-, or three-quarter
period (a) commencing on the later of (i) the end of the immediately preceding
Excess Cash Flow Period and (ii) if applicable, the end of any prior Excess
Cash
Flow Interim Period occurring during the same Excess Cash Flow Period and (b)
ending on the last day of the most recently ended fiscal quarter (other than
the
last day of the Fiscal Year) during such Excess Cash Flow Period for which
financial statements are available and (y) during the period from the Original
Agreement Date until the beginning of the first Excess Cash Flow Period, any
period commencing on the Original Agreement Date and ending on the last day
of
the most recently ended fiscal quarter for which financial statements are
available.
“Excess
Cash Flow Period”
shall
mean (i) each fiscal year of the Borrower, commencing with the first full fiscal
year of the Borrower following the Closing Date, and (ii) the period from
January 1, 2007 through the day prior to the initial fiscal year referred to
in
clause (i).
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
“Excluded
Indebtedness”
shall
mean all Indebtedness permitted to be incurred under Section 6.01 (other
than Section 6.01(v)).
“Excluded
Taxes”
shall
mean, with respect to the Administrative Agent, any Lender or any other
recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder, (a) any income taxes imposed on (or measured by) its net
income (or franchise taxes imposed in lieu of net income taxes) by the United
States of America (or any state or locality thereof) or the jurisdiction under
the laws of which such recipient is organized or in which its principal office
is located or, in the case of any Lender, in which its applicable Lending Office
is located or any other jurisdiction as a result of such recipient engaging
in a
trade or business in such jurisdiction for tax purposes, (b) any branch profits
tax or any similar tax that is imposed by any jurisdiction described in
clause (a) above, (c) in the case of a Lender making a Loan to the
Borrower, any tax (including any backup withholding tax) imposed by the United
States (or the jurisdiction under the laws of which such Lender is organized
or
in which its principal office is located or in which its applicable Lending
Office is located or any other jurisdiction as a result of such Lender engaging
in a trade or business or having a taxable presence in such jurisdiction for
tax
purposes) that (x) is in effect and would apply to amounts payable hereunder
to
such Lender at the time such Lender becomes a party to such Loan to the Borrower
(or designates a new Lending Office) except to the extent that the assignor
to
such Lender in the case of an assignment or the Lender in the case of a
designation of a new Lending
Second
Amended and Restated Term Loan Credit Agreement
-21-
Office
(for the absence of doubt, other than the Lending Office at the time such Lender
becomes a party to such Loan) was entitled, at the time of such assignment
or
designation of a new Lending Office, respectively, to receive additional amounts
from a Loan Party with respect to any withholding tax pursuant to
Section 2.17(a) or Section 2.17(c) or (y) is attributable to such
Lender’s failure to comply with Section 2.17(e) or (f) with respect to such
Loan and (d) any taxes that are imposed as a result of any event occurring
after
the Lender becomes a Lender (other than a Change in Law) in the case of clause
(a), (b), (c) and (d), together with any and all interest and penalties related
thereto.
“Existing
ABL Agreement”
shall
have the meaning set forth in the recitals hereto.
“Existing
Credit Agreement”
shall
have the meaning set forth in the recitals hereto.
“Facility”
shall
mean the respective facility and commitments utilized in making Loans and credit
extensions hereunder, it being understood that as of the date of this Agreement
there is one Facility, i.e.,
the
Term C Facility, and thereafter may include the Incremental Term
Facility.
“Federal
Funds Effective Rate”
shall
mean, for any day, the rate per annum 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
that (a)
if such day is not a Business Day, the Federal Funds Effective 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 no such rate is so
published on such next succeeding Business Day, the Federal Funds Effective
Rate
for such day shall be the average rate (rounded upward, if necessary, to a
whole
multiple of 1/100 of 1%) charged to Credit Suisse on such day on such
transactions as determined by the Administrative Agent.
“Fee
Letter”
shall
mean that certain Fee Letter dated March 2, 2007 by and among the Borrower,
Bank
of America, N.A., Banc of America Securities LLC, Citigroup Global Markets
Inc.,
Credit Suisse, Credit Suisse Securities (USA) LLC, Deutsche Bank AG New York
Branch, Deutsche Bank Securities Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P.,
JPMorgan Chase Bank, N.A., ▇.▇. ▇▇▇▇▇▇ Securities Inc. and ▇▇▇▇▇▇ Brothers
Inc.
“Fees”
shall
mean the Administrative Agent Fees.
“Financial
Officer”
of
any
person shall mean the Chief Financial Officer, principal accounting officer,
Treasurer, Assistant Treasurer or Controller of such person.
“First
Lien Debt”
at
any
date shall mean (i) the aggregate principal amount of Consolidated Debt of
the
Borrower and its Subsidiaries outstanding at such date that consists of, without
duplication, Indebtedness that in each case is then secured by first priority
Liens on property or assets of the Borrower and its Subsidiaries (other than
property or assets held in a defeasance or similar trust or arrangement for
the
benefit of the Indebtedness secured thereby), less (ii) without duplication,
the
Unrestricted Cash and Permitted Investments of the Borrower and its Subsidiaries
on such date.
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Amended and Restated Term Loan Credit Agreement
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“Foreign
Pledge Agreement”
shall
mean a pledge agreement with respect to the Pledged Collateral that constitutes
Equity Interests of a “first tier” Foreign Subsidiary, in form and substance
reasonably satisfactory to the Collateral Agent; provided,
that in
no event shall more than 65% of the issued and outstanding Equity Interests
of
such Foreign Subsidiary be pledged to secure Obligations of the
Borrower.
“Foreign
Subsidiary”
shall
mean any Subsidiary that is incorporated or organized under the laws of any
jurisdiction other than the United States of America, any State thereof or
the
District of Columbia.
“Fund
Affiliates”
shall
mean (i) each Affiliate of any Funds, (ii) any individual who is a partner
or
employee of Apollo Management, L.P., Apollo Management IV, L.P. or Apollo
Management V, L.P., Apollo Management VI, L.P., and (iii) ▇▇▇▇▇▇ BPC Investment
Holdings, LP.
“Fund
I”
shall
mean Apollo Management V, L.P. and other affiliated co-investment
partnerships.
“Fund
II”
shall
mean Apollo Management VI, L.P. and other affiliated co-investment partnerships
and ▇▇▇▇▇▇ Partners Inc.
“Fund
Termination Fee”
shall
have the meaning specified in Section 6.07(b)(xiv).
“Funds”
shall
mean Fund I and Fund II, collectively.
“GAAP”
shall
mean generally accepted accounting principles in effect from time to time in
the
United States, applied on a consistent basis, subject to the provisions of
Section 1.02; provided
that any
reference to the application of GAAP in Sections 3.13(b), 3.20, 5.03, 5.07
and
6.02(e) to a Foreign Subsidiary (and not as a consolidated Subsidiary of the
Borrower) shall mean generally accepted accounting principles in effect from
time to time in the jurisdiction of organization of such Foreign
Subsidiary.
“Governmental
Authority”
shall
mean any federal, state, local or foreign court or governmental agency,
authority, instrumentality or regulatory or legislative body.
“Guarantee”
of
or
by any person (the “guarantor”)
shall
mean (a) any obligation, contingent or otherwise, of the guarantor guaranteeing
or having the economic effect of guaranteeing any Indebtedness or other
obligation of any other person (the “primary
obligor”)
in any
manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (i) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or other obligation
(whether arising by virtue of partnership arrangements, by agreement to keep
well, to purchase assets, goods, securities or services, to take-or-pay or
otherwise) or to purchase (or to advance or supply funds for the purchase of)
any security for the payment of such Indebtedness or other obligation, (ii)
to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof,
(iii)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation, (iv) entered into for
the
purpose of assuring in any other
Second
Amended and Restated Term Loan Credit Agreement
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manner
the holders of such Indebtedness or other obligation of the payment thereof
or
to protect such holders against loss in respect thereof (in whole or in part)
or
(v) as an account party in respect of any letter of credit, bank guarantee,
bankers’ acceptance or other letter of guaranty issued to support such
Indebtedness or other obligation, or (b) any Lien on any assets of the guarantor
securing any Indebtedness (or any existing right, contingent or otherwise,
of
the holder of Indebtedness to be secured by such a Lien) of any other person,
whether or not such Indebtedness or other obligation is assumed by the
guarantor; provided,
however,
the
term “Guarantee” shall not include endorsements of instruments for deposit or
collection in the ordinary course of business or customary and reasonable
indemnity obligations in effect on the Closing Date or entered into in
connection with any acquisition or disposition of assets permitted by this
Agreement (other than such obligations with respect to Indebtedness). The amount
of any Guarantee shall be deemed to be an amount equal to the stated or
determinable amount of the Indebtedness in respect of which such Guarantee
is
made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such person is required to perform
thereunder) as determined by such person in good faith.
“guarantor”
shall
have the meaning assigned to such term in the definition of the term
“Guarantee.”
“Hazardous
Materials”
shall
mean all pollutants, contaminants, wastes, chemicals, materials, substances
and
constituents, including, without limitation, explosive or radioactive substances
or petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls or radon gas, of any nature subject to
regulation or which can give rise to liability under any Environmental
Law.
“Hedging
Obligations”
means,
with respect to any person, the obligations of such person under (i) currency
exchange, interest rate or commodity swap agreements, currency exchange,
interest rate or commodity cap agreements and currency exchange, interest rate
or commodity collar agreements, and (ii) other agreements or arrangements
designed to protect such person against fluctuations in currency exchange,
interest rates or commodity prices.
“Holdings”
shall
have the meaning assigned to such term in the introductory paragraph of this
Agreement.
“Immaterial
Subsidiary”
shall
mean any Subsidiary that, as of the last day of the fiscal quarter of the
Borrower most recently ended, (a) did not have assets with a value in excess
of
5.0% of the Consolidated Total Assets or revenues representing in excess of
5.0%
of total revenues of the Borrower and the Subsidiaries on a consolidated basis
as of such date and (b) when taken together with all other Immaterial
Subsidiaries as of such date, did not have assets with a value in excess of
10.0% of the Consolidated Total Assets or revenues representing in excess of
10.0% of total revenues of the Borrower and the Subsidiaries on a consolidated
basis as of such date. Each Immaterial Subsidiary as of the Closing Date shall
be set forth in Schedule 1.01(d).
“Increased
Amount Date”
shall
have the meaning assigned to such term in Section 2.21.
Second
Amended and Restated Term Loan Credit Agreement
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“Incremental
Amount”
shall
mean, at any time, the excess, if any, of (a) the greater of (i) $600
million and (ii) an aggregate principal amount such that the Total Net First
Lien Leverage Ratio shall not exceed 4.00:1.00 over
(b) the
aggregate amount of all Incremental Term Loan Commitments established prior
to
such time pursuant to Section 2.21.
“Incremental
Assumption Agreement”
shall
mean an Incremental Assumption Agreement in form and substance reasonably
satisfactory to the Administrative Agent, among the Borrower, the Administrative
Agent and one or more Incremental Term Lenders.
“Incremental
Term Borrowing”
shall
mean a Borrowing comprised of Incremental Term Loans.
“Incremental
Term Facility”
shall
mean the Incremental Term Loan Commitments and the Incremental Term Loans made
hereunder.
“Incremental
Term Facility Maturity Date”
shall
mean, with respect to any series or tranche of Incremental Term Loans
established pursuant to an Incremental Assumption Agreement, the maturity date
for as set forth in such Incremental Assumption Agreement.
“Incremental
Term Lender”
shall
mean a Lender with an Incremental Term Loan Commitment or an outstanding
Incremental Term Loan.
“Incremental
Term Loan Commitment”
shall
mean the commitment of any Lender, established pursuant to Section 2.21, to
make Incremental Term Loans to the Borrower.
“Incremental
Term Loan Installment Date”
shall
have, with respect to any series or tranche of Incremental Term Loans
established pursuant to an Incremental Assumption Agreement, the meaning
assigned to such term in Section 2.10(a)(ii).
“Incremental
Term Loans”
shall
mean Loans made by one or more Lenders to the Borrower pursuant to Section
2.01(b). Incremental Term Loans may be made in the form of additional Term
C
Loans or, to the extent permitted by Section 2.21 and provided for in the
relevant Incremental Assumption Agreement, Other Term Loans.
“Indebtedness”
of
any
person shall mean, without duplication, (a) all obligations of such person
for
borrowed money, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such person
under conditional sale or other title retention agreements relating to property
or assets purchased by such person, (d) all obligations of such person issued
or
assumed as the deferred purchase price of property or services, to the extent
that the same would be required to be shown as a long term liability on a
balance sheet prepared in accordance with GAAP, (e) all Capital Lease
Obligations of such person, (f) all net payments that such person would have
to
make in the event of an early termination, on the date Indebtedness of such
person is being determined, in respect of outstanding Swap Agreements, (g)
the
principal component of all obligations, contingent or otherwise, of such person
as an account party in respect of letters of credit, (h) the principal component
of all obligations of such person in respect of bankers’ acceptances, (i) all
Guarantees by such person of Indebtedness described in clauses (a) to (h) above)
and (j) the amount of all obligations of such person with respect to the
redemption, repayment or other repurchase of any
Second
Amended and Restated Term Loan Credit Agreement
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Disqualified
Stock (excluding accrued dividends that have not increased the liquidation
preference of such Disqualified Stock); provided,
that
Indebtedness shall not include (A) trade payables, accrued expenses and
intercompany liabilities arising in the ordinary course of business, (B) prepaid
or deferred revenue arising in the ordinary course of business, (C) purchase
price holdbacks arising in the ordinary course of business in respect of a
portion of the purchase prices of an asset to satisfy unperformed obligations
of
the seller of such asset, (D) earn-out obligations until such obligations become
a liability on the balance sheet of such person in accordance with GAAP or
(E)
obligations under Section 2.9 and 5.4 of the Acquisition Agreement. The
Indebtedness of any person shall include the Indebtedness of any partnership
in
which such person is a general partner, other than to the extent that the
instrument or agreement evidencing such Indebtedness expressly limits the
liability of such person in respect thereof. To the extent not otherwise
included, Indebtedness shall include the amount of any Receivables Net
Investment.
“Indemnified
Taxes”
shall
mean all Taxes other than Excluded Taxes.
“Indemnitee”
shall
have the meaning assigned to such term in Section 9.05(b).
“Ineligible
Institution”
shall
mean the persons identified in writing to the Administrative Agent by the
Borrower on the Closing Date, and as may be identified in writing to the
Administrative Agent by the Borrower from time to time thereafter with the
consent of the Administrative Agent (not to be unreasonably withheld or
delayed), by delivery of a notice thereof to the Administrative Agent setting
forth such person or persons (or the person or persons previously identified
to
the Administrative Agent that are to be no longer considered “Ineligible
Institutions”).
“Information”
shall
have the meaning assigned to such term in Section 3.14(a).
“Information
Memorandum”
shall
mean the Confidential Information Memorandum dated March 13, 2007, as modified
or supplemented prior to the Closing Date.
“Initial
Pro Forma Adjustment”
shall
mean an amount equal to $2.75 million for each quarterly period ending March
2006 and June 2006, $5.876 million for the quarterly period ending September
2006, and $3.125 million for the quarterly period ending December
2006.
“Intellectual
Property Rights”
shall
have the meaning assigned to such term in Section 3.23.
“Intercreditor
Agreement”
shall
mean the Intercreditor Agreement by and among Credit Suisse and Bank of America,
as first lien agents, ▇▇▇▇▇ Fargo Bank, N.A., as trustee, Holdings, the Borrower
and the Subsidiary Loan Parties, as in effect on the Closing Date.
“Interest
Election Request”
shall
mean a request by the Borrower to convert or continue a Term Borrowing in
accordance with Section 2.07.
“Interest
Expense”
shall
mean, with respect to any person for any period, the sum of (a) gross interest
expense of such person for such period on a consolidated basis, including (i)
the amortization of debt discounts, (ii) the amortization of all fees (including
fees with respect to
Second
Amended and Restated Term Loan Credit Agreement
-26-
Swap
Agreements) payable in connection with the incurrence of Indebtedness to the
extent included in interest expense, (iii) the portion of any payments or
accruals with respect to Capital Lease Obligations allocable to interest
expense, and (iv) net payments and receipts (if any) pursuant to interest rate
Hedging Obligations, (b) capitalized interest of such person, and (c)
commissions, discounts, yield and other fees and charges incurred in connection
with any Permitted Receivables Financing which are payable to any person other
than the Borrower or a Subsidiary Loan Party. For purposes of the foregoing,
gross interest expense shall be determined after giving effect to any net
payments made or received and costs incurred by the Borrower and the
Subsidiaries with respect to Swap Agreements.
“Interest
Payment Date”
shall
mean, (a) with respect to any Eurocurrency Loan, the last day of each Interest
Period applicable to the Borrowing of which such Loan is a part and, in the
case
of a Eurocurrency Borrowing with an Interest Period of more than three months’
duration, each day that would have been an Interest Payment Date had successive
Interest Periods of three months’ duration been applicable to such Borrowing
and, in addition, the date of any refinancing or conversion of such Borrowing
with or to a Borrowing of a different Type, and (b) with respect to any ABR
Loan, the last Business Day of each calendar quarter.
“Interest
Period”
shall
mean, as to any Eurocurrency Borrowing, the period commencing on the date of
such Borrowing or on the last day of the immediately preceding Interest Period
applicable to such Borrowing, as applicable, and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the
last
day) in the calendar month that is 1, 2, 3 or 6 months thereafter (or 9 or
12
months, if at the time of the relevant Borrowing, all Lenders make interest
periods of such length available), as the Borrower may elect, or the date any
Eurocurrency Borrowing is converted to an ABR Borrowing in accordance with
Section 2.07 or repaid or prepaid in accordance with Section 2.09,
2.10 or 2.11;; provided,
however,
that if
any Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day. Interest
shall accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest Period.
“Investment”
shall
have the meaning assigned to such term in Section 6.04.
“Joint
Lead Arrangers”
shall
mean Credit Suisse Securities (USA) LLC and Deutsche Bank Securities Inc.,
in
their capacities as joint lead arrangers.
“Junior
Financing”
shall
have the meaning assigned to such term in Section 6.09(b).
“Lender”
shall
mean each financial institution listed on Schedule 2.01,
as well
as any person that becomes a “Lender” hereunder pursuant to
Section 9.04.
“Lender
Default”
shall
mean (i) the refusal (which has not been retracted) of a Lender to make
available its portion of any Borrowing, or (ii) a Lender having notified the
Borrower and/or the Administrative Agent that it does not intend to comply
with
its obligations under Section 2.06.
Second
Amended and Restated Term Loan Credit Agreement
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“Lending
Office”
shall
mean, as to any Lender, the applicable branch, office or Affiliate of such
Lender designated by such Lender to make Loans.
“Letter
of Credit”
shall
mean any letter of credit issued pursuant to the Revolving Credit
Agreement.
“LIBO
Rate”
shall
mean, with respect to any Eurocurrency Borrowing for any Interest Period, the
rate per annum equal to the British Bankers Association LIBOR Rate
(“BBA
LIBOR”),
as
published by Bloomberg (or other commercially available source providing
quotations of BBA LIBOR as designated by the Administrative Agent from time
to
time) at approximately 11:00 a.m., London time, two Business Days prior to
the
commencement of such Interest Period, for Dollar deposits (for delivery on
the
first day of such Interest Period) with a term equivalent to such Interest
Period; provided,
that if
such rate is not available at such time for any reason, then the “LIBO Rate” for
such Interest Period shall be the rate per annum determined by the
Administrative Agent to be the rate at which deposits in Dollars for delivery
on
the first day of such Interest Period in same day funds in the approximate
amount of the Eurocurrency Loan being made, continued or converted by Credit
Suisse and with a term equivalent to such Interest Period would be offered
by
Credit Suisse’s London Branch to major banks in the London interbank
eurocurrency market at their request at approximately 11:00 a.m. (London time)
two Business Days prior to the commencement of such Interest
Period.
“Lien”
shall
mean, with respect to any asset, (a) any mortgage, deed of trust, lien,
hypothecation, pledge, charge, security interest or similar encumbrance in
or on
such asset and (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset, provided, that in no event shall an operating lease
or
an agreement to sell be deemed to constitute a Lien.
“Loan
Documents”
shall
mean this Agreement, the Security Documents, the Intercreditor Agreement, the
Senior Lender Intercreditor Agreement and any Note issued under
Section 2.09(e), and solely for the purposes of Article IV and Section 7.01
hereof, the Fee Letter.
“Loan
Parties”
shall
mean Holdings, the Borrower and the Subsidiary Loan Parties.
“Loans”
shall
mean the Term C Loans and the Incremental Term Loans (if any).
“Local
Time”
shall
mean New York City time.
“Management
Group”
means
the group consisting of the directors, executive officers and other management
personnel of the Borrower, Holdings and their Subsidiaries, as the case may
be,
on the Closing Date together with (a) any new directors whose election by such
boards of directors or whose nomination for election by the shareholders of
the
Borrower or Holdings, as the case may be, was approved by a vote of a majority
of the directors of the Borrower or Holdings, as the case may be, then still
in
office who were either directors on the Closing Date or whose election or
nomination was previously so approved and (b) executive officers and other
management personnel of the Borrower or Holdings and their Subsidiaries, as
the
case may be, hired at a time when the directors on the Closing Date together
with the
Second
Amended and Restated Term Loan Credit Agreement
-28-
directors
so approved constituted a majority of the directors of the Borrower or Holdings,
as the case may be.
“Margin
Stock”
shall
have the meaning assigned to such term in Regulation U.
“Material
Adverse Effect”
shall
mean a material adverse effect on the business, property, operations or
condition of the Borrower and its Subsidiaries, taken as a whole, or the
validity or enforceability of any of the material Loan Documents or the rights
and remedies of the Administrative Agent and the Lenders
thereunder.
“Material
Indebtedness”
shall
mean Indebtedness (other than Loans) of any one or more of the Borrower or
any
Subsidiary in an aggregate principal amount exceeding $35 million.
“Material
Subsidiary”
shall
mean any Subsidiary other than an Immaterial Subsidiary.
“Maximum
Rate”
shall
have the meaning assigned to such term in Section 9.09.
“Merger
Agreement”
shall
have the meaning assigned to such term in the recitals hereto.
“Merger
Documents”
shall
mean the collective reference to the Merger Agreement, all material exhibits
and
schedules thereto and all agreements expressly contemplated
thereby.
“▇▇▇▇▇’▇”
shall
mean ▇▇▇▇▇’▇ Investors Service, Inc.
“Mortgaged
Properties”
shall
mean the Real Properties owned in fee by the Loan Parties that are set forth
on
Schedule 1.01(c)
and each
additional Real Property encumbered by a Mortgage pursuant to
Section 5.10.
“Mortgages”
shall
mean the mortgages, trust deeds, deeds of trust, deeds to secure debt,
assignments of leases and rents, and other security documents delivered with
respect to Mortgaged Properties, each in form and substance reasonably
satisfactory to the Administrative Agent and the Borrower, as amended,
supplemented or otherwise modified from time to time. For the avoidance of
doubt, Mortgages may include mortgages delivered under the Existing Credit
Agreement to the extent amended to be in a form otherwise satisfactory to the
Administrative Agent.
“Multiemployer
Plan”
shall
mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA to
which the Borrower, Holdings or any Subsidiary or any ERISA Affiliate (other
than one considered an ERISA Affiliate only pursuant to subsection (m) or
(o) of Code Section 414) is making or accruing an obligation to make
contributions, or has within any of the preceding six plan years made or accrued
an obligation to make contributions.
“Net
Income”
shall
mean, with respect to any person, the net income (loss) of such person,
determined in accordance with GAAP and before any reduction in respect of
preferred stock dividends.
Second
Amended and Restated Term Loan Credit Agreement
-29-
“Net
Proceeds”
shall
mean:
(a) 100%
of
the cash proceeds actually received by the Borrower or any Subsidiary Loan
Party
(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 and including casualty insurance settlements and
condemnation awards, but only as and when received) from any Asset Sale (other
than those pursuant to Section 6.05(a), (b), (c), (d) (except as contemplated
by
Section 6.03(b)(ii)), (e), (f), (h), (i) or (j)), net of (i) attorneys’ fees,
accountants’ fees, investment banking fees, survey costs, title insurance
premiums, and related search and recording charges, transfer taxes, deed or
mortgage recording taxes, required debt payments and required payments of other
obligations relating to the applicable asset to the extent such debt or
obligations are secured by a Lien permitted hereunder (other than pursuant
to
the Loan Documents or the Revolving Loan Documents) on such asset, other
customary expenses and brokerage, consultant and other customary fees actually
incurred in connection therewith, (ii) Taxes paid or payable as a result
thereof, and (iii) the amount of any reasonable reserve established in
accordance with GAAP against any adjustment to the sale price or any liabilities
(other than any taxes deducted pursuant to clause (i) above) (x) related to
any
of the applicable assets and (y) retained by the Borrower or any of the
Subsidiaries including, without limitation, pension and other post-employment
benefit liabilities and liabilities related to environmental matters or against
any indemnification obligations (however, the amount of any subsequent reduction
of such reserve (other than in connection with a payment in respect of any
such
liability) shall be deemed to be Net Proceeds of such Asset Sale occurring
on
the date of such reduction); provided,
that,
if no Event of Default exists and the Borrower shall deliver a certificate
of a
Responsible Officer of the Borrower to the Administrative Agent promptly
following receipt of any such proceeds setting forth the Borrower’s intention to
use any portion of such proceeds, to acquire, maintain, develop, construct,
improve, upgrade or repair assets useful in the business of the Borrower and
the
Subsidiaries or to make investments in Permitted Business Acquisitions, in
each
case within 15 months of such receipt, such portion of such proceeds shall
not
constitute Net Proceeds except to the extent not, within 15 months of such
receipt, so used or contractually committed to be so used (it being understood
that if any portion of such proceeds are not so used within such 15-month period
but within such 15-month period are contractually committed to be used, then,
upon the termination of such contract, such remaining portion shall constitute
Net Proceeds as of the date of such termination or expiry without giving effect
to this proviso); provided,
further,
that
(A) no proceeds realized in a single transaction or series of related
transactions shall constitute Net Proceeds unless such proceeds shall exceed
$5.0 million, (B) no proceeds shall constitute Net Proceeds in any fiscal year
until the aggregate amount of all such proceeds in such fiscal year shall exceed
$10.0 million,
(C) at any time during the 15-month period contemplated by the immediately
preceding proviso above, if, on a Pro Forma Basis after giving effect to the
Asset Sale and the application of the proceeds thereof, the Total Net First
Lien
Leverage Ratio is less than or equal to 2.00 to 1.00, up to $75 million of
such
proceeds shall not constitute Net Proceeds, and (D) proceeds from the sale
or
other disposition of any ABL Assets (including any indirect sale or other
disposition occurring by reason of the indirect sale or other disposition of
the
person that holds such ABL Assets) shall not constitute Net
Second
Amended and Restated Term Loan Credit Agreement
-30-
Proceeds
to the extent that the Revolving Credit Agreement requires that such proceeds
be
applied in payment of any obligations thereunder, and
(b) 100%
of
the cash proceeds from the incurrence, issuance or sale by the Borrower or
any
Subsidiary Loan Party of any Indebtedness (other than Excluded Indebtedness),
net of all taxes and fees (including investment banking fees), commissions,
costs and other expenses, in each case incurred in connection with such issuance
or sale.
For
purposes of calculating the amount of Net Proceeds, fees, commissions and other
costs and expenses payable to the Borrower or any Affiliate of the Borrower
shall be disregarded, except for financial advisory fees customary in type
and
amount paid to Affiliates of the Funds and otherwise not prohibited from being
paid hereunder.
“New
York Courts”
shall
have the meaning assigned to such term in Section 9.15.
“Non-Consenting
Lender”
shall
have the meaning assigned to such term in Section 2.19(c).
“Note”
shall
have the meaning assigned to such term in Section 2.09(e).
“Obligations”
shall
mean all amounts owing to the Administrative Agent or any Lender pursuant to
the
terms of this Agreement or any other Loan Document.
“Original
Agreement Date”
shall
mean February 16, 2006 in respect of the subsidiaries of Covalence Holdings
prior to the Closing Date, shall mean September 20, 2006 in respect of
subsidiaries of ▇▇▇▇▇ Holdings prior to the Closing Date, and shall mean the
Closing Date in respect of subsidiaries of Holdings that were not subsidiaries
of Covalence Holdings or ▇▇▇▇▇ Holdings prior to the Closing Date.
“Other
Taxes”
shall
mean any and all present or future stamp or documentary taxes or any other
excise, transfer, sales, property, intangible, mortgage recording, or similar
taxes, charges or levies arising from any payment made hereunder or from the
execution, delivery or enforcement of, or otherwise with respect to, the Loan
Documents, and any and all interest and penalties related thereto (but not
Excluded Taxes).
“Other
Term Loans”
shall
have the meaning assigned to such term in Section 2.21.
“Overdraft
Line”
shall
have the meaning assigned to such term in Section 6.01(w).
“Parent
Entity”
means
any direct or indirect parent of Holdings.
“Participant”
shall
have the meaning assigned to such term in Section 9.04(c).
“PBGC”
shall
mean the Pension Benefit Guaranty Corporation referred to and defined in
ERISA.
Second
Amended and Restated Term Loan Credit Agreement
-31-
“Perfection
Certificate”
shall
mean the Perfection Certificate with respect to Borrower and the other Loan
Parties in a form reasonably satisfactory to the Administrative
Agent.
“Permitted
Business Acquisition”
shall
mean any acquisition of all or substantially all the assets of, or all the
Equity Interests (other than directors’ qualifying shares) in, or merger or
consolidation with, a person or division or line of business of a person (or
any
subsequent investment made in a person, division or line of business previously
acquired in a Permitted Business Acquisition), if immediately after giving
effect thereto: (i) no Event of Default shall have occurred and be continuing
or
would result therefrom; (ii) all transactions related thereto shall be
consummated in accordance with applicable laws; (iii) with respect to any such
acquisition or investment with a fair market value in excess of $20.0 million,
the Borrower and its Subsidiaries shall be in Pro Forma Compliance after giving
effect to such acquisition or investment and any related transactions; (iv)
any
acquired or newly formed Subsidiary shall not be liable for any Indebtedness
except for Indebtedness permitted by Section 6.01; (v) to the extent required
by
Section 5.10, any person acquired in such acquisition, if acquired by the
Borrower or a Domestic Subsidiary, shall be merged into the Borrower or a
Subsidiary Loan Party or become upon consummation of such acquisition a
Subsidiary Loan Party, and (vi) the aggregate amount of such acquisitions and
investments in assets that are not owned by the Borrower or Subsidiary Loan
Parties or in Equity Interests in persons that are not Subsidiary Loan Parties
or persons that do not become Subsidiary Loan Parties upon consummation of
such
acquisition shall not exceed the greater (x) 4.5% of Consolidated Total Assets
as of the end of the fiscal quarter immediately prior to the date of such
acquisition or investment for which financial statements have been delivered
pursuant to Section 5.04 and (y) $150 million.
“Permitted
Holder”
shall
mean each of (i) the Funds and the Fund Affiliates, and (ii) the Management
Group.
“Permitted
Investments”
shall
mean:
(a)direct
obligations of the United States of America or any member of the European Union
or any agency thereof or obligations guaranteed by the United States of America
or any member of the European Union or any agency thereof, in each case with
maturities not exceeding two years;
(b)time
deposit accounts, certificates of deposit and money market deposits maturing
within 180 days of the date of acquisition thereof issued by a bank or trust
company that is organized under the laws of the United States of America, any
state thereof or any foreign country recognized by the United States of America
having capital, surplus and undivided profits in excess of $250 million and
whose long-term debt, or whose parent holding company’s long-term debt, is rated
A (or such similar equivalent rating or higher by at least one nationally
recognized statistical rating organization (as defined in Rule 436 under
the Securities Act));
(c)
repurchase
obligations with a term of not more than 180 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;
Second
Amended and Restated Term Loan Credit Agreement
-32-
(d)
commercial
paper, maturing not more than one year after the date of acquisition, issued
by
a corporation (other than an Affiliate of the Borrower) organized and in
existence under the laws of the United States of America or any foreign country
recognized by the United States of America with a rating at the time as of
which
any investment therein is made of P-1 (or higher) according to Moody’s, or A-1
(or higher) according to S&P;
(e)securities
with maturities of two years 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 ▇▇▇▇▇’▇;
(f)shares
of
mutual funds whose investment guidelines restrict 95% of such funds’ investments
to those satisfying the provisions of clauses (a) through (e)
above;
(g)money
market funds that (i) comply with the criteria set forth in Rule 2a-7 under
the Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by
Moody’s and (iii) have portfolio assets of at least $5,000.0 million;
and
(h)time
deposit accounts, certificates of deposit and money market deposits in an
aggregate face amount not in excess of 0.5% of the total assets of the Borrower
and the Subsidiaries, on a consolidated basis, as of the end of the Borrower’s
most recently completed fiscal year; and
(i)instruments
equivalent to those referred to in clauses (a) through (h) above denominated
in
any foreign currency comparable in credit quality and tenor to those referred
to
above and commonly used by corporations for cash management purposes in any
jurisdiction outside the United States to the extent reasonably required in
connection with any business conducted by any Subsidiary organized in such
jurisdiction.
“Permitted
Liens”
shall
have the meaning assigned to such term in Section 6.02.
“Permitted
Receivables Documents”
shall
mean all documents and agreements evidencing, relating to or otherwise governing
a Permitted Receivables Financing.
“Permitted
Receivables Financing”
shall
mean one or more transactions pursuant to which (i) Receivables Assets or
interests therein are sold to or financed by one or more Special Purpose
Receivables Subsidiaries, and (ii) such Special Purpose Receivables Subsidiaries
finance their acquisition of such Receivables Assets or interests therein,
or
the financing thereof, by selling or borrowing against Receivables Assets;
provided
that (A)
recourse to the Borrower or any Subsidiary (other than the Special Purpose
Receivables Subsidiaries) in connection with such transactions shall be limited
to the extent customary for similar transactions in the applicable jurisdictions
(including, to the extent applicable, in a manner consistent with the delivery
of a “true sale”/“absolute transfer” opinion with respect to any transfer by the
Borrower or any Subsidiary (other than a Special Purpose Receivables
Subsidiary), and (B) the aggregate Receivables Net Investment since the Closing
Date shall not exceed $100 million at any time.
Second
Amended and Restated Term Loan Credit Agreement
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“Permitted
Refinancing Indebtedness”
shall
mean any Indebtedness issued in exchange for, or the net proceeds of which
are
used to extend, refinance, renew, replace, defease or refund (collectively,
to
“Refinance”),
the
Indebtedness being Refinanced (or previous refinancings thereof constituting
Permitted Refinancing Indebtedness); provided,
that
(a) the principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount (or accreted
value, if applicable) of the Indebtedness so Refinanced (plus unpaid accrued
interest and premium thereon and underwriting discounts, fees, commissions
and
expenses), (b) except with respect to Section 6.01(i), the weighted average
life
to maturity of such Permitted Refinancing Indebtedness is greater than or equal
to the earlier of (i) the weighted average life to maturity of the Indebtedness
being Refinanced and (ii) 90 days after the Term C Facility Maturity Date,
(c)
if the Indebtedness being Refinanced is subordinated in right of payment to
the
Obligations under this Agreement, such Permitted Refinancing Indebtedness shall
be subordinated in right of payment to such Obligations on terms at least as
favorable to the Lenders as those contained in the documentation governing
the
Indebtedness being Refinanced, (d) no Permitted Refinancing Indebtedness shall
have different obligors, or greater guarantees or security, than the
Indebtedness being Refinanced and (e) if the Indebtedness being Refinanced
is
secured by any collateral (whether equally and ratably with, or junior to,
the
Secured Parties or otherwise), such Permitted Refinancing Indebtedness may
be
secured by such collateral (including in respect of working capital facilities
of Foreign Subsidiaries otherwise permitted under this Agreement only, any
collateral pursuant to after-acquired property clauses to the extent any such
collateral secured the Indebtedness being Refinanced) on terms no less favorable
to the Secured Parties than those contained in the documentation governing
the
Indebtedness being Refinanced; provided further,
that
with respect to a Refinancing of (x) the Senior Subordinated Notes or other
subordinated Indebtedness permitted to be incurred herein, such Permitted
Refinancing Indebtedness shall (i) be subordinated to the guarantee by Holdings
and the Subsidiary Loan Parties of the Facilities, and (ii) be otherwise on
terms not materially less favorable to the Lenders than those contained in
the
documentation governing the Indebtedness being refinanced and (y) the Second
Lien Notes, (i) the Liens, if any, securing such Permitted Refinancing
Indebtedness shall be subject to an intercreditor agreement that is
substantially consistent with and no less favorable to the Lenders in all
material respects than the Intercreditor Agreement and (ii) such Permitted
Refinancing Indebtedness shall be otherwise on terms not materially less
favorable to the Lenders than those contained in the documentation governing
the
Indebtedness being Refinanced.
“person”
shall
mean any natural person, corporation, business trust, joint venture,
association, company, partnership, limited liability company or government,
individual or family trusts, or any agency or political subdivision
thereof.
“Plan”
shall
mean any employee pension benefit plan, as such term is defined in Section
3(2)
of ERISA, (other than a Multiemployer Plan), (i) subject to the provisions
of
Title IV of ERISA, (ii) sponsored or maintained (at the time of determination
or
at any time within the five years prior thereto) by Holdings, the Borrower
or
any ERISA Affiliate, or (iii) in respect of which Holdings, the Borrower, any
Subsidiary or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an “employer” as defined in
Section 3(5) of ERISA.
“Platform”
shall
have the meaning assigned to such term in Section 9.17.
Second
Amended and Restated Term Loan Credit Agreement
-34-
“Pledged
Collateral”
shall
have the meaning assigned to such term in the Collateral Agreement.
“primary
obligor”
shall
have the meaning given such term in the definition of the term
“Guarantee.”
“Pro
Forma Adjusted EBITDA”
shall
have the meaning assigned to such term in Section 3.05.
“Pro
Forma Basis”
shall
mean, as to any person, for any events as described below that occur subsequent
to the commencement of a period for which the financial effect of such events
is
being calculated, and giving effect to the events for which such calculation
is
being made, such calculation as will give pro forma effect to such events as
if
such events occurred on the first day of the four consecutive fiscal quarter
period ended on or before the occurrence of such event (the “Reference
Period”):
(i)
in making any determination of EBITDA, effect shall be given to any Asset Sale,
any acquisition (or any similar transaction or transactions not otherwise
permitted under Section 6.04 or 6.05 that require a waiver or consent of the
Required Lenders and such waiver or consent has been obtained), any dividend,
distribution or other similar payment, any designation of any Subsidiary as
an
Unrestricted Subsidiary and any Subsidiary Redesignation, the Initial Pro Forma
Adjustment for the quarters ending March 2006, June 2006, September 2006, and
December 2006, and any restructurings of the business of the Borrower or any
of
its Subsidiaries that are expected to have a continuing impact and are factually
supportable, which would include cost savings resulting from head count
reduction, closure of facilities and similar operational and other cost savings,
which adjustments the Borrower determines are reasonable as set forth in a
certificate of a Financial Officer of the Borrower (the foregoing, together
with
any transactions related thereto or in connection therewith, the “relevant
transactions”),
in
each case that occurred during the Reference Period (or, in the case of
determinations made pursuant to the definition of the term “Permitted Business
Acquisition” or pursuant to Sections 2.11(b), 6.01(r), 6.02(u) or 6.06(e),
occurring during the Reference Period or thereafter and through and including
the date upon which the respective Permitted Business Acquisition or incurrence
of Indebtedness or Liens, Asset Sale, or dividend is consummated), (ii) in
making any determination on a Pro Forma Basis, (x) all Indebtedness (including
Indebtedness issued, incurred or assumed as a result of, or to finance, any
relevant transactions and for which the financial effect is being calculated,
whether incurred under this Agreement or otherwise, but excluding normal
fluctuations in revolving Indebtedness incurred for working capital purposes
and
amounts outstanding under any Permitted Receivables Financing, in each case
not
to finance any acquisition) issued, incurred, assumed or permanently repaid
during the Reference Period (or, in the case of determinations made pursuant
to
the definition of the term “Permitted Business Acquisition” or pursuant to
Sections 2.11(b), 6.01(r), 6.02(u) or 6.06(e), occurring during the Reference
Period or thereafter and through and including the date upon which the
respective Permitted Business Acquisition or incurrence of Indebtedness or
Liens, Asset Sale, or dividend is consummated) shall be deemed to have been
issued, incurred, assumed or permanently repaid at the beginning of such period
and (y) Interest Expense of such person attributable to interest on any
Indebtedness, for which pro forma effect is being given as provided in preceding
clause (x) (A) bearing floating interest rates shall be computed on a pro forma
basis as if the rate in effect on the date of such calculation had been the
applicable rate for the entire period (taking into account any Hedging
Obligations applicable to such Indebtedness if
Second
Amended and Restated Term Loan Credit Agreement
-35-
such
Hedging Obligation has a remaining term in excess of 12 months), and (B) in
respect of a Capital Lease Obligation shall be deemed to accrue at an interest
rate reasonably determined by a responsible financial or accounting officer
of
the Borrower to be the rate of interest implicit in such Capital Lease
Obligation in accordance with GAAP; and (iii) (A) any Subsidiary Redesignation
then being designated, effect shall be given to such Subsidiary Redesignation
and all other Subsidiary Redesignations after the first day of the relevant
Reference Period and on or prior to the date of the respective Subsidiary
Redesignation then being designated, collectively, and (B) any designation
of a
Subsidiary as an Unrestricted Subsidiary, effect shall be given to such
designation and all other designations of Subsidiaries as Unrestricted
Subsidiaries after the first day of the relevant Reference Period and on or
prior to the date of the then applicable designation of a Subsidiary as an
Unrestricted Subsidiary, collectively.
Calculations
made pursuant to the definition of the term “Pro Forma Basis” shall be
determined in good faith by a Responsible Officer of the Borrower and may
include adjustments to reflect (1) operating expense reductions and other
operating improvements or synergies reasonably expected to result from such
relevant transaction, which adjustments are reasonably anticipated by the
Borrower to be realizable in connection with such relevant transaction (or
any
similar transaction or transactions made in compliance with this Agreement
or
that require a waiver or consent of the Required Lenders) and are estimated
on a
good faith basis by the Borrower, and (2) all
adjustments reflected in the Pro Forma Financial Statements and Pro
Forma Adjusted EBITDA to the extent such adjustments, without duplication,
continue to be applicable.
The
Borrower shall deliver to the Administrative Agent a certificate of a Financial
Officer of the Borrower setting forth such demonstrable or additional operating
expense reductions and other operating improvements or synergies and information
and calculations supporting them in reasonable detail.
“Pro
Forma Compliance”
shall
mean, at any date of determination, that the Borrower (together with its
Subsidiaries on a consolidated basis) shall be in compliance, on a Pro Forma
Basis after giving effect on a Pro Forma Basis to the relevant transactions
(including the assumption, the issuance, incurrence and permanent repayment
of
Indebtedness), with a Total Net First Lien Leverage Ratio not to exceed 4.00
to
1.00, recomputed as at the last day of the most recently ended fiscal quarter
of
the Borrower and its Subsidiaries for which the financial statements and
certificates required pursuant to Section 5.04 have been delivered, and the
Borrower shall have delivered to the Administrative Agent a certificate of
a
Responsible Officer of the Borrower to such effect, together with all relevant
financial information.
“Pro
Forma Financial Statements”
shall
have the meaning assigned to such term in Section 3.05(a).
“Projections”
shall
mean the projections of Holdings, the Borrower and the Subsidiaries included
in
the Information Memorandum and any other projections and any forward-looking
statements (including statements with respect to booked business) of such
entities furnished to the Lenders or the Administrative Agent by or on behalf
of
Holdings, the Borrower or any of the Subsidiaries prior to the Closing
Date.
“Public
Lender”
shall
have the meaning assigned to such term in Section 9.17.
Second
Amended and Restated Term Loan Credit Agreement
-36-
“Qualified
CFC Holding Company”
shall
mean a Wholly Owned Subsidiary of the Borrower that is a limited liability
company, that (a)
is in
compliance with Section 6.11 and (b) the primary asset of which consists of
Equity Interests in either (i) a Foreign Subsidiary or (ii) a limited liability
company that is in compliance with Section 6.11 and the primary asset of which
consists of Equity Interests in a Foreign Subsidiary.
“Qualified
Equity Interests”
means
any Equity Interests other than Disqualified Stock.
“Qualified
IPO”
shall
mean an underwritten public offering of the Equity Interests of Holdings (or
any
Parent Entity) which generates cash proceeds of at least $50
million.
“Real
Property”
means,
collectively, all right, title and interest (including any leasehold estate)
in
and to any and all parcels of or interests in real property owned in fee or
leased by any Loan Party, together with, in each case, all easements,
hereditaments and appurtenances relating thereto, all improvements and
appurtenant fixtures incidental to the ownership or lease thereof.
“Receivables
Assets”
shall
mean accounts receivable (including any bills of exchange) and related assets
and property from time to time originated, acquired or otherwise owned by the
Borrower or any Subsidiary.
“Receivables
Net Investment”
shall
mean the aggregate cash amount paid by the lenders or purchasers under any
Permitted Receivables Financing in connection with their purchase of, or the
making of loans secured by, Receivables Assets or interests therein, as the
same
may be reduced from time to time by collections with respect to such Receivables
Assets or otherwise in accordance with the terms of the Permitted Receivables
Documents (but excluding any such collections used to make payments of items
included in clause (c) of the definition of Interest Expense); provided,
however,
that if
all or any part of such Receivables Net Investment shall have been reduced
by
application of any distribution and thereafter such distribution is rescinded
or
must otherwise be returned for any reason, such Receivables Net Investment
shall
be increased by the amount of such distribution, all as though such distribution
had not been made.
“Reference
Period”
shall
have the meaning assigned to such term in the definition of the term “Pro Forma
Basis.”
“Refinance”
shall
have the meaning assigned to such term in the definition of the term “Permitted
Refinancing Indebtedness,” and “Refinanced”
shall
have a meaning correlative thereto.
“Refinancing”
shall
have the meaning set forth in the recitals hereto.
“Register”
shall
have the meaning assigned to such term in Section 9.04(b).
“Regulation
U”
shall
mean Regulation U of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof.
Second
Amended and Restated Term Loan Credit Agreement
-37-
“Regulation
X”
shall
mean Regulation X of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof.
“Related
Fund”
shall
mean, with respect to any Lender that is a fund that invests in bank or
commercial loans and similar extensions of credit, any other fund that invests
in bank or commercial loans and similar extensions of credit and is advised
or
managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity
(or
an Affiliate of such entity) that administers, advises or manages such
Lender.
“Related
Parties”
shall
mean, with respect to any specified person, such person’s Affiliates and the
respective directors, trustees, officers, employees, agents and advisors of
such
person and such person’s Affiliates.
“Related
Sections”
shall
have the meaning assigned to such term in Section 6.04.
“Release”
shall
mean any spilling, leaking, seepage, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, disposing, depositing,
emanating or migrating in, into, onto or through the environment.
“Remaining
Present Value”
shall
mean, as of any date with respect to any lease, the present value as of such
date of the scheduled future lease payments with respect to such lease,
determined with a discount rate equal to a market rate of interest for such
lease reasonably determined at the time such lease was entered
into.
“Reportable
Event”
shall
mean any reportable event as defined in Section 4043(c) of ERISA or the
regulations issued thereunder, other than those events as to which the 30-day
notice period referred to in Section 4043(c) of ERISA has been waived, with
respect to a Plan (other than a Plan maintained by an ERISA Affiliate that
is
considered an ERISA Affiliate only pursuant to subsection (m) or (o) of
Section 414 of the Code).
“Required
Lenders”
shall
mean, at any time, Lenders having Loans outstanding that represent more than
50%
of all Loans outstanding. The Loans of any Defaulting Lender shall be
disregarded in determining Required Lenders at any time.
“Required
Percentage”
shall
mean, with respect to an Excess Cash Flow Period (or Excess Cash Flow Interim
Period), 50%; provided,
that
(a) if the Total Net First Lien Leverage Ratio at the end of the Applicable
Period (or Excess Cash Flow Interim Period) is greater than 1.50 to 1.00 but
less than or equal to 2.00 to 1.00, such percentage shall be 25%, and
(b) if the Total Net First Lien Leverage Ratio at the end of the Applicable
Period (or Excess Cash Flow Interim Period) is less than or equal to 1.50 to
1.00, such percentage shall be 0%.
“Required
Prepayment Date”
shall
have the meaning assigned to such term in Section 2.11(d).
“Responsible
Officer”
of
any
person shall mean any executive officer or Financial Officer of such person
and
any other officer or similar official thereof responsible for the administration
of the obligations of such person in respect of this Agreement.
Second
Amended and Restated Term Loan Credit Agreement
-38-
“Retained
Excess Cash Flow Overfunding”
shall
mean, at any time, in respect of any Excess Cash Flow Interim Period as to
which
the corresponding Excess Cash Flow Period has ended at such time, a portion
of
the cumulative Excess Cash Flow for such Excess Cash Flow Interim Period equal
to the amount, if any, by which the Retained Percentage of Excess Cash Flow
for
such Excess Cash Flow Interim Period exceeds the Retained Percentage of Excess
Cash Flow for such corresponding Excess Cash Flow Period.
“Retained
Percentage”
shall
mean, with respect to any Excess Cash Flow Period (or Excess Cash Flow Interim
Period), (a) 100% minus (b) the Required Percentage with respect to such Excess
Cash Flow Period (or Excess Cash Flow Interim Period).
“Revolving
Credit Agreement”
shall
mean that certain Amended and Restated Revolving Credit Agreement dated as
of
the date hereof among Holdings, the Borrower, certain subsidiaries of the
Borrower party thereto, the lenders and agents party thereto and Bank of
America, as administrative agent, as amended, restated, supplemented, waived,
replaced, restructured, repaid, refunded, refinanced or otherwise modified
from
time to time, including any agreement or indenture extending the maturity
thereof, refinancing, replacing or otherwise restructuring all or any portion
of
the Indebtedness under such agreement or agreements or indenture or indentures
or increasing the amount loaned thereunder or altering the maturity thereof.
“Revolving
Facility Loans”
shall
mean loans made pursuant to and in accordance with the Revolving Credit
Agreement.
“Revolving
Facility Collateral Agent”
shall
have the meaning assigned to such term in the Senior Lender Intercreditor
Agreement.
“Revolving
Facility Secured Parties”
shall
have the meaning assigned thereto in the Senior Lender Intercreditor
Agreement.
“Revolving
Loan Documents”
shall
mean the “Loan Documents” as defined in the Revolving Credit
Agreement”.
“S&P”
shall
mean Standard & Poor’s Ratings Group, Inc.
“Sale
and Lease-Back Transaction”
shall
have the meaning assigned to such term in Section 6.03.
“SEC”
shall
mean the Securities and Exchange Commission or any successor
thereto.
“Second
Lien Fixed Rate Notes”
shall
mean the 8⅞% Second Priority Senior Secured Notes due 2014, issued by the
Borrower pursuant to the Second Lien Notes Indenture and any notes in exchange
for, and as contemplated by, the Second Lien Fixed Rate Notes and the related
registration rights agreement with substantially identical terms as the Second
Lien Fixed Rate Notes.
Second
Amended and Restated Term Loan Credit Agreement
-39-
“Second
Lien Floating Rate Notes”
shall
mean the floating rate Second Priority Senior Secured Notes due 2014, issued
pursuant to the Second Lien Notes Indenture and any notes issued by the Borrower
in exchange for, and as contemplated by, the Second Lien Floating Rate Notes
and
the related registration rights agreement with substantially identical terms
as
the Second Lien Floating Rate Notes.
“Second
Lien Note Documents”
shall
mean the Second Lien Notes, the Second Lien Notes Indenture and the Second
Lien
Security Documents.
“Second
Lien Notes”
shall
mean the Second Lien Fixed Rate Notes and the Second Lien Floating Rate
Notes.
“Second
Lien Notes Indenture”
shall
mean the Indenture dated as of September
20,
2006
among ▇▇▇▇▇ and certain of its subsidiaries party thereto and the trustee named
therein from time to time, as in effect on the Closing Date and as amended,
restated, supplemented or otherwise modified from time to time in accordance
with the requirements thereof and of this Agreement.
“Second
Lien Security Documents”
shall
mean the “Security Documents” as defined in the Second Lien Notes
Indenture.
“Secured
Parties”
shall
mean the “Secured Parties” as defined in the Collateral Agreement.
“Securities
Act”
shall
mean the Securities Act of 1933, as amended.
“Security
Documents”
shall
mean the Mortgages, the Collateral Agreement, the Foreign Pledge Agreements
and
each of the security agreements and other instruments and documents executed
and
delivered pursuant to any of the foregoing or pursuant to
Section 5.10.
“Senior
Lender Intercreditor Agreement”
shall
mean the Amended and Restated Senior Lender Priority and Intercreditor Agreement
dated as of the date hereof, as amended, supplemented or otherwise modified
from
time to time, among Holdings, the Borrower, the Subsidiary Loan Parties, each
Subsidiary that becomes a party thereto after the date hereof, the Collateral
Agent, the Administrative Agent, the “Administrative Agent” under the Revolving
Credit Agreement and the “Collateral Agent” under the Revolving Credit
Agreement.
“Senior
Subordinated Note Documents”
shall
mean the Covalence Senior Subordinated Note Documents and the ▇▇▇▇▇ Senior
Subordinated Note Documents.
“Senior
Subordinated Notes”
shall
mean the Covalence Senior Subordinated Notes and the ▇▇▇▇▇ Senior Subordinated
Notes.
“Senior
Subordinated Notes Indentures”
shall
mean the Covalence Senior Subordinated Notes Indenture and the ▇▇▇▇▇ Senior
Subordinated Notes Indenture.
“Series”
has
the
meaning set forth in Section 2.21.
Second
Amended and Restated Term Loan Credit Agreement
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“Special
Purpose Receivables Subsidiary”
shall
mean a direct or indirect Subsidiary of the Borrower established in connection
with a Permitted Receivables Financing for the acquisition of Receivables Assets
or interests therein, and which is organized in a manner intended to reduce
the
likelihood that it would be substantively consolidated with Holdings, the
Borrower or any of the Subsidiaries (other than Special Purpose Receivables
Subsidiaries) in the event Holdings, the Borrower or any such Subsidiary becomes
subject to a proceeding under the U.S. Bankruptcy Code (or other insolvency
law).
“Statutory
Reserves”
shall
mean, with respect to any currency, any reserve, liquid asset or similar
requirements established by any Governmental Authority of the United States
of
America or of the jurisdiction of such currency or any jurisdiction in which
Loans in such currency are made to which banks in such jurisdiction are subject
for any category of deposits or liabilities customarily used to fund loans
in
such currency or by reference to which interest rates applicable to Loans in
such currency are determined.
“Subagent”
shall
have the meaning assigned to such term in Section 8.02.
“Subordinated
Intercompany Debt”
shall
have the meaning assigned to such term in Section 6.01(e).
“subsidiary”
shall
mean, with respect to any person (herein referred to as the “parent”), any
corporation, partnership, association or other business entity (a) of which
securities or other ownership interests representing more than 50% of the equity
or more than 50% of the ordinary voting power or more than 50% of the general
partnership interests are, at the time any determination is being made, directly
or indirectly, owned, Controlled or held, or (b) that is, at the time any
determination is made, otherwise Controlled, by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of
the
parent.
“Subsidiary”
shall
mean, unless the context otherwise requires, a subsidiary of the Borrower.
Notwithstanding the foregoing (and except for purposes of Sections 3.09, 3.13,
3.15, 3.16, 5.03, 5.09 and 7.01(k), and the definition of Unrestricted
Subsidiary contained herein), an Unrestricted Subsidiary shall be deemed not
to
be a Subsidiary of the Borrower or any of its Subsidiaries for purposes of
this
Agreement.
“Subsidiary
Loan Party”
shall
mean (a) each Domestic Subsidiary of the Borrower on the Closing Date and (b)
each Domestic Subsidiary of the Borrower that becomes, or is required to become,
a party to the Collateral Agreement, the Intercreditor Agreement and the Senior
Lender Intercreditor Agreement after the Closing Date.
“Subsidiary
Redesignation”
shall
have the meaning provided in the definition of “Unrestricted Subsidiary”
contained in this Section 1.01.
“Swap
Agreement”
shall
mean any agreement with respect to any swap, forward, future or derivative
transaction or option or similar agreement involving, or settled by reference
to, one or more rates, currencies, commodities (including, for the avoidance
of
doubt, resin), equity or debt instruments or securities, or economic, financial
or pricing indices or measures of economic, financial or pricing risk or value
or any similar transaction or any combination of these transactions;
provided,
that no
phantom stock or similar plan providing for payments only
Second
Amended and Restated Term Loan Credit Agreement
-41-
on
account of services provided by current or former directors, officers, employees
or consultants of Holdings, the Borrower or any of the Subsidiaries shall be
a
Swap Agreement.
“Syndication
Agent”
shall
have the meaning assigned to such term in the introductory paragraph of this
Agreement.
“Taxes”
shall
mean any and all present or future taxes, levies, imposts, duties (including
stamp duties), deductions, withholdings or similar charges (including
ad
valorem
charges)
imposed by any Governmental Authority and any and all interest and penalties
related thereto.
“Term
Borrowing”
shall
mean any Term C Borrowing or any Incremental Term Borrowing.
“Term
C
Borrowing”
shall
mean a Borrowing comprised of Term C Loans.
“Term
C
Facility”
shall
mean the Term C Loan Commitments and the Term C Loans made
hereunder.
“Term
C
Facility Maturity Date”
shall
mean April 3, 2015.
“Term
C
Loan”
shall
have the meaning assigned to such term in Section 2.01(a).
“Term
C
Loan Commitment”
shall
mean with respect to each Lender, the commitment of such Lender to make Term
C
Loans as set forth in Section 2.01(a) or Incremental Term Loans in the form
of Term C Loans as set forth in Section 2.01(b). The initial amount of each
Lender’s Term C Loan Commitment is set forth on Schedule
2.01,
or in
the Assignment and Acceptance or Incremental Assumption Agreement pursuant
to
which such Lender shall have assumed its Term C Loan Commitment (or its
Incremental Term Commitment), as applicable. The aggregate amount of the Term
C
Loan Commitments on the Closing Date is $1,200 million.
“Term
C
Loan Installment Date”
shall
have the meaning assigned to such term in Section 2.10(a)(i).
“Term
C
Loans”
shall
mean the term loans made by the Lenders to the Borrower pursuant to
Section 2.01(a) and any Incremental Term Loans in the form of Term C Loans
made by the Incremental Term Lenders to the Borrower pursuant to
Section 2.01(b).
“Term
Facility”
shall
mean the Term C Facility and/or any or all of the Incremental Term
Facilities.
“Term
Facility Maturity Date”
shall
mean the latest of the Term C Facility Maturity Date and any Incremental Term
Facility Maturity Date.
“Term
Loan Conversion Notice”
shall
have the meaning assigned to such term in Section 2.01(a).
Second
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“Term
Loan Installment Date”
shall
mean any Term C Loan Installment Date or any Incremental Term Loan Installment
Date.
“Term
Loans”
shall
mean the Term C Loans and/or the Incremental Term Loans.
“Test
Period”
shall
mean, on any date of determination, the period of four consecutive fiscal
quarters of the Borrower then most recently ended (taken as one accounting
period).
“Total
Net First Lien Leverage Ratio”
means,
on any date, the ratio of (a) First Lien Debt as of such date to (b) EBITDA
for
the period of four consecutive fiscal quarters of the Borrower most recently
ended as of such date, all determined on a consolidated basis in accordance
with
GAAP; provided,
that
EBITDA shall be determined for the relevant Test Period on a Pro Forma
Basis.
“Transaction
Documents”
shall
mean the Loan Documents, the Revolving Credit Agreement and the “Loan Documents”
as defined therein and the Merger Documents.
“Transaction
Expenses”
means
any fees or expenses incurred or paid by the Funds, Fund Affiliates, Holdings,
the Borrower (or any direct or indirect parent of the Borrower) or any of its
Subsidiaries in connection with the Transactions, this Agreement and the other
Loan Documents (including expenses in connection with Swap Agreements) and
the
transactions contemplated hereby and thereby.
“Transactions”
shall
mean, collectively, the transactions to occur pursuant to the Transaction
Documents, including (a) the consummation of the Business Combination; (b)
the
execution and delivery of the Loan Documents, the creation or continuation
of
the Liens pursuant to the Security Documents, and the initial borrowings
hereunder; (c) the Refinancing; and (d) the payment of all Transaction
Expenses.
“Type”
shall
mean, when used in respect of any Loan or Borrowing, the Rate by reference
to
which interest on such Loan or on the Loans comprising such Borrowing is
determined. For purposes hereof, the term “Rate”
shall
include the Adjusted LIBO Rate and the ABR.
“Unfunded
Pension Liability”
means
the excess of a Plan’s benefit liabilities under Section 4001(a)(16) of ERISA,
over the current value of that Plan’s assets, determined in accordance with the
assumptions used for funding the Plan pursuant to Section 412 of the Code for
the applicable plan year.
“Uniform
Commercial Code”
or
“UCC”
means
the Uniform Commercial Code as the same may from time to time be in effect
in
the State of New York or the Uniform Commercial Code (or similar code or
statute) of another jurisdiction, to the extent it may be required to apply
to
any item or items of Collateral.
“U.S.
Bankruptcy Code”
shall
mean Title 11 of the United States Code, as amended, or any similar federal
or
state law for the relief of debtors.
Second
Amended and Restated Term Loan Credit Agreement
-43-
“Unrestricted
Cash”
shall
mean domestic cash or cash equivalents of the Borrower or any of its
Subsidiaries that would not appear as “restricted” on a consolidated balance
sheet of the Borrower or any of its Subsidiaries.
“Unrestricted
Subsidiary”
shall
mean (i) any subsidiary of the Borrower identified on Schedule 1.01(i) and
(ii)
any subsidiary of the Borrower that is acquired or created after the Closing
Date and designated by the Borrower as an Unrestricted Subsidiary hereunder
by
written notice to the Administrative Agent; provided,
that
the Borrower shall only be permitted to so designate a new Unrestricted
Subsidiary after the Closing Date and so long as (a) no Default or Event of
Default has occurred and is continuing or would result therefrom, (b) such
Unrestricted Subsidiary shall be capitalized (to the extent capitalized by
the
Borrower or any of its Subsidiaries) through Investments as permitted by, and
in
compliance with, Section 6.04(j), and any prior or concurrent Investments
in such Subsidiary by the Borrower or any of its Subsidiaries shall be deemed
to
have been made under Section 6.04(j), (c) without duplication of clause
(b), any assets owned by such Unrestricted Subsidiary at the time of the initial
designation thereof shall be treated as Investments pursuant to
Section 6.04(j),
and (d)
such Subsidiary shall have been designated an “unrestricted subsidiary” (or
otherwise not be subject to the covenants and defaults) under the Second Lien
Notes Indenture, the Senior Subordinated Notes Indentures, any other
Indebtedness permitted to be incurred hereby and all Permitted Refinancing
Indebtedness in respect of any of the foregoing and all Disqualified
Stock;
provided,
further,
that at
the time of the initial Investment by the Borrower or any of its Subsidiaries
in
such Subsidiary, the Borrower shall designate such entity as an Unrestricted
Subsidiary in a written notice to the Administrative Agent. The Borrower may
designate any Unrestricted Subsidiary to be a Subsidiary for purposes of this
Agreement (each, a “Subsidiary
Redesignation”);
provided,
that
(i) such Unrestricted Subsidiary, both before and after giving effect to such
designation, shall be a Wholly Owned Subsidiary of the Borrower, (ii) no Default
or Event of Default has occurred and is continuing or would result therefrom,
(iii) all representations and warranties contained herein and in the other
Loan
Documents shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on and as
of
the date of such Subsidiary Redesignation (both before and after giving effect
thereto), unless stated to relate to a specific earlier date, in which case
such
representations and warranties shall be true and correct in all material
respects as of such earlier date, and (iv) the Borrower shall have delivered
to
the Administrative Agent an officer’s certificate executed by a Responsible
Officer of the Borrower, certifying to the best of such officer’s knowledge,
compliance with the requirements of preceding clauses (i) through (iii),
inclusive.
“Waivable
Mandatory Prepayment”
shall
have the meaning assigned to such term in Section 2.11(d).
“Wholly
Owned Subsidiary”
of
any
person shall mean a subsidiary of such person, all of the Equity Interests
of
which (other than directors’ qualifying shares or nominee or other similar
shares required pursuant to applicable law) are owned by such person or another
Wholly Owned Subsidiary of such person.
“Withdrawal
Liability”
shall
mean liability to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in Part
I of
Subtitle E of Title IV of ERISA.
Second
Amended and Restated Term Loan Credit Agreement
-44-
“Working
Capital”
shall
mean, with respect to the Borrower and the Subsidiaries on a consolidated basis
at any date of determination, Current Assets at such date of determination
minus
Current
Liabilities at such date of determination; provided,
that,
for purposes of calculating Excess Cash Flow, increases or decreases in Working
Capital shall be calculated without regard to any changes in Current Assets
or
Current Liabilities as a result of (a) any reclassification in accordance with
GAAP of assets or liabilities, as applicable, between current and noncurrent
or
(b) the effects of purchase accounting.
SECTION
1.02. Terms
Generally
.
The
definitions set forth or referred to in Section 1.01 shall apply equally to
both the singular and plural forms of the terms defined. Whenever the context
may require, any pronoun shall include the corresponding masculine, feminine
and
neuter forms. The words “include,” “includes” and “including” shall be deemed to
be followed by the phrase “without limitation.” All references herein to
Articles, Sections, Exhibits and Schedules shall be deemed references to
Articles and Sections of, and Exhibits and Schedules to, this Agreement unless
the context shall otherwise require. Except as otherwise expressly provided
herein, any reference in this Agreement to any Loan Document shall mean such
document as amended, restated, supplemented or otherwise modified from time
to
time. Except as otherwise expressly provided herein, all terms of an accounting
or financial nature shall be construed in accordance with GAAP, as in effect
from time to time; provided,
that,
if the Borrower notifies the Administrative Agent that the Borrower requests
an
amendment to any provision hereof to eliminate the effect of any change
occurring after the Closing Date in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have
been
withdrawn or such provision amended in accordance herewith.
SECTION
1.03. Effectuation
of Transactions
.
Each of
the representations and warranties of Holdings and the Borrower contained in
this Agreement (and all corresponding definitions) are made after giving effect
to the Transactions, unless the context otherwise requires.
SECTION
1.04. Senior
Debt
.
The
Obligations constitute (a) “First-Lien Indebtedness” pursuant to, and as defined
in, the Intercreditor Agreement, (b) “Senior Debt” and “Designated Senior Debt”
pursuant to, and as defined in, the Senior Subordinated Notes Indentures, and
(c) “First-Priority Lien Obligations” pursuant to, and as defined in, the Second
Lien Notes Indenture. This Agreement is a “Credit Agreement” for purposes of the
Subordinated Indentures and the Second Lien Notes Indenture.
ARTICLE
II
The
Credits
SECTION
2.01. Commitments
.
Subject
to the terms and conditions set forth herein:
Second
Amended and Restated Term Loan Credit Agreement
-45-
(a) Each
Lender having a Term C Loan Commitment agrees to make a single loan (a
“Term
C
Loan”)
to the
Borrower on the Closing Date in a principal amount not to exceed its Term C
Loan
Commitment.
(b) Each
Lender having an Incremental Term Loan Commitment agrees, subject to the terms
and conditions set forth in the applicable Incremental Assumption Agreement,
to
make Incremental Term Loans to the Borrower, in an aggregate principal amount
not to exceed its Incremental Term Loan Commitment.
SECTION
2.02. Loans
and
Borrowings
.
i)
Each
Loan shall be made as part of a Borrowing consisting of Loans under the same
Facility and of the same Type made by the Lenders ratably in accordance with
their respective Commitments under the applicable Facility. The failure of
any
Lender to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder; provided,
that
the Commitments of the Lenders are several and no Lender shall be responsible
for any other Lender’s failure to make Loans as required.
(b) Subject
to Section 2.14, each Borrowing shall be comprised entirely of ABR Loans or
Eurocurrency Loans as the Borrower may request in accordance herewith. Each
Lender at its option may make any ABR Loan or Eurocurrency Loan by causing
any
domestic or foreign branch or Affiliate of such Lender to make such Loan;
provided,
that
any exercise of such option shall not affect the obligation of the Borrower
to
repay such Loan in accordance with the terms of this Agreement and such Lender
shall not be entitled to any amounts payable under Section 2.15 or 2.17
solely in respect of increased costs resulting from such exercise and existing
at the time of such exercise.
(c) Notwithstanding
any other provision of this Agreement, the Borrower shall not be entitled to
request, or to elect to convert or continue, any Borrowing if the Interest
Period requested with respect thereto would end after the Term Facility Maturity
Date.
SECTION
2.03. Requests
for Borrowings
.
To
request a Borrowing, the Borrower shall notify the Administrative Agent of
such
request by telephone (a) in the case of a Eurocurrency Borrowing, not later
than
12:00 p.m., Local Time, three Business Days before the date of the proposed
Borrowing or (b) in the case of an ABR Borrowing, not later than 12:00 noon,
Local Time, one Business Day before the date of the proposed Borrowing. Each
such telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed
by
the Borrower. Each such telephonic and written Borrowing Request shall specify
the following information in compliance with Section 2.02:
(i) the
aggregate amount of the requested Borrowing;
(ii) the
date
of such Borrowing, which shall be a Business Day;
(iii) whether
such Borrowing is to be an ABR Borrowing or a Eurocurrency
Borrowing;
Second
Amended and Restated Term Loan Credit Agreement
-46-
(iv) in
the
case of a Eurocurrency Borrowing, the initial Interest Period to be applicable
thereto, which shall be a period contemplated by the definition of the term
“Interest Period”; and
(v) the
location and number of the Borrower’s account to which funds are to be
disbursed.
If
no
Interest Period is specified with respect to any requested Eurocurrency
Borrowing, then the Borrower shall be deemed to have selected an Interest Period
of one month’s duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each Lender
of the details thereof and of the amount of such Lender’s Loan to be made as
part of the requested Borrowing.
SECTION
2.04. [Reserved]
.
SECTION
2.05. [Reserved]
.
SECTION
2.06. Funding
of Borrowings
.
ii)
Each
Lender shall make each Term Loan to be made by it hereunder on the proposed
date
thereof by wire transfer of immediately available funds by 12:00 noon, Local
Time, to the account of the Administrative Agent most recently designated by
it
for such purpose by notice to the Lenders. The Administrative Agent will make
such Loans available to the Borrower by promptly crediting the amounts so
received, in like funds, to an account of the Borrower maintained with the
Administrative Agent in New York City.
(b) Unless
the Administrative Agent shall have received notice from a Lender prior to
the
proposed date of any Borrowing that such Lender will not make available to
the
Administrative Agent such Lender’s share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date
in
accordance with paragraph (a) of this Section and may, in reliance upon
such assumption, make available to the Borrower a corresponding amount. In
such
event, if a Lender has not in fact made its share of the applicable Borrowing
available to the Administrative Agent, then the applicable Lender and the
Borrower severally agree to pay to the Administrative Agent forthwith on demand
(without duplication) such corresponding amount with interest thereon, for
each
day from and including the date such amount is made available to the Borrower
to
but excluding the date of payment to the Administrative Agent, at (i) in the
case of such Lender, the Federal Funds Effective Rate and a rate determined
by
the Administrative Agent in accordance with banking industry rules on interbank
compensation or (ii) in the case of the Borrower, the interest rate applicable
to ABR Loans at such time. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender’s Loan included in such
Borrowing.
SECTION
2.07. Interest
Elections
.
iii)
Each
Borrowing initially shall be of the Type specified in the applicable Borrowing
Request and, in the case of a Eurocurrency Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the Borrower
may elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurocurrency Borrowing, may elect Interest
Periods therefor, all as provided in this Section. The Borrower may elect
different options with respect
Second
Amended and Restated Term Loan Credit Agreement
-47-
to
different portions of the affected Borrowing, in which case each such portion
shall be allocated ratably among the Lenders holding the Loans comprising such
Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing.
(b) To
make
an election pursuant to this Section, the Borrower shall notify the
Administrative Agent of such election by telephone by the time that a Borrowing
Request would be required under Section 2.03 if the Borrower were
requesting a Borrowing of the Type resulting from such election to be made
on
the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery
or
telecopy to the Administrative Agent of a written Interest Election Request
in a
form approved by the Administrative Agent and signed by the
Borrower.
(c) Each
telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:
(i) the
Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting Borrowing (in which case
the
information to be specified pursuant to clauses (iii) and (iv) below shall
be specified for each resulting Borrowing);
(ii) the
effective date of the election made pursuant to such Interest Election Request,
which shall be a Business Day;
(iii) whether
the resulting Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;
and
(iv) if
the
resulting Borrowing is a Eurocurrency Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period
contemplated by clause (a) of the definition of the term “Interest
Period.”
If
any
such Interest Election Request requests a Eurocurrency Borrowing but does not
specify an Interest Period, then the Borrower shall be deemed to have selected
an Interest Period of one month’s duration.
(d) Promptly
following receipt of an Interest Election Request, the Administrative Agent
shall advise each Lender to which such Interest Election Request relates of
the
details thereof and of such Lender’s portion of each resulting
Borrowing.
(e) If
the
Borrower fails to deliver a timely Interest Election Request with respect to
a
Eurocurrency Borrowing prior to the end of the Interest Period applicable
thereto, then, unless such Borrowing is repaid as provided herein, at the end
of
such Interest Period such Borrowing shall be converted to an ABR Borrowing.
Notwithstanding any contrary provision hereof, if an Event of Default has
occurred and is continuing and the Administrative Agent, at the written request
(including a request through electronic means) of the Required Lenders, so
notifies the Borrower, then, so long as an Event of Default is continuing (i)
no
outstanding Borrowing may be converted to or continued as a Eurocurrency
Borrowing and (ii) unless repaid,
Second
Amended and Restated Term Loan Credit Agreement
-48-
each
Eurocurrency Borrowing shall be converted to an ABR Borrowing at the end of
the
Interest Period applicable thereto.
SECTION
2.08. Termination
of Term C Loan Commitments
.
iv)
The
parties hereto acknowledge that the Term C Loan Commitment will terminate at
5
p.m., Local Time, on the Closing Date.
(b) The
Borrower may at any time terminate, or from time to time reduce, the Commitments
under the Term Facility; provided,
that
each reduction of the Commitments under the Term Facility shall be in an amount
that is an integral multiple of $1.0 million and not less than $5.0 million.
Any
termination or reduction of the Commitments shall be permanent. Each reduction
of the Commitments under the Term Facility shall be made ratably among the
Lenders in accordance with their respective Commitments under the Term
Facility.
SECTION
2.09. Repayment
of Loans; Evidence of Debt
.
v)
The
Borrower hereby unconditionally promises to pay to the Administrative Agent
for
the account of each Lender the then unpaid principal amount of each Term Loan
of
such Lender as provided in Section 2.10.
(b) Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower to such Lender resulting
from each Loan made by such Lender, including the amounts of principal and
interest payable and paid to such Lender from time to time
hereunder.
(c) The
Administrative Agent shall maintain accounts in which it shall record (i) the
amount of each Loan made hereunder, the Facility and Type thereof and the
Interest Period (if any) applicable thereto, (ii) the amount of any principal
or
interest due and payable or to become due and payable from the Borrower to
each
Lender hereunder and (iii) any amount received by the Administrative Agent
hereunder for the account of the Lenders and each Lender’s share
thereof.
(d) The
entries made in the accounts maintained pursuant to paragraph (b) or (c) of
this Section shall be prima facie evidence of the existence and amounts of
the
obligations recorded therein; provided,
that
the failure of any Lender or the Administrative Agent to maintain such accounts
or any error therein shall not in any manner affect the obligation of the
Borrower to repay the Loans in accordance with the terms of this
Agreement.
(e) Any
Lender may request that Loans made by it be evidenced by a promissory note
(a
“Note”).
In
such event, the Borrower shall prepare, execute and deliver to such Lender
a
promissory note payable to the order of such Lender (or, if requested by such
Lender, to such Lender and its registered assigns) and in a form approved by
the
Administrative Agent and reasonably acceptable to the Borrower. Thereafter,
the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one
or more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and
its
registered assigns).
Second
Amended and Restated Term Loan Credit Agreement
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SECTION
2.10. Repayment
of Term C Loans
.
vi) Subject
to the other paragraphs of this Section, (i) the Borrower shall repay Term
C
Borrowings on each date set forth below in the aggregate principal amount set
forth opposite such date (each such date being referred to as a “Term
C
Loan Installment Date”):
|
Date
|
Amount
of Term C Borrowings to Be Repaid
|
|
June
30, 2007
|
$3,000,000
|
|
September
30, 2007
|
$3,000,000
|
|
December
31, 2007
|
$3,000,000
|
|
March
31, 2008
|
$3,000,000
|
|
June
30, 2008
|
$3,000,000
|
|
September
30, 2008
|
$3,000,000
|
|
December
31, 2008
|
$3,000,000
|
|
March
31, 2009
|
$3,000,000
|
|
June
30, 2009
|
$3,000,000
|
|
September
30, 2009
|
$3,000,000
|
|
December
31, 2009
|
$3,000,000
|
|
March
31, 2010
|
$3,000,000
|
|
June
30, 2010
|
$3,000,000
|
|
September
30, 2010
|
$3,000,000
|
|
December
31, 2010
|
$3,000,000
|
|
March
31, 2011
|
$3,000,000
|
|
June
30, 2011
|
$3,000,000
|
|
September
30, 2011
|
$3,000,000
|
|
December
31, 2011
|
$3,000,000
|
|
March
31, 2012
|
$3,000,000
|
|
June
30, 2012
|
$3,000,000
|
|
September
30, 2012
|
$3,000,000
|
|
December
31, 2012
|
$3,000,000
|
|
March
31, 2013
|
$3,000,000
|
|
June
30, 2013
|
$3,000,000
|
|
September
30, 2013
|
$3,000,000
|
|
December
31, 2013
|
$3,000,000
|
|
March
31, 2014
|
$3,000,000
|
|
June
30, 2014
|
$3,000,000
|
|
September
30, 2014
|
$3,000,000
|
|
December
31, 2015
|
$3,000,000
|
|
March
31, 2015
|
$3,000,000
|
|
Term
C Facility Maturity Date
|
$1,104,000,000
or remainder
|
(ii) in
the
event that any Incremental Term Loans are made on an Increased Amount Date,
the
Borrower shall repay such Incremental Term Loans on the dates and
in
Second
Amended and Restated Term Loan Credit Agreement
-50-
the
amounts set forth in the Incremental Assumption Agreement (each such date being
referred to as an “Incremental
Term Loan Installment Date”);
and
(iii) to
the
extent not previously paid, outstanding Loans shall be due and payable on the
applicable Term Facility Maturity Date.
(b) [Reserved].
(c) Prepayment
of the Loans from:
(i) all
Net
Proceeds pursuant to Section 2.11(b) and Excess Cash Flow pursuant to
Section 2.11(c) shall be applied to the Loans pro
rata
among
the Term Facilities, with the application thereof in direct order to amounts
due
on the next succeeding Term Loan Installment Dates under the applicable Term
Facilities.
(ii) any
optional prepayments of the Loans pursuant to Section 2.11(a) shall be
applied as the Borrower may direct.
(d) Any
mandatory prepayment of Loans pursuant to Section 2.11(b) or (c) shall be
applied so that the aggregate amount of such prepayment is allocated among
the
Term C Loans and Other Term Loans, if any, pro
rata
based on
the aggregate principal amount of outstanding Term C Loans and Other Term Loans,
if any (unless, with respect to Other Term Loans, the Incremental Assumption
Agreement relating thereto does not so require) irrespective of whether such
outstanding Loans are ABR Loans or Eurodollar Rate Loans; provided, that
if
no Lenders exercise the right to waive a given mandatory prepayment of the
Loans
pursuant to Section 2.11(d), then, with respect to such mandatory prepayment,
prior to the repayment of any Term Loan, the Borrower may select the Borrowing
or Borrowings to be repaid and shall notify the Administrative Agent by
telephone (confirmed by telecopy) of such selection not later than 2:00 p.m.,
Local Time, (i) in the case of an ABR Borrowing, one Business Day before the
scheduled date of such repayment and (ii) in the case of a Eurocurrency
Borrowing, three Business Days before the scheduled date of such repayment.
Each
repayment of a Borrowing shall be applied ratably to the Loans included in
the
repaid Borrowing. Repayments of Loans shall be accompanied by accrued interest
on the amount repaid.
SECTION
2.11. Prepayment
of Loans
.
vii)
The
Borrower shall have the right at any time and from time to time to prepay any
Loan in whole or in part, without premium or penalty (but subject to
Section 2.16), in an aggregate principal amount that is an integral
multiple of the Borrowing Multiple and not less than the Borrowing Minimum
or,
if less, the amount outstanding, subject to prior notice in accordance with
Section 2.10(d).
(b) The
Borrower shall apply all Net Proceeds promptly upon receipt thereof to prepay
Loans in accordance with paragraphs (c) and (d) of Section 2.10.
Notwithstanding the foregoing, the Borrower may retain Net Proceeds pursuant
to
clause (b) of the definition thereof, provided, that the Total Net First Lien
Leverage Ratio on the last day of the Borrower’s then most recently completed
fiscal quarter for which financial statements are available shall be less than
or equal to 2.00 to 1.00.
Second
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(c) Not
later
than 90 days after the end of each Excess Cash Flow Period, the Borrower shall
calculate Excess Cash Flow for such Excess Cash Flow Period and shall apply
an
amount equal to (i) the Required Percentage of such Excess Cash Flow,
minus
(ii) to
the extent not financed, using the proceeds of, without duplication, the
incurrence of Indebtedness and the sale or issuance of any Equity Interests
(including any capital contributions), the amount of any voluntary prepayments
during such Excess Cash Flow Period of Loans to prepay Loans in accordance
with
paragraphs (c) and (d) of Section 2.10; provided,
that the
amounts of any such prepayments made after the Original Effective Date and
prior
to October 1, 2006 shall be treated for the purposes of this section 2.11(c)(ii)
as if such amounts were prepaid during the Excess Cash Flow Period ending
September 30, 2007. Not later than the date on which the Borrower is required
to
deliver financial statements with respect to the end of each Excess Cash Flow
Period under Section 5.04(a), the Borrower will deliver to the
Administrative Agent a certificate signed by a Financial Officer of the Borrower
setting forth the amount, if any, of Excess Cash Flow for such fiscal year
and
the calculation thereof in reasonable detail.
(d) Anything
contained herein to the contrary notwithstanding, in the event the Borrower
is
required to make any mandatory prepayment including, for the avoidance of doubt,
payments under Section 2.10(a) (a “Waivable
Mandatory Prepayment”)
of the
Loans, not less than three Business Days prior to the date (the “Required
Prepayment Date”)
on
which the Borrower elects (or is otherwise required) to make such Waivable
Mandatory Prepayment, the Borrower shall notify Administrative Agent of the
amount of such prepayment, and Administrative Agent will promptly thereafter
notify each Lender holding an outstanding Term Loan of the amount of such
Lender’s pro
rata
share of
such Waivable Mandatory Prepayment and such Lender’s option to refuse such
amount. Each such Lender may exercise such option by giving written notice
to
the Administrative Agent of its election to do so on or before the second
Business Day prior to the Required Prepayment Date (it being understood that
any
Lender which does not notify the Administrative Agent of its election to
exercise such option on or before the first Business Day prior to the Required
Prepayment Date shall be deemed to have elected, as of such date, not to
exercise such option). On the Required Prepayment Date, the Borrower shall
pay
to Administrative Agent the amount of the Waivable Mandatory Prepayment, which
amount shall be applied (i) in an amount equal to that portion of the Waivable
Mandatory Prepayment payable to those Lenders that have elected not to exercise
such option (each, a “Declining
Lender”),
to
prepay the Loans of such Declining Lenders (which prepayment shall be applied
to
the scheduled Installments of principal of the Loans in accordance with Section
2.11(b)), and (ii) in an amount equal to that portion of the Waivable Mandatory
Prepayment otherwise payable to those Lenders that have elected to exercise
such
option, to the Borrower.
SECTION
2.12. Fees
.
viii)
The
Borrower agrees to pay to the Administrative Agent, for the account of the
Administrative Agent, the agency fees set forth in the Fee Letter, as amended,
restated, supplemented or otherwise modified from time to time, at the times
specified therein (the “Administrative
Agent Fees”).
(b) All
Fees
shall be paid on the dates due, in immediately available funds, to the
Administrative Agent for distribution, if and as appropriate, among the Lenders.
Once paid, none of the Fees shall be refundable under any
circumstances.
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Section
2.13. Interest
.
ix)
The
Loans comprising each ABR Borrowing shall bear interest at the ABR plus the
Applicable Margin.
(b) The
Loans
comprising each Eurocurrency Borrowing shall bear interest at the Adjusted
LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable
Margin.
(c) Notwithstanding
the foregoing, if any principal of or interest on any Loan or any Fees or other
amount payable by the Borrower hereunder is not paid when due, whether at stated
maturity, upon acceleration or otherwise, such overdue amount shall bear
interest, after as well as before judgment, at a rate per annum equal to (i)
in
the case of overdue principal of any Loan, 2% plus the rate otherwise applicable
to such Loan as provided in the preceding paragraphs of this Section or
(ii) in the case of any other amount, 2% plus the rate applicable to ABR Loans
as provided in paragraph (a) of this Section; provided,
that
this paragraph (c) shall not apply to any Event of Default that has been
waived by the Lenders pursuant to Section 9.08.
(d) Accrued
interest on each Loan shall be payable in arrears (i) on each Interest Payment
Date for such Loan, and (ii) on the Term Facility Maturity Date; provided,
that
(x) interest accrued pursuant to paragraph (c) of this Section shall
be payable on demand, (y) in the event of any repayment or prepayment of any
Loan, accrued interest on the principal amount repaid or prepaid shall be
payable on the date of such repayment or prepayment, and (z) in the event of
any
conversion of any Eurocurrency Loan prior to the end of the current Interest
Period therefor, accrued interest on such Loan shall be payable on the effective
date of such conversion.
(e) All
interest hereunder shall be computed on the basis of a year of 360 days, except
that interest computed by reference to the ABR at times when the ABR is based
on
the “prime rate” shall be computed on the basis of a year of 365 days (or 366
days in a leap year), and in each case shall be payable for the actual number
of
days elapsed (including the first day but excluding the last day). The
applicable ABR, Adjusted LIBO Rate or LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION
2.14. Alternate
Rate of Interest
.
If
prior to the commencement of any Interest Period for a Eurocurrency
Borrowing:
(a) the
Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining
the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest
Period; or
(b) the
Administrative Agent is advised by the Required Lenders that the Adjusted LIBO
Rate or the LIBO Rate, as applicable, for such Interest Period will not
adequately and fairly reflect the cost to such Lenders of making or maintaining
their Loans included in such Borrowing for such Interest Period;
then
the
Administrative Agent shall give notice thereof to the Borrower and the Lenders
by telephone or telecopy as promptly as practicable thereafter and, until the
Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer
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exist,
(i) any Interest Election Request that requests the conversion of any Borrowing
to, or continuation of any Borrowing as, a Eurocurrency Borrowing denominated
in
such currency shall be ineffective and such Borrowing shall be converted to
or
continued as on the last day of the Interest Period applicable thereto an ABR
Borrowing, and (ii) if any Borrowing Request requests a Eurocurrency Borrowing,
such Borrowing shall be made as an ABR Borrowing.
SECTION
2.15. Increased
Costs
.
x)
If any
Change in Law shall:
(i) impose,
modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended
by,
any Lender (except any such reserve requirement reflected in the Adjusted LIBO
Rate); or
(ii) impose
on
any Lender or the London interbank market any other condition affecting this
Agreement or Eurocurrency Loans made by such Lender;
and
the
result of any of the foregoing shall be to increase the cost to such Lender
of
making or maintaining any Eurocurrency Loan (or of maintaining its obligation
to
make any such Loan) or to reduce the amount of any sum received or receivable
by
such Lender hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender for such additional costs incurred or reduction
suffered.
(b) If
any
Lender determines that any Change in Law regarding capital requirements has
or
would have the effect of reducing the rate of return on such Lender’s capital or
on the capital of such Lender’s holding company, if any, as a consequence of
this Agreement or the Loans made by, such Lender to a level below that which
such Lender or such Lender’s holding company could have achieved but for such
Change in Law (taking into consideration such Lender’s policies and the policies
of such Lender’s holding company with respect to capital adequacy), then from
time to time the Borrower shall pay to such Lender such additional amount or
amounts as will compensate such Lender or such Lender’s holding company for any
such reduction suffered.
(c) A
certificate of a Lender setting forth the amount or amounts necessary to
compensate such Lender or its holding company, as specified in
paragraph (a) or (b) of this Section 2.15 shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall
pay
such Lender the amount shown as due on any such certificate within 10 days
after
receipt thereof.
(d) Promptly
after any Lender has determined that it will make a request for increased
compensation pursuant to this Section 2.15, such Lender shall notify the
Borrower thereof. Failure or delay on the part of any Lender to demand
compensation pursuant to this Section 2.15 shall not constitute a waiver of
such
Lender’s right to demand such compensation; provided,
that
the Borrower shall not be required to compensate a Lender pursuant to this
Section 2.15 for any increased costs or reductions incurred more than 180 days
prior to the date that such Lender notifies the Borrower of the Change in Law
giving rise to such increased costs or reductions and of such Lender’s intention
to claim compensation therefor; provided,
further,
that,
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if
the
Change in Law giving rise to such increased costs or reductions is retroactive,
then the 180-day period referred to above shall be extended to include the
period of retroactive effect thereof.
(e) The
foregoing provisions of this Section 2.15 shall not apply in the case of any
Change in Law in respect of Taxes, which shall instead be governed by Section
2.17.
SECTION
2.16. Break
Funding Payments
.
In the
event of (a) the payment of any principal of any Eurocurrency Loan other than
on
the last day of an Interest Period applicable thereto (including as a result
of
an Event of Default), (b) the conversion of any Eurocurrency Loan other than on
the last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Eurocurrency Loan on the date specified
in any notice delivered pursuant hereto or (d) the assignment of any
Eurocurrency Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrower pursuant to Section 2.19,
then, in any such event, the Borrower shall compensate each Lender for the
loss,
cost and expense attributable to such event. In the case of a Eurocurrency
Loan,
such loss, cost or expense to any Lender shall be deemed to be the amount
determined by such Lender (it being understood that the deemed amount shall
not
exceed the actual amount) to be the excess, if any, of (i) the amount of
interest which would have accrued on the principal amount of such Loan had
such
event not occurred, at the Adjusted LIBO Rate that would have been applicable
to
such Loan, for the period from the date of such event to the last day of the
then current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue a Eurocurrency Loan, for the period that would have been
the
Interest Period for such Loan), over (ii) the amount of interest which would
accrue on such principal amount for such period at the interest rate which
such
Lender would bid were it to bid, at the commencement of such period, for
deposits in dollars of a comparable amount and period from other banks in the
Eurodollar market. A certificate of any Lender setting forth any amount or
amounts that such Lender is entitled to receive pursuant to this Section shall
be delivered to the Borrower and shall be conclusive absent manifest error.
The
Borrower shall pay such Lender the amount shown as due on any such certificate
within 10 days after receipt thereof.
SECTION
2.17. Taxes
.
xi)
Any and
all payments by or on account of any obligation of any Loan Party hereunder
shall be made free and clear of and without deduction for any Indemnified Taxes
or Other Taxes; provided, that if a Loan Party shall be required to deduct
any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent or any Lender, as applicable, receives an amount equal
to the sum it would have received had no such deductions been made, (ii) such
Loan Party shall make such deductions and (iii) such Loan Party shall timely
pay
the full amount deducted to the relevant Governmental Authority in accordance
with applicable law.
(b) In
addition, the Loan Parties shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) Each
Loan
Party shall indemnify the Administrative Agent and each Lender, within 10 days
after written demand therefor, for the full amount of any
Indemnified
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Taxes
or
Other Taxes paid by the Administrative Agent or such Lender, as applicable,
on
or with respect to any payment by or on account of any obligation of such Loan
Party hereunder (including Indemnified Taxes or Other Taxes imposed or asserted
on or attributable to amounts payable under this Section) and any reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to such Loan Party by a Lender or by the
Administrative Agent on its own behalf, on behalf of another Agent or on behalf
of a Lender, shall be conclusive absent manifest error.
(d) As
soon
as practicable after any payment of Indemnified Taxes or Other Taxes by a Loan
Party to a Governmental Authority, such Loan Party shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) Any
Lender that is entitled to an exemption from or reduction of withholding Tax
under the law of the jurisdiction in which the Borrower is located, or any
treaty to which such jurisdiction is a party, with respect to payments under
this Agreement shall deliver to the Borrower (with a copy to the Administrative
Agent), to the extent such Lender is legally entitled to do so, at the time
or
times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law as may reasonably be requested by
the
Borrower to permit such payments to be made without such withholding Tax or
at a
reduced rate; provided,
that no
Lender shall have any obligation under this paragraph (e) with respect to
any withholding 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.
(f) Each
Lender shall deliver to the Borrower and the Administrative Agent on the date
on
which such Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the reasonable request of the Borrower or the Administrative
Agent), two original copies of whichever of the following is applicable: (i)
duly completed copies of Internal Revenue Service Form W-8BEN (or any subsequent
versions thereof or successors thereto), claiming eligibility for benefits
of an
income tax treaty to which the United States of America is a party, (ii) duly
completed copies of Internal Revenue Service Form W 8ECI (or any subsequent
versions thereof or successors thereto), (iii) in the case of a Lender claiming
the benefits of the exemption for portfolio interest under section 871(h)
or 881(c) of the Code, (x) a certificate to the effect that, for United States
federal income tax purposes, such Lender is not (A) a “bank” within the meaning
of section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the
Borrower within the meaning of section 871(h)(3) or 881(c)(3)(B) of the
Code, or (C) a “controlled foreign corporation” described in
section 881(c)(3)(C) of the Code and that, accordingly, such Lender
qualifies for such exemption and (y) duly completed copies of Internal Revenue
Service Form W-8BEN (or any subsequent versions thereof or successors thereto),
(iv) duly completed copies of Internal Revenue Service Form W-8IMY, together
with forms and certificates described in clauses (i) through (iii) above (and
additional Form W-8IMYs) as may be required or (v) any other form prescribed
by
applicable law as a basis for claiming exemption
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from
or a
reduction in United States federal withholding tax duly completed together
with
such supplementary documentation as may be prescribed by applicable law to
permit the Borrower to determine the withholding or deduction required to be
made. In addition, in each of the foregoing circumstances, each Lender shall
deliver such forms, if legally entitled to deliver such forms, promptly upon
the
obsolescence, expiration or invalidity of any form previously delivered by
such
Lender. Each Lender shall promptly notify the Borrower at any time it determines
that it is no longer in a position to provide any previously delivered
certificate to the Borrower (or any other form of certification adopted by
the
United States of America or other taxing authorities for such purpose). In
addition, each Lender shall deliver to the Borrower and the Administrative
Agent
two copies of Internal Revenue Service Form W-9 (or any subsequent versions
thereof or successors thereto) on or before the date such Lender becomes a
party
and upon the expiration of any form previously delivered by such Lender.
Notwithstanding any other provision of this paragraph, a Lender shall not be
required to deliver any form pursuant to this paragraph that such Lender is
not
legally able to deliver.
(g) If
the
Administrative Agent or a Lender receives a refund of any Indemnified Taxes
or
Other Taxes as to which it has been indemnified by a Loan Party or with respect
to which such Loan Party has paid additional amounts pursuant to this
Section 2.17, it shall pay over such refund to such Loan Party (but only to
the extent of indemnity payments made, or additional amounts paid, by such
Loan
Party under this Section 2.17 with respect to the Taxes or Other Taxes
giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent or such Lender (including any Taxes imposed with respect
to
such refund) as is determined by the Administrative Agent or such Lender, as
applicable, in good faith and in its sole discretion, and without interest
(other than any interest paid by the relevant Governmental Authority with
respect to such refund); provided,
that
such Loan Party, upon the request of the Administrative Agent or such Lender,
agrees to repay as soon as reasonably practicable the amount paid over to such
Loan Party (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent or such Lender
in
the event the Administrative Agent or such Lender is required to repay such
refund to such Governmental Authority. This Section 2.17(g) shall not be
construed to require the Administrative Agent or any Lender to make available
its Tax returns (or any other information relating to its Taxes which it deems
confidential) to the Loan Parties or any other person.
SECTION
2.18. Payments
Generally; Pro Rata Treatment;
Sharing of Set-offs
.
xii)
Unless
otherwise specified, the Borrower shall make each payment required to be made
by
it hereunder (whether of principal, interest or fees, or of amounts payable
under Section 2.15, 2.16, or 2.17, or otherwise) prior to 2:00 p.m., Local
Time, on the date when due, in immediately available funds, without condition
or
deduction for any defense, recoupment, set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent to the applicable account designated
to the Borrower by the Administrative Agent, except that payments pursuant
to
Sections 2.15, 2.16, 2.17 and 9.05 shall be made directly to the persons
entitled thereto. The Administrative Agent shall distribute any such payments
received by it for the account of any other person to the appropriate recipient
promptly following receipt thereof. If any payment hereunder shall be due on
a
day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment
accruing
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interest,
interest thereon shall be payable for the period of such extension. All payments
under the Loan Documents shall be made in Dollars. Any payment required to
be
made by the Administrative Agent hereunder shall be deemed to have been made
by
the time required if the Administrative Agent shall, at or before such time,
have taken the necessary steps to make such payment in accordance with the
regulations or operating procedures of the clearing or settlement system used
by
the Administrative Agent to make such payment.
(b) If
at any
time insufficient funds are received by and available to the Administrative
Agent from the Borrower to pay fully all amounts of principal, interest and
fees
then due from the Borrower hereunder, such funds shall be applied (i) first,
towards payment of interest and fees then due from the Borrower hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, towards payment
of
principal then due from such Borrower hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal then due to such
parties.
(c) If
any
Lender shall, by exercising any right of set-off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Loans
resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Loans and accrued interest thereon than the proportion
received by any other Lender, then the Lender receiving such greater proportion
shall purchase (for cash at face value) participations in the Loans of other
Lenders to the extent necessary so that the benefit of all such payments shall
be shared by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Loans; provided,
that
(i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be rescinded
and the purchase price restored to the extent of such recovery, without
interest, and (ii) the provisions of this paragraph (c) shall not be
construed to apply to any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained
by a
Lender as consideration for the assignment of or sale of a participation in
any
of its Loans to any assignee or participant, other than to the Borrower or
any
Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph (c) shall apply). The Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against the Borrower rights of set-off and counterclaim with respect
to
such participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.
(d) Unless
the Administrative Agent shall have received notice from the Borrower prior
to
the date on which any payment is due to the Administrative Agent for the account
of the Lenders hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such payment on
such
date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders the amount due. In such event, if the Borrower has
not
in fact made such payment, then each of the Lenders severally agrees to repay
to
the Administrative Agent forthwith on demand the amount so distributed to such
Lender with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Effective Rate and
a
rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation.
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(e) If
any
Lender shall fail to make any payment required to be made by it pursuant to
Section 2.06(b) or 2.18(d), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for the account of such Lender
to satisfy such Lender’s obligations under such Sections until all such
unsatisfied obligations are fully paid.
SECTION
2.19. Mitigation
Obligations; Replacement of Lenders
.
xiii) If
any Lender requests compensation under Section 2.15, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to designate a different Lending Office
for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or Affiliates, if, in the
reasonable judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17, as
applicable, in the future and (ii) would not subject such Lender to any material
unreimbursed cost or expense and would not otherwise be disadvantageous to
such
Lender in any material respect. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) If
any
Lender requests compensation under Section 2.15, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, or is a
Defaulting Lender, then the Borrower may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided,
that
(i) the Borrower shall have received the prior written consent of the
Administrative Agent, which consent shall not unreasonably be withheld, (ii)
such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder, from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Borrower (in the
case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.15 or payments
required to be made pursuant to Section 2.17, such assignment will result
in a reduction in such compensation or payments. Nothing in this
Section 2.19 shall be deemed to prejudice any rights that the Borrower may
have against any Lender that is a Defaulting Lender.
(c) If
any
Lender (such Lender, a “Non-Consenting
Lender”)
has
failed to consent to a proposed amendment, waiver, discharge or termination
which pursuant to the terms of Section 9.08 requires the consent of all of
the Lenders affected and with respect to which the Required Lenders shall have
granted their consent, then the Borrower shall have the right (unless such
Non-Consenting Lender grants such consent) to replace such Non-Consenting Lender
by deeming such Non-Consenting Lender to have assigned its Loans, and its
Commitments hereunder to one or more Assignees reasonably acceptable to the
Administrative Agent (unless such assignee is a Lender, an Affiliate of a Lender
or an Approved Fund); provided,
that:
(i) all Obligations of the Borrower owing to such Non-Consenting Lender being
replaced shall be paid in full to such Non-Consenting Lender concurrently with
such assignment, and (ii) the replacement Lender shall purchase the foregoing
by
paying to such Non-Consenting Lender a
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price
equal to the principal amount thereof plus accrued and unpaid interest thereon.
No action by or consent of the Non-Consenting Lender shall be necessary in
connection with such assignment, which shall be immediately and automatically
effective upon payment of such purchase price. In connection with any such
assignment the Borrower, Administrative Agent, such Non-Consenting Lender and
the replacement Lender shall otherwise comply with Section 9.04;
provided,
that if
such Non-Consenting Lender does not comply with Section 9.04 within three
Business Days after Borrower’s request, compliance with Section 9.04 shall not
be required to effect such assignment.
SECTION
2.20. Illegality
(a) .
If any
Lender reasonably determines that any Change in Law has made it unlawful, or
that any Governmental Authority has asserted after the Closing Date that it
is
unlawful, for any Lender or its applicable Lending Office to make or maintain
any Eurocurrency Loans, then, on notice thereof by such Lender to the Borrower
through the Administrative Agent, any obligations of such Lender to make or
continue Eurocurrency Loans or to convert ABR Borrowings to Eurocurrency
Borrowings shall be suspended until such Lender notifies the Administrative
Agent and the Borrower that the circumstances giving rise to such determination
no longer exist. Upon receipt of such notice, the Borrower shall upon demand
from such Lender (with a copy to the Administrative Agent), either convert
all
Eurocurrency Borrowings of such Lender to ABR Borrowings, either on the last
day
of the Interest Period therefor, if such Lender may lawfully continue to
maintain such Eurocurrency Borrowings to such day, or immediately, if such
Lender may not lawfully continue to maintain such Loans. Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the
amount so prepaid or converted.
SECTION
2.21. Incremental
Commitments
.
xiv)
The
Borrower may, by written notice to the Administrative Agent from time to time,
request Incremental Term Loan Commitments, in an amount not to exceed the
Incremental Amount from one or more Incremental Term Lenders (which may include
any existing Lender) willing to provide such Incremental Term Loans in their
own
discretion; provided,
that
each Incremental Term Lender shall be subject to the approval of the
Administrative Agent (which approval shall not be unreasonably withheld) unless
such Incremental Term Lender is a Lender, an Affiliate of a Lender or an
Approved Fund. Such notice shall set forth (i) the amount of the Incremental
Term Loan Commitments being requested (which shall be in minimum increments
of
$5.0 million and a minimum amount of $25.0 million or equal to the remaining
Incremental Amount), (ii) the date on which such Incremental Term Loan
Commitments are requested to become effective (the “Increased
Amount Date”),
and
(iii) whether such Incremental Term Loan Commitments are to be Term C Loan
Commitments or commitments to make term loans with pricing and/or amortization
terms different from the Term C Loans (“Other
Term Loans”).
(b) The
Borrower and each Incremental Term Lender shall execute and deliver to the
Administrative Agent an Incremental Assumption Agreement and such other
documentation as the Administrative Agent shall reasonably specify to evidence
the Incremental Term Loan Commitment of such Incremental Term Lender. Each
Incremental Assumption Agreement shall specify the terms of the applicable
Incremental Term Loans (all such Incremental Term Loans to be made pursuant
to
any Incremental Assumption Agreement, a “Series”);
provided,
that
(i) the Other Term Loans shall rank pari
passu
or
junior in right of payment and of security with the Term C Loans and, except
as
to pricing, amortization and final
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maturity
date, shall have (x) the same terms as the Term C Loans, as applicable, or
(y)
such other terms as shall be reasonably satisfactory to the Administrative
Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier
than the Term Facility Maturity Date, and (iii) the weighted average life to
maturity of any Other Term Loans shall be no shorter than the remaining weighted
average life to maturity of the Term C Loans. Each of the parties hereto hereby
agrees that upon the effectiveness of any Incremental Assumption Agreement
this
Agreement shall be amended to the extent (but only to the extent) necessary
to
reflect the existence and terms of the Incremental Term Loan Commitments
evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment
may be memorialized in writing by the Administrative Agent with the Borrower’s
consent (not to be unreasonably withheld) and furnished to the other parties
hereto.
(c) Notwithstanding
the foregoing, no Incremental Term Loan Commitment shall become effective under
this Section 2.21 unless (i) on the date of such effectiveness, the
representations and warranties set forth in the Article III shall be true and
correct in all material respects as of such date, in each case, with the same
effect as though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date (in which
case such representations and warranties shall be true and correct in all
material respects as of such earlier date, immediately after giving effect
to
such Borrowing, no Event of Default or Default shall have occurred and be
continuing or would result therefrom, and the Administrative Agent shall have
received a certificate to that effect dated such date and executed by a
Responsible Officer of the Borrower, and (ii) the Administrative Agent shall
have received customary legal opinions, board resolutions and other customary
closing certificates and documentation as required by the relevant Incremental
Assumption Agreement and, to the extent required by the Administrative Agent,
consistent with those delivered on the Closing Date under Article IV and such
additional customary documents and filings (including amendments to the
Mortgages and other Security Documents and title endorsement bringdowns) as
the
Administrative Agent may reasonably require to assure that the Incremental
Term
Loans are secured by the Collateral ratably with (or, to the extent agreed
by
the applicable Incremental Term Lenders in the applicable Incremental Assumption
Agreement, junior to) the existing Loans.
(d) Each
of
the parties hereto hereby agrees that the Administrative Agent may take any
and
all action as may be reasonably necessary to ensure that all Incremental Term
Loans (other than Other Term Loans) in the form of additional Term C Loans,
when
originally made, are included in each Borrowing of outstanding Term C Loans
on a
pro
rata
basis.
The Borrower agrees that Section 2.16 shall apply to any conversion of
Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent
to effect the foregoing.
ARTICLE
III
Representations
and Warranties
On
the
Closing Date, the Borrower represents and warrants to each of the Lenders that:
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SECTION
3.01. Organization;
Powers
.
Except
as set forth on Schedule 3.01, each of Holdings, the Borrower and each of
the Material Subsidiaries (a) is a partnership, limited liability company or
corporation duly organized, validly existing and in good standing (or, if
applicable in a foreign jurisdiction, enjoys the equivalent status under the
laws of any jurisdiction of organization outside the United States) under the
laws of the jurisdiction of its organization, (b) has all requisite power and
authority to own its property and assets and to carry on its business as now
conducted, (c) is qualified to do business in each jurisdiction where such
qualification is required, except where the failure so to qualify would not
reasonably be expected to have a Material Adverse Effect, and (d) has the power
and authority to execute, deliver and perform its obligations under each of
the
Loan Documents and each other agreement or instrument contemplated thereby
to
which it is or will be a party and, in the case of the Borrower, to borrow
and
otherwise obtain credit hereunder.
SECTION
3.02. Authorization
.
The
execution, delivery and performance by Holdings, the Borrower and each of the
Subsidiary Loan Parties of each of the Loan Documents to which it is a party,
and the borrowings hereunder and the transactions forming a part of the
Transactions (a) have been duly authorized by all corporate, stockholder,
partnership or limited liability company action required to be obtained by
Holdings, the Borrower and such Subsidiary Loan Parties and (b) will not (i)
violate (A) any provision of law, statute, rule or regulation, or of the
certificate or articles of incorporation or other constitutive documents
(including any partnership, limited liability company or operating agreements)
or by-laws of Holdings, the Borrower or any such Subsidiary Loan Party, (B)
any
applicable order of any court or any rule, regulation or order of any
Governmental Authority or (C) any provision of any indenture, certificate of
designation for preferred stock, agreement or other instrument to which
Holdings, the Borrower or any such Subsidiary Loan Party is a party or by which
any of them or any of their property is or may be bound, (ii) be in conflict
with, result in a breach of or constitute (alone or with notice or lapse of
time
or both) a default under, give rise to a right of or result in any cancellation
or acceleration of any right or obligation (including any payment) or to a
loss
of a material benefit under any such indenture, certificate of designation
for
preferred stock, agreement or other instrument, where any such conflict,
violation, breach or default referred to in clause (i) or (ii) of this
Section 3.02(b), would reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect, or (iii) result in the creation or
imposition of any Lien upon or with respect to any property or assets now owned
or hereafter acquired by Holdings, the Borrower or any such Subsidiary Loan
Party, other than the Liens created by the Loan Documents and Permitted
Liens.
SECTION
3.03. Enforceability
.
This
Agreement has been duly executed and delivered by Holdings and the Borrower
and
constitutes, and each other Loan Document when executed and delivered by each
Loan Party that is party thereto will constitute, a legal, valid and binding
obligation of such Loan Party enforceable against each such Loan Party in
accordance with its terms, subject to (i) the effects of bankruptcy, insolvency,
moratorium, reorganization, fraudulent conveyance or other similar laws
affecting creditors’ rights generally, (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and (iii) implied covenants of good faith and fair
dealing.
SECTION
3.04. Governmental
Approvals
.
No
action, consent or approval of, registration or filing with or any other action
by any Governmental Authority is or will be
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required
in connection with the Transactions, the perfection or maintenance of the Liens
created under the Security Documents or the exercise by any Agent or any Lender
of its rights under the Loan Documents or the remedies in respect of the
Collateral, except for (a) the filing of Uniform Commercial Code financing
statements, (b) filings with the United States Patent and Trademark Office
and
the United States Copyright Office and comparable offices in foreign
jurisdictions and equivalent filings in foreign jurisdictions, (c) recordation
of the Mortgages, (d) such as have been made or obtained and are in full force
and effect, (e) such actions, consents and approvals the failure of which to
be
obtained or made would not reasonably be expected to have a Material Adverse
Effect and (f) filings or other actions listed on
Schedule 3.04.
SECTION
3.05. Financial
Statements
.
xv)
The
unaudited pro forma consolidated
financial information (the “Pro
Forma Financial Statements”)
and
pro forma adjusted
EBITDA (the “Pro
Forma Adjusted EBITDA”),
for
the twelve months ended on or about December 30, 2006, copies of which have
heretofore been furnished to each Lender (via inclusion on page 38 the
Information Memorandum), have been prepared giving effect (as if such events
had
occurred on such date) to the Transactions. Each of the Pro Forma Financial
Statements and the Pro Forma Adjusted EBITDA has been prepared in good faith
based on assumptions believed by the Borrower to have been reasonable as of
the
date of delivery thereof (it being understood that such assumptions are based
on
good faith estimates of certain items and that the actual amount of such items
on the Closing Date is subject to change), and presents fairly in all material
respects on a Pro Forma Basis the estimated financial position of the Borrower
and its consolidated Subsidiaries as at December 30, 2006, assuming that the
Transactions had actually occurred at such date, and the results of operations
of Borrower and its consolidated subsidiaries for the twelve-month period ended
December 30, 2006, assuming that the Transactions had actually occurred on
the
first day of such twelve-month period.
(b) The
audited combined balance sheets of each of Covalence (or its predecessor) and
▇▇▇▇▇ (or its predecessor) as at the end of 2006, 2005 and 2004 fiscal years,
and the related audited combined statements of income, stockholders’ equity and
cash flows for such fiscal years, reported on by and accompanied by a report
from Deloitte & Touche LLP, and Ernst & Young LLP, respectively, copies
of which have heretofore been furnished to each Lender, present fairly in all
material respects the combined financial position of Covalence or ▇▇▇▇▇, as
applicable, as at such date and the combined results of operations,
shareholders’ equity and cash flows of Covalence or ▇▇▇▇▇, as applicable, for
the years then ended.
SECTION
3.06. No
Material Adverse Effect
.
Since
December 30, 2006, there has been no event, development or circumstance that
has
or would reasonably be expected to have a Material Adverse Effect.
SECTION
3.07. Title
to
Properties; Possession Under Leases
.
xvi) Each
of Holdings, the Borrower and the Subsidiaries has valid fee simple title to,
or
valid leasehold interests in, or easements or other limited property interests
in, all its Real Properties (including all Mortgaged Properties) and has valid
title to its personal property and assets, in each case, except for Permitted
Liens and except for defects in title that do not materially interfere with
its
ability to conduct its business as currently conducted or to utilize such
properties and assets for their intended purposes and except where the failure
to have such title would not reasonably be
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expected
to have, individually or in the aggregate, a Material Adverse Effect. All such
properties and assets are free and clear of Liens, other than Permitted
Liens.
(b) Each
of
the Borrower and the Subsidiaries has complied with all obligations under all
leases to which it is a party, except where the failure to comply would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect, and all such leases are in full force and effect, except leases
in respect of which the failure to be in full force and effect would not
reasonably be expected to have a Material Adverse Effect. Except as set forth
on
Schedule 3.07(b),
each of
the Borrower and each of the Subsidiaries enjoys peaceful and undisturbed
possession under all such leases, other than leases in respect of which the
failure to enjoy peaceful and undisturbed possession would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse
Effect.
(c) As
of the
Closing Date, none of the Borrower or the Subsidiaries has received any notice
of any pending or contemplated condemnation proceeding affecting any material
portion of the Mortgaged Properties or any sale or disposition thereof in lieu
of condemnation that remains unresolved as of the Closing Date.
(d) None
of
the Borrower or the Subsidiaries is obligated on the Closing Date under any
right of first refusal, option or other contractual right to sell, assign or
otherwise dispose of any Mortgaged Property or any interest therein, except
as
permitted under Section 6.02 or 6.05.
SECTION
3.08. Subsidiaries
.
xvii) Schedule 3.08(a)
sets forth as of the Closing Date the name and jurisdiction of incorporation,
formation or organization of each subsidiary of Holdings and, as to each such
subsidiary, the percentage of each class of Equity Interests owned by Holdings
or by any such subsidiary.
(b) As
of the
Closing Date, there are no outstanding subscriptions, options, warrants, calls,
rights or other agreements or commitments (other than stock options or stock
appreciation rights granted to employees or directors and directors’ qualifying
shares) of any nature relating to any Equity Interests of Holdings, the Borrower
or any of the Subsidiaries, except rights of employees to purchase Equity
Interests of Holdings in connection with the Transactions or as set forth on
Schedule 3.08(b).
SECTION
3.09. Litigation;
Compliance with Laws
.
xviii) There
are no actions, suits or proceedings at law or in equity or, to the knowledge
of
the Borrower, investigations by or on behalf of any Governmental Authority
or in
arbitration now pending, or, to the knowledge of Holdings or the Borrower,
threatened in writing against or affecting Holdings or the Borrower or any
of
the Subsidiaries or any business, property or rights of any such person which
would reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
(b) None
of
Holdings, the Borrower, the Subsidiaries and their respective properties or
assets is in violation of (nor will the continued operation of their material
properties and assets as currently conducted violate) any law, rule or
regulation (including any zoning, building, ordinance, code or approval or
any
building permit, but excluding any Environmental Laws, which are subject to
Section 3.16) or any restriction of record or agreement affecting
any
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Mortgaged
Property, or is in default with respect to any judgment, writ, injunction or
decree of any Governmental Authority, where such violation or default would
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
SECTION
3.10. Federal
Reserve Regulations
.
xix) None
of Holdings, the Borrower or the Subsidiaries is engaged principally, or as
one
of its important activities, in the business of extending credit for the purpose
of purchasing or carrying Margin Stock.
(b) No
part
of the proceeds of any Loan will be used, whether directly or indirectly, and
whether immediately, incidentally or ultimately, (i) to purchase or carry Margin
Stock or to extend credit to others for the purpose of purchasing or carrying
Margin Stock or to refund indebtedness originally incurred for such purpose,
or
(ii) for any purpose that entails a violation of, or that is inconsistent with,
the provisions of the Regulations of the Board, including Regulation U or
Regulation X.
SECTION
3.11. Investment
Company Act
.
None of
Holdings, the Borrower and the Subsidiaries is an “investment company” as
defined in, or subject to regulation under, the Investment Company Act of 1940,
as amended.
SECTION
3.12. Use
of
Proceeds
.
The
Borrower will use the proceeds of the Term C Loans, together with other cash,
to
consummate the Refinancing, to pay the Transaction Expenses, and for general
corporate purposes.
SECTION
3.13. Tax
Returns
.
Except
as set forth on Schedule 3.13:
(a) Except
as
would not, individually or in the aggregate, reasonably be expected to have
a
Material Adverse Effect, (i) each of Holdings, the Borrower and the Subsidiaries
has filed or caused to be filed all federal, state, local and non-U.S. Tax
returns required to have been filed by it and (ii) taken as a whole, and each
such Tax return is true and correct;
(b) Each
of
Holdings, the Borrower and the Subsidiaries has timely paid or caused to be
timely paid all Taxes shown to be due and payable by it on the returns referred
to in clause (a) and all other Taxes or assessments (or made adequate
provision (in accordance with GAAP) for the payment of all Taxes due) with
respect to all periods or portions thereof ending on or before the Closing
Date
(except Taxes or assessments that are being contested in good faith by
appropriate proceedings in accordance with Section 5.03 and for which
Holdings, the Borrower or any of the Subsidiaries (as the case may be) has
set
aside on its books adequate reserves in accordance with GAAP), which Taxes,
if
not paid or adequately provided for, would, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; and
(c) Other
than as would not be, individually or in the aggregate, reasonably expected
to
have a Material Adverse Effect: as of the Closing Date, with respect to each
of
Holdings, the Borrower and the Subsidiaries, there are no claims being asserted
in writing with respect to any Taxes.
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SECTION
3.14. No
Material Misstatements
.
xx) All
written information (other than the Projections, estimates and information
of a
general economic nature or general industry nature) (the “Information”)
concerning Holdings, the Borrower, the Subsidiaries, the Transactions and any
other transactions contemplated hereby included in the Information Memorandum
or
otherwise prepared by or on behalf of the foregoing or their representatives
and
made available to any Lenders or the Administrative Agent in connection with
the
Transactions or the other transactions contemplated hereby, when taken as a
whole, was true and correct in all material respects, as of the date such
Information was furnished to the Lenders and as of the Closing Date and did
not,
taken as a whole, contain any untrue statement of a material fact as of any
such
date or omit to state a material fact necessary in order to make the statements
contained therein, taken as a whole, not materially misleading in light of
the
circumstances under which such statements were made.
(b) The
Projections and estimates and information of a general economic nature prepared
by or on behalf of the Borrower or any of its representatives and that have
been
made available to any Lenders or the Administrative Agent in connection with
the
Transactions or the other transactions contemplated hereby (i) have been
prepared in good faith based upon assumptions believed by the Borrower to be
reasonable as of the date thereof (it being understood that actual results
may
vary materially from the Projections), as of the date such Projections and
estimates were furnished to the Lenders and as of the Closing Date, and (ii)
as
of the Closing Date, have not been modified in any material respect by the
Borrower.
SECTION
3.15. Employee
Benefit Plans
.
xxi) Except
as would not reasonably be expected, individually or in the aggregate, to have
a
Material Adverse Effect: (i) each Plan is in compliance in all material respects
with the applicable provisions of ERISA and the Code; (ii) no Reportable Event
has occurred during the past five years as to which the Borrower, Holdings,
any
of their Subsidiaries or any ERISA Affiliate was required to file a report
with
the PBGC, other than reports that have been filed; (iii) no Plan has any
Unfunded Pension Liability in excess of $50.0 million; (iv) no ERISA Event
has
occurred or is reasonably expected to occur; and (v) none of the Borrower,
Holdings, the Subsidiaries and the ERISA Affiliates (A) has received any written
notification that any Multiemployer Plan is in reorganization or has been
terminated within the meaning of Title IV of ERISA, or has knowledge that any
Multiemployer Plan is reasonably expected to be in reorganization or to be
terminated or (B) has incurred or is reasonably expected to incur any Withdrawal
Liability to any Multiemployer Plan.
(b) Each
of
Holdings, the Borrower and the Subsidiaries is in compliance (i) with all
applicable provisions of law and all applicable regulations and published
interpretations thereunder with respect to any employee pension benefit plan
or
other employee benefit plan governed by the laws of a jurisdiction other than
the United States and (ii) with the terms of any such plan, except, in each
case, for such noncompliance that would not reasonably be expected to have
a
Material Adverse Effect.
SECTION
3.16. Environmental
Matters
.
Except
as set forth in Schedule 3.16 and except as to matters that would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect: (i) no written notice, request for information, order, complaint
or penalty has been received by the Borrower or any of its Subsidiaries, and
there are no judicial, administrative or other actions, suits or proceedings
pending or, to the Borrower’s
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knowledge,
threatened which allege a violation of or liability under any Environmental
Laws, in each case relating to the Borrower or any of its Subsidiaries, (ii)
each of the Borrower and its Subsidiaries has all environmental permits,
licenses and other approvals necessary for its operations to comply with all
applicable Environmental Laws and is, and during the term of all applicable
statutes of limitation, has been, in compliance with the terms of such permits,
licenses and other approvals and with all other applicable Environmental Laws,
(iii) to the Borrower’s knowledge, no Hazardous Material is located at, on or
under any property currently owned, operated or leased by the Borrower or any
of
its Subsidiaries that would reasonably be expected to give rise to any cost,
liability or obligation of the Borrower or any of its Subsidiaries under any
Environmental Laws, and no Hazardous Material has been generated, owned,
treated, stored, handled or controlled by the Borrower or any of its
Subsidiaries and transported to or Released at any location in a manner that
would reasonably be expected to give rise to any cost, liability or obligation
of the Borrower or any of its Subsidiaries under any Environmental Laws, and
(iv) there are no agreements in which the Borrower or any of its Subsidiaries
has expressly assumed or undertaken responsibility for any known or reasonably
likely liability or obligation of any other person arising under or relating
to
Environmental Laws, which in any such case has not been made available to the
Administrative Agent prior to the date hereof.
SECTION
3.17. Security
Documents
.
xxii) The
Collateral Agreement is effective to create in favor of the Collateral Agent
(for the benefit of the Secured Parties) a legal, valid and enforceable security
interest in the Collateral described therein and proceeds thereof. In the case
of the Pledged Collateral described in the Collateral Agreement, when
certificates or promissory notes, as applicable, representing such Pledged
Collateral are delivered to the Collateral Agent, and in the case of the other
Collateral described in the Collateral Agreement (other than the Intellectual
Property (as defined in the Collateral Agreement)), when financing statements
and other filings specified in the Perfection Certificate are filed in the
offices specified in the Perfection Certificate, the Collateral Agent (for
the
benefit of the Secured Parties) shall have a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in
such
Collateral and, subject to Section 9-315 of the New York Uniform Commercial
Code, the proceeds thereof, as security for the Obligations to the extent
perfection can be obtained by filing Uniform Commercial Code financing
statements, in each case prior and superior in right to any other person (except
Permitted Liens).
(b) When
the
Collateral Agreement or a summary thereof is properly filed in the United States
Patent and Trademark Office and the United States Copyright Office, and, with
respect to Collateral in which a security interest cannot be perfected by such
filings, upon the proper filing of the financing statements referred to in
paragraph (a) above, the Collateral Agent (for the benefit of the Secured
Parties) shall have a fully perfected Lien on, and security interest in, all
right, title and interest of the Loan Parties thereunder in all domestic
Intellectual Property, in each case prior and superior in right to any other
person (it being understood that subsequent recordings in the United States
Patent and Trademark Office and the United States Copyright Office may be
necessary to perfect a lien on registered trademarks and patents, trademark
and
patent applications and registered copyrights acquired by the grantors after
the
Closing Date) (except Permitted Liens).
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(c) Each
Foreign Pledge Agreement, if any, shall be effective to create in favor of
the
Collateral Agent, for the benefit of the Secured Parties, a legal, valid and
enforceable security interest in the Collateral described therein and proceeds
thereof to the fullest extent permissible under applicable law. In the case
of
the Pledged Collateral described in a Foreign Pledge Agreement, when
certificates representing such Pledged Collateral (if any) are delivered to
the
Collateral Agent, the Collateral Agent (for the benefit of the Secured Parties)
shall have a fully perfected Lien on, and security interest in, all right,
title
and interest of the Loan Parties in such Collateral and the proceeds thereof,
as
security for the Obligations, in each case prior and superior in right to any
other person.
(d) The
Mortgages (if any) executed and delivered on or before the Closing Date are,
and
the Mortgages to be executed and delivered after the Closing Date pursuant
to
Section 5.10 shall be, effective to create in favor of the Collateral Agent
(for the benefit of the Secured Parties) a valid Lien on all of the Loan
Parties’ right, title and interest in and to the Mortgaged Property thereunder
and the proceeds thereof, and when such Mortgages are filed or recorded in
the
proper real estate filing or recording offices, the Collateral Agent (for the
benefit of the Secured Parties) shall have a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in
such
Mortgaged Property and, to the extent applicable, subject to Section 9-315
of the Uniform Commercial Code, the proceeds thereof, in each case prior and
superior in right to any other person, other than with respect to the rights
of
a person pursuant to Permitted Liens.
(e) Notwithstanding
anything herein (including this Section 3.17) or in any other Loan Document
to
the contrary, other than to the extent set forth in the applicable Foreign
Pledge Agreements, neither the Borrower nor any other Loan Party makes any
representation or warranty as to the effects of perfection or non-perfection,
the priority or the enforceability of any pledge of or security interest in
any
Equity Interests of any Foreign Subsidiary that is not a Loan Party, or as
to
the rights and remedies of the Agents or any Lender with respect thereto, under
foreign law.
SECTION
3.18. Location
of Real Property and Leased Premises
.
xxiii) The
Perfection Certificate lists completely and correctly, in all material respects,
as of the Closing Date all material Real Property owned by Holdings, the
Borrower and the Subsidiary Loan Parties and the addresses thereof. As of the
Closing Date, Holdings, the Borrower and the Subsidiary Loan Parties own in
fee
all the Real Property set forth as being owned by them on the Perfection
Certificate.
(b) The
Perfection Certificate lists completely and correctly in all material respects,
as of the Closing Date, all material real property leased by Holdings, the
Borrower and the Subsidiary Loan Parties and the addresses thereof. As of the
Closing Date, Holdings, the Borrower and the Subsidiary Loan Parties have in
all
material respects valid leases in all the real property set forth as being
leased by them on the Perfection Certificate.
SECTION
3.19. Solvency
.
xxiv) Immediately
after giving effect to the Transactions on the Closing Date, (i) the fair value
of the assets of the Borrower (individually) and Holdings, the Borrower and
its
Subsidiaries on a consolidated basis, at a fair valuation, will exceed the
debts
and liabilities, direct, subordinated, contingent or otherwise, of the
Borrower
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(individually)
and Holdings, the Borrower and its Subsidiaries on a consolidated basis,
respectively; (ii) the present fair saleable value of the property of the
Borrower (individually) and Holdings, the Borrower and its Subsidiaries on
a
consolidated basis will be greater than the amount that will be required to
pay
the probable liability of the Borrower (individually) and Holdings, the Borrower
and its Subsidiaries on a consolidated basis, respectively, on their debts
and
other liabilities, direct, subordinated, contingent or otherwise, as such debts
and other liabilities become absolute and matured; (iii) the Borrower
(individually) and Holdings, the Borrower and its Subsidiaries on a consolidated
basis will be able to pay their debts and liabilities, direct, subordinated,
contingent or otherwise, as such debts and liabilities become absolute and
matured; and (iv) the Borrower (individually) and Holdings, the Borrower and
its
Subsidiaries on a consolidated basis will not have unreasonably small capital
with which to conduct the businesses in which they are engaged as such
businesses are now conducted and are proposed to be conducted following the
Closing Date.
(b) On
the
Closing Date, neither Holdings nor the Borrower intends to, and neither Holdings
nor the Borrower believes that it or any of its subsidiaries will, incur debts
beyond its ability to pay such debts as they mature, taking into account the
timing and amounts of cash to be received by it or any such subsidiary and
the
timing and amounts of cash to be payable on or in respect of its Indebtedness
or
the Indebtedness of any such subsidiary.
SECTION
3.20. Labor
Matters
.
Except
as, individually or in the aggregate, would not reasonably be expected to have
a
Material Adverse Effect: (a) there are no strikes or other labor disputes
pending or threatened against Holdings, the Borrower or any of the Subsidiaries;
(b) the hours worked and payments made to employees of Holdings, the Borrower
and the Subsidiaries have not been in violation of the Fair Labor Standards
Act
or any other applicable law dealing with such matters; and (c) all payments
due
from Holdings, the Borrower or any of the Subsidiaries or for which any claim
may be made against Holdings, the Borrower or any of the Subsidiaries, on
account of wages and employee health and welfare insurance and other benefits
have been paid or accrued as a liability on the books of Holdings, the Borrower
or such Subsidiary to the extent required by GAAP. Except as, individually
or in
the aggregate, would not reasonably be expected to have a Material Adverse
Effect, the consummation of the Transactions will not give rise to a right
of
termination or right of renegotiation on the part of any union under any
material collective bargaining agreement to which Holdings, the Borrower or
any
of the Subsidiaries (or any predecessor) is a party or by which Holdings, the
Borrower or any of the Subsidiaries (or any predecessor) is bound.
SECTION
3.21. Insurance
.
Schedule 3.21 sets forth a true, complete and correct description of all
material insurance maintained by or on behalf of Holdings, the Borrower or
the
Subsidiaries as of the Closing Date. As of such date, such insurance is in
full
force and effect.
SECTION
3.22. No
Default
.
No
Default or Event of Default has occurred and is continuing or would result
from
the consummation of the transactions contemplated by this Agreement or any
other
Loan Document.
SECTION
3.23. Intellectual
Property; Licenses, Etc.
Except
as
would not reasonably be expected to have a Material Adverse Effect and as set
forth in Schedule
3.23,
(a) the
Borrower and each of its Subsidiaries owns, or possesses the right to use,
all
of the patents,
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patent
rights, trademarks, service marks, trade names, copyrights and any and all
applications or registrations for any of the foregoing (collectively,
“Intellectual
Property Rights”)
that
are reasonably necessary for the operation of their respective businesses,
without conflict with the rights of any other person, (b) to the best knowledge
of the Borrower, no intellectual property right, proprietary right, product,
process, method, substance, part, or other material now employed, sold or
offered by or contemplated to be employed, sold or offered by the Borrower
or
its Subsidiaries infringes upon any rights held by any other person, and (c)
no
claim or litigation regarding any of the foregoing is pending or, to the best
knowledge of the Borrower, threatened.
SECTION
3.24. Senior
Debt
.
The
Obligations constitute “Senior Debt” (or the equivalent thereof) and “Designated
Senior Debt” (or the equivalent thereof) under the Senior Subordinated Notes
Indentures.
ARTICLE
IV
Conditions
of Lending
The
obligations of the Lenders to make Loans hereunder are subject to the
satisfaction of the following conditions:
(a) The
Administrative Agent (or its counsel) shall have received from each party hereto
either (i) a counterpart of this Agreement signed on behalf of such party,
or
(ii) written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of this Agreement)
that
such party has signed a counterpart of this Agreement.
(b) The
Administrative Agent shall have received, on behalf of itself and the Lenders
on
the Closing Date, a favorable written opinion of (i) Wachtell, Lipton, ▇▇▇▇▇
& ▇▇▇▇, special counsel for the Loan Parties, in form and substance
reasonably satisfactory to the Administrative Agent, (ii) ▇▇▇▇ ▇▇▇▇▇▇▇▇,
in-house counsel for certain of the Loan Parties, in form and substance
reasonably satisfactory to the Administrative Agent and (iii) ▇▇▇▇ ▇▇▇▇▇▇,
in-house counsel for certain of the Loan Parties, in form and substance
reasonably satisfactory to the Administrative Agent, in each case (A) dated
the
Closing Date, (B) addressed to the Administrative Agent and the Lenders and
(C)
in form and substance reasonably satisfactory to the Administrative Agent and
covering such other matters relating to the Loan Documents as the Administrative
Agent shall reasonably request.
(c) The
Administrative Agent shall have received in the case of each Loan Party each
of
the items referred to in clauses (i), (ii), (iii) and (iv)
below:
(i) only
if
such document or item shall have changed since September 20, 2006 in respect
of
▇▇▇▇▇ and any Loan Party that was a subsidiary of ▇▇▇▇▇ Holdings immediately
prior to Closing Date, or May 18, 2006 in respect of Covalence Holdings or
any
Loan Party that was a subsidiary of Covalence Holdings immediately prior to
the
Closing Date, a copy of the certificate or
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articles
of incorporation, certificate of limited partnership or certificate of
formation, including all amendments thereto, of each Loan Party, (A) in the
case
of a corporation, certified as of a recent date by the Secretary of State (or
other similar official) of the jurisdiction of its organization, and a
certificate as to the good standing (to the extent such concept or a similar
concept exists under the laws of such jurisdiction) of each such Loan Party
as
of a recent date from such Secretary of State (or other similar official) or
(B)
in the case of a partnership or limited liability company, certified by the
Secretary or Assistant Secretary of each such Loan Party;
(ii) a
certificate of the Secretary or Assistant Secretary or similar officer of each
Loan Party dated the Closing Date and certifying:
(A) (1)
that
attached thereto is a true and complete copy of the by-laws (or partnership
agreement, limited liability company agreement or other equivalent governing
documents) of such Loan Party as in effect on the Closing Date and at all times
since the date of the resolutions described in clause (B) below, or (2)
that the by-laws (or partnership agreement, limited liability company agreement
or other equivalent governing documents) of such Loan Party, as in effect on
the
Closing Date, have not been modified, rescinded or amended since September
20,
2006 in respect of ▇▇▇▇▇ and any Loan Party that was a subsidiary of ▇▇▇▇▇
Holdings immediately prior to Closing Date, or May 18, 2006 in respect of
Covalence Holdings or any Loan Party that was a subsidiary of Covalence Holdings
immediately prior to the Closing Date,
(B) that
attached thereto is a true and complete copy of resolutions duly adopted by
the
Board of Directors (or equivalent governing body) of such Loan Party (or its
managing general partner or managing member) authorizing the execution, delivery
and performance of the Loan Documents to which such person is a party and,
in
the case of the Borrower, the borrowings hereunder, and that such resolutions
have not been modified, rescinded or amended and are in full force and effect
on
the Closing Date,
(C) that
the
certificate or articles of incorporation, certificate of limited partnership
or
certificate of formation of such Loan Party has not been amended since the
date
of the last amendment thereto disclosed pursuant to clause (i)
above,
(D) as
to the
incumbency and specimen signature of each officer executing any Loan Document
or
any other document delivered in connection herewith on behalf of such Loan
Party, and
(E) as
to the
absence of any pending proceeding for the dissolution or liquidation of such
Loan Party or, to the knowledge of such person, threatening the existence of
such Loan Party;
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(iii) a
certificate of a director or another officer as to the incumbency and specimen
signature of the Secretary or Assistant Secretary or similar officer executing
the certificate pursuant to clause (ii) above; and
(iv) such
other documents as the Administrative Agent and the Lenders may reasonably
request (including without limitation, tax identification numbers and
addresses).
(d) The
elements of the Collateral and Guarantee Requirement required to be satisfied
on
the Closing Date shall have been satisfied (other than in the case of any
security interest in the intended Collateral or any deliverable related to
the
perfection of security interests in the intended Collateral (other than any
Collateral the security interest in which may be perfected by the filing of
a
UCC financing statement or the delivery of stock certificates and the security
agreement giving rise to the security interest therein) that is not provided
on
the Closing Date after the Borrower’s use of commercially reasonable efforts to
do so, which such security interest or deliverable shall be delivered within
the
time periods specified with respect thereto in Schedule 4.02(d)), and the
Administrative Agent shall have received a completed Perfection Certificate,
dated the Closing Date and signed by a Responsible Officer of the Company,
together with all attachments contemplated thereby.
(e) The
Business Combination shall have been consummated or shall be consummated
simultaneously with or immediately following the closing under this Agreement
in
accordance with the terms and conditions of the Business Combination as set
forth in the Merger Documents, without material amendment, supplement,
modification or waiver thereof which is materially adverse to the Lenders
without the prior written consent of the Joint Lead Arrangers.
(f) The
Lenders shall have received the financial statements referred to in
Section 3.05.
(g) On
the
Closing Date, after giving effect to the Transactions and the other transactions
contemplated hereby, Holdings shall have outstanding no Indebtedness and the
Borrower and the Subsidiaries shall have outstanding no Indebtedness other
than
(i) the Loans under this Agreement, (ii) the Senior Subordinated Notes, (iii)
the Second Lien Notes, (iv) the extensions of credit under the Revolving Credit
Agreement, and (v) other Indebtedness permitted pursuant to
Section 6.01.
(h) The
Lenders shall have received a solvency certificate substantially in the form
of
Exhibit B
and
signed by the Chief Financial Officer of the Borrower confirming the solvency
of
Borrower and its Subsidiaries on a consolidated basis after giving effect to
the
Transactions on the Closing Date.
(i) The
Agents shall have received all fees payable thereto or to any Lender on or
prior
to the Closing Date and, to the extent invoiced, all other amounts due and
payable pursuant to the Loan Documents on or prior to the Closing Date,
including, to the
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extent
invoiced, reimbursement or payment of all reasonable out-of-pocket expenses
(including reasonable fees, charges and disbursements of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
LLP and local counsel) required to be reimbursed or paid by the Loan Parties
hereunder or under any Loan Document.
(j) Each
of
(i) the Collateral Agreement, (ii) the Senior Lender Intercreditor Agreement,
and (iii) the Revolving Credit Agreement shall have been executed and delivered
by the respective parties thereto and shall have become effective, and the
Administrative Agent shall have received evidence satisfactory to it of such
execution and delivery and effectiveness.
(k) The
Administrative Agent shall have received a Borrowing Request as required by
Section 2.03 (or a Borrowing Request shall have been deemed given in
accordance with the last paragraph of Section 2.03).
(l) the
conditions in Section 6.3(a) of the Merger Agreement (but only with respect
to
representations and warranties that are material to the interests of the
Lenders) shall be satisfied, and the representations and warranties made in
Sections 3.01(b) and (d), 3.02(a), 3.03, 3.10, 3.11 and 3.24 shall be true
and
correct in all material respects.
For
purposes of determining compliance with the conditions specified in this Article
IV, each Lender shall be deemed to have consented to, approved or accepted
or to
be satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lenders unless
an officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
prior to the Closing Date specifying its objection thereto and such Lender
shall
not have made available to the Administrative Agent such Lender’s ratable
portion of the initial Borrowing.
ARTICLE
V
Affirmative
Covenants
The
Borrower covenants and agrees with each Lender that so long as this Agreement
shall remain in effect (other than in respect of contingent indemnification
obligations for which no claim has been made) and until the Commitments have
been terminated and the Obligations (including principal of and interest on
each
Loan, all Fees and all other expenses or amounts payable under any Loan
Document) shall have been paid in full, unless the Required Lenders shall
otherwise consent in writing, the Borrower will, and will cause each of the
Material Subsidiaries to:
SECTION
5.01. Existence;
Businesses and Properties
(a) .
(a) Do
or cause to be done all things necessary to preserve, renew and keep in full
force and effect its legal existence, except, in the case of a Subsidiary of
the
Borrower, where the failure to do so would not reasonably be expected to have
a
Material Adverse Effect, and except as otherwise expressly permitted under
Section 6.05, and except for the liquidation or dissolution of Subsidiaries
if
the assets of such Subsidiaries to the extent they exceed estimated liabilities
are acquired by the
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Borrower
or a Wholly Owned Subsidiary of the Borrower in such liquidation or dissolution;
provided,
that
Subsidiary Loan Parties may not be liquidated into Subsidiaries that are not
Loan Parties and Domestic Subsidiaries may not be liquidated into Foreign
Subsidiaries.
(b) Except
where the failure to do so would not reasonably be expected to have a Material
Adverse Effect, do or cause to be done all things necessary to (i) lawfully
obtain, preserve, renew, extend and keep in full force and effect the permits,
franchises, authorizations, patents, trademarks, service marks, trade names,
copyrights, licenses and rights with respect thereto necessary to the normal
conduct of its business and (ii) at all times maintain and preserve all property
necessary to the normal conduct of its business and keep such property in good
repair, working order and condition and from time to time make, or cause to
be
made, all needful and proper repairs, renewals, additions, improvements and
replacements thereto necessary in order that the business carried on in
connection therewith, if any, may be properly conducted at all times (in each
case except as expressly permitted by this Agreement).
SECTION
5.02. Insurance
.
xxv) Maintain,
with financially sound and reputable insurance companies, insurance in such
amounts and against such risks as are customarily maintained by similarly
situated companies engaged in the same or similar businesses operating in the
same or similar locations and cause the Administrative Agent to be listed as
a
co-loss payee on property and casualty policies and as an additional insured
on
liability policies.
(b) With
respect to any Mortgaged Properties, if at any time the area in which the
Premises (as defined in the Mortgages) are located is designated a “flood hazard
area” in any Flood Insurance Rate Map published by the Federal Emergency
Management Agency (or any successor agency), obtain flood insurance in such
reasonable total amount as the Administrative Agent 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 it may
be
amended from time to time.
(c) In
connection with the covenants set forth in this Section 5.02, it is understood
and agreed that:
(i) none
of
the Administrative Agent, the Lenders, and their respective agents or employees
shall be liable for any loss or damage insured by the insurance policies
required to be maintained under this Section 5.02, it being understood that
(A)
the Loan Parties shall look solely to their insurance companies or any other
parties other than the aforesaid parties for the recovery of such loss or damage
and (B) such insurance companies shall have no rights of subrogation against
the
Administrative Agent, the Lenders, or their agents or employees. If, however,
the insurance policies, as a matter of the internal policy of such insurer,
do
not provide waiver of subrogation rights against such parties, as required
above, then each of Holdings and the Borrower, on behalf of itself and behalf
of
each of its subsidiaries, hereby agrees, to the extent permitted by law, to
waive, and further agrees to cause each of their Subsidiaries to waive, its
right of recovery, if any, against the Administrative Agent, the Lenders, and
their agents and employees; and
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(ii) the
designation of any form, type or amount of insurance coverage by the
Administrative Agent under this Section 5.02 shall in no event be deemed a
representation, warranty or advice by the Administrative Agent or the Lenders
that such insurance is adequate for the purposes of the business of Holdings,
the Borrower and the Subsidiaries or the protection of their
properties.
SECTION
5.03. Taxes
.
Pay and
discharge promptly when due all material Taxes, imposed upon it or upon its
income or profits or in respect of its property, before the same shall become
delinquent or in default, as well as all lawful claims which, if unpaid, might
give rise to a Lien upon such properties or any part thereof; provided,
however,
that
such payment and discharge shall not be required with respect to any such Tax
or
claim so long as the validity or amount thereof shall be contested in good
faith
by appropriate proceedings, and Holdings, the Borrower or the affected
Subsidiary, as applicable, shall have set aside on its books reserves in
accordance with GAAP with respect thereto.
SECTION
5.04. Financial
Statements, Reports, etc.
Furnish
to the Administrative Agent (which will promptly furnish such information to
the
Lenders):
(a) within
90
days (or, if applicable, such shorter period as the SEC shall specify for the
filing of annual reports on Form 10-K) after the end of each fiscal year, a
consolidated balance sheet and related statements of operations, cash flows
and
owners’ equity showing the financial position of the Borrower and its
Subsidiaries as of the close of such fiscal year and the consolidated results
of
its operations during such year and, beginning with the financials delivered
pursuant to this clause (a) in respect of the 2008 fiscal year, setting forth
in
comparative form the corresponding figures for the prior fiscal year, which
consolidated balance sheet and related statements of operations, cash flows
and
owners’ equity shall be audited by independent public accountants of recognized
national standing and accompanied by an opinion of such accountants (which
opinion shall not be qualified as to scope of audit or as to the status of
the
Borrower or any Material Subsidiary as a going concern) to the effect that
such
consolidated financial statements fairly present, in all material respects,
the
financial position and results of operations of the Borrower and its
Subsidiaries on a consolidated basis in accordance with GAAP (it being
understood that the delivery by the Borrower of annual reports on Form 10-K
of
the Borrower and its consolidated Subsidiaries shall satisfy the requirements
of
this Section 5.04(a) to the extent such annual reports include the information
specified herein);
(b) within
45
days (or, if applicable, such shorter period as the SEC shall specify for the
filing of quarterly reports on Form 10-Q) after the end of each of the first
three fiscal quarters of each fiscal year beginning with the fiscal quarter
ending June 30, 2007, for each of the first three fiscal quarters of each fiscal
year, (i) a consolidated balance sheet and related statements of operations
and
cash flows showing the financial position of the Borrower and its Subsidiaries
as of the close of such fiscal quarter and the consolidated results of its
operations during such fiscal quarter and the then-elapsed portion of the fiscal
year and setting forth in comparative form the corresponding figures for the
corresponding periods of the prior fiscal year, and (ii) management’s discussion
and analysis of significant operational and financial developments during such
quarterly
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period,
all of which shall be in reasonable detail and which consolidated balance sheet
and related statements of operations and cash flows shall be certified by a
Financial Officer of the Borrower on behalf of the Borrower as fairly
presenting, in all material respects, the financial position and results of
operations of the Borrower and its Subsidiaries on a consolidated basis in
accordance with GAAP (subject to normal year-end audit adjustments and the
absence of footnotes) (it being understood that the delivery by the Borrower
of
quarterly reports on Form 10-Q of the Borrower and its consolidated Subsidiaries
shall satisfy the requirements of this Section 5.04(b) to the extent such
quarterly reports include the information specified herein);
(c) (x)
concurrently with any delivery of financial statements under paragraphs (a)
or
(b) above, a certificate of a Financial Officer of the Borrower (i) certifying
that no Event of Default or Default has occurred or, if such an Event of Default
or Default has occurred, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect thereto, (ii)
setting forth the calculation and uses of the Cumulative Credit for the fiscal
period then ended if the Borrower shall have used the Cumulative Credit for
any
purpose during such fiscal period, (iii) certifying a list of names of all
Immaterial Subsidiaries for the following fiscal quarter, that each Subsidiary
set forth on such list individually qualifies as an Immaterial Subsidiary and
that all such Subsidiaries in the aggregate (together with all Unrestricted
Subsidiaries) do not exceed the limitation set forth in clause (b) of the
definition of the term Immaterial Subsidiary, and (iv) certifying a list of
names of all Unrestricted Subsidiaries, that each Subsidiary set forth on such
list individually qualifies as an Unrestricted Subsidiary, and (y) concurrently
with any delivery of financial statements under paragraph (a) above, if the
accounting firm is not restricted from providing such a certificate by its
policies of its national office, a certificate of the accounting firm opining
on
or certifying such statements stating whether they obtained knowledge during
the
course of their examination of such statements of any Default or Event of
Default (which certificate may be limited to accounting matters and disclaim
responsibility for legal interpretations);
(d) promptly
after the same become publicly available, copies of all periodic and other
publicly available reports, proxy statements and, to the extent requested by
the
Administrative Agent, other materials filed by Holdings, the Borrower or any
of
the Subsidiaries with the SEC, or after an initial public offering, distributed
to its stockholders generally, as applicable; provided, however, that such
reports, proxy statements, filings and other materials required to be delivered
pursuant to this clause (d) shall be deemed delivered for purposes of this
Agreement when posted to the website of the Borrower;
(e) within
90
days after the beginning of each fiscal year, a reasonably detailed consolidated
quarterly budget for such fiscal year (including a projected consolidated
balance sheet of the Borrower and its Subsidiaries as of the end of the
following fiscal year, and the related consolidated statements of projected
cash
flow and projected income), including a description of underlying assumptions
with respect thereto (collectively, the “Budget”),
which
Budget shall in each case be accompanied by the statement of a Financial Officer
of the Borrower to the effect that the Budget is based on
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assumptions
believed by such Financial Officer to be reasonable as of the date of delivery
thereof;
(f) upon
the
reasonable request of the Administrative Agent, an updated Perfection
Certificate (or, to the extent such request relates to specified information
contained in the Perfection Certificate, such information) reflecting all
changes since the date of the information most recently received pursuant to
this paragraph (f) or Section 5.10(g);
(g) promptly,
from time to time, such other information regarding the operations, business
affairs and financial condition of Holdings, the Borrower or any of the
Subsidiaries, or compliance with the terms of any Loan Document, or such
consolidating financial statements as in each case the Administrative Agent
may
reasonably request (for itself or on behalf of any Lender);
(h) in
the
event that (i) in respect of the Second Lien Notes or the Senior Subordinated
Notes, and any Refinancing Indebtedness with respect thereto, the rules and
regulations of the SEC permit the Borrower, Holdings or any Parent Entity to
report at Holdings’ or such Parent Entity’s level on a consolidated basis and
(ii) Holdings or such Parent Entity, as the case may be, is not engaged in
any
business or activity, and does not own any assets or have other liabilities,
other than those incidental to its ownership directly or indirectly of the
capital stock of the Borrower and the incurrence of Indebtedness for borrowed
money (and, without limitation on the foregoing, does not have any subsidiaries
other than the Borrower and the Borrower’s Subsidiaries and any direct or
indirect parent companies of the Borrower that are not engaged in any other
business or activity and do not hold any other assets or have any liabilities
except as indicated above) such consolidated reporting at such Parent Entity’s
level in a manner consistent with that described in paragraphs (a) and (b)
of
this Section 5.04 for the Borrower will satisfy the requirements of such
paragraphs;
(i) promptly
upon request by the Administrative Agent, copies of: (i) each Schedule B
(Actuarial Information) to the most recent annual report (Form 5500 Series)
filed with the Internal Revenue Service with respect to a Plan; (ii) the most
recent actuarial valuation report for any Plan; (iii) all notices received
from
a Multiemployer Plan sponsor, a plan administrator or any governmental agency,
or provided to any Multiemployer Plan by Holdings, the Borrower, a Subsidiary
or
any ERISA Affiliate, concerning an ERISA Event; and (iv) such other documents
or
governmental reports or filings relating to any Plan or Multiemployer Plan
as
the Administrative Agent shall reasonably request; and
(j) promptly
upon Holdings, Borrower or Subsidiaries becoming aware of any fact or condition
which would reasonably be expected to result in an ERISA Event, Borrower shall
deliver to Administrative Agent a summary of such facts and circumstances and
any action it or Holdings or Subsidiaries intend to take regarding such facts
or
conditions.
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SECTION
5.05. Litigation
and Other Notices
Furnish
to the Administrative Agent (which will promptly thereafter furnish to the
Lenders) written notice of the following promptly after any Responsible Officer
of Holdings or the Borrower obtains actual knowledge thereof:
(a) any
Event
of Default or Default, specifying the nature and extent thereof and the
corrective action (if any) proposed to be taken with respect
thereto;
(b) the
filing or commencement of, or any written threat or notice of intention of
any
person to file or commence, any action, suit or proceeding, whether at law
or in
equity or by or before any Governmental Authority or in arbitration, against
Holdings, the Borrower or any of the Subsidiaries as to which an adverse
determination is reasonably probable and which, if adversely determined, would
reasonably be expected to have a Material Adverse Effect;
(c) any
other
development specific to Holdings, the Borrower or any of the Subsidiaries that
is not a matter of general public knowledge and that has had, or would
reasonably be expected to have, a Material Adverse Effect; and
(d) the
development of any ERISA Event that, together with all other ERISA Events that
have developed or occurred, would reasonably be expected to have a Material
Adverse Effect.
SECTION
5.06. Compliance
with Laws
.
Comply
with all laws, rules, regulations and orders of any Governmental Authority
applicable to it or its property, except where the failure to do so,
individually or in the aggregate, would not reasonably be expected to result
in
a Material Adverse Effect; provided,
that
this Section 5.06 shall not apply to Environmental Laws, which are the subject
of Section 5.09, or to laws related to Taxes, which are the subject of Section
5.03.
SECTION
5.07. Maintaining
Records; Access to Properties and Inspections
.
Maintain all financial records in accordance with GAAP and permit any persons
designated by the Administrative Agent or, upon the occurrence and during the
continuance of an Event of Default, any Lender to visit and inspect the
financial records and the properties of Holdings, the Borrower or any of the
Subsidiaries at reasonable times, upon reasonable prior notice to Holdings
or
the Borrower, and as often as reasonably requested and to make extracts from
and
copies of such financial records, and permit any persons designated by the
Administrative Agent or, upon the occurrence and during the continuance of
an
Event of Default, any Lender upon reasonable prior notice to Holdings or the
Borrower to discuss the affairs, finances and condition of Holdings, the
Borrower or any of the Subsidiaries with the officers thereof and independent
accountants therefor (subject to reasonable requirements of confidentiality,
including requirements imposed by law or by contract).
SECTION
5.08. Use
of
Proceeds
.
Use the
proceeds of the Term C Loans, together with other cash, to consummate the
Refinancing and the other Transactions and for general corporate purposes.
SECTION
5.09. Compliance
with Environmental Laws
.
Comply,
and make reasonable efforts to cause all lessees and other persons occupying
its
properties to comply, with
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all
Environmental Laws applicable to its operations and properties; and obtain
and
renew all material authorizations and permits required pursuant to Environmental
Law for its operations and properties, in each case in accordance with
Environmental Laws, except, in each case with respect to this Section 5.09,
to
the extent the failure to do so would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
SECTION
5.10. Further
Assurances; Additional Security
.
xxvi) Execute
any and all further documents, financing statements, agreements and instruments,
and take all such further actions (including the filing and recording of
financing statements, fixture filings, Mortgages and other documents and
recordings of Liens in stock registries), that may be required under any
applicable law, or that the Collateral Agent may reasonably request, to satisfy
the Collateral and Guarantee Requirement and to cause the Collateral and
Guarantee Requirement to be and remain satisfied, all at the expense of the
Loan
Parties and provide to the Collateral Agent, from time to time upon reasonable
request, evidence reasonably satisfactory to the Collateral Agent as to the
perfection and priority of the Liens created or intended to be created by the
Security Documents.
(b) If
any
asset (including any Real Property (other than Real Property covered by
paragraph (c) below) or improvements thereto or any interest therein) that
has an individual fair market value in an amount greater than $5.0 million
is
acquired by the Borrower or any other Loan Party after the Closing Date or
owned
by an entity at the time it becomes a Subsidiary Loan Party (in each case other
than (x) assets constituting Collateral under a Security Document that
become subject to the Lien of such Security Document upon acquisition thereof
and (y) assets that are not required to become subject to Liens in favor of
the
Collateral Agent pursuant to Section 5.10(g) or the Security Documents) (i)
notify the Collateral Agent thereof, (ii) if such asset is comprised of Real
Property, deliver to Collateral Agent an updated Schedule 1.01(c) reflecting
the
addition of such asset, and (iii) cause such asset to be subjected to a Lien
securing the Obligations and take, and cause the Subsidiary Loan Parties to
take, such actions as shall be necessary or reasonably requested by the
Collateral Agent to grant and perfect such Liens, including actions described
in
paragraph (a) of this Section, all at the expense of the Loan Parties,
subject to paragraph (g) below.
(c) Promptly
notify the Collateral Agent of the acquisition of and grant and cause each
of
the Subsidiary Loan Parties to grant to the Collateral Agent security interests
and mortgages in such Real Property of the Borrower or any such Subsidiary
Loan
Parties as are not covered by the original Mortgages, to the extent acquired
after the Closing Date and having a value at the time of acquisition in excess
of $5.0 million pursuant to documentation substantially in the form of the
Mortgages delivered to the Collateral Agent on the Closing Date or in such
other
form as is reasonably satisfactory to the Collateral Agent (each, an
“Additional
Mortgage”)
and
constituting valid and enforceable Liens subject to no other Liens except
Permitted Liens, at the time of perfection thereof, record or file, and cause
each such Subsidiary to record or file, the Additional Mortgage or instruments
related thereto in such manner and in such places as is required by law to
establish, perfect, preserve and protect the Liens in favor of the Collateral
Agent required to be granted pursuant to the Additional Mortgages and pay,
and
cause each such Subsidiary to pay, in full, all Taxes, fees and other charges
payable in connection therewith, in each case subject to paragraph (g)
below. Unless otherwise waived by the Collateral Agent, with
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respect
to each such Additional Mortgage, the Borrower shall deliver to the Collateral
Agent contemporaneously therewith a title insurance policy, and a
survey.
(d) If
any
additional direct or indirect Subsidiary of the Borrower is formed or acquired
after the Closing Date (with any Subsidiary Redesignation resulting in an
Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the
acquisition of a Subsidiary) and if such Subsidiary is a Subsidiary Loan Party,
within five Business Days after the date such Subsidiary is formed or acquired,
notify the Collateral Agent and the Lenders thereof and, within 20 Business
Days
after the date such Subsidiary is formed or acquired or such longer period
as
the Collateral Agent shall agree, cause the Collateral and Guarantee Requirement
to be satisfied with respect to such Subsidiary and with respect to any Equity
Interest in or Indebtedness of such Subsidiary owned by or on behalf of any
Loan
Party, subject to paragraph (g) below.
(e) If
any
additional Foreign Subsidiary of the Borrower is formed or acquired after the
Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted
Subsidiary becoming a Subsidiary being deemed to constitute the acquisition
of a
Subsidiary) and if such Subsidiary is a “first tier” Foreign Subsidiary, within
five Business Days after the date such Foreign Subsidiary is formed or acquired,
notify the Collateral Agent and the Lenders thereof and, within 20 Business
Days
after the date such Foreign Subsidiary is formed or acquired or such longer
period as the Collateral Agent shall agree, cause the Collateral and Guarantee
Requirement to be satisfied with respect to any Equity Interest in such Foreign
Subsidiary owned by or on behalf of any Loan Party, subject to paragraph (g)
below.
(f) (i)
Furnish to the Collateral Agent prompt written notice of any change (A) in
any
Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or
organizational structure or (C) in any Loan Party’s organizational
identification number; provided,
that
the Borrower shall not effect or permit any such change unless all filings
have
been made, or will have been made within any statutory period, under the Uniform
Commercial Code 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 for the benefit of the Secured
Parties and (ii) promptly notify the Collateral Agent if any material portion
of
the Collateral is damaged or destroyed.
(g) The
Collateral and Guarantee Requirement and the other provisions of this
Section 5.10 need not be satisfied with respect to (i) any Real Property
held by the Borrower or any of its Subsidiaries as a lessee under a lease,
(ii)
any vehicle, (iii) cash, deposit accounts and securities accounts, (iv) any
Equity Interests acquired after the Closing Date (other than Equity Interests
in
the Borrower or, in the case of any person which is a Subsidiary, Equity
Interests in such person issued or acquired after such person became a
Subsidiary) in accordance with this Agreement if, and to the extent that, and
for so long as (A) such Equity Interests constitute less than 100% of all
applicable Equity Interests of such person and the person holding the remainder
of such Equity Interests are not Affiliates, (B) doing so would violate
applicable law or a contractual obligation binding on such Equity Interests
and
(C) with respect to such contractual obligations, such obligation existed at
the
time of the acquisition thereof and was not created or made binding on such
Equity Interests in contemplation of or in connection with the acquisition
of
such Subsidiary, (v) any assets acquired after the Closing Date, to the extent
that, and for so long as, taking such actions would violate an enforceable
contractual obligation binding on such
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assets
that existed at the time of the acquisition thereof and was not created or
made
binding on such assets in contemplation or in connection with the acquisition
of
such assets (except in the case of assets acquired with Indebtedness permitted
pursuant to Section 6.01(i) that is secured by a Permitted Lien) or (vi)
those assets as to which the Collateral Agent shall reasonably determine that
the costs of obtaining or perfecting such a security interest are excessive
in
relation to the value of the security to be afforded thereby; provided,
that,
upon the reasonable request of the Collateral Agent, the Borrower shall, and
shall cause any applicable Subsidiary to, use commercially reasonable efforts
to
have waived or eliminated any contractual obligation of the types described
in
clauses (iv) and (v) above.
ARTICLE
VI
Negative
Covenants
The
Borrower covenants and agrees with each Lender that, so long as this Agreement
shall remain in effect (other than in respect of contingent indemnification
obligations for which no claim has been made) and until the Commitments have
been terminated and the Obligations (including principal of and interest on
each
Loan, all Fees and all other expenses or amounts payable under any Loan
Document) have been paid in full, unless the Required Lenders shall otherwise
consent in writing, the Borrower will not, and will not permit any of the
Material Subsidiaries to:
SECTION
6.01. Indebtedness
.
Incur,
create, assume or permit to exist any Indebtedness, except:
(a) Indebtedness
existing on the Closing Date and set forth on Schedule 6.01 and any Permitted
Refinancing Indebtedness incurred to Refinance such Indebtedness (other than
intercompany indebtedness Refinanced with Indebtedness owed to a person not
affiliated with the Borrower or any Subsidiary);
(b) Indebtedness
created hereunder and under the other Loan Documents and any Permitted
Refinancing Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness
pursuant to Swap Agreements;
(d) Indebtedness
owed to (including obligations in respect of letters of credit or bank
guarantees or similar instruments for the benefit of) any person providing
workers’ compensation, health, disability or other employee benefits or
property, casualty or liability insurance to the Borrower or any Subsidiary,
pursuant to reimbursement or indemnification obligations to such person, in
each
case in the ordinary course of business; provided,
that
upon the incurrence of Indebtedness with respect to reimbursement obligations
regarding workers’ compensation claims, such obligations are reimbursed not
later than 30 days following such incurrence;
(e) Indebtedness
of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings,
the Borrower or any other Subsidiary; provided,
that
(i) Indebtedness of any Subsidiary that is not a Subsidiary Loan Party owing
to
the Loan
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Parties
shall be subject to Section 6.04(b) and (ii) Indebtedness of the Borrower
to Holdings or any Subsidiary and Indebtedness of any other Loan Party to
Holdings or any Subsidiary that is not a Subsidiary Loan Party (the
“Subordinated
Intercompany Debt”)
shall
be subordinated to the Obligations on terms reasonably satisfactory to the
Administrative Agent;
(f) Indebtedness
in respect of performance bonds, bid bonds, appeal bonds, surety bonds and
completion guarantees and similar obligations, in each case provided in the
ordinary course of business, including those incurred to secure health, safety
and environmental obligations in the ordinary course of business;
(g) Indebtedness
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument drawn against insufficient funds in the ordinary
course of business or other cash management services in the ordinary course
of
business; provided,
that
(x) such Indebtedness (other than credit or purchase cards) is extinguished
within ten Business Days of notification to the Borrower of its incurrence
and
(y) such Indebtedness in respect of credit or purchase cards is extinguished
within 60 days from its incurrence;
(h) (i)
Indebtedness of a Subsidiary acquired after the Closing Date or an entity merged
into or consolidated with the Borrower or any Subsidiary after the Closing
Date
and Indebtedness assumed in connection with the acquisition of assets, which
Indebtedness in each case exists at the time of such acquisition, merger or
consolidation and is not created in contemplation of such event and where such
acquisition, merger or consolidation is permitted by this Agreement and (ii)
any
Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
provided,
(A) no
Default or Event of Default shall have occurred and be continuing or would
result therefrom, and (B) if immediately after giving effect to such
acquisition, merger or consolidation, the assumption and incurrence of any
Indebtedness and any related transactions, the Total Net First Lien Leverage
Ratio of the Borrower on a Pro Forma Basis would be greater than 4.00 to 1.00,
then the amount of Indebtedness incurred pursuant to this paragraph (h) shall
not exceed the greater of $140 million and 4.00% of Consolidated Total Assets
as
of the end of the fiscal quarter immediately prior to the date of such
incurrence for which financial statements have been delivered pursuant to
Section 5.04;
(i) Capital
Lease Obligations, mortgage financings and purchase money Indebtedness incurred
by the Borrower or any Subsidiary prior to or within 270 days after the
acquisition, lease or improvement of the respective asset permitted under this
Agreement in order to finance such acquisition or improvement, and any Permitted
Refinancing Indebtedness in respect thereof; provided,
that,
if immediately after giving effect to such transaction, the Total Net First
Lien
Leverage Ratio of the Borrower on a Pro Forma Basis would be greater than 4.00
to 1.00, then the amount of Indebtedness incurred pursuant to this paragraph
(i), when combined with the Remaining Present Value of outstanding leases
permitted under Section 6.03, shall not exceed the greater of $150 million
and
4.5% of Consolidated Total Assets as of the end of the fiscal quarter
immediately prior to the date of such incurrence for which financial statements
have been delivered pursuant to Section 5.04;
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(j) Capital
Lease Obligations incurred by the Borrower or any Subsidiary in respect of
any
Sale and Lease-Back Transaction that is permitted under Section 6.03 and
any Permitted Refinancing Indebtedness in respect thereof;
(k) other
Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount
that at the time of, and after giving effect to, the incurrence thereof, would
not exceed the greater of $175 million and 5.0% of Consolidated Total Assets
as
of the end of the fiscal quarter immediately prior to the date of such
incurrence for which financial statements have been delivered pursuant to
Section 5.04;
(l) Indebtedness
of the Borrower pursuant to (i) the Second Lien Notes in an aggregate principal
amount that is not in excess of $750.0 million, (ii) the ▇▇▇▇▇ Senior
Subordinated Notes in an aggregate principal amount that is not in excess of
$425.0 million, (iii) the Covalence Senior Subordinated Notes in an aggregate
principal amount that is not in excess of $265.0 million, (iv) the extensions
of
credit under the Revolving Credit Agreement, and (v) any Permitted
Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(m) Guarantees
(i) by the Subsidiary Loan Parties of the Indebtedness of the Borrower described
in paragraph (1) of this Section 6.01, so long as the Guarantee of the Senior
Subordinated Notes or any Permitted Refinancing Indebtedness in respect thereof
is subordinated substantially on terms as set forth in the Senior Subordinated
Notes Indentures with respect to the Senior Subordinated Notes, and so long
as
any Liens securing the Guarantee of the Second Lien Notes or any Permitted
Refinancing Indebtedness in respect thereof are subject to the Intercreditor
Agreement, (ii) by the Borrower or any Subsidiary Loan Party of any Indebtedness
of the Borrower or any Subsidiary Loan Party expressly permitted to be incurred
under this Agreement, (iii) by the Borrower or any Subsidiary Loan Party of
Indebtedness otherwise permitted hereunder of Holdings or any Subsidiary that
is
not a Subsidiary Loan Party to the extent such Guarantees are permitted by
Section 6.04 (other than Section 6.04(v)), (iv) by any Foreign Subsidiary of
Indebtedness of another Foreign Subsidiary, and (v) by the Borrower of
Indebtedness of Foreign Subsidiaries incurred for working capital purposes
in
the ordinary course of business on ordinary business terms so long as such
Indebtedness is permitted to be incurred under Section 6.01 (s) to the
extent such Guarantees are permitted by 6.04 (other than Section 6.04(v));
provided,
that
Guarantees by the Borrower or any Subsidiary Loan Party under this
Section 6.01(m) of any other Indebtedness of a person that is subordinated
to other Indebtedness of such person shall be expressly subordinated to the
Obligations to at least the same extent as the Guarantee of the Senior
Subordinated Notes is under the Senior Subordinated Notes
Indentures;
(n) Indebtedness
arising from agreements of the Borrower or any Subsidiary providing for
indemnification, adjustment of purchase or acquisition price or similar
obligations, in each case, incurred or assumed in connection with the
Transactions and any Permitted Business Acquisition or the disposition of any
business, assets or a Subsidiary not prohibited by this Agreement, other than
Guarantees of Indebtedness incurred by any person acquiring all or any portion
of such business, assets or a Subsidiary for the purpose of financing such
acquisition;
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(o) Indebtedness
in respect of letters of credit, bank guarantees, warehouse receipts or similar
instruments issued to support performance obligations and trade letters of
credit (other than obligations in respect of other Indebtedness) in the ordinary
course of business;
(p) Indebtedness
supported by a Letter of Credit, in a principal amount not in excess of the
stated amount of such Letter of Credit;
(q) Indebtedness
consisting of (i) the financing of insurance premiums or (ii) take-or-pay
obligations contained in supply arrangements, in each case, in the ordinary
course of business;
(r)
(i)
Other Indebtedness incurred by the Borrower or any Subsidiary Loan Party;
provided that (A) at the time of the incurrence of such Indebtedness and after
giving effect thereto, no Default or Event of Default shall have occurred and
be
continuing or would result therefrom, (B) the Borrower and its Subsidiaries
shall be in Pro Forma Compliance after giving effect to the issuance incurrence
or assumption of such Indebtedness and (C) in the case of any such Indebtedness
that is secured, immediately after giving effect to the issuance, incurrence
or
assumption of such Indebtedness, the Total Net First Lien Leverage Ratio on
a
Pro Forma Basis shall not be greater than 3.75 to 1.00 and (ii) Permitted
Refinancing Indebtedness in respect thereof;
(s) Indebtedness
of Foreign Subsidiaries; provided
that the
aggregate amount of Indebtedness incurred under this clause (s), when aggregated
with all other Indebtedness incurred and outstanding pursuant to this clause
(s), shall not exceed the greater of $100 million and 10% of the consolidated
assets of the Foreign Subsidiaries at the time of such incurrence;
(t) unsecured
Indebtedness in respect of obligations of the Borrower or any Subsidiary to
pay
the deferred purchase price of goods or services or progress payments in
connection with such goods and services; provided,
that
such obligations are incurred in connection with open accounts extended by
suppliers on customary trade terms (which require that all such payments be
made
within 60 days after the incurrence of the related obligations) in the ordinary
course of business and not in connection with the borrowing of money or any
Swap
Agreements;
(u) Indebtedness
representing deferred compensation to employees of the Borrower or any
Subsidiary incurred in the ordinary course of business;
(v) Indebtedness
in connection with Permitted Receivables Financings; provided that the proceeds
thereof are applied in accordance with Section 2.11(b);
(w) Indebtedness
of the Foreign Subsidiaries incurred under lines of credit or overdraft
facilities (including, but not limited to, intraday, ACH and purchasing
card/T&E services) extended by one or more financial institutions reasonably
acceptable to the Administrative Agent or one or more of the Lenders and (in
each case) established for such Foreign Subsidiaries’ ordinary course of
operations (such Indebtedness, the
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“Overdraft
Line”),
which
Indebtedness may be secured as, but only to the extent, provided in Section
6.02(b) and in the Security Documents;
(x) Indebtedness
incurred on behalf of, or representing Guarantees of Indebtedness of, joint
ventures not in excess, at any one time outstanding, of the greater of $175
million or 5.0% of Consolidated Total Assets as of the end of the fiscal quarter
immediately prior to the date of such incurrence for which financial statements
have been delivered pursuant to Section 5.04;
(y) Indebtedness
consisting of promissory notes issued by the Borrower or any Subsidiary to
current or former officers, directors and employees, their respective estates,
spouses or former spouses to finance the purchase or redemption of Equity
Interests of Holdings or any Parent Entity permitted by Section 6.06;
(z) Indebtedness
consisting of obligations of the Borrower or any Subsidiary under deferred
compensation or other similar arrangements incurred by such Person in connection
with the Transactions and Permitted Business Acquisitions or any other
Investment expressly permitted hereunder; and
(aa) all
premium (if any), interest (including post-petition interest), fees, expenses,
charges and additional or contingent interest on obligations described in
paragraphs (a) through (z) above.
SECTION
6.02. Liens
.
Create,
incur, assume or permit to exist any Lien on any property or assets (including
stock or other securities of any person, including the Borrower and any
Subsidiary) at the time owned by it or on any income or revenues or rights
in
respect of any thereof, except the following (collectively, “Permitted
Liens”):
(a) Liens
on
property or assets of the Borrower and the Subsidiaries existing on the Closing
Date and set forth on Schedule 6.02(a) or, to the extent not listed in such
Schedule, where such property or assets have a fair market value that does
not
exceed $10.0 million in the aggregate, and any modifications, replacements,
renewals or extensions thereof; provided, that such Liens shall secure only
those obligations that they secure on the Closing Date (and any Permitted
Refinancing Indebtedness in respect of such obligations permitted by Section
6.01(a)) and shall not subsequently apply to any other property or assets of
the
Borrower or any Subsidiary other than (A) after-acquired property that is
affixed or incorporated into the property covered by such Lien, and (B) proceeds
and products thereof;
(b) any
Lien
created under the Loan Documents (including, without limitation, Liens created
under the Security Documents securing obligations in respect of Swap Agreements
owed to a person that is a Lender or an Affiliate of a Lender at the time of
entry into such Swap Agreements) or permitted in respect of any Mortgaged
Property by the terms of the applicable Mortgage and, provided that such Liens
are subject to the terms of the Senior Lender Intercreditor Agreement, any
Lien
securing the Revolving Credit Agreement or any Indebtedness or obligations
under
the Revolving Credit Agreement or any “Loan Documents” thereunder; provided,
however,
in no
event
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shall
the
holders of the Indebtedness under the Overdraft Line have the right to receive
proceeds in respect of a claim in excess of $20 million in the aggregate (plus
(i) any accrued and unpaid interest in respect of Indebtedness incurred by
the Borrower and the Subsidiaries under the Overdraft Line and (ii) any
accrued and unpaid fees and expenses owing by the Borrower and the Subsidiaries
under the Overdraft Line) from the enforcement of any remedies available to
the
Secured Parties under all of the Loan Documents;
(c) any
Lien
on any property or asset of the Borrower or any Subsidiary securing Indebtedness
or Permitted Refinancing Indebtedness permitted by Section 6.01(h);
provided,
that
such Lien (i) does not apply to any other property or assets of the Borrower
or
any of the Subsidiaries not securing such Indebtedness at the date of the
acquisition of such property or asset (other than after acquired property
subjected to a Lien securing Indebtedness and other obligations incurred prior
to such date and which Indebtedness and other obligations are permitted
hereunder that require a pledge of after acquired property, it being understood
that such requirement shall not be permitted to apply to any property to which
such requirement would not have applied but for such acquisition), (ii) such
Lien is not created in contemplation of or in connection with such acquisition
and (iii) in the case of a Lien securing Permitted Refinancing Indebtedness,
any
such Lien is permitted, subject to compliance with clause (e) of the
definition of the term “Permitted Refinancing Indebtedness”;
(d) Liens
for
Taxes, assessments or other governmental charges or levies not yet delinquent
or
that are being contested in compliance with Section 5.03;
(e) Liens
imposed by law, such as landlord’s, carriers’, warehousemen’s, mechanics’,
materialmen’s, repairmen’s, construction or other like Liens arising in the
ordinary course of business and securing obligations that are not overdue by
more than 30 days or that are being contested in good faith by appropriate
proceedings and in respect of which, if applicable, the Borrower or any
Subsidiary shall have set aside on its books reserves in accordance with
GAAP;
(f) (i)
pledges and deposits and other Liens made in the ordinary course of business
in
compliance with the Federal Employers Liability Act or any other workers’
compensation, unemployment insurance and other social security laws or
regulations and deposits securing liability to insurance carriers under
insurance or self-insurance arrangements in respect of such obligations and
(ii)
pledges and deposits and other Liens securing liability for reimbursement or
indemnification obligations of (including obligations in respect of letters
of
credit or bank guarantees for the benefit of) insurance carriers providing
property, casualty or liability insurance to the Borrower or any
Subsidiary;
(g) deposits
to secure the performance of bids, trade contracts (other than for
Indebtedness), leases (other than Capital Lease Obligations), statutory
obligations, surety and appeal bonds, performance and return of money bonds,
bids, leases, government contracts, trade contracts, agreements with utilities,
and other obligations of a like nature (including letters of credit in lieu
of
any such bonds or to support the issuance thereof)
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incurred
in the ordinary course of business, including those incurred to secure health,
safety and environmental obligations in the ordinary course of
business;
(h) zoning
restrictions, survey exceptions and such matters as an accurate survey would
disclose, easements, trackage rights, leases (other than Capital Lease
Obligations), licenses, special assessments, rights-of-way, covenants,
conditions, restrictions and declaration on or with respect to the use of Real
Property, servicing agreements, development agreements, site plan agreements
and
other similar encumbrances incurred in the ordinary course of business and
title
defects or irregularities that are of a minor nature and that, in the aggregate,
do not interfere in any material respect with the ordinary conduct of the
business of the Borrower or any Subsidiary;
(i) Liens
securing Indebtedness permitted by Section 6.01(i) (limited to the assets
subject to such Indebtedness);
(j) Liens
arising out of capitalized lease transactions permitted under Section 6.03,
so long as such Liens attach only to the property sold and being leased in
such
transaction and any accessions thereto or proceeds thereof and related
property;
(k) Liens
securing judgments that do not constitute an Event of Default under Section
7.01(j);
(l) Liens
disclosed by the title insurance policies delivered on or subsequent to the
Closing Date and pursuant to Section 5.10 and any replacement, extension or
renewal of any such Lien; provided,
that
such replacement, extension or renewal Lien shall not cover any property other
than the property that was subject to such Lien prior to such replacement,
extension or renewal; provided,
further,
that
the Indebtedness and other obligations secured by such replacement, extension
or
renewal Lien are permitted by this Agreement;
(m) any
interest or title of a lessor or sublessor under any leases or subleases entered
into by the Borrower or any Subsidiary in the ordinary course of
business;
(n) Liens
that are contractual rights of set-off (i) relating to the establishment of
depository relations with banks not given in connection with the issuance of
Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Borrower
or any Subsidiary to permit satisfaction of overdraft or similar obligations
incurred in the ordinary course of business of the Borrower or any Subsidiary
or
(iii) relating to purchase orders and other agreements entered into with
customers of the Borrower or any Subsidiary in the ordinary course of
business;
(o) Liens
arising solely by virtue of any statutory or common law provision relating
to
banker’s liens, rights of set-off or similar rights;
(p) Liens
securing obligations in respect of trade-related letters of credit, banker’s
acceptances or bank guarantees permitted under Section 6.01(f), (k) or (o)
and covering the goods (or the documents of title in respect of such goods)
financed by such
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letters
of credit, banker’s acceptances or bank guarantees and the proceeds and products
thereof;
(q) leases
or
subleases, licenses or sublicenses (including with respect to intellectual
property and software) granted to others in the ordinary course of business
not
interfering in any material respect with the business of the Borrower and its
Subsidiaries, taken as a whole;
(r) Liens
in
favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of
goods;
(s) Liens
solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by the Borrower or any of the
Subsidiaries in connection with any letter of intent or purchase agreement
in
respect of any Investment permitted hereunder;
(t) Liens
with respect to property or assets of any Foreign Subsidiary securing
Indebtedness of a Foreign Subsidiary permitted under
Section 6.01;
(u) other
Liens with respect to property or assets of the Borrower or any Subsidiary;
provided
that (i)
after giving effect to any such Lien and the incurrence of Indebtedness, if
any,
secured by such Lien is created, incurred, acquired or assumed (or any prior
Indebtedness becomes so secured) on a Pro Forma Basis, the Total Net First
Lien
Leverage Ratio on the last day of the Borrower’s then most recently completed
fiscal quarter for which financial statements are available shall be less than
or equal to 3.75 to 1.00, (ii) at the time of the incurrence of such Lien and
after giving effect thereto, no Default or Event of Default shall have occurred
and be continuing or would result therefrom, (iii) the Indebtedness or other
obligations secured by such Lien are otherwise permitted by this Agreement,
and
(iv) to the extent such Liens are pari passu or subordinated to the Liens
granted hereunder, an intercreditor agreement reasonably satisfactory to the
Administrative Agent shall be entered into providing that such new liens will
be
secured equally and ratably with the Liens granted hereunder, or, as applicable,
subordinated to the Liens granted hereunder, in each case, on customary
terms;
(v) the
prior
rights of consignees and their lenders under consignment arrangements entered
into in the ordinary course of business;
(w) agreements
to subordinate any interest of the Borrower or any Subsidiary in any accounts
receivable or other proceeds arising from inventory consigned by the Borrower
or
any of its Subsidiaries pursuant to an agreement entered into in the ordinary
course of business;
(x) Liens
arising from precautionary Uniform Commercial Code financing statements or
consignments entered into in connection with any transaction otherwise permitted
under this Agreement;
(y) Liens
on
Equity Interests in joint ventures securing obligations of such joint venture;
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(z) Liens
on
securities that are the subject of repurchase agreements constituting Permitted
Investments under clause (c) of the definition thereof;
(aa) Liens
in
respect of Permitted Receivables Financings that extend only to the receivables
subject thereto;
(bb) Liens
on
goods or inventory the purchase, shipment or storage price of which is financed
by a documentary letter of credit, bank guarantee or bankers’ acceptance issued
or created for the account of the Borrower or any Subsidiary in the ordinary
course of business; provided,
that
such Lien secures only the obligations of the Borrower or such Subsidiaries
in
respect of such letter of credit, bankers’ acceptance or bank guarantee to the
extent permitted under Section 6.01;
(cc) Liens
securing insurance premiums financing arrangements, provided,
that
such Liens are limited to the applicable unearned insurance premiums;
(dd) Liens
in
favor of the Borrower or any Subsidiary Loan Party; provided
that if
any such Lien shall cover any Collateral, the holder of such Lien shall execute
and deliver to the Administrative Agent a subordination agreement in form and
substance reasonably satisfactory to the Administrative Agent;
(ee) Liens
securing obligations under the Second Lien Note Documents and any Permitted
Refinancing Indebtedness in respect thereof, to the extent such Liens are
subject to the Intercreditor Agreement;
(ff) Liens
on
not more than $30 million of deposits securing Swap Agreements; and
(gg) other
Liens with respect to property or assets of the Borrower or any Subsidiary
securing obligations in an aggregate principal amount outstanding at any time
not to exceed $30 million.
SECTION
6.03. Sale
and
Lease-Back Transactions
.
Enter
into any arrangement, directly or indirectly, with any person whereby it shall
sell or transfer any property, real or personal, used or useful in its business,
whether now owned or hereafter acquired, and thereafter rent or lease such
property or other property that it intends to use for substantially the same
purpose or purposes as the property being sold or transferred (a “Sale
and Lease-Back Transaction”);
provided,
that a
Sale and Lease-Back Transaction shall be permitted (a) with respect to property
(i) owned by the Borrower or any Domestic Subsidiary that is acquired after
the
Closing Date so long as such Sale and Lease-Back Transaction is consummated
within 180 days of the acquisition of such property or (ii) by any Foreign
Subsidiary regardless of when such property was acquired, and (b) with respect
to any property owned by the Borrower or any Domestic Subsidiary, (x) if at
the
time the lease in connection therewith is entered into, and after giving effect
to the entering into of such lease, (A) the Total Net First Lien Leverage Ratio
is equal to or less than 4.00 to 1.00, or (B) if the Total Net First Lien
Leverage Ratio is greater than 4.00 to 1.00, the Remaining Present Value of
such
lease, together with Indebtedness outstanding pursuant to Section 6.01(i) and
the Remaining Present Value of outstanding leases previously entered into under
this Section 6.03(b), shall not exceed the greater of $150 million and 4.5%
of
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Consolidated
Total Assets as of the end of the fiscal quarter immediately prior to the date
the lease was entered into for which financial statements have been delivered
pursuant to Section 5.04 and (y) if such Sale and Lease-Back Transaction is
of property owned by the Borrower or any Domestic Subsidiary as of the Closing
Date, the Net Proceeds therefrom are used to prepay the Loans to the extent
required by Section 2.11(b).
SECTION
6.04. Investments,
Loans and Advances
.
Purchase, hold or acquire (including pursuant to any merger with a person that
is not a Wholly Owned Subsidiary immediately prior to such merger) any Equity
Interests, evidences of Indebtedness or other securities of, make or permit
to
exist any loans or advances to or Guarantees of the obligations of, or make
or
permit to exist any investment or any other interest in (each, an “Investment”),
any
other person, except:
(a) the
Transactions;
(b) (i)
Investments by the Borrower or any Subsidiary in the Equity Interests of the
Borrower or any Subsidiary; (ii) intercompany loans from the Borrower or any
Subsidiary to the Borrower or any Subsidiary; and (iii) Guarantees by the
Borrower or any Subsidiary Loan Party of Indebtedness otherwise expressly
permitted hereunder of the Borrower or any Subsidiary; provided,
that
the sum of (A) Investments (valued at the time of the making thereof and without
giving effect to any write-downs or write-offs thereof) made after the Closing
Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are
not Subsidiary Loan Parties, plus
(B) net
intercompany loans made after the Closing Date to Subsidiaries that are not
Subsidiary Loan Parties pursuant to clause (ii), plus
(C)
Guarantees of Indebtedness after the Closing Date of Subsidiaries that are
not
Subsidiary Loan Parties pursuant to clause (iii), shall not exceed an
aggregate net amount equal to (x) the greater of (1) $100 million and
(2) 4.5% of Consolidated Total Assets as of the end of the fiscal quarter
immediately prior to the date of such Investment for which financial statements
have been delivered pursuant to Section 5.04 (plus
any
return of capital actually received by the respective investors in respect
of
Investments theretofore made by them pursuant to this paragraph (b));
plus
(y) the portion, if any, of the Cumulative Credit on the date of such
election that the Borrower elects to apply to this Section 6.04(b)(y), such
election to be specified in a written notice of a Responsible Officer of the
Borrower calculating in reasonable detail the amount of Cumulative Credit
immediately prior to such election and the amount thereof elected to be so
applied; provided,
further,
that
intercompany current liabilities incurred in the ordinary course of business
in
connection with the cash management operations of the Borrower and the
Subsidiaries shall not be included in calculating the limitation in this
paragraph at any time.
(c) Permitted
Investments and Investments that were Permitted Investments when
made;
(d) Investments
arising out of the receipt by the Borrower or any Subsidiary of noncash
consideration for the sale of assets permitted under
Section 6.05;
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(e) loans
and
advances to officers, directors, employees or consultants of the Borrower or
any
Subsidiary (i) in the ordinary course of business not to exceed the greater
of
$25 million and 1.0% of Consolidated Total Assets as of the end of the fiscal
quarter immediately prior to the date of such loan or advance for which
financial statements have been delivered pursuant to Section 5.04, in the
aggregate at any time outstanding (calculated without regard to write downs
or
write offs thereof), (ii) in respect of payroll payments and expenses in the
ordinary course of business and (iii) in connection with such person’s purchase
of Equity Interests of Holdings (or any Parent Entity) solely to the extent
that
the amount of such loans and advances shall be contributed to the Borrower
in
cash as common equity;
(f) accounts
receivable, security deposits and prepayments arising and trade credit granted
in the ordinary course of business and any assets or securities received in
satisfaction or partial satisfaction thereof from financially troubled account
debtors to the extent reasonably necessary in order to prevent or limit loss
and
any prepayments and other credits to suppliers made in the ordinary course
of
business;
(g) Swap
Agreements;
(h) Investments
existing on, or contractually committed as of, the Closing Date and set forth
on
Schedule 6.04
and any
extensions, renewals or reinvestments thereof, so long as the aggregate amount
of all Investments pursuant to this clause (h) is not increased at any time
above the amount of such Investment existing on the Closing Date;
(i) Investments
resulting from pledges and deposits under Sections 6.02(f), (g), (k), (r),
(s), and (u);
(j) other
Investments by the Borrower or any Subsidiary in an aggregate amount (valued
at
the time of the making thereof, and without giving effect to any write-downs
or
write-offs thereof) not to exceed (i) the greater of $225 million and 6.5%
of
Consolidated Total Assets as of the end of the fiscal quarter immediately prior
to the date of such incurrence for which financial statements have been
delivered pursuant to Section 5.04 (plus
any
returns of capital actually received by the respective investor in respect
of
investments theretofore made by it pursuant to this paragraph (j))
plus
(ii) the
portion, if any, of the Cumulative Credit on the date of such election that
the
Borrower elects to apply to this Section 6.04(j)(ii), such election to be
specified in a written notice of a Responsible Officer of the Borrower
calculating in reasonable detail the amount of Cumulative Credit immediately
prior to such election and the amount thereof elected to be so
applied;
(k) Investments
constituting Permitted Business Acquisitions;
(l) intercompany
loans between Foreign Subsidiaries and Guarantees by Foreign Subsidiaries
permitted by Section 6.01(m);
(m) Investments
received in connection with the bankruptcy or reorganization of, or settlement
of delinquent accounts and disputes with or judgments against,
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customers
and suppliers, in each case in the ordinary course of business or Investments
acquired by the Borrower as a result of a foreclosure by the Borrower or any
of
the Subsidiaries with respect to any secured Investments or other transfer
of
title with respect to any secured Investment in default;
(n) Investments
of a Subsidiary acquired after the Closing Date or of an entity merged into
the
Borrower or merged into or consolidated with a Subsidiary after the Closing
Date, in each case, to the extent permitted under this Section 6.04 and, in
the
case of any merger or consolidation, in accordance with Section 6.05 to the
extent that such Investments were not made in contemplation of or in connection
with such acquisition, merger or consolidation and were in existence on the
date
of such acquisition, merger or consolidation;
(o) acquisitions
by the Borrower of obligations of one or more officers or other employees of
Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection
with
such officer’s or employee’s acquisition of Equity Interests of Holdings or any
Parent Entity, so long as no cash is actually advanced by the Borrower or any
of
the Subsidiaries to such officers or employees in connection with the
acquisition of any such obligations;
(p) Guarantees
by the Borrower or any Subsidiary of operating leases (other than Capital Lease
Obligations) or of other obligations that do not constitute Indebtedness, in
each case entered into by the Borrower or any Subsidiary in the ordinary course
of business;
(q) Investments
to the extent that payment for such Investments is made with Equity Interests
of
Holdings (or any Parent Entity);
(r) Investments
in the equity interests of one or more newly formed persons that are received
in
consideration of the contribution by Holdings, the Borrower or the applicable
Subsidiary of assets (including Equity Interests and cash) to such person or
persons; provided,
that
(i) the fair market value of such assets, determined on an arms’-length basis,
so contributed pursuant to this paragraph (r) shall not in the aggregate exceed
$30 million and (ii) in respect of each such contribution, a Responsible Officer
of the Borrower shall certify, in a form to be agreed upon by the Borrower
and
the Administrative Agent (x) after giving effect to such contribution, no
Default or Event of Default shall have occurred and be continuing, (y) the
fair
market value of the assets so contributed and (z) that the requirements of
paragraph (i) of this proviso remain satisfied;
(s) Investments
consisting of the redemption, purchase, repurchase or retirement of any Equity
Interests permitted under Section 6.06;
(t) Investments
in the ordinary course of business consisting of Uniform Commercial Code Article
3 endorsements for collection or deposit and Uniform Commercial Code Article
4
customary trade arrangements with customers consistent with past practices;
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(u) Investments
in Foreign Subsidiaries not to exceed the greater of $70 million and 2.0% of
Consolidated Total Assets as of the end of the fiscal quarter immediately prior
to the date of such Investment for which financial statements have been
delivered pursuant to Section 5.04, in the aggregate, as valued at the fair
market value of such Investment at the time such Investment is
made;
(v) Guarantees
permitted under Section 6.01 (except to the extent such Guarantee is expressly
subject to Section 6.04);
(w) advances
in the form of a prepayment of expenses, so long as such expenses are being
paid
in accordance with customary trade terms of the Borrower or such
Subsidiary;
(x) Investments
by Borrower and its Subsidiaries, including loans to any direct or indirect
parent of the Borrower, if the Borrower or any other Subsidiary would otherwise
be permitted to make a dividend or distribution in such amount (provided that
the amount of any such investment shall also be deemed to be a distribution
under the appropriate clause of Section 6.06 for all purposes of this
Agreement);
(y) Investments
arising as a result of Permitted Receivables Financings;
(z) Investments
received substantially contemporaneously in exchange for Equity Interests of
any
Parent Entity; provided
that
such Investments are not included in any determination of the Cumulative Credit;
and
(aa) Investments
in joint ventures not in excess of the greater of $70 million and 2.0% of
Consolidated Total Assets as of the end of the fiscal quarter immediately prior
to the date of such Investment for which financial statements have been
delivered pursuant to Section 5.04, in the aggregate.
The
amount of Investments that may be made at any time pursuant to clause (C) of
the
proviso of Section 6.04(b) or 6.04(j) (such Sections, the “Related
Sections”)
may,
at the election of the Borrower, be increased by the amount of Investments
that
could be made at such time under the other Related Section; provided
that the
amount of each such increase in respect of one Related Section shall be treated
as having been used under the other Related Section.
SECTION
6.05. Mergers,
Consolidations, Sales of Assets and Acquisitions
.
Merge
into or consolidate with any other person, or permit any other person to merge
into or consolidate with it, or sell, transfer, lease or otherwise dispose
of
(in one transaction or in a series of transactions) all or any part of its
assets (whether now owned or hereafter acquired), or issue, sell, transfer
or
otherwise dispose of any Equity Interests of the Borrower or any Subsidiary,
or
purchase, lease or otherwise acquire (in one transaction or a series of
transactions) all or any substantial part of the assets of any other person
or
any division, unit or business of any person, except that this
Section shall not prohibit:
(a) (i)
the
purchase and sale of inventory in the ordinary course of business by the Company
or any Subsidiary and the sale of receivables by any Foreign Subsidiary pursuant
to non-recourse factoring arrangements in the ordinary course of business
of
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such
Foreign Subsidiary, (ii) the acquisition or lease (pursuant to an operating
lease) of any other asset in the ordinary course of business by the Borrower
or
any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or
other property in the ordinary course of business by the Borrower or any
Subsidiary or (iv) the sale of Permitted Investments in the ordinary course
of
business;
(b) if
at the
time thereof and immediately after giving effect thereto no Event of Default
shall have occurred and be continuing or would result therefrom, (i) the merger
of any Subsidiary into the Borrower in a transaction in which the Borrower
is
the survivor, (ii) the merger or consolidation of any Subsidiary into or with
any Subsidiary Loan Party in a transaction in which the surviving or resulting
entity is a Subsidiary Loan Party and, in the case of each of clauses (i)
and (ii), no person other than the Borrower or Subsidiary Loan Party receives
any consideration, (iii) the merger or consolidation of any Subsidiary that
is
not a Subsidiary Loan Party into or with any other Subsidiary that is not a
Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form
of
entity of any Subsidiary (other than the Borrower) if the Borrower determines
in
good faith that such liquidation, dissolution or change in form is in the best
interests of the Borrower and is not materially disadvantageous to the Lenders
or (v) any Subsidiary may merge with any other person in order to effect an
Investment permitted pursuant to Section 6.04 so long as the continuing or
surviving person shall be a Subsidiary, which shall be a Loan Party if the
merging Subsidiary was a Loan Party and which together with each of its
Subsidiaries shall have complied with the requirements of
Section 5.10;
(c) sales,
transfers, leases or other dispositions to the Borrower or a Subsidiary (upon
voluntary liquidation or otherwise); provided,
that
any sales, transfers, leases or other dispositions by a Loan Party to a
Subsidiary that is not a Subsidiary Loan Party in reliance on this
paragraph (c) shall be made in compliance with Section 6.07 and shall
be included in Section 6.05(g);
(d) Sale
and
Lease-Back Transactions permitted by Section 6.03;
(e) Investments
permitted by Section 6.04, Permitted Liens, Dividends permitted by Section
6.06
and capital expenditures;
(f) the
sale
of defaulted receivables in the ordinary course of business and not as part
of
an accounts receivables financing transaction;
(g) sales,
transfers, leases or other dispositions of assets not otherwise permitted by
this Section 6.05 (or required to be included in this clause (g) pursuant
to Section 6.05(c)); provided,
that
(i) the aggregate gross proceeds (including noncash proceeds) of any or all
assets sold, transferred, leased or otherwise disposed of in reliance upon
this
paragraph (g) shall not exceed, in any fiscal year of the Borrower, the
greater of (x) $200 million and (y) 6.5% of Consolidated Total Assets
as of the end of the fiscal quarter immediately prior to the date of such
incurrence for which financial statements have been delivered pursuant to
Section 5.04, (ii) no Default or Event of Default exists or would result
therefrom and (iii) the Net Proceeds thereof are applied in accordance with
Section 2.11(b);
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(h) Permitted
Business Acquisitions (including any merger or consolidation in order to effect
a Permitted Business Acquisition); provided,
that
following any such merger or consolidation (i) involving the Borrower, the
Borrower is the surviving corporation, (ii) involving a Domestic Subsidiary,
the
surviving or resulting entity shall be a Subsidiary Loan Party that is a Wholly
Owned Subsidiary and (iii) involving a Foreign Subsidiary, the surviving or
resulting entity shall be a Wholly Owned Subsidiary;
(i) leases,
licenses (on a non-exclusive basis with respect to intellectual property),
or
subleases or sublicenses (on a non-exclusive basis with respect to intellectual
property) of any real or personal property in the ordinary course of
business;
(j) sales,
leases or other dispositions of inventory of the Borrower and its Subsidiaries
determined by the management of the Borrower to be no longer useful or necessary
in the operation of the business of the Borrower or any of the
Subsidiaries;
(k) acquisitions
and purchases made with the proceeds of any Asset Sale pursuant to the first
proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) the
purchase and sale or other transfer (including by capital contribution) of
Receivables Assets pursuant to Permitted Receivables Financings; provided that
the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(m) any
exchange of assets for services and/or other assets of comparable or greater
value; provided,
that
(i) at least 90% of the consideration received by the transferor consists of
assets that will be used in a business or business activity permitted hereunder,
(ii) in the event of a swap with a fair market value in excess of $10.0 million,
the Administrative Agent shall have received a certificate from a Responsible
Officer of the Borrower with respect to such fair market value and (iii) in
the
event of a swap with a fair market value in excess of $20.0 million, such
exchange shall have been approved by at least a majority of the Board of
Directors of Holdings or the Borrower; provided,
that
the Net Proceeds, if any, thereof are applied in accordance with
Section 2.11(b); provided, further, that (A) the aggregate gross
consideration (including exchange assets, other noncash consideration and cash
proceeds) of any or all assets exchanged in reliance upon this paragraph (m)
shall not exceed, in any fiscal year of the Borrower, the greater of $200
million and 6.5% of Consolidated Total Assets as of the end of the fiscal
quarter immediately prior to the date of such incurrence for which financial
statements have been delivered pursuant to Section 5.04, (B) no Default or
Event
of Default exists or would result therefrom; and
(n) the
sale
of assets described on Schedule
6.05;
and
(o) the
Business Combination.
Notwithstanding
anything to the contrary contained in Section 6.05 above, (i) no sale,
transfer or other disposition of assets shall be permitted by this
Section 6.05 (other than sales, transfers, leases, licenses or other
dispositions to Loan Parties pursuant to paragraph (c) of this Section
6.05) unless such disposition is for fair market value and (ii) no sale,
transfer or other disposition of assets in excess of $15.0 million shall be
permitted by paragraph (g) of this Section 6.05
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unless
such disposition is for at least 75% cash consideration; provided,
that
for purposes of clause (ii), (a) the amount of any liabilities (as shown on
the Borrower’s or any Subsidiary’s most recent balance sheet or in the notes
thereto) of the Borrower or any Subsidiary of the Borrower (other than
liabilities that are by their terms subordinated to the Obligations) that are
assumed by the transferee of any such assets, (b) any notes or other obligations
or other securities or assets received by the Borrower or such Subsidiary of
the
Borrower from such transferee that are converted by the Borrower or such
Subsidiary of the Borrower into cash within 180 days of the receipt thereof
(to
the extent of the cash received) and (c) any Designated Non-Cash Consideration
received by the Borrower or any of its Subsidiaries in such Asset Sale having
an
aggregate fair market value, taken together with all other Designated Non-Cash
Consideration received pursuant to this clause (c) that is at that time
outstanding, not to exceed the greater of 3.0% of Consolidated Total Assets
and
$100 million at the time of the receipt of such Designated Non-Cash
Consideration (with the fair market value of each item of Designated Non-Cash
Consideration being measured at the time received and without giving effect
to
subsequent changes in value) shall be deemed to be cash. To the extent any
Collateral is disposed of in a transaction expressly permitted by this Section
6.05 to any Person other than Holdings, the Borrower or any Subsidiary, such
Collateral shall be sold free and clear of the Liens created by the Loan
Documents, and the Administrative Agent shall take, and shall be authorized
by
each Lender to take, any actions reasonably requested by the Borrower in order
to evidence the foregoing.
SECTION
6.06. Dividends
and Distributions
.
Declare
or pay any dividend or make any other distribution (by reduction of capital
or
otherwise), whether in cash, property, securities or a combination thereof,
with
respect to any of its Equity Interests (other than dividends and distributions
on Equity Interests payable solely by the issuance of additional Equity
Interests (other than Disqualified Stock) of the person paying such dividends
or
distributions) or directly or indirectly redeem, purchase, retire or otherwise
acquire for value (or permit any Subsidiary to purchase or acquire) any of
its
Equity Interests or set aside any amount for any such purpose (other than
through the issuance of additional Equity Interests (other than Disqualified
Stock) of the person redeeming, purchasing, retiring or acquiring such shares);
provided,
however,
that:
(a) any
Subsidiary of the Borrower may declare and pay dividends to, repurchase its
Equity Interests from or make other distributions to the Borrower or to any
Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned
Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect
shareholder of such Subsidiary and to each other owner of Equity Interests
of
such Subsidiary on a pro
rata
basis
(or more favorable basis from the perspective of the Borrower or such
Subsidiary) based on their relative ownership interests so long as any
repurchase of its Equity Interests from a person that is not the Borrower or
a
Subsidiary is permitted under Section 6.04);
(b) the
Borrower may declare and pay dividends or make other distributions to Holdings
in respect of (i) overhead, legal, accounting and other professional fees and
expenses of Holdings or any Parent Entity, (ii) fees and expenses related to
any
public offering or private placement of debt or equity securities of Holdings
or
any Parent Entity whether or not consummated, (iii) franchise taxes and other
fees, taxes and expenses in
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connection
with the maintenance of its existence and its (or any Parent Entity’s indirect)
ownership of the Borrower, (iv) payments permitted by Section 6.07(b), (v)
the
tax liability to each relevant jurisdiction in respect of consolidated,
combined, unitary or affiliated returns for the relevant jurisdiction of
Holdings (or any Parent Entity) attributable to Holdings, the Borrower or its
Subsidiaries and (vi) customary salary, bonus and other benefits payable to,
and
indemnities provided on behalf of, officers and employees of Holdings or any
Parent Entity, in each case in order to permit Holdings or any Parent Entity
to
make such payments; provided,
that in
the case of clauses (i), (ii) and (iii), the amount of such dividends and
distributions shall not exceed the portion of any amounts referred to in such
clauses (i), (ii) and (iii) that are allocable to the Borrower and its
Subsidiaries (which shall be 100% for so long as Holdings or such Parent Entity,
as the case may be, owns no assets other than the Equity Interests in the
Borrower, Holdings or another Parent Entity);
(c) the
Borrower may declare and pay dividends or make other distributions to Holdings
the proceeds of which are used to purchase or redeem the Equity Interests of
Holdings or any Parent Entity (including related stock appreciation rights
or
similar securities) held by then present or former directors, consultants,
officers or employees of Holdings, the Borrower or any of the Subsidiaries
or by
any Plan or shareholders’ agreement then in effect upon such person’s death,
disability, retirement or termination of employment or under the terms of any
such Plan or any other agreement under which such shares of stock or related
rights were issued; provided,
that
the aggregate amount of such purchases or redemptions under this
paragraph (c) shall not exceed in any fiscal year $20 million (plus the
amount of net proceeds contributed to the Borrower that were (x) received by
Holdings or any Parent Entity during such calendar year from sales of Equity
Interests of Holdings or any Parent Entity of Holdings to directors,
consultants, officers or employees of Holdings, any Parent Entity, the Borrower
or any Subsidiary in connection with permitted employee compensation and
incentive arrangements and (y) of any key-man life insurance policies received
during such calendar year), which, if not used in any year, may be carried
forward to any subsequent calendar year;
(d) noncash
repurchases of Equity Interests deemed to occur upon exercise of stock options
if such Equity Interests represent a portion of the exercise price of such
options;
(e) the
Borrower may pay dividends to Holdings in an aggregate amount equal to the
portion, if any, of the Cumulative Credit on such date that the Borrower elects
to apply to this Section 6.06(e), such election to be specified in a written
notice of a Responsible Officer of the Borrower calculating in reasonable detail
the amount of Cumulative Credit immediately prior to such election and the
amount thereof elected to be so applied; provided,
that no
Default or Event of Default has occurred and is continuing or would result
therefrom and, after giving effect thereto, that the Borrower and its
Subsidiaries shall be in Pro Forma Compliance;
(f) the
Borrower may pay dividends on the Closing Date to consummate the Transactions;
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(g) the
Borrower may pay dividends or distributions to allow Holdings or any Parent
Entity to make payments in cash, in lieu of the issuance of fractional shares,
upon the exercise of warrants or upon the conversion or exchange of Equity
Interests of any such person;
(h) after
a
Qualified IPO, the Borrower may pay dividends and make distributions to, or
repurchase or redeem shares from, its equity holders in an amount equal to
6.0%
per annum of the net proceeds received by the Borrower from any public offering
of Equity Interests of the Borrower or any direct or indirect parent of the
Borrower;
(i) the
Borrower may make distributions to Holdings or any Parent Entity to finance
any
Investment permitted to be made pursuant to Section 6.04; provided,
that
(A) such distribution shall be made substantially concurrently with the closing
of such Investment and (B) such parent shall, immediately following the closing
thereof, cause (1) all property acquired (whether assets or Equity Interests)
to
be contributed to the Borrower or a Subsidiary or (2) the merger (to the extent
permitted in Section 6.05) of the Person formed or acquired into the Borrower
or
a Subsidiary in order to consummate such Permitted Business Acquisition or
Investment; and
(j) the
Borrower may pay dividends after the Closing Date to permit Holdings to make
payments required under the Acquisition Agreement (including Sections 2.9 and
5.4 thereof).
SECTION
6.07. Transactions
with Affiliates
.
xxvii) Sell
or transfer any property or assets to, or purchase or acquire any property
or
assets from, or otherwise engage in any other transaction with, any of its
Affiliates or any known direct or indirect holder of 10% or more of any class
of
capital stock of Holdings or the Borrower in a transaction involving aggregate
consideration in excess of $5.0 million, unless such transaction is (i)
otherwise permitted (or required) under this Agreement or (ii) upon terms no
less favorable to the Borrower or such Subsidiary, as applicable, than would
be
obtained in a comparable arm’s-length transaction with a person that is not an
Affiliate.
(b) The
foregoing paragraph (a) shall not prohibit, to the extent otherwise
permitted under this Agreement,
(i) any
issuance of securities, or other payments, awards or grants in cash, securities
or otherwise pursuant to, or the funding of, employment arrangements, equity
purchase agreements, stock options and stock ownership plans approved by the
Board of Directors of Holdings or of the Borrower,
(ii) loans
or
advances to employees or consultants of Holdings (or any Parent Entity), the
Borrower or any of the Subsidiaries in accordance with Section
6.04(e),
(iii) transactions
among the Borrower or any Subsidiary or any entity that becomes a Subsidiary
as
a result of such transaction (including via merger or consolidation in which
a
Subsidiary is the surviving entity) not prohibited by this
Agreement,
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(iv) the
payment of fees, reasonable out-of-pocket costs and indemnities to directors,
officers, consultants and employees of Holdings, any Parent Entity, the Borrower
and the Subsidiaries in the ordinary course of business (limited,
in the case of any Parent Entity, to the portion of such fees and expenses
that
are allocable to the Borrower and its Subsidiaries (which shall be 100% for
so
long as Holdings or such Parent Entity, as the case may be, owns no assets
other
than the Equity Interests in the Borrower, Holdings or another Parent Entity
and
assets incidental to the ownership of the Borrower and its
Subsidiaries)),
(v) subject
to the limitations set forth in Section 6.07(b)(xiv), if applicable,
transactions pursuant to the Transaction Documents and permitted agreements
in
existence on the Closing Date and set forth on Schedule 6.07
or any
amendment thereto to the extent such amendment is not adverse to the Lenders
in
any material respect and other transactions, agreements and arrangements
described on Schedule 6.07 and any amendment thereto to the extent such
amendment is not adverse to the Lenders in any material respect or similar
transactions, agreements or arrangements entered into by the Borrower or any
of
its Subsidiaries.
(vi) (A)
any
employment agreements entered into by the Borrower or any of the Subsidiaries
in
the ordinary course of business, (B) any subscription agreement or similar
agreement pertaining to the repurchase of Equity Interests pursuant to put/call
rights or similar rights with employees, officers or directors, and (C) any
employee compensation, benefit plan or arrangement, any health, disability
or
similar insurance plan which covers employees, and any reasonable employment
contract and transactions pursuant thereto,
(vii) dividends,
redemptions and repurchases permitted under Section 6.06, including
payments to Holdings (and any Parent Entity),
(viii) any
purchase by Holdings of the equity capital of the Borrower; provided,
that
any Equity Interests of the Borrower purchased by Holdings shall be pledged
to
the Administrative Agent on behalf of the Lenders pursuant to the Collateral
Agreement,
(ix) payments
by the Borrower or any of the Subsidiaries to any Fund or any Fund Affiliate
made for any financial advisory, financing, underwriting or placement services
or in respect of other investment banking activities, including in connection
with acquisitions or divestitures, which payments are approved by the majority
of the Board of Directors of the Borrower, or a majority of disinterested
members of the Board of Directors of the Borrower, in good faith,
(x) transactions
with Wholly Owned Subsidiaries for the purchase or sale of goods, products,
parts and services entered into in the ordinary course of business in a manner
consistent with past practice,
(xi) any
transaction in respect of which the Borrower delivers to the Administrative
Agent (for delivery to the Lenders) a letter addressed to the Board of Directors
of the Borrower from an accounting, appraisal or investment banking firm,
in
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each
case
of nationally recognized standing that is (A) in the good faith determination
of
the Borrower qualified to render such letter and (B) reasonably satisfactory
to
the Administrative Agent, which letter states that such transaction is on terms
that are no less favorable to the Borrower or such Subsidiary, as applicable,
than would be obtained in a comparable arm’s-length transaction with a person
that is not an Affiliate,
(xii) subject
to paragraph (xiv) below, the payment of all fees, expenses, bonuses and awards
related to the Transactions contemplated by the Information Memorandum,
including fees to any Fund or any Fund Affiliate and as set forth on Schedule
6.07,
(xiii) transactions
with joint ventures for the purchase or sale of goods, equipment and services
entered into in the ordinary course of business and in a manner consistent
with
past practice,
(xiv) any
agreement to pay, and the payment of, monitoring, management, transaction,
advisory or similar fees payable to any Fund or any Fund Affiliate (A) in an
aggregate amount in any fiscal year not to exceed the sum of (1) the greater
of
$7.5 million and 2.0% of EBITDA for such fiscal year, plus reasonable out of
pocket costs and expenses in connection therewith and unpaid amounts accrued
for
prior periods; plus (2) any deferred fees (to the extent such fees were within
such amount in clause (A) (1) above originally), plus (B) 2.0% of the value
of
transactions with respect to which any Fund or any Fund Affiliate provides
any
transaction, advisory or other services, plus (C) so long as no Event of Default
has occurred and is continuing, in the event of a Qualified IPO, the present
value of all future amounts payable pursuant to any agreement referred to in
clause (A) (1) above in connection with the termination of such agreement with
the Funds and/or Fund Affiliates (the “Fund
Termination Fee”);
provided,
that if
any such payment pursuant to clause (C) is not permitted to be paid as a result
of an Event of Default, such payment shall accrue and may be payable when no
Events of Default are continuing to the extent that no further Event of Default
would result therefrom,
(xv) the
issuance, sale, transfer of Equity Interests of Borrower to Holdings and capital
contributions by Holdings to Borrower,
(xvi) the
Business Combination and all transactions in connection therewith,
(xvii) without
duplication of any amounts otherwise paid with respect to taxes, payments by
Holdings (and any Parent Entity), the Borrower and the Subsidiaries pursuant
to
tax sharing agreements among Holdings (and any such Parent Entity), the Borrower
and the Subsidiaries on customary terms that require each party to make payments
when such taxes are due or refunds received of amounts equal to the income
tax
liabilities and refunds generated by each such party calculated on a separate
return basis and payments to the party generating tax benefits and credits
of
amounts equal to the value of such tax benefits and credits made available
to
the group by such party, or
(xviii) transactions
pursuant to any Permitted Receivables Financing.
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SECTION
6.08. Business
of the Borrower and the Subsidiaries
.
Notwithstanding any other provisions hereof, engage at any time in any business
or business activity other than any business or business activity conducted
by
any of them on the Closing Date and any business or business activities
incidental or related thereto, or any business or activity that is reasonably
similar or complementary thereto or a reasonable extension, development or
expansion thereof or ancillary thereto, and in the case of a Special Purpose
Receivables Subsidiary, Permitted Receivables Financing.
SECTION
6.09. Limitation
on Modifications of Indebtedness; Modifications of Certificate of Incorporation,
By-Laws and Certain Other Agreements; etc.
xxviii) Amend
or modify in any manner materially adverse to the Lenders, or grant any waiver
or release under or terminate in any manner (if such granting or termination
shall be materially adverse to the Lenders), the articles or certificate of
incorporation, by-laws, limited liability company operating agreement,
partnership agreement or other organizational documents of the Borrower or
any
of the Subsidiaries or the Merger Agreement.
(b) (a) Make,
or agree or offer to pay or make, directly or indirectly, any payment or other
distribution (whether in cash, securities or other property) of or in respect
of
principal of or interest on the loans under the Senior Subordinated Notes or
any
Permitted Refinancing Indebtedness in respect of the Senior Subordinated Notes
or any preferred Equity Interests or any Disqualified Stock (“Junior
Financing”),
or
any payment or other distribution (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination
in
respect of any Junior Financing except for (A) Refinancings permitted by
Section 6.01(l) or (r), (B) payments of regularly scheduled interest, and,
to the extent this Agreement is then in effect, principal on the scheduled
maturity date of any Junior Financing, (C) payments or distributions in respect
of all or any portion of the Junior Financing with the proceeds contributed
to
the Borrower by Holdings from the issuance, sale or exchange by Holdings (or
any
Parent Entity) of Equity Interests made within eighteen months prior thereto,
(D) the conversion of any Junior Financing to Equity Interests of Holdings
or
any Parent Entity; and (E) so long as no Default or Event of Default has
occurred and is continuing or would result therefrom and after giving effect
to
such payment or distribution the Borrower would be in Pro Forma Compliance,
payments or distributions in respect of Junior Financings prior to their
scheduled maturity made, in an aggregate amount, not to exceed the sum of (x)
$60 million and (y) the Cumulative Credit; or
(b) Amend
or
modify, or permit the amendment or modification of, any provision of Junior
Financing, any Permitted Receivables Document, or any agreement, document or
instrument evidencing or relating thereto, other than amendments or
modifications that (A) are not in any manner materially adverse to Lenders
and that do not affect the subordination or payment provisions thereof (if
any)
in a manner adverse to the Lenders and (B) otherwise comply with the
definition of “Permitted Refinancing Indebtedness”.
(c) Permit
any Material Subsidiary to enter into any agreement or instrument that by its
terms restricts (i) the payment of dividends or distributions or the making
of
cash advances to the Borrower or any Subsidiary that is a direct or indirect
parent of such Subsidiary or (ii) the granting of Liens by the Borrower or
such
Material Subsidiary pursuant to the Security
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Documents,
in each case other than those arising under any Loan Document, except, in each
case, restrictions existing by reason of:
1. restrictions
imposed by applicable law;
2. contractual
encumbrances or restrictions in effect on the Closing Date under Indebtedness
existing on the Closing Date and set forth on Schedule 6.01,
the
Second Lien Notes, the Senior Subordinated Notes or any agreements related
to
any Permitted Refinancing Indebtedness in respect of any such Indebtedness
that
does not expand the scope of any such encumbrance or restriction;
3. any
restriction on a Subsidiary imposed pursuant to an agreement entered into for
the sale or disposition of the Equity Interests or assets of a Subsidiary
pending the closing of such sale or disposition;
4. customary
provisions in joint venture agreements and other similar agreements applicable
to joint ventures entered into in the ordinary course of business;
5. any
restrictions imposed by any agreement relating to secured Indebtedness permitted
by this Agreement to the extent that such restrictions apply only to the
property or assets securing such Indebtedness;
6. any
restrictions imposed by any agreement relating to Indebtedness incurred pursuant
to section 6.01(r), to the extent such restrictions are not more restrictive,
taken as a whole, than the restrictions contained in the Senior Subordinated
Note Documents and Second Lien Note Documents;
7. customary
provisions contained in leases or licenses of intellectual property and other
similar agreements entered into in the ordinary course of business;
8. customary
provisions restricting subletting or assignment of any lease governing a
leasehold interest;
9. customary
provisions restricting assignment of any agreement entered into in the ordinary
course of business;
10. customary
restrictions and conditions contained in any agreement relating to the sale,
transfer, lease or other disposition of any asset permitted under Section 6.05
pending the consummation of such sale, transfer, lease or other disposition;
11. customary
restrictions and conditions contained in the document relating to any Lien,
so
long as (1) such Lien is a Permitted Lien and such restrictions or conditions
relate only to the specific asset subject to such Lien, and (2) such
restrictions and conditions are not created for the purpose of avoiding the
restrictions imposed by this Section 6.09;
12. customary
net worth provisions contained in Real Property leases entered into by
Subsidiaries of the Borrower, so long as the Borrower has determined in
good
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faith
that such net worth provisions would not reasonably be expected to impair the
ability of the Borrower and its Subsidiaries to meet their ongoing obligations;
13. any
agreement in effect at the time such subsidiary becomes a Subsidiary, so long
as
such agreement was not entered into in contemplation of such person becoming
a
Subsidiary other than Subsidiaries of such new Subsidiary;
14. restrictions
in agreements representing Indebtedness permitted under Section 6.01 of a
Subsidiary of the Borrower that is not a Subsidiary Loan Party;
15. customary
restrictions on leases, subleases, licenses or Equity Interests or asset sale
agreements otherwise permitted hereby as long as such restrictions relate to
the
Equity Interests and assets subject thereto;
16. restrictions
on cash or other deposits imposed by customers under contracts entered into
in
the ordinary course of business;
17. restrictions
contained in any Permitted Receivables Document with respect to any Special
Purpose Receivables Subsidiary; or
(R) any
encumbrances or restrictions of the type referred to in Sections 6.09(c)(i)
and
6.09(c)(ii) above imposed by any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings
of
the contracts, instruments or obligations referred to in clauses (A) through
(Q)
above; provided that such amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings are, in the
good faith judgment of the Company, no more restrictive with respect to such
dividend and other payment restrictions than those contained in the dividend
or
other payment restrictions prior to such amendment, modification, restatement,
renewal, increase, supplement, refunding, replacement or
refinancing.
SECTION
6.10. Fiscal
Year; Accounting
.
Permit
its fiscal year to end on any date other than (a) September 30 or December
30
during the 2007 fiscal year, or (b) the Saturday nearest the end of the calendar
year in respect of any other year, without prior notice to the Administrative
Agent given concurrently with any required notice to the SEC.
SECTION
6.11. Qualified
CFC Holding Companies
.
Permit
any Qualified CFC Holding Company to (a) create, incur or assume any
Indebtedness or other liability, or create, incur, assume or suffer to exist
any
Lien on, or sell, transfer or otherwise dispose of, other than in a transaction
permitted under Section 6.05, any of the Equity Interests of a Foreign
Subsidiary held by such Qualified CFC Holding Company, or any other assets,
or
(b) engage in any business or activity or acquire or hold any assets other
than
the Equity Interests of one or more Foreign Subsidiaries of the Borrower and/or
one or more other Qualified CFC Holding Companies and the receipt and
distribution of dividends and distributions in respect thereof.
SECTION
6.12. Rating
.
Exercise commercially reasonable efforts to maintain corporate ratings from
each
of ▇▇▇▇▇’▇ and S&P for the Loans.
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ARTICLE
VIA
Holdings
Covenants
Holdings
covenants and agrees with each Lender that, so long as this Agreement shall
remain in effect (other than in respect of contingent indemnification
obligations for which no claim has been made) and until the Commitments have
been terminated and the Obligations (including principal of and interest on
each
Loan, all Fees and all other expenses or amounts payable under any Loan
Document) have been paid in full, unless the Required Lenders shall otherwise
consent in writing, (a) Holdings will not create, incur, assume or permit to
exist any Lien (other
than Liens of a type described in Section 6.02(d), (e) or (k)) on
any of
the Equity Interests issued by the Borrower other than the Liens created under
the Loan Documents, (b) Holdings shall do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence; provided,
that so
long as no Default or Event of Default exists or would result therefrom,
Holdings may merge with any other person, and (c) Holdings shall at all times
own directly 100% of the Equity Interests of the Borrower and shall not sell,
transfer or otherwise dispose of the Equity Interests in the
Borrower.
ARTICLE
VII
Events
of Default
SECTION
7.01. Events
of
Default
.
In case
of the happening of any of the following events (each, an “Event
of Default”):
(a) any
representation or warranty made or deemed made by Holdings, the Borrower or
any
other Loan Party herein or in any other Loan Document or any certificate or
document delivered pursuant hereto or thereto shall prove to have been false
or
misleading in any material respect when so made or deemed made;
(b) default
shall be made in the payment of any principal of any Loan when and as the same
shall become due and payable, whether at the due date thereof or at a date
fixed
for prepayment thereof or by acceleration thereof or otherwise;
(c) default
shall be made in the payment of any interest on any Loan or in the payment
of
any Fee or any other amount (other than an amount referred to in (b) above)
due
under any Loan Document, when and as the same shall become due and payable,
and
such default shall continue unremedied for a period of five Business
Days;
(d) default
shall be made in the due observance or performance by Holdings, the Borrower
or
any of the Subsidiaries of any covenant, condition or agreement contained in
Section 5.01(a), 5.05(a) or 5.08 or in Article VI or VIA;
(e) default
shall be made in the due observance or performance by Holdings, the Borrower
or
any of the Subsidiaries of any covenant, condition or agreement contained in
any
Loan Document (other than those specified in paragraphs (b), (c) and
(d)
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above)
and such default shall continue unremedied for a period of 30 days (or 60 days
if such default results solely from a Foreign Subsidiary’s failure to duly
observe or perform any such covenant, condition or agreement) after notice
thereof from the Administrative Agent to the Borrower;
(f) (i)
any
event or condition occurs that (A) results in any Material Indebtedness becoming
due prior to its scheduled maturity or (B) enables or permits (with all
applicable grace periods having expired) the holder or holders of any Material
Indebtedness or any trustee or agent on its or their behalf to cause any
Material Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity or (ii)
Holdings, the Borrower or any of the Subsidiaries shall fail to pay the
principal of any Material Indebtedness at the stated final maturity thereof;
provided,
that
this clause (f) shall not apply to secured Indebtedness that becomes due as
a result of the voluntary sale or transfer of the property or assets securing
such Indebtedness if such sale or transfer is permitted hereunder and under
the
documents providing for such Indebtedness;
(g) there
shall have occurred a Change in Control;
(h) an
involuntary proceeding shall be commenced or an involuntary petition shall
be
filed in a court of competent jurisdiction seeking (i) relief in respect of
Holdings, the Borrower or any of the Subsidiaries, or of a substantial part
of
the property or assets of Holdings, the Borrower or any Subsidiary, under Title
11 of the United States Code, as now constituted or hereafter amended, or any
other federal, state or foreign bankruptcy, insolvency, receivership or similar
law, (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Holdings, the Borrower or any of the
Subsidiaries or for a substantial part of the property or assets of Holdings,
the Borrower or any of the Subsidiaries or (iii) the winding-up or liquidation
of Holdings, the Borrower or any Subsidiary (except, in the case of any
Subsidiary, in a transaction permitted by Section 6.05); and such
proceeding or petition shall continue undismissed for 60 days or an order or
decree approving or ordering any of the foregoing shall be entered;
(i) Holdings,
the Borrower or any Subsidiary shall (i) voluntarily commence any proceeding
or
file any petition seeking relief under Title 11 of the United States Code,
as
now constituted or hereafter amended, or any other federal, state or foreign
bankruptcy, insolvency, receivership or similar law, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or the filing of any petition described in paragraph (h) above,
(iii) apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for Holdings, the Borrower or
any
of the Subsidiaries or for a substantial part of the property or assets of
Holdings, the Borrower or any Subsidiary, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding,
(v)
make a general assignment for the benefit of creditors or (vi) become unable
or
admit in writing its inability or fail generally to pay its debts as they become
due;
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(j) the
failure by Holdings, the Borrower or any Subsidiary to pay one or more final
judgments aggregating in excess of $35 million (to the extent not covered by
insurance), which judgments are not discharged or effectively waived or stayed
for a period of 45 consecutive days;
(k) (i)
a
trustee shall be appointed by a United States district court to administer
any
Plan, (ii) an ERISA Event or ERISA Events shall have occurred with respect
to
any Plan or Multiemployer Plan, (iii) the PBGC shall institute proceedings
(including giving notice of intent thereof) to terminate any Plan or Plans,
(iv)
Holdings, the Borrower or any Subsidiary or any ERISA Affiliate shall have
been
notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan
is
in reorganization or is being terminated, within the meaning of Title IV of
ERISA, or (v) Holdings, the Borrower or any Subsidiary shall engage in any
“prohibited transaction” (as defined in Section 406 of ERISA or
Section 4975 of the Code) involving any Plan; and in each case in
clauses (i) through (v) above, such event or condition, together with all
other such events or conditions, if any, would reasonably be expected to have
a
Material Adverse Effect;
(l) (i)
any
Loan Document shall for any reason be asserted in writing by Holdings, the
Borrower or any Subsidiary not to be a legal, valid and binding obligation
of
any party thereto, (ii) any security interest purported to be created by any
Security Document and to extend to assets that are not immaterial to Holdings,
the Borrower and the Subsidiaries on a consolidated basis shall cease to be,
or
shall be asserted in writing by the Borrower or any other Loan Party not to
be,
a valid and perfected security interest (perfected as or having the priority
required by this Agreement or the relevant Security Document and subject to
such
limitations and restrictions as are set forth herein and therein) in the
securities, assets or properties covered thereby, except to the extent that
any
such loss of perfection or priority results from the limitations of foreign
laws, rules and regulations as they apply to pledges of Equity Interests in
Foreign Subsidiaries or the application thereof, or from the failure of the
Administrative Agent to maintain possession of certificates actually delivered
to it representing securities pledged under the Collateral Agreement or to
file
Uniform Commercial Code continuation statements or take the actions described
on
Schedule 3.04
and
except to the extent that such loss is covered by a Lender’s title insurance
policy and the Administrative Agent shall be reasonably satisfied with the
credit of such insurer, or (iii) the Guarantees pursuant to the Security
Documents by Holdings, the Borrower or the Subsidiary Loan Parties of any of
the
Obligations shall cease to be in full force and effect (other than in accordance
with the terms thereof), or shall be asserted in writing by Holdings or the
Borrower or any Subsidiary Loan Party not to be in effect or not to be legal,
valid and binding obligations;
(m) (i)
the
Obligations shall fail to constitute “Senior Debt” (or the equivalent thereof)
and “Designated Senior Debt” (or the equivalent thereof) under the Senior
Subordinated Notes Indentures and under the documentation governing any
Indebtedness incurred pursuant to Section 6.01(r) constituting subordinated
Indebtedness or any Permitted Refinancing Indebtedness in respect of the Senior
Subordinated Notes or such Indebtedness incurred pursuant to Section 6.01(r)
constituting subordinated Indebtedness, or (ii) the subordination provisions
thereunder shall be invalidated or otherwise cease, or
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shall
be
asserted in writing by Holdings, the Borrower or any Subsidiary Loan Party
to be
invalid or to cease to be legal, valid and binding obligations of the parties
thereto, enforceable in accordance with their terms; or
(n) there
shall occur and be continuing an “Event of Default” under and as defined in the
Revolving Credit Agreement;
then,
and
in every such event (other than an event with respect to the Borrower described
in paragraph (h) or (i) above), and at any time thereafter during the
continuance of such event, the Administrative Agent, at the request of the
Required Lenders, shall, by notice to the Borrower, take any or all of the
following actions, at the same or different times: (i) terminate forthwith
the
Commitments, and (ii) declare the Loans then outstanding to be forthwith due
and
payable in whole or in part, whereupon the principal of the Loans so declared
to
be due and payable, together with accrued interest thereon and any unpaid
accrued Fees and all other liabilities of the Borrower accrued hereunder and
under any other Loan Document, shall become forthwith due and payable, without
presentment, demand, protest or any other notice of any kind, all of which
are
hereby expressly waived by the Borrower, anything contained herein or in any
other Loan Document to the contrary notwithstanding; and in any event with
respect to the Borrower described in paragraph (h) or (i) above, the
Commitments shall automatically terminate, and the principal of the Loans then
outstanding, together with accrued interest thereon and any unpaid accrued
Fees
and all other liabilities of the Borrower accrued hereunder and under any other
Loan Document, shall automatically become due, without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived by the Borrower, anything contained herein or in any other Loan Document
to the contrary notwithstanding.
SECTION
7.02. Exclusion
of Immaterial Subsidiaries
(a) .
Solely
for the purposes of determining whether an Event of Default has occurred under
clause (h), (i) or (l) of Section 7.01, any reference in any such
clause to any Subsidiary shall be deemed not to include any Immaterial
Subsidiary affected by any event or circumstance referred to in any such
clause.
ARTICLE
VIII
The
Agents
SECTION
8.01. Appointment
.
(b)
Each
Lender (in such capacity and on behalf of itself and its Affiliates as potential
counterparties to Swap Agreements) hereby irrevocably designates and appoints
the (A) Administrative Agent as the agent of such Lender under this Agreement
and the other Loan Documents, including as a Collateral Agent for such Lender
and the other Secured Parties (including the Revolving Facility Secured Parties)
under the Security Documents, and each such Lender irrevocably authorizes the
Administrative Agent, in such capacity, to take such action on its behalf under
the provisions of this Agreement and the other Loan Documents and to exercise
such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto
and (B) the Revolving
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Facility
Collateral Agent as collateral agent for such lender for purposes of the
Security Documents. In addition, to the extent required under the laws of any
jurisdiction other than the United States, each of the Lenders hereby grants
to
the Administrative Agent any required powers of attorney to execute any Security
Document governed by the laws of such jurisdiction on such Lender’s behalf.
Notwithstanding any provision to the contrary elsewhere in this Agreement,
the
Administrative Agent shall not have any duties or responsibilities, except
those
expressly set forth herein, or any fiduciary relationship with any Lender,
and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
(b) In
furtherance of the foregoing, each Lender (in such capacity and on behalf of
itself and its Affiliates as potential counterparties to Swap Agreements) hereby
appoints and authorizes the Collateral Agent to act as the agent of such Lender
for purposes of acquiring, holding and enforcing any and all Liens on Collateral
granted by any of the Loan Parties to secure any of the Obligations, together
with such powers and discretion as are reasonably incidental thereto and to
enter into and take such action on its behalf under the provisions of the
Intercreditor Agreement and the Senior Lender Intercreditor Agreement and to
exercise such powers and perform such duties as are expressly delegated to
the
Collateral Agent by the terms of the Intercreditor Agreement and the Senior
Lender Intercreditor Agreement, together with such other powers as are
reasonably incidental thereto. In this connection, the Collateral Agent (and
any
Subagents appointed by the Collateral Agent pursuant to Section 8.02 for
purposes of holding or enforcing any Lien on the Collateral (or any portion
thereof) granted under the Security Documents, or for exercising any rights
or
remedies thereunder at the direction of the Collateral Agent) shall be entitled
to the benefits of this Article VIII (including, without limitation, Section
8.07) as though the Collateral Agent (and any such Subagents) were an “Agent”
under the Loan Documents, as if set forth in full herein with respect thereto.
(c) Each
Lender (in such capacity and on behalf of itself and its Affiliates as potential
counterparties to Swap Agreements) irrevocably authorizes each of the
Administrative Agent and the Collateral Agent, at its option and in its
discretion, (i) to release any Lien on any property granted to or held by the
Collateral Agent under any Loan Document (A) upon termination of the Commitments
and payment in full of all Obligations (other than contingent indemnification
obligations), (B) that is sold or to be sold as part of or in connection with
any sale permitted hereunder or under any other Loan Document, or (C) if
approved, authorized or ratified in writing in accordance with Section 9.08
hereof, (ii) to release any Guarantor from its obligations under the Loan
Documents if such person ceases to be a Subsidiary as a result of a transaction
permitted hereunder; and (iii) to subordinate any Lien on any property granted
to or held by the Collateral Agent under any Loan Document to the holder of
any
Lien on such property that is permitted by Section 6.02(i) and (j). Upon request
by the Administrative Agent or the Collateral Agent at any time, the Required
Lenders will confirm in writing the Administrative Agent’s and the Collateral
Agent’s authority to release its interest in particular types or items of
property, or to release any Guarantor from its obligations under the Loan
Documents.
(d) In
case
of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, (i) the Administrative Agent
(irrespective of whether the principal of
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any
Obligation shall then be due and payable as herein expressed or by declaration
or otherwise and irrespective of whether the Administrative Agent shall have
made any demand on the Borrower) shall be entitled and empowered, by
intervention in such proceeding or otherwise (A) to file and prove a claim
for
the whole amount of the principal and interest owing and unpaid in respect
of
any or all of the Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims of the
Lenders and the Administrative Agent and any Subagents allowed in such judicial
proceeding, and (B) to collect and receive any monies or other property payable
or deliverable on any such claims and to distribute the same, and (ii) any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Lender to make such payments to the Administrative Agent and, if the
Administrative Agent shall consent to the making of such payments directly
to
the Lenders, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due
the
Administrative Agent under the Loan Documents. Nothing contained herein shall
be
deemed to authorize the Administrative Agent to authorize or consent to or
accept or adopt on behalf of any Lender any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lender
or to authorize the Administrative Agent to vote in respect of the claim of
any
Lender in any such proceeding.
SECTION
8.02. Delegation
of Duties
(a) .
The
Administrative Agent may execute any of its duties under this Agreement and
the
other Loan Documents (including for purposes of holding or enforcing any Lien
on
the Collateral (or any portion thereof) by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact selected by it with reasonable care. The
Administrative Agent may also from time to time, when the Administrative Agent
deems it to be necessary or desirable, appoint one or more trustees,
co-trustees, collateral co-agents, collateral subagents or attorneys-in-fact
(each, a “Subagent”)
with
respect to all or any part of the Collateral; provided,
that no
such Subagent shall be authorized to take any action with respect to any
Collateral unless and except to the extent expressly authorized in writing
by
the Administrative Agent. Should any instrument in writing from the Borrower
or
any other Loan Party be required by any Subagent so appointed by the
Administrative Agent to more fully or certainly vest in and confirm to such
Subagent such rights, powers, privileges and duties, the Borrower shall, or
shall cause such Loan Party to, execute, acknowledge and deliver any and all
such instruments promptly upon request by the Administrative Agent. If any
Subagent, or successor thereto, shall die, become incapable of acting, resign
or
be removed, all rights, powers, privileges and duties of such Subagent, to
the
extent permitted by law, shall automatically vest in and be exercised by the
Administrative Agent until the appointment of a new Subagent. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agent,
attorney-in-fact or Subagent that it selects in accordance with the foregoing
provisions of this Section 8.02 in the absence of the Administrative Agent’s
gross negligence or willful misconduct.
SECTION
8.03. Exculpatory
Provisions
.
Neither
any Agent or its Affiliates nor any of their respective officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (a) liable for
any
action lawfully taken or omitted to be taken by it or such person under or
in
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connection
with this Agreement or any other Loan Document (except to the extent that any
of
the foregoing are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from its or such person’s own gross
negligence or willful misconduct) or (b) responsible in any manner to any of
the
Lenders for any recitals, statements, representations or warranties made by
any
Loan Party or any officer thereof contained in this Agreement or any other
Loan
Document or in any certificate, report, statement or other document referred
to
or provided for in, or received by the Agents under or in connection with,
this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of any Loan Party a party thereto to perform its
obligations hereunder or thereunder. The Agents shall not be under any
obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of any Loan Party. The Administrative Agent shall not have any duties
or
obligations except those expressly set forth herein and in the other Loan
Documents. Without limiting the generality of the foregoing, (a) the
Administrative Agent shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default or Event of Default has occurred and
is
continuing, and (b) the Administrative Agent shall not, except as expressly
set
forth herein and in the other Loan Documents, have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to
the
Borrower or any of its Affiliates that is communicated to or obtained by the
person serving as the Administrative Agent or any of its Affiliates in any
capacity. The Administrative Agent shall be deemed not to have knowledge of
any
Default or Event of Default unless and until written notice describing such
Default or Event of Default is given to the Administrative Agent by the Borrower
or a Lender. The Administrative Agent shall not 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 Loan Document, (ii)
the contents of any certificate, report or other document delivered hereunder
or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions
set
forth herein or therein or the occurrence of any Default or Event of Default,
(iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or
document, or the creation, perfection or priority of any Lien purported to
be
created by the Security Documents, (v) the value or the sufficiency of any
Collateral, or (vi) the satisfaction of any condition set forth in Article
IV or
elsewhere herein, other than to confirm receipt of items expressly required
to
be delivered to the Administrative Agent.
SECTION
8.04. Reliance
by Administrative Agent
.
The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) or
conversation believed by it to be genuine and to have been signed, sent or
otherwise authenticated by the proper person. The Administrative Agent also
may
rely upon any statement made to it orally or by telephone and believed by it
to
have been made by the proper person, and shall not incur any liability for
relying thereon. In determining compliance with any condition hereunder to
the
making of a Loan hereunder, that by its terms must be fulfilled to the
satisfaction of a Lender, the Administrative Agent may presume that such
condition is satisfactory to such Lender unless the Administrative Agent shall
have received notice to the contrary from such Lender prior to the
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making
of
such Loan. The Administrative Agent may consult with legal counsel (including
counsel to Holdings or the 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.
The
Administrative Agent 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 the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take
any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders (or, if so specified
by this Agreement, all or other Lenders) as it deems appropriate or it shall
first be indemnified to its satisfaction by the Lenders against any and all
liability and expense that may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement
and the other Loan Documents in accordance with a request of the Required
Lenders (or, if so specified by this Agreement, all or other 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.
SECTION
8.05. Notice
of
Default
.
The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default unless the Administrative Agent
has received written notice from a Lender, Holdings or the Borrower referring
to
this Agreement, describing such Default or Event of Default and stating that
such notice is a “notice of default.” In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give prompt notice
thereof to the Lenders. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably directed
by
the Required Lenders (or, if so specified by this Agreement, all or other
Lenders); provided,
that
unless and until the Administrative Agent shall have received such directions,
the Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the
Lenders.
SECTION
8.06. Non-Reliance
on Agents and Other Lenders
.
Each
Lender expressly acknowledges that neither the Agents nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates have made any representations or warranties to it and that no act
by
any Agent hereafter taken, including any review of the affairs of a Loan Party
or any affiliate of a Loan Party, shall be deemed to constitute any
representation or warranty by any Agent to any Lender. Each Lender represents
to
the Agents that it has, independently and without reliance upon any Agent or
any
other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of
the
Loan Parties and their affiliates and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon any Agent or any other Lender,
and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigation as it deems necessary to inform itself as to
the
business, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their affiliates. Except for notices,
reports and other documents expressly
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required
to be furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness
of
any Loan Party or any affiliate of a Loan Party that may come into the
possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
SECTION
8.07. Indemnification
.
The
Lenders agree to indemnify each Agent in its capacity as such (to the extent
not
reimbursed by Holdings or the Borrower and without limiting the obligation
of
Holdings or the Borrower to do so), in the amount of its pro
rata
share
(based on its outstanding Loans), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever that may at any time (whether
before or after the payment of the Loans) be imposed on, incurred by or asserted
against such Agent in any way relating to or arising out of the Commitments,
this Agreement, any of the other Loan Documents (including, without limitation,
the Intercreditor Agreement and the Senior Lender Intercreditor Agreement)
or
any documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted
by
such Agent under or in connection with any of the foregoing; provided,
that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements that are found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted from such Agent’s gross
negligence or willful misconduct. The failure of any Lender to reimburse any
Agent, promptly upon demand for its ratable share of any amount required to
be
paid by the Lenders to such Agent as provided herein shall not relieve any
other
Lender of its obligation hereunder to reimburse such Agent for its ratable
share
of such amount, but no Lender shall be responsible for the failure of any other
Lender to reimburse such Agent for such other Lender’s ratable share of such
amount. The agreements in this Section shall survive the payment of the Loans
and all other amounts payable hereunder.
SECTION
8.08. Agent
in
Its Individual Capacity
.
Each
Agent and its affiliates may make loans to, accept deposits from, and generally
engage in any kind of business with any Loan Party as though such Agent were
not
an Agent. With respect to its Loans made or renewed by it, each Agent shall
have
the same rights and powers under this Agreement and the other Loan Documents
as
any Lender and may exercise the same as though it were not an Agent, and the
terms “Lender” and “Lenders” shall include each Agent in its individual
capacity.
SECTION
8.09. Successor
Administrative Agent
.
The
Administrative Agent may resign as Administrative Agent upon 10 days’ notice to
the Lenders and the Borrower. If the Administrative Agent shall resign as
Administrative Agent under this Agreement and the other Loan Documents, then
the
Required Lenders shall appoint from among the Lenders a successor agent for
the
Lenders, which successor agent shall (unless an Event of Default under Section
7.01(b), (c), (h) or (i) shall have occurred and be continuing) be subject
to
approval by the Borrower (which approval shall not be unreasonably withheld
or
delayed), whereupon such successor agent shall succeed to the rights, powers
and
duties of the Administrative Agent, and the term “Administrative Agent” shall
mean such successor agent effective upon such appointment and approval, and
the
former Administrative Agent’s rights, powers and duties as Administrative Agent
shall be terminated, without any other or further act or deed on the part
of
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such
former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. If no successor agent has accepted appointment as
Administrative Agent by the date that is 10 days following a retiring
Administrative Agent’s notice of resignation, the retiring Administrative
Agent’s resignation shall nevertheless thereupon become effective, and the
retiring Administrative Agent shall, on behalf of the Lenders, appoint a
successor agent which shall (unless an Event of Default under Section 7.01(b),
(c), (h) or (i) shall have occurred and be continuing) be subject to approval
by
the Borrower (which approval shall not be unreasonably withheld or delayed).
After any retiring Administrative Agent’s resignation as Administrative Agent,
the provisions of this Section 8.09 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent under
this
Agreement and the other Loan Documents.
SECTION
8.10. Agents
and Arrangers
.
Neither
the Syndication Agent, the Documentation Agents nor any of the Joint Lead
Arrangers shall have any duties or responsibilities hereunder in its capacity
as
such.
ARTICLE
IX
Miscellaneous
SECTION
9.01. Notices;
Communications
(a) .
(1)
Except
in the case of notices and other communications expressly permitted to be given
by telephone (and except as provided in Section 9.01(b) below), all notices
and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopier as follows, and all notices and other
communications expressly permitted hereunder to be given by telephone shall
be
made to the applicable telephone number, as follows:
(i) if
to any
Loan Party or to the Administrative Agent, to the address, telecopier number,
electronic mail address or telephone number specified for such person on
Schedule
9.01;
and
(ii) if
to any
other Lender, to the address, telecopier number, electronic mail address or
telephone number specified in its Administrative Questionnaire.
(b) Notices
and other communications to the Lenders hereunder may be delivered or furnished
by electronic communication (including e-mail and Internet or intranet websites)
pursuant to procedures approved by the Administrative Agent; provided
that the
foregoing shall not apply to notices to any Lender pursuant to Article II if
such Lender has notified the Administrative Agent that it is incapable of
receiving notices under such Article by electronic communication. The
Administrative Agent or the 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.
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(c) Notices
sent by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received. Notices sent by
telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in Section 9.01(b) above shall be effective as provided in such Section
9.01(b).
(d) Any
party
hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto.
(e) Documents
required to be delivered pursuant to Section 5.04 (to the extent any such
documents are included in materials otherwise filed with the SEC) may be
delivered electronically (including as set forth in Section 9.17) and if so
delivered, shall be deemed to have been delivered on the date (i) on which
the
Borrower posts such documents, or provides a link thereto on the Borrower’s
website on the Internet at the website address listed on Schedule
9.01,
or (ii)
on which such documents are posted on the Borrower’s behalf on an Internet or
intranet website, if any, to which each Lender and the Administrative Agent
have
access (whether a commercial, third-party website or whether sponsored by the
Administrative Agent); provided,
that
(A) the Borrower shall deliver paper copies of such documents to the
Administrative Agent or any Lender that requests the Borrower to deliver such
paper copies until a written request to cease delivering paper copies is given
by the Administrative Agent or such Lender, and (B) the Borrower shall notify
the Administrative Agent and each Lender (by telecopier or electronic mail)
of
the posting of any such documents and provide to the Administrative Agent by
electronic mail electronic versions (i.e.,
soft
copies) of such documents. Notwithstanding anything contained herein, in every
instance the Borrower shall be required to provide paper copies of the
certificates required by Section 5.04(c) to the Administrative Agent. Except
for
such certificates required by Section 5.04(c), the Administrative Agent shall
have no obligation to request the delivery or to maintain copies of the
documents referred to above, and in any event shall have no responsibility
to
monitor compliance by the Borrower with any such request for delivery, and
each
Lender shall be solely responsible for requesting delivery to it or maintaining
its copies of such documents.
SECTION
9.02. Survival
of Agreement
.
All
covenants, agreements, representations and warranties made by the Loan Parties
herein, in the other Loan Documents and in the certificates or other instruments
prepared or delivered in connection with or pursuant to this Agreement or any
other Loan Document shall be considered to have been relied upon by the Lenders
and shall survive the making by the Lenders of the Loans and the execution
and
delivery of the Loan Documents, regardless of any investigation made by such
persons or on their behalf, and shall continue in full force and effect as
long
as the principal of or any accrued interest on any Loan or any Fee or any other
amount payable under this Agreement or any other Loan Document is outstanding
and unpaid or any Letter of Credit is outstanding and so long as the Commitments
have not been terminated. Without prejudice to the survival of any other
agreements contained herein, indemnification and reimbursement obligations
contained herein
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(including
pursuant to Sections 2.15, 2.17 and 9.05) shall survive the payment in full
of
the principal and interest hereunder, and the termination of the Commitments
or
this Agreement.
SECTION
9.03. Binding
Effect
.
This
Agreement shall become effective when it shall have been executed by Holdings,
the Borrower and the Administrative Agent and when the Administrative Agent
shall have been notified by each Lender (or otherwise received evidence
satisfactory to the Administrative Agent) that such Lender has executed it
(or
has executed a Term Loan Conversion Notice) and thereafter shall be binding
upon
and inure to the benefit of Holdings, the Borrower, the Administrative Agent
and
each Lender and their respective permitted successors and assigns.
SECTION
9.04. Successors
and Assigns
.
ii) The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the parties hereto and their respective successors and assigns permitted hereby,
except that (i) the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Lender
(and any attempted assignment or transfer by the Borrower without such consent
shall be null and void) and (ii) no Lender may assign or otherwise transfer
its
rights or obligations hereunder except in accordance with this
Section 9.04. Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants (to the extent
provided in paragraph (c) of this Section 9.04), and, to the extent
expressly contemplated hereby, the Related Parties of each of the Agents and
the
Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement or the other Loan Documents.
(b) (a) Subject
to the conditions set forth in paragraph (b)(ii) below, any Lender may
assign to one or more assignees (each, an “Assignee”)
all or
a portion of its rights and obligations under this Agreement (including all
or a
portion of its Commitments and the Loans at the time owing to it) with the
prior
written consent (such consent not to be unreasonably withheld) of:
(A) the
Borrower; provided,
that no
consent of the Borrower shall be required for an assignment to a Lender, an
affiliate of a Lender, an Approved Fund (as defined below) or, if an Event
of
Default under Sections 7.01(b), (c), (h) or (i) has occurred and is continuing,
any other person; and
(B) the
Administrative Agent; provided,
that no
consent of the Administrative Agent shall be required for an assignment of
all
or any portion of a Term Loan to a Lender, an Affiliate of a Lender or an
Approved Fund.
(ii) Assignments
shall be subject to the following additional conditions:
(A) except
in
the case of an assignment to a Lender, an Affiliate of a Lender or an Approved
Fund or an assignment of the entire remaining amount of the assigning Lender’s
Commitments or Loans under any Facility, the amount of the Commitments or Loans
of the assigning Lender subject to each such assignment (determined as of the
date the Assignment and Acceptance with respect to such
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assignment
is delivered to the Administrative Agent) shall not be less than $1.0 million,
unless each of the Borrower and the Administrative Agent otherwise consent;
provided,
that
(1) no such consent of the Borrower shall be required if an Event of Default
under Sections 7.01(b), (c), (h) or (i) has occurred and is continuing and
(2)
such amounts shall be aggregated in respect of each Lender and its Affiliates
or
Approved Funds (with simultaneous assignments to or by two or more Related
Funds
shall be treated as one assignment), if any;
(B) the
parties to each assignment shall execute and deliver to the Administrative
Agent
an Assignment and Acceptance via an electronic settlement system acceptable
to
the Administrative Agent (or, if previously agreed with the Administrative
Agent, manually), and shall pay to the Administrative Agent a processing and
recordation fee of
$3,500
(which fee may be waived or reduced in the sole discretion of the Administrative
Agent);
(C) the
Assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent
an Administrative Questionnaire and all applicable tax forms; and
(D)
the
Assignee shall not be the Borrower or any of the Borrower’s Affiliates or
Subsidiaries.
For
the
purposes of this Section 9.04, “Approved
Fund”
means
any person (other than a natural person) that is engaged in making, purchasing,
holding or investing in bank loans and similar extensions of credit in the
ordinary course and that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender. Notwithstanding the foregoing, no Lender shall
be permitted to assign or transfer any portion of its rights and obligations
under this Agreement to an Ineligible Institution without the prior written
consent of the Borrower.
(b) Subject
to acceptance and recording thereof pursuant to paragraph (b)(v) below,
from and after the effective date specified in each Assignment and Acceptance
the Assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment
and
Acceptance, be released from its obligations under this Agreement (and, in
the
case of an Assignment and Acceptance covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be
a
party hereto but shall continue to be entitled to the benefits of Sections
2.15,
2.16, 2.17 and 9.05). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this
Section 9.04 shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance
with
paragraph (c) of this Section 9.04.
(c) The
Administrative Agent, acting for this purpose as an agent of the Borrower,
shall
maintain at one of its offices a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses
of
the Lenders, and the Commitments of, and principal amount of the Loans owing
to,
each Lender pursuant to the terms hereof from time to time (the “Register”).
The
entries in the Register shall be conclusive,
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and
the
Borrower, the Administrative Agent and the Lenders may treat each person whose
name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower and
any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(d) Upon
its
receipt of a duly completed Assignment and Acceptance executed by an assigning
Lender and an Assignee, the Assignee’s completed Administrative Questionnaire
(unless the Assignee shall already be a Lender hereunder), all applicable tax
forms, the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall promptly
accept such Assignment and Acceptance and record the information contained
therein in the Register. No assignment, whether or not evidenced by a promissory
note, shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph (b)(v).
(c) (e) Any
Lender may, without the consent of the Borrower or the Administrative Agent,
sell participations to one or more banks or other entities (a “Participant”)
in all
or a portion of such Lender’s rights and obligations under this Agreement
(including all or a portion of its Commitments and the Loans owing to it);
provided,
that
(A) such Lender’s obligations under this Agreement shall remain unchanged, (B)
such Lender shall remain solely responsible to the other parties hereto for
the
performance of such obligations and (C) the Borrower, the Administrative Agent
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under this
Agreement. Any agreement pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and the other Loan Documents and to approve any amendment,
modification or waiver of any provision of this Agreement and the other Loan
Documents; provided,
that
(x) such agreement may provide that such Lender will not, without the consent
of
the Participant, agree to any amendment, modification or waiver that (1)
requires the consent of each Lender directly affected thereby pursuant to
Section 9.04(a)(i) or clauses (i), (ii), (iii), (iv), (v) or (vi) of
the first proviso to Section 9.08(b) and (2) directly affects such
Participant and (y) no other agreement with respect to amendment, modification
or waiver may exist between such Lender and such Participant. Subject to
paragraph (c)(ii) of this Section 9.04, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17
to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section 9.04. To the
extent permitted by law, each Participant also shall be entitled to the benefits
of Section 9.06 as though it were a Lender, provided
such
Participant shall be subject to Section 2.18(c) as though it were a
Lender.
(f) A
Participant shall not be entitled to receive any greater payment under
Section 2.15, 2.16 or 2.17 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower’s prior written consent. A Participant shall not be entitled to the
benefits of Section 2.17 to the extent such Participant fails to comply
with Section 2.17(e) and (f) as though it were a Lender.
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(d) Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank, and this Section 9.04 shall not apply to any such pledge or
assignment of a security interest; provided,
that no
such pledge or assignment of a security interest shall release a Lender from
any
of its obligations hereunder or substitute any such pledgee or Assignee for
such
Lender as a party hereto.
(e) The
Borrower, upon receipt of written notice from the relevant Lender, agrees to
issue Notes to any Lender requiring Notes to facilitate transactions of the
type
described in paragraph (d) above.
(f) Notwithstanding
the foregoing, any Conduit Lender may assign any or all of the Loans it may
have
funded hereunder to its designating Lender without the consent of the Borrower
or the Administrative Agent. Each of Holdings, the Borrower, each Lender and
the
Administrative Agent hereby confirms that it will not institute against a
Conduit Lender or join any other person in instituting against a Conduit Lender
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding under any state bankruptcy or similar law, for one year and one
day
after the payment in full of the latest maturing commercial paper note issued
by
such Conduit Lender; provided,
however, that each Lender designating any Conduit Lender hereby agrees to
indemnify, save and hold harmless each other party hereto and each Loan Party
for any loss, cost, damage or expense arising out of its inability to institute
such a proceeding against such Conduit Lender during such period of
forbearance.
(g) If
the
Borrower wishes to replace the Loans or Commitments under any Facility with
ones
having different terms, it shall have the option, with the consent of the
Administrative Agent and subject to at least three Business Days’ advance notice
to the Lenders under such Facility, instead of prepaying the Loans or reducing
or terminating the Commitments to be replaced, to (i) require the Lenders under
such Facility to assign such Loans or Commitments to the Administrative Agent
or
its designees and (ii) amend the terms thereof in accordance with
Section 9.08 (with such replacement, if applicable, being deemed to have
been made pursuant to Section 9.08(d)). Pursuant to any such assignment,
all Loans and Commitments to be replaced shall be purchased at par (allocated
among the Lenders under such Facility in the same manner as would be required
if
such Loans were being optionally prepaid or such Commitments were being
optionally reduced or terminated by the Borrower), accompanied by payment of
any
accrued interest and fees thereon and any other amounts owing pursuant to
Section 9.05(b). By receiving such purchase price, the Lenders under such
Facility shall automatically be deemed to have assigned the Loans or Commitments
under such Facility pursuant to the terms of the form of Assignment and
Acceptance attached hereto as Exhibit A,
and
accordingly no other action by such Lenders shall be required in connection
therewith. The provisions of this paragraph (g) are intended to facilitate
the maintenance of the perfection and priority of existing security interests
in
the Collateral during any such replacement.
(h) Notwithstanding
the foregoing, no assignment may be made to an Ineligible Institution without
the prior written consent of the Borrower.
SECTION
9.05. Expenses;
Indemnity
.
iii) The
Borrower agrees to pay (i) all reasonable out-of-pocket expenses (including
Other Taxes) incurred by the Administrative Agent
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in
connection with the preparation of this Agreement and the other Loan Documents,
or by the Administrative Agent in connection with the syndication of the
Commitments or the administration of this Agreement (including expenses incurred
in connection with due diligence and initial and ongoing Collateral examination
to the extent incurred with the reasonable prior approval of the Borrower and
the reasonable fees, disbursements and charges for no more than one counsel
in
each jurisdiction where Collateral is located) or in connection with the
administration of this Agreement and any amendments, modifications or waivers
of
the provisions hereof or thereof (whether or not the Transactions hereby
contemplated shall be consummated), including the reasonable fees, charges
and
disbursements of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Administrative Agent
and the Joint Lead Arrangers, and, if necessary, the reasonable fees, charges
and disbursements of one local counsel per jurisdiction, and (ii) all
out-of-pocket expenses (including Other Taxes) incurred by the Administrative
Agent or any Lender in connection with the enforcement or protection of their
rights in connection with this Agreement and the other Loan Documents, in
connection with the Loans made hereunder, including the fees, charges and
disbursements of counsel for the Administrative Agent (including any special
and
local counsel).
(b) The
Borrower agrees to indemnify the Administrative Agent, the Agents, the Joint
Lead Arrangers, each Lender, each of their respective Affiliates and each of
their respective directors, trustees, officers, employees, agents, trustees
and
advisors (each such person being called an “Indemnitee”)
against, and to hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including reasonable counsel fees,
charges and disbursements (except the allocated costs of in-house counsel),
incurred by or asserted against any Indemnitee arising out of, in any way
connected with, or as a result of (i) the execution or delivery of this
Agreement or any other Loan Document (including, without limitation, the
Intercreditor Agreement and the Senior Lender Intercreditor Agreement) or any
agreement or instrument contemplated hereby or thereby, the performance by
the
parties hereto and thereto of their respective obligations thereunder or the
consummation of the Transactions and the other transactions contemplated hereby,
(ii) the use of the proceeds of the Loans, or (iii) any claim, litigation,
investigation or proceeding relating to any of the foregoing, whether or not
any
Indemnitee is a party thereto and regardless of whether such matter is initiated
by a third party or by Holdings, the Borrower or any of their subsidiaries
or
Affiliates; provided,
that
such indemnity shall not, as to any Indemnitee, be available to the extent
that
such losses, claims, damages, liabilities or related expenses are determined
by
a final, non-appealable judgment of a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of such Indemnitee
(for
purposes of this proviso only, each of the Administrative Agent, the Joint
Lead
Arrangers or any Lender shall be treated as several and separate Indemnitees,
but each of them together with its respective Related Parties, shall be treated
as a single Indemnitee). Subject to and without limiting the generality of
the
foregoing sentence, the Borrower agrees to indemnify each Indemnitee against,
and hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including reasonable counsel or consultant
fees, charges and disbursements (limited to not more than one counsel, plus,
if
necessary, one local counsel per jurisdiction) (except the allocated costs
of
in-house counsel), incurred by or asserted against any Indemnitee arising out
of, in any way connected with, or as a result of (A) any claim related in any
way to Environmental Laws and Holdings, the Borrower or any of their
Subsidiaries, or (B) any actual or alleged presence, Release or threatened
Release of Hazardous Materials at, under, on or from any Property; provided,
that
such indemnity shall not, as to any
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Indemnitee,
be available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee or any of its Related Parties. None of the
Indemnitees (or any of their respective affiliates) shall be responsible or
liable to the Funds, Holdings, the Borrower or any of their respective
subsidiaries, Affiliates or stockholders or any other person or entity for
any
special, indirect, consequential or punitive damages, which may be alleged
as a
result of the Facilities or the Transactions. The provisions of this
Section 9.05 shall remain operative and in full force and effect regardless
of the expiration of the term of this Agreement, the consummation of the
transactions contemplated hereby, the repayment of any of the Obligations,
the
invalidity or unenforceability of any term or provision of this Agreement or
any
other Loan Document, or any investigation made by or on behalf of the
Administrative Agent or any Lender. All amounts due under this Section 9.05
shall be payable on written demand therefor accompanied by reasonable
documentation with respect to any reimbursement, indemnification or other amount
requested.
(c) Except
as
expressly provided in Section 9.05(a) with respect to Other Taxes, which
shall not be duplicative with any amounts paid pursuant to Section 2.17,
this Section 9.05 shall not apply to Taxes.
(d) To
the
fullest extent permitted by applicable law, Holdings and the Borrower shall
not
assert, and hereby waive, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby, the transactions contemplated hereby or thereby, any Loan
or Letter of Credit or the use of the proceeds thereof. No Indemnitee shall
be
liable for any damages arising from the use by unintended recipients of any
information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby
or
thereby.
(e) The
agreements in this Section 9.05 shall survive the resignation of the
Administrative Agent, the replacement of any Lender, the termination of the
Commitments and the repayment, satisfaction or discharge of all the other
Obligations and the termination of this Agreement.
SECTION
9.06. Right
of
Set-off
.
If an
Event of Default shall have occurred and be continuing, each Lender is hereby
authorized at any time and from time to time, to the fullest extent permitted
by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender to or for the credit or the account of Holdings,
the
Borrower or any Subsidiary against any of and all the obligations of Holdings
or
the Borrower now or hereafter existing under this Agreement or any other Loan
Document held by such Lender, irrespective of whether or not such Lender shall
have made any demand under this Agreement or such other Loan Document and
although the obligations may be unmatured. The rights of each Lender under
this
Section 9.06 are in addition to other rights and remedies (including other
rights of set-off) that such Lender may have.
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SECTION
9.07. Applicable
Law
.
THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND AS
EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION
9.08. Waivers;
Amendment
.
iv) No
failure or delay of the Administrative Agent or any Lender in exercising any
right or power hereunder or under any Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power,
or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent and the
Lenders hereunder and under the other Loan Documents are cumulative and are
not
exclusive of any rights or remedies that they would otherwise have. No waiver
of
any provision of this Agreement or any other Loan Document or consent to any
departure by Holdings, the Borrower or any other Loan Party therefrom shall
in
any event be effective unless the same shall be permitted by paragraph (b)
below, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on Holdings,
the Borrower or any other Loan Party in any case shall entitle such person
to
any other or further notice or demand in similar or other
circumstances.
(b) Neither
this Agreement nor any other Loan Document nor any provision hereof or thereof
may be waived, amended or modified except (x) as provided in Section 2.21,
(y)
in the case of this Agreement, pursuant to an agreement or agreements in writing
entered into by Holdings, the Borrower and the Required Lenders, and (z) in
the
case of any other Loan Document, pursuant to an agreement or agreements in
writing entered into by each party thereto and the Administrative Agent (or,
in
the case of any Security Documents, the Collateral Agent if so provided therein)
and consented to by the Required Lenders; provided,
however,
that no
such agreement shall
(i) decrease
or forgive the principal amount of, or extend the final maturity of, or decrease
the rate of interest on, any Loan without the prior written consent of each
Lender directly affected thereby,
(ii) increase
or extend the Commitment of any Lender or decrease the Fees or other fees of
any
Lender without the prior written consent of such Lender (it being understood
that waivers or modifications of conditions precedent, covenants, Defaults
or
Events of Default or of a mandatory reduction in the aggregate Commitments
shall
not constitute an increase of the Commitments of any Lender),
(iii) extend
or
waive any Term Loan Installment Date or reduce the amount due on any Term Loan
Installment Date or extend any date on which payment of interest on any Loan
or
any Fees is due, without the prior written consent of each Lender adversely
affected thereby,
(iv) amend
the
provisions of Section 5.02 of the Collateral Agreement in a manner that would
by
its terms alter the pro
rata sharing
of payments required thereby, without the prior written consent of each Lender
adversely affected thereby,
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(v) amend
or
modify the provisions of this Section 9.08 or the definition of the term
“Required Lenders” or any other provision hereof specifying the number or
percentage of Lenders required to waive, amend or modify any rights hereunder
or
make any determination or grant any consent hereunder, without the prior written
consent of each Lender adversely affected thereby (it being understood that,
with the consent of the Required Lenders, additional extensions of credit
pursuant to this Agreement may be included in the determination of the Required
Lenders on substantially the same basis as the Loans and Commitments are
included on the Closing Date),
(vi) release
all or substantially all the Collateral or release any of Holdings, the Borrower
or all or substantially all of the Subsidiary Loan Parties from their respective
Guarantees under the Collateral Agreement, unless, in the case of a Subsidiary
Loan Party, all or substantially all the Equity Interests of such Subsidiary
Loan Party is sold or otherwise disposed of in a transaction permitted by this
Agreement, without the prior written consent of each Lender;
(vii) effect
any waiver, amendment or modification that by its terms adversely affects the
rights in respect of payments or collateral of Lenders participating in any
Facility differently from those of Lender participating in another Facility,
without the consent of the majority-in-interest of the Lenders participating
in
the adversely affected Facility (it being agreed that the Required Lenders
may
waive, in whole or in part, any prepayment or Commitment reduction required
by
Section 2.11 so long as the application of any prepayment or Commitment
reduction still required to be made is not changed);
provided,
further,
that no
such agreement shall amend, modify or otherwise affect the rights or duties
of
the Administrative Agent hereunder without the prior written consent of the
Administrative Agent acting as such at the effective date of such agreement,
as
applicable. Each Lender shall be bound by any waiver, amendment or modification
authorized by this Section 9.08 and any consent by any Lender pursuant to
this Section 9.08 shall bind any assignee of such Lender.
(c) Without
the consent of the Syndication Agent, the Documentation Agent or any Joint
Lead
Arranger or Lender, the Loan Parties and the Administrative Agent may (in their
respective sole discretion, or shall, to the extent required by any Loan
Document) enter into any amendment, modification or waiver of any Loan Document,
or enter into any new agreement or instrument, to effect the granting,
perfection, protection, expansion or enhancement of any security interest in
any
Collateral or additional property to become Collateral for the benefit of the
Secured Parties, or as required by local law to give effect to, or protect
any
security interest for the benefit of the Secured Parties, in any property or
so
that the security interests therein comply with applicable law.
(d) Notwithstanding
the foregoing, this Agreement may be amended (or amended and restated) with
the
written consent of the Required Lenders, the Administrative Agent, Holdings
and
the Borrower (a) to add one or more additional credit facilities to this
Agreement and to permit the extensions of credit from time to time outstanding
thereunder and the accrued interest and fees in respect thereof to share ratably
in the benefits of this Agreement and the other Loan Documents with the Loans
and the accrued interest and fees in respect thereof
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and
(b)
to include appropriately the Lenders holding such credit facilities in any
determination of the Required Lenders.
(e) Notwithstanding
the foregoing, technical and conforming modifications to the Loan Documents
may
be made with the consent of the Borrower and the Administrative Agent to the
extent necessary to integrate any Incremental Term Loan Commitments on
substantially the same basis as the Loans.
SECTION
9.09. Interest
Rate Limitation
.
Notwithstanding anything herein to the contrary, if at any time the applicable
interest rate, together with all fees and charges that are treated as interest
under applicable law (collectively, the “Charges”),
as
provided for herein or in any other document executed in connection herewith,
or
otherwise contracted for, charged, received, taken or reserved by any Lender,
shall exceed the maximum lawful rate (the “Maximum
Rate”)
that
may be contracted for, charged, taken, received or reserved by such Lender
in
accordance with applicable law, the rate of interest payable hereunder, together
with all Charges payable to such Lender, shall be limited to the Maximum Rate;
provided,
that
such excess amount shall be paid to such Lender on subsequent payment dates
to
the extent not exceeding the legal limitation.
SECTION
9.10. Entire
Agreement
.
This
Agreement, the other Loan Documents and the agreements regarding certain Fees
referred to herein constitute the entire contract between the parties relative
to the subject matter hereof. Any previous agreement among or representations
from the parties or their Affiliates with respect to the subject matter hereof
is superseded by this Agreement and the other Loan Documents. Notwithstanding
the foregoing, the Fee Letter shall survive the execution and delivery of this
Agreement and remain in full force and effect. Nothing in this Agreement or
in
the other Loan Documents, expressed or implied, is intended to confer upon
any
party other than the parties hereto and thereto any rights, remedies,
obligations or liabilities under or by reason of this Agreement or the other
Loan Documents.
SECTION
9.11. WAIVER
OF
JURY TRIAL
.
EACH
PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY
OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR
ANY
OF THE OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER
LOAN
DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 9.11.
SECTION
9.12. Severability
.
In the
event any one or more of the provisions contained in this Agreement or in any
other Loan Document should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein and therein shall not in any way be affected or impaired
thereby. The parties shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable
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provisions
with valid provisions the economic effect of which comes as close as possible
to
that of the invalid, illegal or unenforceable provisions.
SECTION
9.13. Counterparts
.
This
Agreement may be executed in two or more counterparts, each of which shall
constitute an original but all of which, when taken together, shall constitute
but one contract, and shall become effective as provided in Section 9.03.
Delivery of an executed counterpart to this Agreement by facsimile transmission
(or other electronic transmission pursuant to procedures approved by the
Administrative Agent) shall be as effective as delivery of a manually signed
original.
SECTION
9.14. Headings
.
Article
and Section headings and the Table of Contents used herein are for convenience
of reference only, are not part of this Agreement and are not to affect the
construction of, or to be taken into consideration in interpreting, this
Agreement.
SECTION
9.15. Jurisdiction;
Consent to Service of Process
.
v) Each
of the parties hereto hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of any New York State court
or federal court of the United States of America sitting in New York City,
and
any appellate court from any thereof (collectively, “New
York Courts”),
in
any action or proceeding arising out of or relating to this Agreement or the
other Loan Documents, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing
in this Agreement shall affect any right that any party may otherwise have
to
bring any action or proceeding relating to this Agreement or any of the other
Loan Documents in the courts of any jurisdiction, except that each of the Loan
Parties agrees that (a) it will not bring any such action or proceeding in
any
court other than New York Courts (it being acknowledged and agreed by the
parties hereto that any other forum would be inconvenient and inappropriate
in
view of the fact that more of the Lenders who would be affected by any such
action or proceeding have contacts with the State of New York than any other
jurisdiction), and (b) in any such action or proceeding brought against any
Loan
Party in any other court, it will not assert any cross-claim, counterclaim
or
setoff, or seek any other affirmative relief, except to the extent that the
failure to assert the same will preclude such Loan Party from asserting or
seeking the same in the New York Courts.
(b) Each
of
the parties hereto hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it may now
or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement or the other Loan Documents in any New
York
State or federal court. Each of the parties hereto hereby irrevocably waives,
to
the fullest extent permitted by law, the defense of an inconvenient forum to
the
maintenance of such action or proceeding in any such court.
SECTION
9.16. Confidentiality
.
Each of
the Lenders and each of the Agents agrees that it shall maintain in confidence
any information relating to Holdings, the Borrower and any Subsidiary furnished
to it by or on behalf of Holdings, the Borrower or any Subsidiary
Second
Amended and Restated Term Loan Credit Agreement
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(other
than information that (a) has become generally available to the public other
than as a result of a disclosure by such party, (b) has been independently
developed by such Lender or such Agent without violating this Section 9.16
or (c) was available to such Lender or such Agent from a third party having,
to
such person’s knowledge, no obligations of confidentiality to Holdings, the
Borrower or any other Loan Party) and shall not reveal the same other than
to
its directors, trustees, officers, employees and advisors with a need to know
or
to any person that approves or administers the Loans on behalf of such Lender
(so long as each such person shall have been instructed to keep the same
confidential in accordance with this Section 9.16), except: (A) to the
extent necessary to comply with law or any legal process or the requirements
of
any Governmental Authority, the National Association of Insurance Commissioners
or of any securities exchange on which securities of the disclosing party or
any
Affiliate of the disclosing party are listed or traded, (B) as part of normal
reporting or review procedures to, or examinations by, Governmental Authorities
or self-regulatory authorities, including the National Association of Insurance
Commissioners or the National Association of Securities Dealers, Inc., (C)
to
its parent companies, Affiliates or auditors (so long as each such person shall
have been instructed to keep the same confidential in accordance with this
Section 9.16), (D) in order to enforce its rights under any Loan Document
in a legal proceeding, (E) to any pledge under Section 9.04(d) or any other
prospective assignee of, or prospective Participant in, any of its rights under
this Agreement (so long as such person shall have been instructed to keep the
same confidential in accordance with this Section 9.16) and (F) 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 provisions of this Section 9.16).
SECTION
9.17. Platform;
Borrower Materials
(a) .
The
Borrower hereby acknowledges that (a) the Administrative Agent and/or the Joint
Lead Arrangers will make available to the Lenders materials and/or information
provided by or on behalf of the Borrower hereunder (collectively, “Borrower
Materials”)
by
posting the Borrower Materials on IntraLinks or another similar electronic
system (the “Platform”),
and
(b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do
not wish to receive material non-public information with respect to the Borrower
or its securities) (each, a “Public
Lender”).
The
Borrower hereby agrees that it will use commercially reasonable efforts to
identify that portion of the Borrower Materials that may be distributed to
the
Public Lenders and that (i) all such Borrower Materials shall be clearly and
conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word
“PUBLIC” shall appear prominently on the first page thereof, (ii) by marking
Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the
Administrative Agent, the Joint Lead Arrangers and the Lenders to treat such
Borrower Materials as either publicly available information or not material
information (although it may be sensitive and proprietary) with respect to
the
Borrower or its securities for purposes of United States Federal and state
securities laws, (iii) all Borrower Materials marked “PUBLIC” are permitted to
be made available through a portion of the Platform designated “Public
Investor;” and (iv) the Administrative Agent and the Joint Lead Arrangers shall
be entitled to treat any Borrower Materials that are not marked “PUBLIC” as
being suitable only for posting on a portion of the Platform not designated
“Public Investor.”
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-125-
SECTION
9.18. Release
of Liens and Guarantees
(a) .
In the
event that any Loan Party conveys, sells, leases, assigns, transfers or
otherwise disposes of all or any portion of any of the Equity Interests or
assets of any Subsidiary Loan Party to a person that is not (and is not required
to become) a Loan Party in a transaction not prohibited by Section 6.05,
the Collateral Agent shall promptly (and the Lenders hereby authorize the
Collateral Agent to) take such action and execute any such documents as may
be
reasonably requested by Holdings or the Borrower and at the Borrower’s expense
to release any Liens created by any Loan Document in respect of such Equity
Interests or assets, and, in the case of a disposition of the Equity Interests
of any Subsidiary Loan Party in a transaction permitted by Section 6.05 and
as a result of which such Subsidiary Loan Party would cease to be a Subsidiary,
terminate such Subsidiary Loan Party’s obligations under its Guarantee. In
addition, the Collateral Agent agrees to take such actions as are reasonably
requested by Holdings or the Borrower and at the Borrower’s expense to terminate
the Liens and security interests created by the Loan Documents when all the
Obligations (other than contingent indemnification Obligations) are paid in
full
and all Commitments are terminated. Any representation, warranty or covenant
contained in any Loan Document relating to any such Equity Interests, asset
or
subsidiary of Holdings shall no longer be deemed to be made once such Equity
Interests or asset is so conveyed, sold, leased, assigned, transferred or
disposed of.
SECTION
9.19. PATRIOT
Act Notice
.
Each
Lender that is subject to the Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrower that pursuant to the requirements of the USA PATRIOT
Act
(Title
III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”),
it is
required to obtain, verify and record information that identifies each Loan
Party, which information includes the name and address of each Loan Party and
other information that will allow such Lender or the Administrative Agent,
as
applicable, to identify each Loan Party in accordance with the Act.
SECTION
9.20. Intercreditor
Agreements and Collateral Agreement
.
Each
Lender hereunder (a) consents to the priority and/or subordination of Liens
provided for in the Intercreditor Agreement, (b) consents to the priority and/or
subordination of Liens provided for in the Senior Lender Intercreditor
Agreement, (c) agrees that it will be bound by and will take no actions contrary
to the provisions of the Intercreditor Agreement or the Senior Lender
Intercreditor Agreement, (c) authorizes and instructs the Collateral Agent
to
enter into the Intercreditor Agreement as First Lien Intercreditor Agent and
on
behalf of such Lender, (d) authorizes and instructs the Administrative Agent
and
the Collateral Agent to enter into the Senior Lender Intercreditor Agreement
as
Term Facility Administrative Agent and Collateral Agent, respectively, and
on
behalf of such Lender, and (e) consents to the amendment of the First Lien
Guarantee and Collateral Agreement under (and as defined in) the Existing Credit
Agreement, in the form of the Collateral Agreement referred to herein. The
foregoing provisions are intended as an inducement to the Lenders to extend
credit and such Lenders are intended third party beneficiaries of such
provisions and the provisions of the Intercreditor Agreement and the Senior
Lender Intercreditor Agreement.
Second
Amended and Restated Term Loan Credit Agreement
-126-
[Signature
Pages Follow]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
written above.
COVALENCE
SPECIALTY MATERIALS CORP.
By:
Name:
Title:
[Signature
Page to the Second Amended and Restated Term Loan Credit
Agreement]
▇▇▇▇▇
PLASTICS GROUP, INC.
By:
Name:
Title:
[Signature
Page to the Second Amended and Restated Term Loan Credit
Agreement]
CREDIT
SUISSE, CAYMAN ISLANDS BRANCH
as
Administrative Agent, Collateral Agent and as a Lender
By:
Name:
Title:
By:
Name:
Title: