Exhibit 10.1
[CONFORMED COPY WITH
EXHIBITS F-J CONFORMED AS EXECUTED]
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CREDIT AGREEMENT
Dated as of October 7, 2004,
among
▇▇▇▇▇▇ PACKAGING HOLDINGS COMPANY,
▇▇▇▇▇▇ PACKAGING COMPANY, L.P.,
GPC CAPITAL CORP. I,
THE LENDERS NAMED HEREIN,
DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH,
as Administrative Agent,
CITIGROUP GLOBAL MARKETS INC.,
as Syndication Agent,
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS, L.P.,
GENERAL ELECTRIC CAPITAL CORPORATION
and
▇▇▇▇▇▇ COMMERCIAL PAPER INC.,
as Co-Documentation Agents,
LASALLE BANK NATIONAL ASSOCIATION
and
MANUFACTURERS AND TRADERS TRUST COMPANY,
as Senior Managing Agents
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DEUTSCHE BANK CITIGROUP GLOBAL ▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT
SECURITIES INC., as Joint MARKETS INC., as Joint PARTNERS, L.P.,
Lead Arranger and Joint Book Lead Arranger and Joint as Joint Book Runner
Runner Book Runner
CREDIT AGREEMENT dated as of October 7, 2004, among ▇▇▇▇▇▇ PACKAGING
HOLDINGS COMPANY, a Pennsylvania limited partnership ("Holdings"), ▇▇▇▇▇▇
PACKAGING COMPANY, L.P., a Delaware limited partnership (the "Borrower"), GPC
CAPITAL CORP. I, a Delaware corporation (the "Co-Borrower"), the Lenders party
hereto from time to time, CITIGROUP GLOBAL MARKETS INC., as syndication agent
(in such capacity, the "Syndication Agent"), ▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS,
L.P., GENERAL ELECTRIC CAPITAL CORPORATION and ▇▇▇▇▇▇ COMMERCIAL PAPER INC.,
as co-documentation agents (in such capacity, each a "Co-Documentation
Agent"), DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH, as administrative agent (in
such capacity, the "Administrative Agent") and as collateral agent (in such
capacity, the "Collateral Agent") for the Lenders, LASALLE BANK NATIONAL
ASSOCIATION and MANUFACTURERS AND TRADERS TRUST COMPANY, as senior managing
agents (in such capacity, each a "Senior Managing Agent"), DEUTSCHE BANK
SECURITIES INC., as joint lead arranger and joint book runner ("DBSI"),
CITIGROUP GLOBAL MARKETS INC., as joint lead arranger and joint book runner
("Citigroup"), and ▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS, L.P., as joint book runner
("▇▇▇▇▇▇▇ ▇▇▇▇▇", and together with DBSI and Citigroup in their respective
capacities as joint lead arrangers and joint book runners, the "Arrangers").
The Borrower intends to purchase all of the issued and outstanding
capital stock of ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Plastic Products Inc. ("OI Plastic"), from OI
Plastic Products FTS, Inc. (the "Acquisition").
Holdings, the Borrower and the Co-Borrower intend to refinance (the
"Refinancing") substantially all of the outstanding indebtedness of Holdings
and its Subsidiaries (including, without limitation, indebtedness under the
Existing Credit Agreement (such term and each other capitalized term used but
not defined herein having the meaning given to it in Article I), the Existing
Senior Subordinated Notes and the Existing Senior Discount Notes) (the
Refinancing, together with the Acquisition and the other transactions
contemplated by the Loan Documents, are collectively referred to as the
"Transaction").
The Borrower has requested the Lenders to extend credit, subject to
the terms and conditions herein, in the form of (a) B Term Loans on the
Closing Date and the Redemption Date, in an aggregate principal amount not in
excess of $1,450,000,000, (b) Revolving Loans and Swingline Loans at any time
and from time to time prior to the Revolving Credit Maturity Date, in an
aggregate principal amount at any time outstanding not in excess of the
difference between (i) $250,000,000 and (ii) the Revolving L/C Exposure at
such time and (c) Letters of Credit, at any time and from time to time prior
to the Revolving Credit Maturity Date, in an aggregate stated amount at any
time outstanding not in excess of $75,000,000.
The proceeds of the B Term Loans will be used (x) on the Closing
Date, (i) to effect the Acquisition and the Refinancing and (ii) to pay
related fees, expenses and other transaction costs and (y) on the Redemption
Date to redeem Existing Senior Subordinated Notes and Existing Senior Discount
Notes that were not surrendered to Holdings or the Borrower, as the case may
be, prior to the Closing Date pursuant to a tender offer for such Existing
Senior Subordinated Notes or Existing Senior Discount Notes, as the case may
be. The proceeds of Revolving Loans will be used for general corporate
purposes. The Letters of Credit and Swingline Loans will be used for general
corporate purposes.
The Lenders are willing to extend such credit to the Borrower and
each Fronting Bank is willing to issue Letters of Credit for the account of
the Borrower, in each case on the terms and subject to the conditions set
forth herein. Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any ABR Term Loan, ABR Revolving Loan, or
Swingline Loan.
"ABR Margin" shall mean for B Term Loans, Revolving Loans and
Swingline Loans, the rate per annum set forth under the relevant column
heading opposite such Loans as set forth on Schedule A hereto.
"ABR Revolving Loan" shall mean any Revolving Loan bearing interest
at a rate determined by reference to the Alternate Base Rate in accordance
with the provisions of Article II.
"ABR Term Borrowing" shall mean a Borrowing comprised of ABR Term
Loans.
"ABR Term Loan" shall mean any B Term Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Acquisition" shall have the meaning provided in the preamble to this
Agreement.
"Acquisition Agreement" shall mean the Stock Purchase Agreement,
dated as of July 28, 2004, and amended by Amendment No. 1 thereto dated as of
October 7, 2004, among the Borrower, OI Plastic and ▇▇▇▇▇-Illinois, Inc.
"Acquisition Documents" shall mean the Acquisition Agreement and all
other material agreements and documents relating to the Acquisition, as same
may be amended, modified or supplemented from time to time pursuant to the
terms hereof and thereof.
"Act" shall have the meaning provided in Section 9.21.
"Additional Intercreditor Agreement" shall have the meaning provided
in the definition of Permitted Refinancing Indebtedness contained herein.
"Additional Mortgage" shall have the meaning provided in Section
5.11(b).
"Additional Mortgaged Property" shall have the meaning provided in
Section 5.11(b).
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the product of (a) the
LIBO Rate in effect for such Interest Period and (b) Statutory Reserves, if
any.
"Administrative Agent" shall have the meaning given such term in the
introductory paragraph of this Agreement.
"Administrative Agent Fees" shall have the meaning given such term in
Section 2.05(d).
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with
the person specified; provided, however, no Lender shall be deemed an
Affiliate of any Loan Party by virtue of its execution of this Agreement.
"Agents" shall mean each of the Administrative Agent, the Syndication
Agent, the Co-Documentation Agents, the Senior Managing Agents, the Arrangers
and the Collateral Agent.
"Aggregate Revolving Credit Exposure" shall mean the aggregate amount
of the Lenders' Revolving Credit Exposures.
"Agreement" shall mean this Credit Agreement, as the same may be
amended, restated, supplemented or otherwise modified from time to time.
"Alternate Base Rate" shall mean, for any day, a rate per annum equal
to the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. If for any reason
the Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Effective Rate, including the failure of the Federal Reserve Bank of New
York to publish rates or the inability of the Administrative Agent to obtain
quotations in accordance with the terms thereof, the Alternate Base Rate shall
be determined without regard to clause (b) of the preceding sentence until the
circumstances giving rise to such inability no longer exist. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective on the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" of any Revolving Credit Lender at any time
shall mean the percentage of the Total Revolving Credit Commitment represented
by such Lender's Revolving Credit Commitment. In the event the Revolving
Credit Commitments shall have expired or been terminated, the Applicable
Percentages shall be determined on the basis of the Revolving Credit
Commitments most recently in effect, but giving effect to any assignments
pursuant to Section 9.04.
"Arrangers" shall have the meaning given such term in the
introductory paragraph of this Agreement.
"Asset Disposition" shall mean any sale, transfer or other
disposition by Holdings, the Borrower or any of their respective Subsidiaries
to any person other than the Borrower or any Subsidiary Guarantor of any
asset, the Net Proceeds from which exceed $30,000,000.
"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, in the form of Exhibit A or such other form as shall
be approved by the Administrative Agent.
"Available Investment Basket Amount" shall mean, on any date of
determination, an amount equal to (i) the Cumulative Retained Excess Cash Flow
Amount on such date (after giving effect to all prior and contemporaneous
reductions thereto), plus (ii) the Cumulative Retained Net Proceeds Amount on
such date, plus (iii) the amount of funds theretofore received after the
Closing Date which, if not spent as described in the parenthetical below in
this clause (iii), would have constituted Net Proceeds under clause (a) of the
definition thereof (but which will not constitute such Net Proceeds pursuant
to the first proviso to said clause (a) as a result of the use of such funds
to make payments in connection with investments pursuant to Sections 6.04(k)
and (l)), minus (iv) any amounts used to make investments pursuant to clause
(x) of the proviso to Section 6.04(j), clause (x) of the proviso to Section
6.04(k) and/or clause (x) of the proviso to Section 6.04(n) after the Closing
Date and on or prior to such date, and minus (v) any amounts used to make
Permitted Business Acquisitions after the Closing Date and on or prior to such
date pursuant to clause (z) of the proviso to the definition of Permitted
Business Acquisition Amount.
"BMP/▇▇▇▇▇▇ Holdings" shall mean BMP/▇▇▇▇▇▇ Holdings Corporation, a
Delaware corporation.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States.
"Borrower" shall have the meaning given such term in the introductory
paragraph of this Agreement.
"Borrower Partners" shall mean, at any time, each person which is a
partner of the Borrower from time to time pursuant to and in accordance with
the terms of the partnership agreement in respect of the Borrower.
"Borrowing" shall mean a group of Loans of a single Type under a
single Tranche of Loans and made on a single date and, in the case of
Eurodollar Loans, as to which a single Interest Period is in effect.
"Borrowing Request" shall mean a request by the Borrower in
accordance with the terms of Section 2.03 and substantially in the form of
Exhibit B.
"B Term Borrowing" shall mean a Borrowing comprised of B Term Loans.
"B Term Loan Commitment" shall mean with respect to each Lender, the
commitment of such Lender to make B Term Loans hereunder as set forth in
Section 2.01(a), as the same may be reduced from time to time pursuant to
Section 2.09.
"B Term Loan Commitment Termination Date" shall mean the earlier of
(i) the Redemption Date and (ii) the 45th day following the Closing Date.
"B Term Loan Installment Date" shall have the meaning provided in
Section 2.11(a).
"B Term Loan Maturity Date" shall mean the seventh anniversary of the
Closing Date.
"B Term Loans" shall mean the term loans made by the Lenders to the
Borrower pursuant to Sections 2.01(a) or 2.23.
"Borrower Irrevocable Notice of Redemption" shall have the meaning
provided in Section 5.15(b).
"Business Day" shall mean any day other than a Saturday, Sunday or
day on which banks in New York City are authorized or required by law to
close; provided, however, that when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in Dollar deposits in the London interbank market.
"CapCo II" shall mean GPC Capital Corp. II, a Delaware corporation.
"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 (which shall in any event (x) exclude investments
made pursuant to Section 6.04 (exclusive of clause (q) thereof) and (y) be
subject to the proviso to clause (i) of the definition of EBITDA contained
herein, to the extent relevant); provided, however, that Capital Expenditures
for the Borrower and its Subsidiaries shall not include (a) expenditures to
the extent they are made with the proceeds of the issuance of Equity Interests
(other than Designated Capital Contributions and that portion (if any) of the
proceeds of an initial public offering of the common stock of Holdings that
are utilized to (x) repay up to $25,000,000 of outstanding Revolving Loans
and/or Swingline Loans (to the extent outstanding) or (y) repay B Term Loans
pursuant to Section 2.12(c)) of Holdings after the Closing Date or with funds
that would have constituted Net Proceeds under clause (a) of the definition of
the term "Net Proceeds" (but which will not constitute Net Proceeds as a
result of the first two provisos to said clause (a)), (b) expenditures of
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 assets or properties useful in the business of the
Borrower and the Subsidiaries within 12 months of receipt of such proceeds,
(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 or any Subsidiary thereof) and
for which neither Holdings nor any Subsidiary thereof 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) or (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 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 such book value shall have been included in Capital
Expenditures when such asset was originally acquired.
"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
its Subsidiaries on a consolidated basis for any period, Interest Expense for
such period, less the sum of (a) pay-in-kind Interest Expense, (b) to the
extent included in Interest Expense, the amortization of any financing fees
paid by, or on behalf of, the Borrower or any of its Subsidiaries, including
such fees paid in connection with the Transaction (including any such fees
paid by Holdings from the proceeds of distributions from the Borrower), (c)
the amortization of debt discounts, if any, or fees in respect of Interest
Rate Protection Agreements and (d) gross interest income of the Borrower and
its Subsidiaries for such period. Notwithstanding anything to the contrary
contained above in this definition or elsewhere in this Agreement or otherwise
required by GAAP, in the case of any period ending prior to the first
anniversary of the Closing Date, such period shall be a one-year period ending
on the last day of the fiscal quarter last ended, with any calculations of
Cash Interest Expense for (x) the fiscal quarters ended on each of June 30,
2004 and September 30, 2004 to be $37,100,000 and $37,100,000, respectively
and (y) the fiscal quarter ended on December 31, 2004 to be determined by (i)
taking the actual Cash Interest Expense, determined in accordance with the
first sentence of this definition, for any period beginning on, and ending
after, the Closing Date, and (ii) for each day of such fiscal quarter
occurring prior to the Closing Date, using a per-day amount of $403,000.
"CERCLA" shall have the meaning given such term in the definition of
the term "Environmental Law".
"Change in Control" shall be deemed to have occurred if, subsequent
to the Closing Date (i) prior to the IPO Reorganization (a) Holdings should
fail to own directly, beneficially and of record (except that 1% may be owned
indirectly through Opco GP), free and clear of any and all Liens (other than
Liens pursuant to the Pledge Agreement and pursuant to the Second-Lien Credit
Documents), 100% of the issued and outstanding Equity Interests of the
Borrower; (b) Holdings should fail to own directly, beneficially and of
record, free and clear of any and all Liens (other than liens pursuant to the
Pledge Agreement and pursuant to the Second-Lien Credit Documents), 100% of
the issued and outstanding Equity Interests of Opco GP; (c) the Designated
Persons shall cease to be able to elect or designate the managing general
partner of Holdings; (d) the Designated Persons or any combination of
Designated Persons shall cease to own beneficially, directly or indirectly,
aggregate Equity Interests representing at least 51% of the ordinary voting
power represented by the issued and outstanding Equity Interests of the
managing general partner of Holdings; or (e) the Designated Persons or any
combination of Designated Persons shall cease to own beneficially, directly or
indirectly, the aggregate Equity Interests representing at least 51% of the
aggregate common economic interests represented by the issued and outstanding
Equity Interests of Holdings; (ii) from and after the IPO Reorganization (a)
Holdings shall fail to own directly, beneficially and of record (except that
1% may be owned indirectly through Opco GP so long as Opco GP is a direct
Wholly Owned Subsidiary of Holdings), free and clear of any and all liens
(other than Liens pursuant to Pledge Agreement and pursuant to the Second-Lien
Credit Documents) 100% of the issued and outstanding Equity Interests in the
Borrower; or (b) any person or group (within the meaning of Rule 13d-5 of the
Securities Exchange Act of 1934 as in effect on the date hereof), other than
management of Holdings or the Borrower, shall own beneficially, directly or
indirectly, in the aggregate Equity Interests representing a greater
percentage of the aggregate ordinary voting power represented by the issued
and outstanding Equity Interests of Holdings than the aggregate ordinary
voting power at such time represented by the issued and outstanding Equity
Interests of Holdings owned beneficially, directly or indirectly, by the Fund
and Fund Affiliates (excluding, for this purpose, from the definition of Fund
Affiliates management of Holdings and the Borrower), or (iii) a "Change in
Control" shall occur under the Second-Lien Credit Agreement, Senior
Subordinated Note Indenture or the Senior Note Indenture or under any issue of
indebtedness refinancing (in whole or in part) the Senior Subordinated Notes,
the Senior Notes, the Second-Lien Loans or any subsequent refinancing thereof.
"Charges" shall have the meaning provided in Section 9.09.
"Citigroup" shall have the meaning given such term in the
introductory paragraph of this Agreement.
"Closing Date" shall mean a single date (which shall in no event be
later than June 30, 2005) on which the initial Borrowing or issuance of a
Letter of Credit occurs hereunder.
"Co-Borrower" shall have the meaning given such term in the
introductory paragraph of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Co-Documentation Agents" shall have the meaning given such term in
the introductory paragraph of this Agreement.
"Collateral" shall mean all the "Collateral" as defined in any
Security Document and shall also include the Mortgaged Properties.
"Collateral Agent" shall have the meaning given such term in the
introductory paragraph of this Agreement.
"Commercial Letter of Credit" shall mean a commercial documentary
Letter of Credit under which any Fronting Bank agrees to make payments in
Dollars for the account of the Borrower, on behalf of the Borrower or a
Subsidiary of the Borrower, in respect of obligations of the Borrower or such
Subsidiary in connection with the purchase of goods or services.
"Commitment Fee" shall have the meaning given such term in Section
2.05(a).
"Commitments" shall mean, with respect to any Lender, such Lender's
Revolving Credit Commitment, B Term Loan Commitments Swingline Loan
Commitment, Incremental Revolving Credit Commitment, Incremental B Term Loan
Commitment or any combination thereof (as the context requires) and, with
respect to any Fronting Bank, its Revolving L/C Commitment.
"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
(i) any net after-tax extraordinary gains or losses (less all fees and
expenses relating thereto) shall be excluded, (ii) any increase in the cost of
sales or other incremental expenses resulting from purchase accounting in
relation to any acquisition, net of taxes, shall be excluded, (iii)
Consolidated Net Income for such period shall not include the cumulative
effect of a change in accounting principles during such period, (iv) any net
after-tax income (loss) from discontinued operations and any net after-tax
gains or losses on disposal of discontinued operations shall be excluded, (v)
any net after-tax gains or losses (less all fees and expenses relating
thereto) attributable to asset dispositions other than in the ordinary course
of business (as determined in good faith by Holdings or the Borrower) shall be
excluded, (vi) the Net Income for such period of any person that is not a
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, (vii) the
Net Income for such period of any Subsidiary shall be excluded to the extent
that the declaration or payment of dividends or similar distributions by such
Subsidiary of its Net Income is not at the date of determination permitted
without any prior governmental approval (which has not been obtained) or,
directly or indirectly, by the operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule, or governmental
regulation applicable to that Subsidiary or its stockholders, unless such
restriction with respect to the payment of dividends or in similar
distributions has been legally waived and (viii) Consolidated Net Income for
such period shall be decreased by the amount of all payments made during such
period pursuant to Sections 6.06(c) and (e).
"Consolidated Total Assets" shall mean, as of any date, the total
assets of the Borrower and its consolidated Subsidiaries, determined in
accordance with GAAP, as set forth on the consolidated balance sheet of the
Borrower as of such date.
"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.
"Credit Event" shall have the meaning given such term in Article IV.
"Cumulative Retained Excess Cash Flow Amount" shall mean, at any
date, an amount, not less than zero, determined on cumulative basis equal to
(x) the amount of Excess Cash Flow for all Excess Cash Flow Periods ending
after the Closing Date which is not (and, in the case of any Excess Cash Flow
Period where the respective required date of prepayment has not yet occurred
pursuant to Section 2.12(d), will not on such date of required prepayment be)
required to be applied in accordance with Section 2.12(d) minus (y) the
aggregate amount of Capital Expenditures made on or prior to such date
pursuant to Section 6.10(c)(ii).
"Cumulative Retained Net Proceeds Amount" shall mean (x) the
aggregate amount of proceeds received after the Closing Date which would have
constituted Net Proceeds pursuant to clause (a) of the definition thereof
except for the operation of the second proviso to said clause (a), plus (y) at
any time after the first date upon which the Net Leverage Ratio is less than
3.50 to 1.00 (as established pursuant to the certificate last delivered (or
required to be delivered) pursuant to Section 5.04(c)), that amount which, as
of the date of determination of the Cumulative Retained Net Proceeds Amount,
equals the amount which would have constituted Net Proceeds received after the
Closing Date, but which did not constitute Net Proceeds, because of (and to
the extent of) the operation of the last sentence of the definition of Net
Proceeds contained herein, minus (z) the aggregate amount of Capital
Expenditures made on or prior to such date pursuant to Section 6.10(c)(iii).
"Cure Amount" shall have the meaning provided in Section 7.02.
"Cure Right" shall have the meaning provided in Section 7.02.
"Current Assets" shall mean, with respect to the Borrower and its
Subsidiaries on a consolidated basis at any date of determination, all assets
(other than cash and Permitted Investments or other cash equivalents) that
would, in accordance with GAAP, be classified on a consolidated balance sheet
of the Borrower and its Subsidiaries as current assets at such date of
determination.
"Current Liabilities" shall mean, with respect to the Borrower and
its 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 its Subsidiaries as current
liabilities at such date of determination, other than (a) the current portion
of long-term debt, (b) accruals of Interest Expense (excluding Interest
Expense that is due and unpaid), (c) Revolving Loans or Swingline Loans
classified as current, (d) loans of Foreign Subsidiaries of the Borrower
classified as current, (e) accruals, if any, of transaction costs resulting
from the Transaction, (f) accruals of any costs or expenses related to
severance or termination of employees prior to the date hereof and (g)
accruals for add-backs to EBITDA included in clauses (e)-(i) of the definition
thereof.
"DBCI" shall mean Deutsche Bank AG Cayman Islands Branch, in its
individual capacity, and any successor corporation thereto.
"DBSI" shall have the meaning given such term in the introductory
paragraph of this Agreement.
"Debt Service" shall mean, with respect to the Borrower and its
Subsidiaries on a consolidated basis for any period, Cash Interest Expense for
such period plus scheduled principal amortization of Total Debt for such
period (whether or not such payments are made).
"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 Capital Contributions" shall mean any common equity
contributions made after the Closing Date by the Designated Investors directly
or indirectly to Holdings (which equity contributions are, in turn,
contributed by Holdings to the Borrower) so long as all proceeds thereof are
used by the Borrower to make Capital Expenditures pursuant to Section
6.10(c)(i) and/or acquisitions and investments pursuant to Sections 6.04(j),
(k), (l) and (n); provided that no Designated Capital Contribution may be used
to repay (temporarily or permanently) any Indebtedness of Holdings, the
Borrower or any of their respective Subsidiaries, whether pursuant to this
Agreement or otherwise (and, if so used, the respective equity contribution
shall not constitute a Designated Capital Contribution). For avoidance of
doubt, it is understood and agreed that in no event shall (x) any amounts
contributed pursuant to the exercise of Cure Rights pursuant to Section 7.02,
(y) any amounts constituting Special Capital Contributions or (z) any amounts
received from the issuance and sale of common equity of Holdings through one
or more registered public offerings thereof, be deemed to constitute (in whole
or in part) Designated Capital Contributions.
"Designated Investors" shall mean the Fund, Fund Affiliates,
management of Holdings and the Borrower on the Closing Date; any other entity
holding direct or indirect Equity Interests in Holdings on the Closing Date,
including, in any event, any entity that is controlled by the ▇▇▇▇▇▇ family;
and any other person approved by the Agents.
"Designated Persons" shall mean, collectively, (w) the Fund, (x) Fund
Affiliates, (y) members of management of Holdings or the Borrower holding
voting interests of Holdings or BMP/▇▇▇▇▇▇ Holdings or options to acquire such
interests on the Closing Date and (z) holders of Equity Interests for whom
Holdings, BMP/▇▇▇▇▇▇ Holdings, the Fund or Fund Affiliates (which are not
themselves operating companies) have the power to vote.
"Development Authority" shall have the meaning given such term in the
definition of "▇▇▇▇▇▇ County Bond Transaction."
"Dollars" or "$" shall mean lawful money of the United States of
America.
"EBITDA" shall mean, with respect to the Borrower and its
Subsidiaries on a consolidated basis for any period, the Consolidated Net
Income of the Borrower and its Subsidiaries for such period plus (in each case
without duplication and to the extent the respective amounts described in
items (a) through (i) below reduced such Consolidated Net Income for the
respective period for which EBITDA is being determined) (a) provision for
taxes based on income or profits of the Borrower and its Subsidiaries and
Permitted Tax Amount Distributions made by the Borrower for such period, plus
(b) Interest Expense of the Borrower and its Subsidiaries for such period,
plus (c) depreciation and amortization expense (including the amortization of
deferred financing fees) of the Borrower and its Subsidiaries for such period,
plus (d) any fees, expenses or charges related to the Transaction or any
equity offering, investments permitted hereunder, acquisition or
recapitalization or Indebtedness permitted to be incurred hereunder (whether
or not successful), plus (e) the amount of any non-recurring charges
(including any one-time costs incurred in connection with acquisitions after
the Closing Date), plus (f) any other non-cash charges (excluding any such
charge which requires an accrual of a cash reserve for anticipated cash
charges for any future period), plus (g) the amount of any minority interest
expense, plus (h) the amount of management, consulting monitoring and advisory
fees paid to the Fund and its Affiliates, and/or any ▇▇▇▇▇▇ Family Entity,
during such period not to exceed $5.0 million during any four quarter period,
plus (i) to the extent taken on or prior to December 31, 2006 and deducted
from Net Income for the period for which EBITDA is being determined, fees,
expenses or charges for the restructuring of the Borrower as contemplated by
the business plan provided to the Lenders prior to the Closing Date; provided
that the aggregate amount added back for all periods pursuant to this clause
(i) shall not exceed $137,000,000; provided, further that if any such amounts
are capitalized rather than expensed during any period described above in this
clause (i), (x) the amounts set forth in the preceding proviso will be reduced
by any such amounts which are capitalized during the respective period and (y)
such amounts shall not be deemed to be a Capital Expenditure for such period
for the purposes of Section 6.10, plus (j) the amount of any expense to the
extent a corresponding amount is received in cash by the Borrower and its
Subsidiaries from a person other than Holdings or any Subsidiary of Holdings
under any agreement providing for reimbursement of any such expense, provided
such reimbursement payment has not been included in determining Consolidated
Net Income or EBITDA (it being understood that if the amounts received in cash
under any such agreement in any period exceed the amount of expense in respect
of such period, such excess amounts received may be carried forward and
applied against the respective expenses in future periods), less, without
duplication, (k) non-cash items increasing Consolidated Net Income of the
Borrower and its Subsidiaries for such period (excluding any items which
represent the reversal of any accrual of, or cash reserve for, anticipated
cash charges in any prior period). Notwithstanding anything to the contrary
contained above in this definition or elsewhere in this Agreement or otherwise
required by GAAP, to the extent EBITDA is being determined for any period that
begins prior to the Closing Date, then EBITDA shall be determined on a pro
forma basis (consistent with the pro forma calculations in the Information
Memorandum) as if the Acquisition had been consummated on the first day of the
period for which EBITDA is being determined, it being further understood and
agreed that such pro forma EBITDA shall be determined as if expected synergies
for each fiscal quarter that ended on or prior to September 30, 2004 (and is
included in the respective period for which EBITDA is being determined) in an
amount equal to $8,800,000 per fiscal quarter had been realized (and, to the
extent not already reflected, such amounts shall be added to EBITDA for any
such fiscal quarter included in the period for which EBITDA is being
determined). Additionally, notwithstanding anything to the contrary contained
above in this definition or elsewhere in this Agreement or otherwise required
by GAAP, to the extent EBITDA is being determined for any period which
includes the fiscal quarter ending December 31, 2004 or any fiscal quarter
ending in 2005, then, with respect to such fiscal quarters (to the extent
included in the period for which EBITDA is being determined) (x) $8,800,000
shall be added back in determining EBITDA for the fiscal quarter ended
December 31, 2004 and (y) $9,000,000 shall be added back for each of the
fiscal quarters ended on March 31, 2005, June 30, 2005, September 30, 2005 and
December 31, 2005, in each case with such amounts representing expected future
synergies; provided, however that the adjustments made pursuant to clause (y)
of this sentence will not be made solely for purposes of determining EBITDA as
used in the definition of Excess Cash Flow.
"Eligible Transferee" shall mean and include a commercial bank, an
insurance company, a finance company, a financial institution, any fund that
invests in loans or any other "accredited investor" (as defined in Regulation
D of the Securities Act of 1933), but in any event excluding the Borrower and
its Subsidiaries.
"Employee Equity Sales" shall have the meaning given such term in the
definition of the term Net Proceeds.
"environment" shall mean ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata, the workplace or as otherwise defined in any Environmental
Law.
"Environmental Claim" shall mean any written accusation, allegation,
notice of violation, claim, demand, order, directive, cost recovery action or
other cause of action by, or on behalf of, any Governmental Authority or any
person for damages, injunctive or equitable relief, personal injury (including
sickness, disease or death), Remedial Action costs, tangible or intangible
property damage, natural resource damages, nuisance, pollution, any adverse
effect on the environment caused by any Hazardous Material, or for fines,
penalties or restrictions, resulting from or based upon: (a) the threat, the
existence, or the continuation of the existence of a Release (including sudden
or non-sudden, accidental or non-accidental Releases); (b) exposure to any
Hazardous Material; (c) the presence, use, handling, transportation, storage,
treatment or disposal of any Hazardous Material; or (d) the violation or
alleged violation of any Environmental Law or Environmental Permit.
"Environmental Law" shall mean any and all applicable legally
enforceable treaties, laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in any way
to the environment, preservation or reclamation of natural resources, the
treatment, storage, disposal, Release or threatened Release of any Hazardous
Material or to human health or safety to the extent related to Hazardous
Materials, including the Hazardous Materials Transportation Act, 49 U.S.C. ss.
1801 et seq., the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. ss. 9601 et seq. ("CERCLA"), the
Solid Waste Disposal Act, as amended, 42 U.S.C. ss. 6901 et seq., the Federal
Water Pollution Control Act, as amended, 33 U.S.C. ss. 1251 et seq., the Clean
Air Act of 1970, as amended, 42 U.S.C. ss. 7401 et seq., the Toxic Substances
Control Act of 1976, 15 U.S.C. ss. 2601 et seq., the Emergency Planning and
Community Right-to-Know Act of 1986, 42 U.S.C. ss. 11001 et seq., the National
Environmental Policy Act of 1975, 42 U.S.C. ss. 4321 et seq., the Safe
Drinking Water Act of 1974, as amended, 42 U.S.C. ss. 300(f) et seq., and any
similar or implementing state, local or foreign law, and all amendments or
regulations promulgated under any of the foregoing.
"Environmental Permit" shall mean any permit, approval,
authorization, certificate, license, variance, filing or permission required
by or from any Governmental Authority pursuant to any Environmental Law.
"Equity Interests" of any person shall mean any and all shares,
interests, rights to purchase, warrants, options, participation or other
equivalents of or interests in (however designated) equity of such person,
including any preferred stock, any limited or general partnership interest and
any limited liability company membership interest, but excluding any debt
securities convertible into such equity.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Borrower, 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.
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
"Eurodollar Loan" shall mean any Eurodollar Term Loan or Eurodollar
Revolving Loan.
"Eurodollar Revolving Loan" shall mean any Revolving Loan bearing
interest at a rate determined by reference to the Adjusted LIBO Rate in
accordance with the provisions of Article II.
"Eurodollar Term Borrowing" shall mean a Borrowing comprised of
Eurodollar Term Loans.
"Eurodollar Term Loan" shall mean any B 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 given such term in Article
VII.
"Excess Amount" shall have the meaning provided in Section 2.12(g).
"Excess Cash Flow" shall mean, with respect to the Borrower and its
Subsidiaries on a consolidated basis for any Excess Cash Flow Period, EBITDA
of the Borrower and its Subsidiaries on a consolidated basis for such Excess
Cash Flow Period, minus, without duplication, (a) Debt Service for such Excess
Cash Flow Period, (b) any voluntary prepayments of B Term Loans during the
period beginning on April 1 of such Excess Cash Flow Period and ending on
March 31 of the immediately succeeding Excess Cash Flow Period and any
permanent voluntary reductions to the Revolving Credit Commitments to the
extent that an equal amount of the Revolving Loans simultaneously is repaid,
so long as such amounts are not already reflected in Debt Service, (c) (i)
Capital Expenditures by the Borrower and its Subsidiaries on a consolidated
basis during such Excess Cash Flow Period (excluding Capital Expenditures made
in such Excess Cash Flow Period where a certificate in the form contemplated
by the following clause (d) was previously delivered) that are paid in cash
and (ii) the aggregate consideration paid in cash during such Excess Cash Flow
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 of
the Borrower shall, during such Excess Cash Flow Period, become obligated to
make but that are not made during such Excess Cash Flow Period, provided that
the Borrower shall deliver a certificate to the Administrative Agent not later
than 90 days after the end of such Excess Cash Flow Period of the Borrower,
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 Excess Cash Flow Period, (e) taxes paid in cash by the Borrower
and its Subsidiaries on a consolidated basis during such Excess Cash Flow
Period or which are paid during the respective Excess Cash Flow Period or will
be paid within six months after the close of such Excess Cash Flow Period
(provided that any amount so deducted which will be paid after the close of
such Excess Cash Flow Period shall not be deducted again in a subsequent
Excess Cash Flow Period) and for which reserves have been established,
including income tax expense and withholding tax expense incurred in
connection with cross-border transactions involving its Foreign Subsidiaries,
(f) without duplication of the preceding clause (e), Permitted Tax Amount
Distributions which are paid during the respective Excess Cash Flow Period or
will be paid within six months after the close of such Excess Cash Flow Period
(provided that any amount so deducted which will be paid after the close of
such Excess Cash Flow Period shall not be deducted again in a subsequent
Excess Cash Flow Period), (g) an amount equal to any increase in Working
Capital of the Borrower and its Subsidiaries for such Excess Cash Flow Period,
(h) to the extent not deducted in determining EBITDA, monitoring and
management fees paid to the Fund and/or any of its Affiliates or the Fund
Affiliates and annual fees paid to any ▇▇▇▇▇▇ Family Entity during such Excess
Cash Flow Period, (i) cash expenditures made in respect of Interest Rate
Protection Agreements and Other Hedging Agreements during such Excess Cash
Flow Period, to the extent not reflected in the computation of EBITDA or
Interest Expense, (j) permitted dividends or distributions (excluding
Permitted Tax Amount Distributions, which are covered in clause (f) above) or
repurchases of its Equity Interests paid in cash by Holdings or the Borrower
during such Excess Cash Flow Period and permitted dividends paid by any
Subsidiary of the Borrower to any person other than the Borrower or any of the
Borrower's other Subsidiaries during such Excess Cash Flow Period, in each
case in accordance with Section 6.06, (k) amounts paid in cash during such
Excess Cash Flow Period on account of items that were accounted for as noncash
reductions of Consolidated Net Income of the Borrower and its Subsidiaries in
the current or a prior period, (l) special charges or any extraordinary or
nonrecurring loss paid in cash during such Excess Cash Flow Period, (m) to the
extent not deducted in the computation of Net Proceeds in respect of any asset
disposition or condemnation giving rise thereto, mandatory prepayments of
Indebtedness (other than Indebtedness created hereunder or under any other
Loan Document), (n) amounts added to Consolidated Net Income pursuant to
clause (i) of the definition of "EBITDA" for such Excess Cash Flow Period and
(m) to the extent included in determining EBITDA, all items that did not
result from a cash payment to the Borrower and its Subsidiaries on a
consolidated basis during such Excess Cash Flow Period plus, without
duplication, (i) an amount equal to any decrease in Working Capital for such
Excess Cash Flow Period, (ii) all proceeds received during such Excess Cash
Flow Period of Capital Lease Obligations, purchase money Indebtedness, Sale
and Lease-Back Transactions pursuant to Section 6.03 and any other
Indebtedness, in each case to the extent used to finance any Capital
Expenditure (other than Indebtedness under this Agreement to the extent there
is no corresponding deduction to Excess Cash Flow above in respect of the use
of such Borrowings), (iii) all amounts referred to in (c) above to the extent
funded with the proceeds of the issuance of Equity Interests of, or capital
contributions to, Holdings after the Closing Date (to the extent not
previously used to prepay Indebtedness (other than Revolving Loans or
Swingline Loans), make any investment or capital expenditure or otherwise for
any purpose resulting in a deduction to Excess Cash Flow in any prior Excess
Cash Flow Period) or any amount that would have constituted Net Proceeds under
clause (a) of the definition of the term "Net Proceeds" if not so spent, in
each case to the extent there is a corresponding deduction to Excess Cash Flow
above, (iv) to the extent any permitted Capital Expenditures and the
corresponding delivery of equipment referred to in (d) above do not occur in
the Excess Cash Flow Period of the Borrower specified in the certificate of
the Borrower provided pursuant to (d) above, such amounts of Capital
Expenditures that were not so made in the Excess Cash Flow Period of the
Borrower specified in such certificates, (v) cash payments received in respect
of Interest Rate Protection Agreements during such Excess Cash Flow Period to
the extent not (A) included in the computation of EBITDA or (B) reducing Cash
Interest Expense, (vi) any extraordinary or nonrecurring gain realized in cash
during such Excess Cash Flow Period (except to the extent such gain is subject
to Section 2.12(c)), (vii) to the extent deducted in the computation of
EBITDA, interest income and (viii) to the extent subtracted in determining
EBITDA, all items that did not result from a cash payment by the Borrower and
its Subsidiaries on a consolidated basis during such Excess Cash Flow Period.
"Excess Cash Flow Period" shall mean each fiscal year of the
Borrower, commencing with its fiscal year ended closest to December 31, 2005.
"Existing Credit Agreement" shall mean the Credit Agreement dated as
of February 14, 2003 (as amended, modified and/or supplemented from time to
time), among Holdings, the Borrower, the Co-Borrower, the lenders from time to
time party thereto, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, as syndication agent, LaSalle Bank
National Association, as documentation agent, Deutsche Bank Trust Company
Americas, as administrative agent and Deutsche Bank Securities Inc., as sole
lead arranger and sole book runner.
"Existing Letter of Credit" shall mean each letter of credit issued
under the Existing Credit Agreement that is to remain outstanding after the
Closing Date and listed on Schedule 1.01 and designated as either (x) a
Commercial Letter of Credit or (y) a Standby Letter of Credit.
"Existing Senior Discount Notes" shall mean Holdings' 10-3/4% Senior
Discount Notes due 2009.
"Existing Senior Subordinated Notes" shall mean the Borrower's 8-3/4%
Senior Subordinated Notes due 2008 and its Floating Rate Subordinated Term
Securities due 2008.
"Federal Funds Effective Rate" shall mean, for any day, the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day which is a Business Day, the
average of the quotations for the day of such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
"Fees" shall mean the Commitment Fees, the TL Commitment Fees, the
L/C Participation Fees, the Fronting Bank Fees and 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.
"Financial Performance Covenants" shall mean the covenants of
Holdings and the Borrower set forth in Sections 6.11 and 6.12.
"Foreign Subsidiary" shall mean, for any person, each Subsidiary of
such person that is incorporated or organized under the laws of any
jurisdiction other than the United States of America, any state thereof, the
United States Virgin Islands or Puerto Rico.
"Fronting Bank" shall mean DBCI (and to the extent DBCI resigns as
Fronting Bank pursuant to Section 2.20(f), any Lender (if and to the extent it
agrees in its sole discretion to be an issuer of Letters of Credit hereunder)
or any bank affiliate thereof which has agreed to issue Letters of Credit
hereunder). Notwithstanding the foregoing, it is hereby understood and agreed
that any Affiliate of DBCI may issue Letters of Credit hereunder and under
such circumstances be considered a Fronting Bank for the purposes hereof.
"Fronting Bank Fees" shall have the meaning given to such term in
Section 2.05(b).
"▇▇▇▇▇▇ County Bond Transaction" shall mean one or more "▇▇▇▇▇▇
County Bond" transactions consummated by the Borrower and its Subsidiaries
prior to the Closing Date with respect to production equipment and related
property located in ▇▇▇▇▇▇ County, Georgia, on terms substantially similar to
the existing ▇▇▇▇▇▇ County Bond Transactions of the Borrower with respect to
production equipment and related property located in ▇▇▇▇▇▇ County, Georgia,
where (i) the Borrower and its Subsidiaries transferred title to the
Development Authority of ▇▇▇▇▇▇ County, Georgia (or a substantially similar
Governmental Authority) (the "Development Authority") to the respective
production equipment and related property located in ▇▇▇▇▇▇ County, Georgia
(the "Subject Property") (which shall have been acquired and/or constructed by
the Borrower and its Subsidiaries prior to the Closing Date), (ii) the
Borrower or a Subsidiary thereof shall have leased the respective Subject
Property back from the Development Authority (such lease shall (x) require no
(or nominal ) cash payments by the Borrower or any of its Subsidiaries and (y)
allow for the purchase of the Subject Property by the Borrower or a Subsidiary
thereof for no, or nominal, consideration), (iii) the Development Authority
shall have issued industrial revenue bonds (the "▇▇▇▇▇▇ County Bonds") in an
amount to be agreed with the Borrower and the Borrower shall purchase the
▇▇▇▇▇▇ County Bonds, with the Development Authority immediately loaning the
proceeds of the ▇▇▇▇▇▇ County Bonds back to the Borrower (so that there is no
effect on the Borrower's financial cash position, and with any payments on the
loan (if any) being immediately repaid to the Borrower with respect to the
▇▇▇▇▇▇ County Bonds), (iv) the ▇▇▇▇▇▇ County Bonds, and the Borrower's
obligation to repay the loan of the proceeds of the ▇▇▇▇▇▇ County Bonds, are
not treated as indebtedness under GAAP or recorded as indebtedness on the
Borrower's financial statements, (v) the ▇▇▇▇▇▇ County Bonds are pledged
pursuant to the Pledge Agreement and are themselves secured by the respective
Subject Property, (vi) the ▇▇▇▇▇▇ County Bonds may be redeemed at the request
of the Borrower (and the loan cancelled) at any time (with only nominal cash
payment required), and (vii) the respective Subject Property is recorded as an
asset or assets on the Borrower's balance sheet and the Borrower's lease
payments or obligations shall not be reflected as lease payments or
obligations on the Borrower's financial statements all in accordance with
GAAP.
"▇▇▇▇▇▇ County Bonds" shall have the meaning given such term in the
definition of "▇▇▇▇▇▇ County Bond Transaction."
"Fund" shall mean Blackstone Capital Partners III Merchant Banking
Fund L.P., a Delaware limited partnership, and Blackstone Offshore Capital
Partners III L.P., a Cayman Islands limited partnership.
"Fund Affiliates" shall mean each Affiliate of the Fund that is not
an operating company or Controlled by an operating company and each general
partner of the Fund or any Fund Affiliate who is a partner or employee of The
Blackstone Group L.P.
"GAAP" shall mean generally accepted accounting principles in effect
from time to time in the United States, applied on a consistent basis
(provided that, at their option, Holdings and its Subsidiaries may capitalize
repair and maintenance expenses in connection with their capital assets, so
long as such capitalization is done on a consistent basis for all periods
ended after the Closing Date, except for such period as is reasonably
necessary to implement the change described above in this parenthetical).
"▇▇▇▇▇▇▇ Sachs" shall have the meaning given such term in the
introductory paragraph to this Agreement.
"Governmental Authority" shall mean any federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body or, in the case of references to "Governmental Authority" in Article II
and Sections 9.04 and 9.16, the National Association of Insurance
Commissioners.
"▇▇▇▇▇▇ Alternative Investment Partners" shall mean a limited
partnership, formerly ▇▇▇▇▇▇ Family Growth Partnership.
"▇▇▇▇▇▇ Family Entity" shall mean a corporation, partnership, limited
liability company or trust that is and continues to be controlled by (i) the
▇▇▇▇▇▇ Alternative Investment Partners, (ii) a beneficial owner of the ▇▇▇▇▇▇
Alternative Investment Partners, (iii) any spouse, lineal descendant, or
estate of any such beneficial owner, or (iv) any trust created for the direct
and sole benefit of any person described in the preceding clauses (i) through
(iii). As used in this definition of ▇▇▇▇▇▇ Family Entity, "beneficial owner"
shall mean a person who would be determined to be a beneficial owner in
accordance with the provisions of Rule 13d-3 promulgated by the Securities and
Exchange Commission under the securities Exchange Act of 1934.
"Guarantee" of or by any person shall mean (a) any obligation,
contingent or otherwise, of such person guaranteeing or having the economic
effect of guaranteeing any Indebtedness of any other person (the "Primary
Obligor") in any manner, whether directly or indirectly, and including any
obligation of such person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness
(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, (ii) to purchase or lease
property, securities or services for the purpose of assuring the owner of such
Indebtedness of the payment of such Indebtedness, (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 (iv) entered into for the purpose of assuring in any
other manner the holders of such Indebtedness of the payment thereof or to
protect such holders against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such person securing any Indebtedness of any
other person, whether or not such Indebtedness is assumed by such person;
provided, however, that the term "Guarantee" shall not include endorsements
for collection or deposit, in either case 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 under this Agreement.
"Guarantee Agreements" shall mean the Parent Guarantee Agreement and
the Subsidiary Guarantee Agreement.
"Guarantors" shall mean Holdings and the Subsidiary Guarantors.
"Hazardous Materials" shall mean any material meeting the definition
of a "hazardous substance" in CERCLA 42 U.S.C. ss. 9601(14) and all explosive
or radioactive substances or wastes; hazardous or toxic substances or wastes;
pollutants; solid, liquid or gaseous wastes, including petroleum, petroleum
distillates or fractions or residues, asbestos or asbestos containing
materials, polychlorinated biphenyls ("PCBs") or materials or equipment
containing PCBs in excess of 50 parts per million (ppm), radon gas, infectious
or medical wastes, and all other substances or wastes of any nature regulated
pursuant to any Environmental Law, or that reasonably could form the basis of
an Environmental Claim.
"Holdings" shall have the meaning given such term in the introductory
paragraph of this Agreement, provided that upon consummation of the IPO
Reorganization, "Holdings" shall be deemed to mean CapCo II.
"Holdings Irrevocable Notice of Redemption" shall have the meaning
provided in Section 5.15(a).
"Holdings Partner" shall mean, at any time, each person which is a
partner of Holdings from time to time pursuant to and in accordance with the
terms of the partnership agreement in respect of Holdings.
"Incremental B Term Loan Commitment Agreement" shall mean an
Incremental B Term Loan Commitment Agreement substantially in the form of
Exhibit D-2 (appropriately completed), with such revisions reasonably approved
by the Administrative Agent, executed in accordance with Section 2.23.
"Incremental B Term Loan Commitments" shall mean, for any Lender, any
commitment by such Lender to make B Term Loans as agreed to by such Lender in
the Incremental B Term Loan Commitment Agreement delivered pursuant to Section
2.23.
"Incremental B Term Loan Lender" shall have the meaning given such
term in Section 2.23(b).
"Incremental Commitment Request Requirements" shall mean, with
respect to any request for an Incremental Revolving Credit Commitment made
pursuant to Section 2.22 or an Incremental B Term Loan Commitment made
pursuant to Section 2.23, the satisfaction of each of the following conditions
on the date of such request: (x) no Default or Event of Default then exists or
would result therefrom (for purposes of such determination, assuming the
relevant Loans in an aggregate principal amount equal to the full amount of
Incremental Revolving Credit Commitments or Incremental B Term Loan
Commitments, as the case may be, then requested had been incurred, and the
proposed Permitted Business Acquisition (if any) to be financed with the
proceeds of such Loans had been consummated, on such date of request) and all
of the representations and warranties contained herein and in the other Loan
Documents are true and correct in all material respects at such time (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 (y) the Borrower shall be in compliance
with the Financial Performance Covenants for the Test Period most recently
ended prior to the date of the request for Incremental Revolving Credit
Commitments or Incremental B Term Loan Commitments, as the case may be, on a
pro forma basis, as if the relevant Loans to be made pursuant to such
Incremental Revolving Credit Commitments or to such Incremental B Term Loan
Commitments (in each case, assuming the full utilization thereof) had been
incurred, and the proposed Permitted Business Acquisition (if any) to be
financed with the proceeds of such Loans (as well as other Permitted Business
Acquisitions theretofore consummated after the first day of such Test Period)
had occurred, on the first day of such Test Period.
"Incremental Revolving Credit Commitment Agreement" shall mean an
Incremental Revolving Credit Commitment Agreement substantially in the form of
Exhibit D (appropriately completed), with such revisions reasonably approved
by the Administrative Agent, executed in accordance with Section 2.22.
"Incremental Revolving Credit Commitments" shall mean, for any
Lender, any commitment by such Lender to make Revolving Loans as agreed to by
such Lender in the Incremental Revolving Credit Commitment Agreement delivered
pursuant to Section 2.22; it being understood, however, that on each date upon
which an Incremental Revolving Credit Commitment of any Lender becomes
effective, such Incremental Revolving Credit Commitment of such Lender shall
be added to (and thereafter become a part of) the Revolving Credit Commitment
of such Lender for all purposes of this Agreement as contemplated by Section
2.22.
"Incremental Revolving Lender" shall have the meaning given such term
in Section 2.22(b).
"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 (other than current trade liabilities and current
intercompany liabilities (but not any refinancings, extensions, renewals or
replacements thereof) incurred in the ordinary course of business and maturing
within 365 days after the incurrence thereof), (e) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned
or acquired by such person, whether or not the obligations secured thereby
have been assumed, (f) all Guarantees by such person of Indebtedness of
others, (g) all Capital Lease Obligations of such person, (h) all 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 interest rate protection agreements, foreign currency exchange
agreements or other interest or exchange rate hedging arrangements and (i) all
obligations of such person as an account party in respect of letters of credit
and bankers' acceptances.
"Indemnitee" shall have the meaning provided in Section 9.05(b).
"Information Memorandum" shall have the meaning given such term in
Section 3.15(a).
"Initial Date" shall have the meaning provided in Section 2.19(a).
"Intercreditor Agreement" shall have the meaning provided in Section
4.02(i).
"Interest Coverage Ratio" shall have the meaning given such term in
Section 6.11.
"Interest Expense" shall mean, with respect to the Borrower and its
Subsidiaries on a consolidated basis for any period, the sum of (a) gross
interest expense of the Borrower and its Subsidiaries 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 interest rate
protection agreements) payable in connection with the incurrence of
Indebtedness to the extent included in interest expense and (iii) the portion
of any payments or accruals with respect to Capital Lease Obligations
allocable to interest expense and (b) capitalized interest of the Borrower and
its Subsidiaries on a consolidated basis. For purposes of the foregoing, gross
interest expense shall be determined after giving effect to any net payments
made or received by the Borrower and its Subsidiaries with respect to Interest
Rate Protection Agreements.
"Interest Payment Date" shall mean, (a) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurodollar
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 day of each calendar quarter.
"Interest Period" shall mean as to any Eurodollar 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 the
case may be, 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, and the date any Eurodollar Borrowing
is converted to an ABR Borrowing in accordance with Section 2.10 or repaid or
prepaid in accordance with Section 2.11 or 2.12; 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.
"Interest Rate Protection Agreement" shall mean any interest rate
hedging agreement or arrangement entered into by the Borrower or a Subsidiary
of the Borrower and designed to protect against fluctuations in interest
rates.
"Investors" shall mean the Fund, each other owner of Equity Interests
in Holdings or BMP/▇▇▇▇▇▇ Holdings immediately prior to the Closing Date and
any other owner of Equity Interests in Holdings that is approved by the
Agents.
"IPO Reorganization" shall mean the transfer of all or substantially
all of Holdings' assets (including, without limitation, all Equity Interests
in the Borrower and Opco GP) and liabilities to CapCo II and the dissolution,
liquidation or winding up of Holdings in connection with or in contemplation
of an initial public offering of the shares of common stock of CapCo II.
"Joint Venture" shall mean any person in which the Borrower and its
Subsidiaries own, directly or indirectly, more than 5% but 50% or less of the
Equity Interests.
"L/C Participation Fee" shall have the meaning given such term in
Section 2.05(b).
"L/C Payment" shall mean a payment or disbursement made by a Fronting
Bank pursuant to a Letter of Credit.
"Lender" shall mean each financial institution listed on Schedule
2.01, as well as any person which becomes a "Lender" hereunder pursuant to
Section 9.04(b).
"Lender Default" shall mean (i) the refusal (which has not been
retracted) of a Lender to make available its portion of any Borrowing, to fund
Refunded Swingline Loans or to fund its portion of any unreimbursed payment
under Section 2.20(a)(iv) or (ii) a Lender having notified in writing the
Borrower and/or the Administrative Agent that it does not intend to comply
with its obligations under Section 2.01(b) or (c) or Section 2.20.
"Letter of Credit" shall mean the Commercial Letters of Credit, the
Standby Letters of Credit and the Existing Letters of Credit.
"Letter of Credit Request" shall have the meaning given such term in
Section 2.20(a)(i).
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing for
any Interest Period, the rate at which dollar deposits approximately equal in
principal amount to the Administrative Agent's portion of such Eurodollar
Borrowing and for a maturity comparable to such Interest Period are offered to
the principal London office of the Administrative Agent in immediately
available funds in the London interbank market at approximately 11:00 a.m.,
New York time, two Business Days prior to the commencement of such Interest
Period.
"LIBOR Margin" shall mean for B Term Loans and Revolving Loans the
rate per annum set forth under the relevant column heading opposite such Loans
as set forth on Schedule A hereto.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed
of trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such asset
and (c) in the case of securities, any purchase option, call or similar right
of a third party with respect to such securities.
"Loan Documents" shall mean this Agreement, the Letters of Credit,
the Guarantee Agreements, the Security Documents, the Intercreditor Agreement
and, after the execution and delivery thereof pursuant to the terms of this
Agreement, any Note and any Additional Intercreditor Agreement.
"Loan Parties" shall mean the Borrower and the Guarantors.
"Loans" shall mean the B Term Loans, the Revolving Loans and the
Swingline Loans.
"Margin Stock" shall have the meaning given such term in Regulation
U.
"Majority Lenders" of any Tranche shall mean those Lenders which
would constitute the Required Lenders under, and as defined in, this Agreement
if all outstanding Obligations of the other Tranches under this Agreement were
repaid in full and all Commitments with respect thereto were terminated.
"Material Adverse Effect" shall mean the existence of events,
conditions and/or contingencies that have had or are reasonably likely to have
(a) a materially adverse effect on the assets, business, operations,
properties, liabilities, profits or condition (financial or otherwise) of
Holdings and its Subsidiaries taken as a whole or the Borrower and its
Subsidiaries taken as a whole, (b) a material impairment of the ability of
Holdings, the Borrower or any of their Subsidiaries to perform any of its
material obligations under any Loan Document to which it is or will be a party
or to consummate the Transaction or (c) an impairment of the validity or
enforceability of, or a material impairment of the material rights, remedies
or benefits available to the Lenders, any Fronting Bank, the Administrative
Agent or the Collateral Agent under any Loan Document.
"Maximum Rate" shall have the meaning provided in Section 9.09.
"Mortgaged Properties" shall mean the owned real properties of the
Loan Parties specified on Schedule 3.20(a) that are expressly designated
"Mortgaged Properties".
"Mortgages" shall mean the mortgages, deeds of trust, deeds to secure
debt and other security documents delivered pursuant to clause (i) of Section
4.02(h) or pursuant to Section 5.11, each substantially in the form of Exhibit
E.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA to which the Borrower 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 five 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.
"Net Leverage Ratio" shall mean, on any date, the ratio of (a) Total
Net 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 to
the extent any Asset Disposition or any Permitted Business Acquisition (or any
similar transaction or transactions which require a waiver or a consent of the
Required Lenders pursuant to Section 6.05) has occurred during the relevant
Test Period, EBITDA shall be determined for the respective Test Period on a
Pro Forma Basis for such occurrences.
"Net Proceeds" shall mean (a) 100% of the cash proceeds actually
received by Holdings, the Borrower or any of their domestic Wholly Owned
Subsidiaries (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
loss, damage, destruction or condemnation of, or any sale, transfer or other
disposition (including any sale and leaseback of assets) to any person of any
asset or assets of Holdings, the Borrower or any of their Subsidiaries (other
than those pursuant to Sections 6.05(a), (b), (d), (e), (j), (k), (l) and
(n)), 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 (other than pursuant hereto or pursuant to the Second-Lien Loans, the
Senior Subordinated Notes or the Senior Notes or any refinancing or successive
refinancing thereof), 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) Permitted Tax Amount
Distributions to the extent attributable thereto, provided that if no Event of
Default exists and the Borrower shall deliver a certificate of a Responsible
Officer 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 purchase assets useful in the business of the Borrower and its
Subsidiaries, or make investments pursuant to Sections 6.04(k) and (l), in
each case within 12 months of such receipt, such portion of such proceeds
shall not constitute Net Proceeds except to the extent not so used within such
12-month period, and provided further, that no proceeds shall constitute Net
Proceeds in any fiscal year until the aggregate amount of all such proceeds in
such fiscal year shall exceed $10,000,000 or the aggregate of all such
proceeds received after the Closing Date shall exceed $30,000,000, (b) 100% of
the cash proceeds from the incurrence, issuance or sale by Holdings, the
Borrower or any of their Subsidiaries of any Indebtedness (other than
Indebtedness permitted pursuant to Section 6.01, 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, (c) 50% of the
cash proceeds from the issuance or the sale by Holdings or any of its
Subsidiaries of any equity security of, or Equity Interests in, Holdings or
such Subsidiary (other than (i) sales of Equity Interests of Holdings to
directors, officers or employees of Holdings or BMP/▇▇▇▇▇▇ Holdings, the
Borrower or any of their Subsidiaries in connection with permitted employee
compensation and incentive arrangements ("Employee Equity Sales"), (ii) the
proceeds of Designated Capital Contributions and Special Capital
Contributions, (iii) sales of Equity Interests of Holdings (other than
pursuant to an initial public offering of the common stock of Holdings) to the
extent the net proceeds of such sales are used to fund permitted Capital
Expenditures or investments within twelve months after the receipt of such net
proceeds, (iv) proceeds of Permitted Cure Securities, and (v) cash proceeds of
sales of Equity Interests from an initial public offering of the common stock
of Holdings, to the extent such proceeds are promptly utilized to repay up to
$25,000,000 in the aggregate of outstanding Revolving Loans and/or Swingline
Loans (to the extent outstanding)), in each case, 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 and (d) 100% of
the cash proceeds in excess of $10,000,000 received by the Borrower or any of
its Subsidiaries (net of all taxes, fees, commissions, costs and other
expenses, in each case incurred in connection therewith) in respect of any
claim under the Acquisition Agreement or as a direct or indirect result of any
breach of any term or provision of the Acquisition Agreement or otherwise in
respect of any claim by the Borrower or any of its Subsidiaries arising out of
the Acquisition (other than (i) working capital and other purchase price
adjustments as contemplated by Section 1.3 of the Acquisition Agreement or
(ii) to the extent relating to indemnification or reimbursement of amounts
paid (or to be paid) by the Borrower or any of its Subsidiaries to persons
other than Holdings or any of its Subsidiaries (including amounts reserved by
the Borrower in good faith for future payments to such persons)). For purposes
of calculating the amount of Net Proceeds, fees, commissions and other costs
and expenses payable to Holdings or the Borrower or any Affiliate of either of
them shall be disregarded, except for financial advisory fees customary in
type and amount paid to Affiliates of The Blackstone Group L.P.
Notwithstanding anything to the contrary contained in this definition, if, at
the time of any prepayment required by Section 2.12 hereof, the Net Leverage
Ratio is less than 3.50 to 1.00 (as established pursuant to the certificate
last delivered (or required to be delivered) pursuant to Section 5.04(c)), the
percentages set forth in clauses (a), (b) and (c) above shall be deemed to be
75%, 100%, and 0%, respectively.
"90% Subsidiary" shall mean any person which is a Wholly Owned
Subsidiary of the Borrower or at least 90% of the Equity Interests of which
are owned by the Borrower and/or one or more Wholly Owned Subsidiaries of the
Borrower.
"Notes" shall mean any promissory note of the Borrower issued
pursuant to this Agreement.
"Notices of Redemption" shall have the meaning provided in Section
5.15(b).
"Obligations" shall mean all amounts owing to any of the Agents or
any Lender pursuant to the terms of this Agreement or any other Loan Document.
"OI Plastic" shall mean ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Plastic Products Inc.
"Opco GP" shall mean GPC Opco GP, LLC, a Wholly Owned Subsidiary of
Holdings.
"Other Hedging Agreement" shall mean any foreign exchange contracts,
currency swap agreements, commodity agreements or other similar agreements or
arrangements designed to protect against the fluctuations in currency or
commodity values.
"Other Taxes" shall have the meaning provided in Section 2.19(b).
"Parent Guarantee Agreement" shall mean the Parent Guarantee
Agreement, substantially in the form of Exhibit F, made by Holdings in favor
of the Collateral Agent for the benefit of the Secured Parties.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred
to and defined in ERISA.
"Permitted Business Acquisition" shall mean any acquisition of all or
substantially all the assets of, or shares or other equity interests in, a
person or division or line of business of a person (or any subsequent
investment made in a previously acquired Permitted Business Acquisition) if
immediately after giving effect thereto: (a) no Default or Event of Default
shall have occurred and be continuing or would result therefrom, (b) all
transactions related thereto shall be consummated in accordance with
applicable laws, (c) at least 90% of the Equity Interests of any acquired or
newly formed corporation, partnership, association or other business entity
are owned directly by the Borrower or a domestic Wholly Owned Subsidiary of
the Borrower which is a Guarantor (unless there is a material tax or legal or
other economic disadvantage in not having a Foreign Subsidiary of the Borrower
hold such Equity Interests, in which case such Equity Interests may be held
directly by a Foreign Subsidiary of the Borrower) and all actions required to
be taken, if any, with respect to such acquired or newly formed Subsidiary
under Section 5.11 shall have been taken and (d)(i) Holdings, the Borrower and
their Subsidiaries shall be in compliance, on a Pro Forma Basis after giving
effect to such acquisition or formation, with the covenants contained in
Sections 6.11 and 6.12 recomputed as at the last day of the most recently
ended fiscal quarter of Holdings, the Borrower and their Subsidiaries as if
such acquisition had occurred on the first day of each relevant period for
testing such compliance, and the Borrower shall have delivered to the
Administrative Agent an officers' certificate to such effect, together with
all relevant financial information for such Subsidiary or assets, and (ii) any
acquired or newly formed Subsidiary shall not be liable for any Indebtedness
(except for Indebtedness permitted by Section 6.01) and (e) the aggregate
amount of consideration paid in connection with any individual Permitted
Business Acquisition shall not exceed the Permitted Business Acquisition
Amount.
"Permitted Business Acquisition Amount" shall mean, for each
Permitted Business Acquisition, $120,000,000, or $160,000,000 if the Net
Leverage Ratio is less than 3.50 to 1.00 (as established pursuant to the
certificate last delivered (or required to be delivered) pursuant to Section
5.04(c)), provided that the Permitted Business Acquisition Amount shall be
increased with respect to a given Permitted Business Acquisition (x) to the
extent, and only to the extent, that the Borrower makes an election to
increase the Permitted Business Acquisition Amount for the respective
Permitted Business Acquisition, which increase shall only occur to the extent
that the Borrower so elects to apply amounts that would otherwise be available
to make Capital Expenditures at such time pursuant to, and in accordance with
the provisions of, Section 6.10(a) and (b), (y) to make payments owing in
connection with the respective Permitted Business Acquisition with the
proceeds of Designated Capital Contributions and/or (z) to the extent the
Borrower elects to apply amounts otherwise available pursuant to, and in an
amount not to exceed, the Available Investment Basket Amount at such time.
"Permitted Cure Security" shall mean an equity security of Holdings
having no mandatory redemption, repurchase, repayment or similar requirements
prior to the date which occurs four calendar months after the B Term Loan
Maturity Date and upon which all dividends or distributions, at the election
of Holdings, may be payable in additional shares of such equity security.
"Permitted Investments" shall mean: (a) direct obligations of the
United States of America or any agency thereof or obligations guaranteed by
the United States of America or any agency thereof; (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 which 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 aggregating in excess of $250,000,000 (or the
foreign currency equivalent thereof) 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 of 1933, as
amended)); (c) repurchase obligations with a term of not more than 30 days for
underlying securities of the types described in clause (a) above entered into
with a bank meeting the qualifications described in clause (b) above; (d)
commercial paper, maturing not more than 180 days 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 ▇▇▇▇▇'▇ Investors Service, Inc., or A-1 (or higher) according to
Standard & Poor's Ratings Group; (e) securities with maturities of six months
or less from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States of America, or by any political
subdivision or taxing authority thereof, and rated at least A by Standard &
Poor's Ratings Group or A by ▇▇▇▇▇'▇ Investors Service, Inc.; (f) in the case
of any Subsidiary organized in a jurisdiction outside the United States: (i)
direct obligations of the sovereign nation (or any agency thereof) in which
such Subsidiary is organized and is conducting business or in obligations
fully and unconditionally guaranteed by such sovereign nation (or any agency
thereof), (ii) investments of the type and maturity described in clauses (a)
through (e) above of foreign obligors, which investments or obligors (or the
parents of such obligors) have ratings described in such clauses or equivalent
ratings from comparable foreign rating agencies or (iii) investments of the
type and maturity described in clauses (a) through (e) above of foreign
obligors (or the parents of such obligors), which investments or obligors (or
the parents of such obligors) are not rated as provided in such clauses or in
clause (ii) above but which are, in the reasonable judgment of the Borrower,
comparable in investment quality to such investments and obligors (or the
parents of such obligors); (g) shares of mutual funds whose investment
guidelines restrict 95% of such funds' investments to those satisfying the
provisions of clauses (a) through (e) above; and (h) time deposit accounts,
certificates of deposit and money market deposits in an aggregate face amount
not in excess of 1/2 of 1% of total assets of Holdings and its Subsidiaries,
on a consolidated basis, as of the end of Holdings' most recently completed
fiscal year.
"Permitted Refinancing Indebtedness" shall mean any Indebtedness of
Holdings or a Subsidiary of Holdings issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund (collectively, to "Refinance"), Indebtedness permitted by Sections
6.01(j) or (p) (or previous refinancings thereof constituting Permitted
Refinancing Indebtedness) of Holdings or such Subsidiary of Holdings, as the
case may be, provided that (i) 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, in the case of Sections 6.01(j) and (p), unpaid accrued
interest and premium thereon), (ii) the average life to maturity of such
Permitted Refinancing Indebtedness is greater than or equal to that of the
Indebtedness being Refinanced, (iii) 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,
(iv) no Permitted Refinancing Indebtedness shall have different obligors, or
greater guarantees or security (except as otherwise expressly permitted
herein), than the Indebtedness being Refinanced, (v) 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 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, (vi) such Indebtedness (other than Indebtedness
permitted by Section 6.01(j)) shall not require any repayments of principal
that are earlier than any repayments that are required under the Indebtedness
being Refinanced and (vii) in the case of Indebtedness permitted under Section
6.01(p), no Permitted Refinancing Indebtedness shall contain covenants,
defaults or events of default that are materially more adverse to Holdings and
its Subsidiaries, or the Lenders, than those contained in such Indebtedness
being Refinanced. Notwithstanding the foregoing, if any Permitted Refinancing
Indebtedness is incurred to Refinance the Second-Lien Loans or any previous
issue of Permitted Refinancing Indebtedness incurred pursuant to sub-clause
(x) of Section 6.01(p), then unless such Permitted Refinancing Indebtedness is
unsecured, each Loan Party, the Administrative Agent, the Collateral Agent and
the administrative agent and collateral agent for such Permitted Refinancing
Indebtedness shall enter into a new intercreditor agreement in the form of
Exhibit I hereto, appropriately modified to reflect the new issue of Permitted
Refinancing Indebtedness and with such other changes, if any, as may be
satisfactory to the Administrative Agent and the Collateral Agent (with each
such intercreditor agreement being herein called an "Additional Intercreditor
Agreement").
"Permitted Tax Amount Distributions" shall mean for each tax year
that the Borrower qualifies or each of Borrower and Holdings qualifies as a
partnership or as a branch or agency of another person (a "Flow-through
Entity") under the Code (including the applicable provisions of Treasury
Regulations promulgated thereunder) or any similar provision of state or local
law, distributions of tax amounts in respect of (i) U.S. federal income tax
and of income tax imposed by the state or local jurisdictions in which the
Flow-through Entity so qualifies as a partnership or as a branch or agency of
another person or (ii) taxes imposed on profits or capital of such person for
such period, including, without limitation, state franchise and similar taxes
(such as the Texas franchise tax and Michigan single business tax); provided,
however, that (A) a knowledgeable and duly authorized officer of the
Flow-through Entity certifies annually that the Flow-through Entity qualifies
as a partnership or as a branch or agency of another person for federal income
tax purposes and under similar laws of the states in respect of which such tax
amount distributions are being made and (B) at the time of such tax amount
distributions, the most recent audited financial statements of the
Flow-through Entity provide that the Flow-through Entity was treated as a
partnership or as a branch or agency of another person for federal income tax
purposes for the period of such financial statements. Between the first and
fifteenth day of each month in which an estimated tax payment for a Borrower
Partner is due, the Flow-through Entity may distribute cash to each Borrower
Partner in an amount equal to the product of (A) the highest combined marginal
individual or corporate (as applicable) federal, state and local income tax
rates ((i) including, to the extent applicable, if any, alternative minimum
tax and (ii) taking into account any federal tax benefit for a deduction for
state and local taxes) applicable to the taxable income of the Flow-through
Entity allocated to a Borrower Partner and in effect at the time of the
distribution, times (B) the remainder, if any, of (1) the product of 25, 50,
75 or 100 percent for the first (1st), second (2nd), third (3rd) or fourth
(4th) required estimated tax installment payments for the fiscal year,
respectively, times (a) the cumulative (as annualized) taxable income to be
allocated to such Borrower Partner for such fiscal year less (b) the
cumulative taxable loss that has been allocated to such Borrower Partner to
the extent such loss has not previously reduced taxable income pursuant to
this provision in any prior taxable year, as determined in good faith by the
Flow-through Entity's executive committee at or around the date of payment,
minus (2) the sum of the cumulative distributions to such Borrower Partner
made with respect to such fiscal year under the applicable provisions of the
partnership agreement of the Borrower. Notwithstanding the foregoing
provisions, the Permitted Tax Amount Distributions permitted to be distributed
by Holdings shall be adjusted to reflect the Reimbursed Amount calculated
under Section 5.1(b)(ii) of Holdings' partnership agreement as in effect on
the date hereof. If any Borrower Partner of a Flow-through Entity is an S
corporation or a partnership or a similar pass-through entity, (i) reference
to Borrower Partner shall, for the purposes of this definition, include
shareholders or partners, as the case may be, of the Borrower Partner and
reference to the Borrower shall include such S-corporation or partnership or
similar pass-through entity and (ii) notwithstanding anything provided
elsewhere in this definition of "Permitted Tax Amount Distributions", the
aggregate Permitted Tax Amount Distributions to such Borrower Partner shall
not exceed the aggregate Permitted Tax Amount Distributions payable to such
Borrower Partner's shareholders or partners, as the case may be.
"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 (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code and in respect of which the Borrower 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.
"Pledge Agreement" shall mean, collectively, the Pledge Agreement,
substantially in the form of Exhibit G, with such revisions as approved by the
Administrative Agent, among Holdings, the Borrower, each Subsidiary Guarantor
and the Collateral Agent for the benefit of the Secured Parties and each other
document delivered on the Closing Date (or thereafter pursuant to Section
5.11) pursuant to which Holdings, the Borrower or any of their domestic
Subsidiaries pledged Equity Interests of any of their Foreign Subsidiaries to
secure the Obligations.
"Pledge Agreement Collateral" shall mean all "Collateral" as defined
in the Pledge Agreement.
"Primary Obligor" shall have the meaning given such term in the
definition of Guarantee.
"Prime Rate" shall mean the rate of interest per annum publicly
announced from time to time by the Administrative Agent as its prime rate in
effect at its principal office in New York City; each change in the Prime Rate
shall be effective on the date such change is publicly announced as being
effective.
"Pro Forma Basis" shall mean, as to any person, for any events as
described in clauses (ii) and (iii) below which 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 same had occurred at the beginning of such period of calculation, and
(i) for purposes of the foregoing calculation, each
transaction giving rise to the need to calculate the pro forma effect
to any of the following events shall be assumed to have occurred on
the first day of the four consecutive fiscal quarter period last
ended on or before the occurrence of the respective event for which
such pro forma effect is being determined (the "Reference Period");
(ii) in making any determination of EBITDA, pro forma effect
shall be given to any Asset Disposition and to any Permitted Business
Acquisition (or any similar transaction or transactions which require
a waiver or consent of the Required Lenders pursuant to Section
6.05), in each case which occurred during the Reference Period (or,
in the case of determinations made pursuant to the definition of
Permitted Business Acquisition contained herein, occurring during the
Reference Period or thereafter and through and including the date
upon which the respective Permitted Business Acquisition is
consummated) as if such Asset Disposition, Permitted Business
Acquisition or other transaction, as the case may be, occurred on the
first day of the Reference Period; and
(iii) in making any determination on a Pro Forma Basis, (x)
all Indebtedness (including Indebtedness incurred or assumed 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
not to finance any acquisition) incurred or permanently repaid during
the Reference Period (or, in the case of determinations made pursuant
to the definition of Permitted Business Acquisition contained herein,
occurring during the Reference Period or thereafter and through and
including the date upon which the respective Permitted Business
Acquisition is consummated) shall be deemed to have been incurred or
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),
bearing floating interest rates shall be computed on a pro forma
basis as if the rates which would have been in effect during the
period for which pro forma effect is being given had been actually in
effect during such periods.
Pro forma calculations made pursuant to the definition of Pro Forma
Basis shall be determined in good faith by a Responsible Officer of the
Borrower and may include adjustments, in the reasonable determination of the
Borrower as set forth in an officers' certificate, to (i) reflect operating
expense reductions reasonably expected to result from any acquisition, merger
or Asset Disposition or (ii) eliminate the effect of any extraordinary
accounting event with respect to any acquired person or assets on Consolidated
Net Income.
"Properties" shall have the meaning given such term in Section
3.17(a).
"Recapitalization Agreement" shall mean the Agreement and Plan of
Recapitalization, Redemption and Repurchase, dated as of December 18, 1997, by
and among the Borrower, BMP/▇▇▇▇▇▇ Holdings Corporation and the other parties
thereto.
"Redemption Date" shall have the meaning provided in Section 5.15(c).
"Refinance" shall have the meaning assigned to such term in
definition of the term "Permitted Refinancing Indebtedness," and "Refinanced"
shall have a meaning correlative thereto.
"Reference Period" shall have the meaning provided in the definition
of Pro Forma Basis.
"Refinanced Term Loans" shall have the meaning given such term in
Section 9.08(c).
"Refinancing" shall have the meaning given such term in the preamble
of this Agreement.
"Refunded Swingline Loans" shall have the meaning provided in Section
2.01(c)(iii).
"Register" shall have the meaning given such term in Section 9.04(c).
"Regulation D" shall mean Regulation D of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Release" shall have the meaning given such term in CERCLA, 42 U.S.C.
ss. 9601(22).
"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.
"Remedial Action" shall mean (a) "remedial action" as such term is
defined in CERCLA, 42 U.S.C. Section 9601(24), and (b) all other actions,
including studies and investigations, required by any Governmental Authority
or voluntarily undertaken to (i) clean up, remove, treat, ▇▇▇▇▇ or in any
other way respond to any Hazardous Material in the environment or (ii) prevent
the Release or threatened Release, or minimize the further Release, of any
Hazardous Material.
"Replaced Lender" shall have the meaning provided in Section 2.21(b).
"Replacement Lender" shall have the meaning provided in Section
2.21(b).
"Replacement Term Loans" shall have the meaning given such term in
Section 9.08(c).
"Reportable Event" shall mean any reportable event as defined in
Section 4043 of ERISA or the regulations issued thereunder (other than those
events as to which the thirty day notice period is 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 Code Section 414).
"Required Lenders" shall mean, at any time, Lenders having Loans
(other than Swingline Loans), Revolving L/C Exposures, Swingline Exposures and
unused Commitments (excluding commitments to issue Letters of Credit or make
Swingline Loans) representing more than 50% of the sum of all Loans (other
than Swingline Loans) outstanding, Revolving L/C Exposures, Swingline
Exposures and unused Commitments (excluding commitments to issue Letters of
Credit or make Swingline Loans) at such time. The Loans, Revolving L/C
Exposures, Swingline Exposures and unused Commitments of any Defaulting Lender
shall be disregarded in determining Required Lenders at any time.
"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
corporation in respect of this Agreement.
"Revolving Credit Borrowing" shall mean a Borrowing comprised of
Revolving Loans.
"Revolving Credit Commitment" shall mean, with respect to each
Lender, the amount set forth opposite such Lender's name on Schedule 2.01
directly below the column entitled "Revolving Credit Commitment" or in the
Assignment and Acceptance pursuant to which such Lender assumed its Revolving
Credit Commitment, as applicable, as the same may be reduced from time to time
pursuant to Section 2.09 and pursuant to assignments by such Lender pursuant
to Section 9.04 and increased pursuant to Section 2.22.
"Revolving Credit Exposure" shall mean, with respect to any Lender at
any time, the aggregate principal amount at such time of all outstanding
Revolving Loans of such Lender plus the amount at such time of such Lender's
Revolving L/C Exposure plus the amount at such time of such Lender's Swingline
Exposure.
"Revolving Credit Lender" shall mean a Lender with a Revolving Credit
Commitment.
"Revolving Credit Maturity Date" shall mean the sixth anniversary of
the Closing Date.
"Revolving L/C Commitment" shall mean, with respect to any Fronting
Bank, the commitment of such Fronting Bank to issue Letters of Credit pursuant
to Section 2.20(a).
"Revolving L/C Exposure" shall mean at any time the sum of (a) the
aggregate undrawn amount of all outstanding Letters of Credit at such time
plus (b) the aggregate principal amount of all L/C Payments that have not yet
been reimbursed at such time. The Revolving L/C Exposure of any Revolving
Credit Lender at any time shall mean its Applicable Percentage of the
aggregate Revolving L/C Exposure at such time.
"Revolving Loans" shall mean the revolving loans made by the Lenders
to the Borrower pursuant to Sections 2.01(b) or 2.22. Each Revolving Loan
shall be a Eurodollar Revolving Loan or an ABR Revolving Loan.
"Sale and Lease-Back Transaction" shall have the meaning given such
term in Section 6.03.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"Second-Lien Administrative Agent" shall mean the "Administrative
Agent" under and as defined in the Second-Lien Credit Agreement.
"Second-Lien Collateral Agent" shall mean the "Collateral Agent"
under and as defined in the Second-Lien Credit Documents.
"Second-Lien Credit Agreement" shall mean that certain Credit
Agreement, dated as of October 7, 2004, among Holdings, the Borrower, the
Co-Borrower, the Second-Lien Administrative Agent, the Agents, the Arrangers
and various lenders from time to time party thereto, as the same may be
amended, modified and/or supplemented from time to time in accordance with the
terms hereof and thereof.
"Second-Lien Credit Documents" shall mean the Second-Lien Credit
Agreement, and the related guarantees, pledge agreements, security agreements,
mortgages, notes and other agreements and instruments entered into in
connection with the Second-Lien Credit Agreement, in each case as the same may
be amended, modified and/or supplemented from time to time in accordance with
the terms thereof and of this Agreement.
"Second-Lien Loans" shall mean the term loans incurred by the
Borrower on the Closing Date pursuant to the Second-Lien Credit Agreement.
"Secured Parties" shall have the meaning given such term in the
Security Agreement.
"Security Agreement" shall mean the Security Agreement, substantially
in the form of Exhibit H, among Holdings, the Borrower, each Subsidiary
Guarantor and the Collateral Agent for the benefit of the Secured Parties.
"Security Agreement Collateral" shall mean "Collateral" as defined in
the Security Agreement.
"Security Documents" shall mean the Mortgages, the Security
Agreement, the Pledge Agreement, and each of the security agreements and other
instruments and documents executed and delivered pursuant to any of the
foregoing or pursuant to Section 5.11.
"Senior Managing Agents" shall have the meaning given such term in
the introductory paragraph of this Agreement.
"Senior Notes" shall mean the Borrower's and Co-Borrower's 8 1/2%
Senior Notes due 2012 issued pursuant to the Senior Note Indenture and any
notes issued by the Borrower or Co-Borrower in exchange for, and as
contemplated by, the Senior Notes with substantially identical terms as the
Senior Notes, as the same may be amended, modified and/or supplemented from
time to time in accordance with the terms thereof and of this Agreement.
"Senior Note Documents" shall mean the Senior Note Indenture, the
Senior Notes and each other document or agreement relating to the issuance of
the Senior Notes, as the same may be amended, modified and/or supplemented
from time to time in accordance with the terms thereof and of this Agreement.
"Senior Note Indenture" shall mean the Indenture, dated as of October
7, 2004, among the Borrower, the Co-Borrower and the trustee named therein
from time to time, as in effect on the Closing Date and as thereafter amended
from time to time in accordance with the terms thereof and of this Agreement.
"Senior Subordinated Note Documents" shall mean the Senior
Subordinated Notes and the Senior Subordinated Note Indenture, in each case,
as the same may be amended, modified and/or supplemented from time to time in
accordance with the terms thereof and of this Agreement.
"Senior Subordinated Note Indenture" shall mean the Indenture dated
as of October 7, 2004 among the Borrower, the Co-Borrower and the trustee
named therein from time to time, as in effect on the Closing Date and as
thereafter amended from time to time in accordance with the requirements
thereof and of this Agreement.
"Senior Subordinated Notes" shall mean the Borrower's and
Co-Borrower's 9 7/8% Senior Subordinated Notes due 2014 issued pursuant to the
Senior Subordinated Note Indenture and any notes issued by the Borrower or
Co-Borrower in exchange for, and as contemplated by, the Senior Subordinated
Notes with substantially identical terms as the Senior Subordinated Notes, as
the same may be amended, modified and/or supplemented from time to time in
accordance with the terms thereof and of this Agreement.
"Special Capital Contributions" shall mean any cash common equity
contributions made after the Closing Date by the Designated Investors directly
or indirectly to Holdings (which cash equity contributions are, in turn,
contributed by Holdings to the Borrower) so long as (x) the respective
Designated Investor shall have elected in writing delivered to the
Administrative Agent prior to the making of the respective cash common equity
contribution to designate same as "Special Capital Contributions" for all
purposes under this Agreement and the other Loan Documents and (y) all
proceeds of the respective cash common equity contribution are immediately
used by the Borrower to prepay outstanding principal of B Term Loans (in which
case, such prepayments shall be made pursuant to Section 2.12(c) (and in
accordance with paragraph (b) of Section 2.11)), Swingline Loans and/or
Revolving Credit Borrowings. For avoidance of doubt, it is understood and
agreed that in no event shall (x) any amounts contributed pursuant to the
exercise of Cure Rights pursuant to Section 7.02 or (y) any amounts received
from the issuance and sale of common equity of Holdings through one or more
registered public offerings thereof, be deemed to constitute (in whole or in
part) Special Capital Contributions.
"Standby Letter of Credit" shall mean an irrevocable standby letter
of credit under which a Fronting Bank agrees to make payments in Dollars for
the account of the Borrower, on behalf of the Borrower or any of its
Subsidiaries.
"Statutory Reserves" shall mean a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including
any marginal, special, emergency or supplemental reserves) expressed as a
decimal established by the Board and any other banking authority, domestic or
foreign, to which the Administrative Agent is subject with respect to
Eurocurrency Liabilities (as defined in Regulation D of the Board) or other
categories of liabilities or deposits by reference to which the LIBO Rate is
determined. Such reserve percentages shall include those imposed pursuant to
such Regulation D. Eurodollar Loans shall be deemed to constitute Eurocurrency
Liabilities and to be subject to such reserve requirements without benefit of
or credit for proration, exemptions or offsets that may be available from time
to time to any Lender under such Regulation D. Statutory Reserves shall be
adjusted automatically on and as of the effective date of any change in any
reserve percentage.
"Subject Property" shall have the meaning provided in the definition
of ▇▇▇▇▇▇ County Bond Transaction.
"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. Unless the
context otherwise indicates, all references herein to a "Subsidiary" are
references to a subsidiary of Holdings.
"Subsidiary Guarantee Agreement" shall mean the Subsidiary Guarantee
Agreement, substantially in the form of Exhibit J, with such revisions as
approved by the Administrative Agent, to be entered into by the Subsidiary
Guarantors pursuant to and in accordance with the terms of Section 5.11 in
favor of the Collateral Agent for the benefit of the Secured Parties.
"Subsidiary Guarantor" shall mean each domestic Subsidiary of
Holdings designated as a "Subsidiary Guarantor" on Schedule 3.08 hereto or
which executes the Subsidiary Guarantee Agreement pursuant to and in
accordance with the terms of Section 5.11.
"Supermajority Lenders" of any Tranche shall mean those Lenders which
would constitute the Required Lenders under, and as defined in, this Agreement
if (x) all outstanding Obligations of the other Tranches under this Agreement
were repaid in full and all Commitments with respect thereto were terminated
and (y) the percentage "50%" contained therein were changed to "66-2/3%".
"Swingline Exposure" shall mean at any time the aggregate principal
amount of all outstanding Swingline Loans at such time. The Swingline Exposure
of any Revolving Credit Lender at any time shall mean its Applicable
Percentage of the aggregate Swingline Exposure at such time.
"Swingline Lender" shall mean Deutsche Bank AG Cayman Islands Branch
in its capacity as Swingline Lender hereunder.
"Swingline Loan Commitment" shall mean the commitment of the
Swingline Lender to make Swingline Loans as set forth in Section 2.01(c).
"Swingline Loans" shall mean the swingline loans made by the
Swingline Lender to the Borrower pursuant to Section 2.01(c).
"Syndication Agent" shall have the meaning given such term in the
introductory paragraph of this Agreement.
"Syndication Date" shall mean that date upon which two of the three
Arrangers determine (and the Administrative Agent notifies the Borrower) that
the primary syndication (and resultant addition of institutions as Lenders
pursuant to Section 9.04) has been completed.
"Taxes" shall have the meaning provided in Section 2.19(a).
"Term Borrowing" shall mean a Borrowing comprised of B Term Loans.
"Test Period" shall mean, on any date of determination, the period of
four consecutive fiscal quarters of the Borrower then last ended (taken as one
accounting period).
"TL Commitment Fee" shall have the meaning provided in Section
2.05(c).
"Total Debt" shall mean, with respect to any person and its
Subsidiaries on a consolidated basis at any time (without duplication), all
Indebtedness consisting of Capital Lease Obligations, Indebtedness for
borrowed money and Indebtedness in respect of the deferred purchase price of
property or services of such person and its Subsidiaries on a consolidated
basis at such time.
"Total Net Debt" at any date shall mean Total Debt of the Borrower
and its Subsidiaries determined on a consolidated basis on such date minus
unrestricted cash and cash equivalents (determined in accordance with GAAP) of
the Borrower and its Subsidiaries on such date; provided that in determining
the aggregate amount of cash and cash equivalents as provided above, such
determination shall be made without giving effect to any cash or cash
equivalents constituting (in whole or in part) Designated Capital
Contributions or proceeds thereof.
"Total Revolving Credit Commitment" shall mean, at any time, the
aggregate amount of the Revolving Credit Commitments, as in effect at such
time.
"Tranche" shall mean the respective facility and commitments utilized
in making Loans hereunder, with there being three separate Tranches on the
Closing Date, i.e., B Term Loans, Revolving Loans and Swingline Loans.
"Transaction" shall have the meaning given such term in the preamble
to this Agreement.
"Type", when used in respect of any Loan or Borrowing, shall refer to
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 Alternate Base Rate.
"Unpaid Drawing" shall mean an amount (until such time as such amount
is paid or reimbursed) equal to payments and disbursements made by a Fronting
Bank under any Letter of Credit issued by it.
"Wholly Owned Subsidiary" of any person means a Subsidiary of such
person, at least 99% of the Equity Interests of which (other than directors'
qualifying shares) are owned by such person or another Wholly Owned
Subsidiary. Unless the context otherwise indicates, all references herein to a
"Wholly Owned Subsidiary" are references to a Wholly Owned Subsidiary of
Holdings.
"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.
"Working Capital" shall mean, with respect to the Borrower and its
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.
SECTION 1.02. Terms Generally. The definitions 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, (a) any reference in this Agreement to any Loan
Document shall mean such document as amended, restated, supplemented or
otherwise modified from time to time and (b) all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in effect from
time to time; provided, however, that for purposes of determining compliance
with the covenants contained in Section 2.12(d) and Article VI all accounting
terms herein shall be interpreted and all accounting determinations hereunder
(in each case, unless otherwise provided for or defined herein) shall be made
in accordance with GAAP as in effect on the date of this Agreement and applied
on a basis consistent with the application used in the financial statements
referred to in Section 3.05 (other than, at the option of Holdings and the
Borrower, with respect to capitalization of repair and maintenance expenses in
accordance with the parenthetical appearing in the definition of GAAP
contained herein); and provided further, that if the Borrower notifies the
Administrative Agent that the Borrower wishes to amend any covenant in Section
2.12(d) or Article VI or any related definition to eliminate the effect of any
change in GAAP occurring after the date of this Agreement on the operation of
such covenant (or if the Administrative Agent notifies the Borrower that the
Required Lenders wish to amend Section 2.12(d) or Article VI or any related
definition for such purpose), then (i) the Borrower and the Administrative
Agent shall negotiate in good faith to agree upon an appropriate amendment to
such covenant and (ii) the Borrower's compliance with such covenant shall be
determined on the basis of GAAP in effect immediately before the relevant
change in GAAP became effective until such covenant is amended in a manner
satisfactory to the Borrower and the Required Lenders. For the purposes of
determining compliance under Sections 6.01, 6.02, 6.04, 6.05 and 6.10 with
respect to any amount in a currency other than Dollars, such amount shall be
deemed to equal the Dollar equivalent thereof at the time such amount was
incurred or expended, as the case may be.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments. (a) Subject to the terms and conditions
and relying upon the representations and warranties of Holdings and the
Borrower herein set forth, each Lender agrees, severally and not jointly to
make a B Term Loan to the Borrower in a principal amount not to exceed the B
Term Loan Commitment set forth opposite its name on Schedule 2.01, as the same
may be reduced from time to time pursuant to Section 2.09, which B Term Loans
shall be incurred by the Borrower pursuant to two drawings, with (x) the first
such drawing to be made on the Closing Date and (y) the second such drawing to
be made on the Redemption Date (so long as same occurs on or prior to the B
Term Loan Commitment Termination Date). Notwithstanding the foregoing,
immediately after giving effect to the incurrence of B Term Loans on the
Closing Date, the unutilized B Term Loan Commitments shall equal (with such
difference due to rounding as is acceptable to the Administrative Agent) the
outstanding principal of (plus the amount of premiums and interest that will
be payable on the Redemption Date in connection with the redemption of) the
Existing Senior Discount Notes and Existing Senior Subordinated Notes that
will not be repurchased and retired on the Closing Date.
(b) Subject to the terms and conditions and relying upon the
representations and warranties of Holdings and the Borrower herein set forth,
each Lender agrees, severally and not jointly, to make Revolving Loans to the
Borrower, at any time and from time to time on or after the Closing Date, and
until the earlier of the Revolving Credit Maturity Date and the termination of
the Revolving Credit Commitment of such Lender in accordance with the terms
hereof, in an aggregate principal amount at any time outstanding that will not
result in such Lender's Revolving Credit Exposure at such time exceeding the
Revolving Credit Commitment of such Lender at such time, as the same may be
reduced from time to time pursuant to Section 2.09, provided that the
aggregate principal amount of Revolving Loans made to the Borrower on the
Closing Date shall not exceed $25,000,000.
(c) (i) The Swingline Lender hereby agrees, subject to the terms and
conditions and relying upon the representations and warranties of Holdings and
the Borrower herein set forth, and subject to the limitations set forth below
with respect to the maximum amount of Swingline Loans permitted to be
outstanding from time to time, to make a portion of the Revolving Credit
Commitments available to the Borrower from time to time during the period from
the Closing Date through and excluding the earlier of the Revolving Credit
Maturity Date and the termination of the Revolving Credit Commitments in an
aggregate principal amount not to exceed the Swingline Loan Commitment, by
making Swingline Loans to the Borrower. Swingline Loans may be made
notwithstanding the fact that such Swingline Loans, when aggregated with the
Swingline Lender's outstanding Revolving Loans, Revolving L/C Exposure and
outstanding Swingline Loans, may exceed the Swingline Lender's Revolving
Credit Commitment. The original amount of the Swingline Loan Commitment is
$30,000,000. The Swingline Loan Commitment shall expire on the date the
Revolving Credit Commitments are terminated and all Swingline Loans and all
other amounts owed hereunder with respect to Swingline Loans shall be paid in
full no later than that date. The Borrower shall give the Swingline Lender
telephonic, written or telecopy notice (in the case of telephonic notice, such
notice shall be promptly confirmed in writing or by telecopy) not later than
12:00 (noon), New York City time, on the day of a proposed borrowing. Such
notice shall be delivered on a Business Day, shall be irrevocable and shall
refer to this Agreement and shall specify the requested date (which shall be a
Business Day) and amount of such Swingline Loan.
(ii) In no event shall (A) the aggregate principal amount of
Swingline Loans outstanding at any time exceed the aggregate Swingline Loan
Commitment in effect at such time, (B) the Aggregate Revolving Credit Exposure
at any time exceed the Total Revolving Credit Commitment at such time or (C)
the aggregate Swingline Loan Commitment exceed at any time the aggregate
Revolving Credit Commitments in effect at such time. Swingline Loans may only
be made as ABR Loans.
(iii) With respect to any Swingline Loans that have not been
voluntarily prepaid by the Borrower, the Swingline Lender (by request to the
Administrative Agent) or Administrative Agent at any time may, in its sole
discretion, on one Business Day's notice, require each Revolving Credit
Lender, including the Swingline Lender, and each such Lender hereby agrees,
subject to the provisions of this Section 2.01(c), to make a Revolving Loan
(which shall be funded as an ABR Loan) in an amount equal to such Lender's
Applicable Percentage of the amount of the Swingline Loans ("Refunded
Swingline Loans") outstanding on the date notice is given which the Swingline
Lender requests the Lenders to prepay.
(iv) In the case of Revolving Loans made by Lenders other than the
Swingline Lender under the immediately preceding paragraph (iii), each such
Lender shall make the amount of its Revolving Loan available to the
Administrative Agent, in same day funds, at the office of the Administrative
Agent located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, not later than 1:00 p.m.,
New York City time, on the Business Day next succeeding the date such notice
is given. The proceeds of such Revolving Loans shall be immediately delivered
to the Swingline Lender (and not to the Borrower) and applied to repay the
Refunded Swingline Loans. On the day such Revolving Loans are made, the
Swingline Lender's Applicable Percentage of the Refunded Swingline Loans shall
be deemed to be paid with the proceeds of a Revolving Loan made by the Lenders
and such portion of the Swingline Loans deemed to be so paid shall no longer
be outstanding as Swingline Loans and shall be outstanding as a Revolving Loan
of the respective Lenders. The Borrower authorizes the Administrative Agent
and the Swingline Lender to charge the Borrower's account with the
Administrative Agent (up to the amount available in such account) in order to
pay immediately to the Swingline Lender the amount of such Refunded Swingline
Loans to the extent amounts received from Lenders, including amounts deemed to
be received from the Swingline Lender, are not sufficient to repay in full
such Refunded Swingline Loans. If any portion of any such amount paid (or
deemed to be paid) to the Swingline Lender should be recovered by or on behalf
of the Borrower from the Swingline Lender in bankruptcy, by assignment for the
benefit of creditors or otherwise, the loss of the amount so recovered shall
be ratably shared among all Lenders in the manner contemplated by Section
2.17. Subject to the compliance by the Swingline Lender with the provisions of
subparagraph (vii) below, each Lender's obligation to make the Revolving Loans
referred to in this paragraph shall be absolute and unconditional and shall
not be affected by any circumstance, including (A) any setoff, counterclaim,
recoupment, defense or other right that such Lender may have against the
Swingline Lender, the Borrower or any other person for any reason whatsoever;
(B) the occurrence or continuance of an Event of Default or a Default; (C) any
adverse change in the condition (financial or otherwise) of Holdings or any of
its Subsidiaries; (D) any breach of this Agreement by Holdings, the Borrower
or any other Lender; or (E) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing. Nothing in this
Section 2.01(c) shall be deemed to relieve any Lender from its obligation to
fulfill its Commitments hereunder or to prejudice any rights that the Borrower
may have against any Lender as a result of any default by such Lender
hereunder.
(v) A copy of each notice given by the Swingline Lender or the
Administrative Agent pursuant to this Section 2.01(c) shall be promptly
delivered by the Swingline Lender to the Administrative Agent and the
Borrower. Upon the making of a Revolving Loan by a Lender pursuant to this
Section 2.01(c), the amount so funded shall no longer be owed in respect of
Swingline Loans.
(vi) To the extent any Swingline Loans are outstanding on any date
when one of the events described in Section 7.01(h) or (i) shall have
occurred, each Revolving Credit Lender will, on such date, purchase an
undivided participating interest in the Refunded Swingline Loans (determined
as if the notice specified in clause (c)(iii) of this Section 2.01 had in fact
been given with respect to all then outstanding Swingline Loans) in an amount
equal to its Applicable Percentage of such Refunded Swingline Loans. Upon one
Business Day's notice from the Swingline Lender, each Revolving Credit Lender
shall deliver to the Swingline Lender an amount equal to its respective
participation in same day funds at the office of the Swingline Lender in New
York, New York. In order to evidence such participation each Revolving Credit
Lender agrees to enter into a participation agreement at the request of the
Swingline Lender in form and substance reasonably satisfactory to all parties.
In the event any Revolving Credit Lender fails to make available to the
Swingline Lender the amount of such Revolving Credit Lender's participation as
provided in this Section 2.01(c), the Swingline Lender shall be entitled to
recover such amount on demand from such Revolving Credit Lender together with
interest at the customary rate set by the Swingline Lender for correction of
errors among banks in New York City for one Business Day and thereafter at the
Alternate Base Rate plus the ABR Margin then in effect for Revolving Loans as
set forth on Schedule A.
(vii) Notwithstanding anything herein to the contrary, the Swingline
Lender shall not make any Swingline Loans at any time the Swingline Lender is
aware that the conditions to the making of such Swingline Loan set forth in
Section 4.01 have not been satisfied unless such conditions shall have been
waived in accordance with this Agreement.
(d) Within the limits set forth in paragraphs (b) and (c) above, (x)
the Borrower may borrow, pay or prepay (including pursuant to a refinancing
permitted by Section 2.02(f)) and reborrow Revolving Loans and Swingline Loans
on or after the Closing Date and prior to the Revolving Credit Maturity Date
subject to the terms, conditions and limitations set forth herein. Amounts
paid or prepaid in respect of B Term Loans may not be reborrowed.
SECTION 2.02. Loans. (a) Each Loan shall be made as part of a
Borrowing consisting of Loans made by the Lenders ratably in accordance with
their applicable Commitments; provided, however, that the failure of any
Lender to make any Loan shall not relieve any other Lender of its obligation
to lend hereunder (it being understood, however, that no Lender shall be
responsible for the failure of any other Lender to make any Loan required to
be made by such other Lender). The Loans comprising any Borrowing shall be in
an aggregate principal amount which is (i) an integral multiple of $1,000,000
(or, in the case of Swingline Loans, $500,000) and not less than $2,000,000
(or, in the case of Swingline Loans, $500,000) or (ii) equal to the remaining
available balance of the applicable Commitments, provided that Revolving Loans
used to pay Refunded Swingline Loans may be in the amount of such Refunded
Swingline Loans.
(b) Subject to Sections 2.08 and 2.14, each Borrowing shall be
comprised entirely of ABR Loans or (except in the case of Swingline Loans or
as set forth in the second proviso to this sentence) Eurodollar Loans as the
Borrower may request pursuant to Section 2.03. Each Lender may at its option
make any Eurodollar Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan, provided that any exercise of such
option shall not affect the obligation of 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 2.13 or Section 2.19 in respect
of increased costs arising as a result of such exercise, provided, further,
that prior to the earlier of (x) the 45th day after the Closing Date and (y)
the Syndication Date, the following restrictions shall apply to each Tranche:
(I) no Loans may be incurred as Eurodollar Loans prior to the fifth day after
the Closing Date and (II) no more than one borrowing of Revolving Loans and
one borrowing of B Term Loans may be incurred as Eurodollar Loans, each of
which borrowings of Eurodollar Loans shall be incurred (whether directly or by
way of conversion of ABR Loans) on the fifth day after the Closing Date and
have a one month Interest Period (it being understood that if the one month
Interest Period with respect to the Eurodollar Loans described in clause (II)
above shall have ended prior to the occurrence of the Syndication Date, the
Borrower may continue such Eurodollar Borrowing (and may on the first day of
the respective Interest Period convert any outstanding ABR Loans into
Eurodollar Loans), provided that the Interest Period for such continued
borrowings shall be one month). Borrowings of more than one Type may be
outstanding at the same time; provided, however, that the Borrower shall not
be entitled to request any Borrowing that, if made, would result in more than
20 Eurodollar Borrowings outstanding hereunder at any time. For purposes of
the foregoing, Borrowings having different Interest Periods, regardless of
whether they commence on the same date, shall be considered separate
Borrowings.
(c) Subject to paragraph (f) below, each Lender shall make each Loan
to be made by it hereunder on the proposed date thereof by wire transfer to
such account as the Administrative Agent may designate in federal funds not
later than 11:00 a.m., New York City time, and the Administrative Agent shall
by 12:00 (noon), New York City time, (a) in the case of any Loan made to
reimburse any L/C Payment or to refund any Swingline Loan, apply the amounts
so received to effect such reimbursement or refund as contemplated by Section
2.20 or Section 2.01(c) and (b) in the case of each Loan the proceeds of which
are to be received by the Borrower, credit the amounts so received to an
account designated by the Borrower in the applicable Borrowing Request;
provided, however, that if a Borrowing shall not occur on such date because
any condition precedent herein specified shall not have been met, the
Administrative Agent shall return the amounts so received to the respective
Lenders.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) above and may, in reliance upon such assumption,
make available to the Borrower on such date a corresponding amount. If the
Administrative Agent shall have so made funds available then, to the extent
that such Lender shall not have made such portion available to the
Administrative Agent, such Lender and the Borrower severally agree to repay to
the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the
Administrative Agent, at (i) in the case of the Borrower, the interest rate
applicable at the time to the Loans comprising such Borrowing and (ii) in the
case of such Lender, a rate determined by the Administrative Agent to
represent its cost of overnight or short-term funds (which determination shall
be conclusive absent manifest error). If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount shall constitute
such Lender's Loan as part of such Borrowing for purposes of this Agreement.
(e) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request any Borrowing if the Interest Period
requested with respect thereto would end after the B Term Loan Maturity Date
or Revolving Credit Maturity Date, as applicable.
(f) The Borrower may refinance all or any part of a Revolving Credit
Borrowing with another Revolving Credit Borrowing. Any Revolving Credit
Borrowing (or part thereof) so refinanced shall be deemed to be repaid or
prepaid in accordance with the applicable provisions of this Agreement with
the proceeds of the new Revolving Credit Borrowing and the proceeds of such
new Borrowing, to the extent they do not exceed the principal amount of the
Borrowing being refinanced, shall not be paid by the Lenders to the
Administrative Agent or by the Administrative Agent to the Borrower pursuant
to paragraph (c) above.
SECTION 2.03. Borrowing Procedure. In order to request a Borrowing,
the Borrower shall hand deliver or telecopy to the Administrative Agent a duly
completed Borrowing Request substantially in the form of Exhibit B (a) in the
case of a Eurodollar Borrowing, not later than 12:00 (noon), New York City
time, three Business Days before a proposed Borrowing, and (b) in the case of
an ABR Borrowing, not later than 12:00 noon, New York City time, one Business
Day before a proposed Borrowing; provided, however, that Borrowing Requests
with respect to Borrowings to be made on the Closing Date may, at the
discretion of the Administrative Agent, be delivered later than the times
specified above. Each Borrowing Request shall be irrevocable, shall be signed
by or on behalf of the Borrower and shall specify the following information:
(i) whether the Borrowing then being requested is to be a Term Borrowing or a
Revolving Credit Borrowing, and whether such Borrowing is to be a Eurodollar
Borrowing or an ABR Borrowing; (ii) the date of such Borrowing (which shall be
a Business Day); (iii) in the case of a Borrowing the proceeds of which are to
be received by the Borrower, the number and location of the account to which
funds are to be disbursed (which shall be an account that complies with the
requirements of Section 2.02(c)); (iv) the amount of such Borrowing; and (v)
if such Borrowing is to be a Eurodollar Borrowing, the Interest Period with
respect thereto; provided, however, that, notwithstanding any contrary
specification in any Borrowing Request, each requested Borrowing shall comply
with the requirements set forth in Section 2.02. If no election as to the Type
of Borrowing is specified in any such notice, then the requested Borrowing
shall be an ABR Borrowing. If no Interest Period with respect to any
Eurodollar Borrowing is specified in any such notice, then the Borrower shall
be deemed to have selected an Interest Period of one month's duration. The
Administrative Agent shall promptly (and in any event on the same day that the
Administrative Agent receives such notice, if received by 1:00 p.m., New York
City time, on such day) advise the applicable Lenders of any notice given
pursuant to this Section 2.03 and of each Lender's portion of the requested
Borrowing.
If the Borrower shall not have delivered a Borrowing Request in
accordance with this Section 2.03 prior to the end of the Interest Period then
in effect for any Revolving Credit Borrowing requesting that such Borrowing be
refinanced, then the Borrower shall (unless the Borrower has notified the
Administrative Agent, not less than three Business Days prior to the end of
such Interest Period, that such Borrowing is to be repaid at the end of such
Interest Period) be deemed to have delivered a Borrowing Request requesting
that such Borrowing be refinanced with a new Borrowing of equivalent amount,
and such new Borrowing shall be an ABR Borrowing.
SECTION 2.04. Evidence of Debt; Repayment of Loans. (a) The
outstanding principal balance of each Loan shall be payable (i) in the case of
a B Term Loan, as provided in Section 2.11 and (ii) in the case of a Revolving
Loan or a Swingline Loan, on the Revolving Credit Maturity Date. Each Loan
shall bear interest from the date of the first Borrowing hereunder on the
outstanding principal balance thereof as set forth in Section 2.06.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness to such Lender resulting
from each Loan made by such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time under
this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the Type of each Loan made
and the Interest Period 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) the amount of any sum received by the
Administrative Agent hereunder from the Borrower and each Lender's share
thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) and (c) of this Section 2.04 shall be prima facie evidence of the
existence and amounts of the obligations therein recorded; provided, however,
that the failure of any Lender or the Administrative Agent to maintain such
accounts or any error therein shall not in any manner affect the obligations
of the Borrower to repay the Loans in accordance with their terms.
(e) Notwithstanding any other provision of this Agreement, upon the
request of any Lender, the Borrower will duly execute and deliver to such
lender a promissory note or notes evidencing the Loans made to such Lender
hereunder and the interests represented by such Note or Notes shall at all
times (including after any assignment of all or part of such interests
pursuant to Section 9.04) be represented by one or more Notes payable to the
payee named therein or its registered assigns.
SECTION 2.05. Fees. (a) The Borrower agrees to pay to each Lender
(other than any Defaulting Lender), through the Administrative Agent, on the
last day of March, June, September and December in each year, and on the date
on which the Commitments of all the Lenders shall be terminated as provided
herein, a commitment fee (a "Commitment Fee") on the average daily unused
amount of the Commitments of such Lender during the preceding quarter (or
other period ending with the date on which the last of the Commitments of such
Lender shall be terminated) at a rate equal to 0.50% per annum. All Commitment
Fees shall be computed on the basis of the actual number of days elapsed in a
year of 360 days. For the purpose of calculating any Lender's Commitment Fee,
the outstanding Swingline Loans during the period for which such Lender's
Commitment Fee is calculated shall be deemed to be zero. The Commitment Fee
due to each Lender shall commence to accrue on the Closing Date and shall
cease to accrue on the date on which the last of the Commitments of such
Lender shall be terminated as provided herein.
(b) The Borrower from time to time agrees to pay (i) to each
Revolving Credit Lender (other than any Defaulting Lender), through the
Administrative Agent, on the last day of March, June, September and December
of each year and on the date on which the Revolving Credit Commitments of all
the Lenders shall be terminated as provided herein, a fee (an "L/C
Participation Fee") on such Lender's Applicable Percentage of the daily
aggregate Revolving L/C Exposure (excluding the portion thereof attributable
to unreimbursed L/C Payments), during the preceding quarter (or shorter period
commencing with the date hereof or ending with the Revolving Credit Maturity
Date or the date on which the Revolving Credit Commitments shall be
terminated) at the rate per annum equal to the LIBOR Margin effective for each
day in such period for Revolving Loans as set forth on Schedule A and (ii) to
the respective Fronting Bank, for its own account, (x) on the last day of
March, June, September and December of each year and on the date on which the
Revolving Credit Commitments of all the Lenders shall be terminated as
provided herein, a facing fee in respect of each Letter of Credit issued for
its account hereunder for the period from and including the date of issuance
of such Letter of Credit to and including the termination of such Letter of
Credit, computed at a rate equal to 1/4 of 1% per annum of the daily stated
amount of such Letter of Credit; provided that in no event shall the annual
amount of such facing fee with respect to any Letter of Credit be less than
$500, plus, (y) in connection with the issuance, amendment or transfer of any
such Letter of Credit or any L/C Payment thereunder, such Fronting Bank's
customary documentary and processing charges (collectively, the "Fronting Bank
Fees"). All L/C Participation Fees and Fronting Bank Fees that are payable on
a per annum basis shall be computed on the basis of the actual number of days
elapsed in a year of 360 days.
(c) The Borrower shall pay to the Administrative Agent for
distribution to each Lender that is not a Defaulting Lender with a B Term Loan
Commitment, a commitment fee (the "TL Commitment Fee") for the period from the
Closing Date to but not including the B Term Loan Commitment Termination Date
(or such earlier date as the B Term Loan Commitments of all Lenders shall have
been terminated), computed at a rate for each day equal to 0.50% per annum on
the daily average B Term Loan Commitment of such Lender that is not a
Defaulting Lender. Accrued TL Commitment Fees shall be due and payable on the
B Term Loan Commitment Termination Date (or such earlier date upon which the B
Term Loan Commitments of all Lenders are terminated).
(d) The Borrower agrees to pay to the Administrative Agent and the
Arrangers (and their respective affiliates party thereto), for their own
account, the fees set forth in the Fee Letter dated as of July 28, 2004 at the
times specified therein (the "Administrative Agent Fees").
(e) 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, except that the Fronting Bank Fees shall be paid directly
to the Fronting Bank to which such Fees are owed. Once paid, none of the Fees
shall be refundable under any circumstances.
SECTION 2.06. Interest on Loans. (a) Subject to the provisions of
Section 2.07, the Loans comprising each ABR Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 365
or 366 days, as the case may be, when determined by reference to the Prime
Rate and over a year of 360 days at all other times) at a rate per annum equal
to the Alternate Base Rate plus the ABR Margin then applicable to the
respective Tranche as set forth on Schedule A.
(b) Subject to the provisions of Section 2.07, the Loans comprising
each Eurodollar Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 360 days) at a rate per annum
equal to the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the LIBOR Margin then applicable to the respective Tranche as
set forth on Schedule A.
(c) Interest on each Loan shall be payable on the Interest Payment
Dates applicable to such Loan except as otherwise provided in this Agreement.
The applicable Alternate Base Rate or Adjusted LIBO Rate for each Interest
Period or day within an Interest Period, as the case may be, shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error. The Administrative Agent shall give the
Borrower prompt notice of each such determination.
SECTION 2.07. Default Interest. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount
becoming due hereunder, by acceleration or otherwise, the Borrower shall on
demand from time to time pay interest, to the extent permitted by law, on such
defaulted amount for the period beginning on the date of such default up to
(but not including) the date of actual payment (after as well as before
judgment) at a rate per annum (computed on the basis of the actual number of
days elapsed over a year of 360 days) equal to the rate which is 2% in excess
of the rate otherwise then applicable to the respective Loans (or, to the
extent the overdue amounts do not relate to Loans of a specific Tranche, at
the rate which is 2% in excess of the rate otherwise then applicable to
Revolving Loans maintained as ABR Revolving Loans).
SECTION 2.08. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing the Administrative Agent shall have
determined that dollar deposits in the principal amounts of the Loans
comprising such Borrowing are not generally available in the London interbank
market, or that the rates at which such dollar deposits are being offered will
not adequately and fairly reflect the cost to any Lender of making or
maintaining its Eurodollar Loan during such Interest Period, or that
reasonable means do not exist for ascertaining the Adjusted LIBO Rate, the
Administrative Agent shall, as soon as practicable thereafter, give written or
telecopy notice of such determination to the Borrower and the Lenders. In the
event of any such determination, until the Administrative Agent shall have
advised the Borrower and the Lenders that the circumstances giving rise to
such notice no longer exist, any request by the Borrower for a Eurodollar
Borrowing pursuant to Section 2.03 or 2.10 shall be deemed to be a request for
an ABR Borrowing. Each determination by the Administrative Agent hereunder
shall be conclusive absent manifest error.
SECTION 2.09. Termination and Reduction of Commitments. (a) (i) The B
Term Loan Commitments shall be automatically and permanently reduced on the
Closing Date by the aggregate principal amount of B Term Loans incurred on
such date. In addition, the B Term Loan Commitments shall be automatically and
permanently terminated at 5:00 p.m., New York City time, on the B Term Loan
Commitment Termination Date. The Total Revolving Credit Commitment shall be
automatically and permanently terminated at 5:00 p.m., New York City time, on
the Revolving Credit Maturity Date.
(ii) (x) The Commitments (and the B Term Loan Commitments, Revolving
Credit Commitments, Swingline Loan Commitment and Revolving L/C Commitment of
each Lender) shall terminate in their entirety on June 30, 2005 unless the
Closing Date shall have occurred on or prior to such date and (y) the
Revolving Credit Commitments will also be reduced as provided in Section
2.12(e).
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, the Borrower may at any time in
whole permanently terminate, or from time to time in part permanently reduce,
any of the B Term Loan Commitments or the Revolving Credit Commitments;
provided, however, that (i) each partial reduction of any Commitments shall be
in an integral multiple of $1,000,000 and in a minimum amount of $2,000,000
(or, if less, the remaining amount of the applicable Commitments) and (ii) the
Total Revolving Credit Commitment shall not be reduced to an amount that is
less than the Revolving Credit Exposure at the time.
(c) Each reduction in the Commitments hereunder shall be made ratably
among the Lenders in accordance with their respective applicable Commitments.
The Borrower shall pay to the Administrative Agent for the account of the
Lenders, on the date of each termination or reduction, the Commitment Fees, TL
Commitment Fees and, to the extent applicable, L/C Participation Fees on the
amount of the Commitments so terminated or reduced accrued to but excluding
the date of such termination or reduction.
SECTION 2.10. Conversion and Continuation of Borrowings. The Borrower
shall have the right at any time upon prior irrevocable notice to the
Administrative Agent (a) not later than 12:00 (noon), New York City time, one
Business Day prior to conversion, to convert any Eurodollar Borrowing into an
ABR Borrowing, (b) not later than 11:00 a.m., New York City time, three
Business Days prior to conversion or continuation, to convert any ABR
Borrowing into a Eurodollar Borrowing or to continue any Eurodollar Borrowing
as a Eurodollar Borrowing for an additional Interest Period, and (c) not later
than 11:00 a.m., New York City time, three Business Days prior to conversion,
to convert the Interest Period with respect to any Eurodollar Borrowing to
another permissible Interest Period, subject in each case to the following:
(i) each conversion or continuation shall be made pro rata
among the relevant Lenders in accordance with the respective
principal amounts of the Loans comprising the converted or continued
Borrowing;
(ii) if less than all the outstanding principal amount of
any Borrowing shall be converted or continued, then each resulting
Borrowing shall satisfy the limitations specified in Sections 2.02(a)
and (b) regarding the principal amount and maximum number of
Borrowings of the relevant Type;
(iii) each conversion shall be effected by each Lender by
recording for the account of such Lender the new Loan of such Lender
resulting from such conversion and reducing the Loan (or portion
thereof) of such Lender being converted by an equivalent principal
amount; accrued interest on a Loan (or portion thereof) being
converted shall be paid by the Borrower at the time of conversion;
(iv) if any Eurodollar Borrowing is converted at a time
other than the end of the Interest Period applicable thereto, the
Borrower shall pay, upon demand, any amounts due to the Lenders
pursuant to Section 2.15;
(v) any portion of a Borrowing maturing or required to be
repaid in less than one month may not be converted into or continued
as a Eurodollar Borrowing;
(vi) any portion of a Eurodollar Borrowing which cannot be
converted into or continued as a Eurodollar Borrowing by reason of
the immediately preceding clause shall be automatically converted at
the end of the Interest Period in effect for such Borrowing into an
ABR Borrowing;
(vii) no Interest Period may be selected for any Eurodollar
Term Borrowing that would end later than a B Term Loan Installment
Date occurring on or after the first day of such Interest Period if,
after giving effect to such selection, the aggregate outstanding
amount of (A) the Eurodollar Term Borrowings made pursuant to the
same Commitments with Interest Periods ending on or prior to such B
Term Loan Installment Date and (B) the ABR Term Borrowings made
pursuant to the same Commitments would not be at least equal to the
principal amount of Term Borrowings made pursuant to the same
Commitments to be paid on such B Term Loan Installment Date;
(viii) with respect to each Tranche, prior to the earlier of
(i) the 45th day after the Closing Date and (ii) the Syndication
Date, conversions of ABR Loans into Eurodollar Loans may only be made
if the conversion is effective on the fifth day after the Closing
Date (or on the first day of a subsequent one month Interest Period
as referenced in the parenthetical to the second proviso to Section
2.02(b)) and otherwise in accordance with Section 2.02(b); and
(ix) no Borrowing shall be continued as, or converted into,
a Eurodollar Borrowing at any time that a Default or Event of Default
has occurred and is continuing.
Each notice pursuant to this Section 2.10 shall be irrevocable and
shall refer to this Agreement and specify (i) the identity and amount of the
Borrowing that the Borrower requests be converted or continued, (ii) whether
such Borrowing is to be converted to or continued as a Eurodollar Borrowing or
an ABR Borrowing, (iii) if such notice requests a conversion, the date of such
conversion (which shall be a Business Day) and (iv) if such Borrowing is to be
converted to or continued as a Eurodollar Borrowing, the Interest Period with
respect thereto. If no Interest Period is specified in any such notice with
respect to any conversion to or continuation as a Eurodollar Borrowing, the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. The Administrative Agent shall advise the other Lenders of any
notice given pursuant to this Section 2.10 and of each Lender's portion of any
converted or continued Borrowing. If the Borrower shall not have given notice
in accordance with this Section 2.10 to continue any Borrowing into a
subsequent Interest Period (and shall not otherwise have given notice in
accordance with this Section 2.10 to convert such Borrowing), such Borrowing
shall, at the end of the Interest Period applicable thereto (unless repaid
pursuant to the terms hereof), automatically be converted into an ABR
Borrowing.
SECTION 2.11. Repayment of B Term Borrowings. (a) The B Term
Borrowings shall be payable as to principal in the amounts and on the dates
set forth below (each such date being called a "B Term Loan Installment
Date"):
B Term Loan
Date Amount
March 31, 2005 $3,625,000
June 30, 2005 $3,625,000
September 30, 2005 $3,625,000
December 31, 2005 $3,625,000
March 31, 2006 $3,625,000
June 30, 2006 $3,625,000
September 30, 2006 $3,625,000
December 31, 2006 $3,625,000
March 31, 2007 $3,625,000
June 30, 2007 $3,625,000
September 30, 2007 $3,625,000
December 31, 2007 $3,625,000
March 31, 2008 $3,625,000
June 30, 2008 $3,625,000
September 30, 2008 $3,625,000
December 31, 2008 $3,625,000
March 31, 2009 $3,625,000
June 30, 2009 $3,625,000
September 30, 2009 $3,625,000
December 31, 2009 $3,625,000
March 31, 2010 $3,625,000
June 30, 2010 $3,625,000
September 30, 2010 $3,625,000
December 31, 2010 $3,625,000
March 31, 2011 $3,625,000
June 30, 2011 $3,625,000
September 30, 2011 $3,625,000
B Term Loan Maturity Date $1,352,125,000
; notwithstanding the foregoing, all then outstanding principal of the B Term
Loans shall be due and payable on the B Term Loan Maturity Date (even if same
occurs prior to one or more of the dates set forth in the table above). In the
event that, on the B Term Loan Commitment Termination Date, less than
$1,450,000,000 in aggregate principal amount of B Term Loans have been
incurred on or prior to such date, an amount equal to the remainder of
$1,450,000,000 less the aggregate principal amount of the B Term Loans
incurred on or prior to such date shall be applied to reduce the amounts due
on each B Term Loan Installment Date on a pro rata basis (based upon the then
remaining principal amounts due on such B Term Loan Installment Date after
giving effect to all prior reductions thereto). In the event that on any date
after the Closing Date B Term Loans are incurred pursuant to the provisions of
Section 2.23, an amount equal to the aggregate principal amount of the B Term
Loans so incurred on such date pursuant to Section 2.23 shall be applied to
increase the amounts due on each then remaining B Term Loan Installment Date
on a pro rata basis (based upon the then remaining principal amounts due on
each B Term Loan Installment Date after giving effect to all prior reductions
thereto).
(b) With respect to each repayment of Loans required by this Section
2.11 or made pursuant to the following Section 2.12, the Borrower may
designate the Types of Loans of the respective Tranche which are to be repaid
and, in the case of Eurodollar Borrowings, the specific Borrowing or
Borrowings to be repaid, provided that: (i) repayments of Eurodollar
Borrowings which are not made on the last day of an Interest Period applicable
thereto shall be required to be accompanied by the payment of all related
amounts owing pursuant to Section 2.15; (ii) if any repayment of any
Eurodollar Borrowing shall reduce the outstanding amount of such Borrowing to
an amount less than the minimum Borrowing amount applicable thereto pursuant
to Section 2.02(a), such Borrowing shall be converted at the end of the then
current Interest Period into an ABR Borrowing; and (iii) each repayment of
Loans made pursuant to a Borrowing shall be applied pro rata among such Loans
of all Lenders. In the absence of a designation by the Borrower as described
in the preceding sentence, the Administrative Agent shall, subject to the
above, make such designation in its sole discretion.
(c) All prepayments of B Term Loans made pursuant to Sections
2.12(a), (c) and (d) shall (i) first reduce the scheduled payments required
under paragraph (a) above, of the B Term Loans required to be repaid after the
date of such prepayment, on a pro rata basis and (ii) second, if prior to the
B Term Loan Commitment Termination Date, to the extent in excess of the
amounts required to be applied pursuant to the preceding subclause (i) to
reduce the B Term Loan Commitments of the Lenders on a pro rata basis. To the
extent not previously paid, all B Term Borrowings shall be due and payable on
the B Term Loan Maturity Date. Each payment of Borrowings pursuant to this
Section 2.11 shall be accompanied by accrued interest on the principal amount
paid to but excluding the date of payment.
SECTION 2.12. Prepayment. (a) The Borrower shall have the right at
any time and from time to time to prepay any Borrowing, in whole or in part,
upon at least three Business Days' (or, in the case of a prepayment of ABR
Loans, one Business Day's) prior written or telecopy notice (or telephone
notice promptly confirmed by written or telecopy notice) to the Administrative
Agent, before 11:00 a.m., New York City time; provided, however, that (i) each
partial prepayment (other than of a Swingline Loan) shall be in an amount that
is an integral multiple of $1,000,000 and not less than $5,000,000 (or, if
less, the aggregate outstanding amount under the applicable Tranche) and (ii)
each prepayment of Term Borrowings shall be applied as set forth in paragraphs
(b) and (c) of Section 2.11.
(b) In the event of any termination in full of the Revolving Credit
Commitments, the Borrower shall on the date of such termination repay or
prepay all its outstanding Swingline Loans and Revolving Credit Borrowings,
reduce the Revolving L/C Exposure to zero and cause all Letters of Credit to
be canceled and returned to the respective Fronting Bank. In the event of any
partial reduction of the Revolving Credit Commitments, then (i) at or prior to
the effective date of such reduction, the Administrative Agent shall notify
the Borrower, the Swingline Lender and the Revolving Credit Lenders of the
Aggregate Revolving Credit Exposure and (ii) if the Aggregate Revolving Credit
Exposure would exceed the Total Revolving Credit Commitment after giving
effect to such reduction, then the Borrower shall, on the date of such
reduction, repay or prepay Swingline Loans and Revolving Credit Borrowings, or
reduce the Revolving L/C Exposure, in an aggregate amount sufficient to
eliminate such excess. Notwithstanding the foregoing, on the date of any
termination or reduction of the Revolving Credit Commitments pursuant to
Section 2.09, the Borrower shall pay or prepay so much of, first, the
Swingline Loans and, second, the Revolving Credit Borrowings as shall be
necessary in order that the Aggregate Revolving Credit Exposure will not
exceed the Total Revolving Credit Commitment after giving effect to such
termination or reduction.
(c) The Borrower shall apply all Net Proceeds promptly upon receipt
thereof by Holdings, the Borrower or any of their Subsidiaries to prepay Term
Borrowings in accordance with paragraphs (b) and (c) of Section 2.11.
(d) 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 50% of such Excess Cash Flow to prepay Term
Borrowings in accordance with paragraphs (b) and (c) of Section 2.11, provided
that if, at the time of such prepayment, the Net Leverage Ratio is less than
3.50 to 1.00 (as established pursuant to the certificate last delivered (or
required to be delivered) pursuant to Section 5.04(c)), the Borrower shall not
be required to apply any of such Excess Cash Flow to prepay such Borrowings.
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.
(e) In addition to any other mandatory prepayments pursuant to this
Section 2.12, on each date after the Closing Date upon which a mandatory
prepayment of B Term Loans pursuant to Section 2.12(c) and/or (d) is required
(and exceeds in amount the aggregate principal amount of B Term Loans then
outstanding) or would be required if B Term Loans were then outstanding, the
amount required to be applied pursuant to this Section 2.12 (determined as if
an unlimited amount of B Term Loans were actually outstanding) in excess of
the aggregate principal amount of B Term Loans then outstanding shall be
applied (x) first, if prior to the B Term Loan Commitment Termination Date, to
permanently reduce the B Term Loan Commitments of the Lenders on a pro rata
basis and (y) second, to permanently reduce the Revolving Credit Commitments
of the Lenders on a pro rata basis; provided that in no event shall the
aggregate amount of Revolving Credit Commitments be reduced to less than
$200,000,000 as a result of the application of this Section 2.12(e); provided
further, that if any amount arising from a mandatory prepayment which would
otherwise have been required pursuant to Section 2.12(d) is instead applied to
permanently repay Second-Lien Loans (or then outstanding Permitted Refinancing
Indebtedness incurred pursuant to sub-clause (x) of Section 6.01(p)), then the
amount so applied shall not be required to be used to reduce Revolving Credit
Commitments as otherwise required by the preceding provisions of this clause
(y), and to make any repayments required pursuant to the second sentence of
Section 2.12(b) as a result of any reduction to the Revolving Credit
Commitments pursuant to preceding clause (y).
(f) Each notice of prepayment or reduction pursuant to this Section
2.12 shall specify the prepayment date and the principal amount of each
Borrowing (or portion thereof) to be prepaid, shall be irrevocable and shall
commit the Borrower to prepay such Borrowing by the amount stated therein on
the date stated therein. All prepayments under this Section 2.12 shall (x) be
made in accordance with the provisions of Section 2.11(b) and (y) be subject
to Section 2.15 but otherwise without premium or penalty. All prepayments
under this Section 2.12 shall be accompanied by accrued interest on the
principal amount being prepaid to but excluding the date of payment.
(g) In the event the amount of any prepayment required to be made
above under this Section 2.12 shall exceed the aggregate principal amount of
the ABR Loans outstanding under the respective Tranche required to be prepaid
(the amount of any such excess being called the "Excess Amount"), the Borrower
shall have the right, in lieu of making such prepayment in full, to prepay all
the outstanding applicable ABR Loans and to deposit an amount equal to the
Excess Amount with the Collateral Agent in a cash collateral account
maintained (pursuant to documentation reasonably satisfactory to the
Administrative Agent) by and in the sole dominion and control of the
Collateral Agent. Any amounts so deposited shall be held by the Collateral
Agent as collateral for the Obligations and applied to the prepayment of the
applicable Eurodollar Loans at the end of the current Interest Periods
applicable thereto. On any Business Day on which (i) collected amounts remain
on deposit in or to the credit of such cash collateral account after giving
effect to the payments made on such day pursuant to this Section 2.12(g) and
(ii) the Borrower shall have delivered to the Collateral Agent a written
request or a telephonic request (which shall be promptly confirmed in writing)
that such remaining collected amounts be invested in the Permitted Investments
specified in such request, the Collateral Agent shall use its reasonable
efforts to invest such remaining collected amounts in such Permitted
Investments; provided, however, that the Collateral Agent shall have
continuous dominion and full control over any such investments (and over any
interest that accrues thereon) to the same extent that it has dominion and
control over such cash collateral account and no Permitted Investment shall
mature after the end of the Interest Period for which it is to be applied. The
Borrower shall not have the right to withdraw any amount from such cash
collateral account until the applicable Eurodollar Loans and accrued interest
thereon are paid in full or if a Default or Event of Default then exists or
would result.
SECTION 2.13. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision herein, if after the date of this
Agreement any change in applicable law or regulation or in the interpretation
or administration thereof by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall change the basis of taxation of payments to any Lender or Fronting
Bank in respect of any Letter of Credit or of the principal of or interest on
any Eurodollar Loan made by such Lender or any Fees or other amounts payable
hereunder (other than changes in respect of (i) taxes imposed on the overall
net income (and franchise taxes imposed in lieu thereof) of such Lender or
Fronting Bank by the jurisdiction in which such Lender or Fronting Bank is
organized or has an office or by any political subdivision or taxing authority
therein but such tax does not arise as a result of any connection by the
Borrower with such jurisdiction or from a connection arising solely by virtue
of the activity of such Lender or Fronting Bank or the Administrative Agent,
as the case may be, pursuant to or in respect of this Agreement or under any
other Loan Document and (ii) any Taxes or Other Taxes described in Section
2.19), or shall impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets or deposits with or for the account of
or credit extended by or, in the case of the Letters of Credit, participated
in by such Lender (except any such reserve requirement which is reflected in
the Adjusted LIBO Rate) or Fronting Bank or shall impose on such Lender or
Fronting Bank or the interbank Eurodollar market any other condition affecting
this Agreement, any Letter of Credit (or any participation with respect
thereto), the Revolving L/C Exposure or any Eurodollar Loans of such Lender or
Fronting Bank, and the result of any of the foregoing shall be to increase the
cost to such Lender or Fronting Bank of making or maintaining its Revolving
L/C Exposure or any Eurodollar Loan (or, in the case of the Fronting Bank, of
making any payment under any Letter of Credit) or to reduce the amount of any
sum received or receivable by such Lender or Fronting Bank hereunder (whether
of principal, interest or otherwise) by an amount deemed by such Lender or
Fronting Bank to be material, then from time to time the Borrower will pay to
such Lender or Fronting Bank upon demand such additional amount or amounts as
will compensate such Lender or Fronting Bank for such additional costs
incurred or reduction suffered.
(b) If any Lender or Fronting Bank shall have determined that the
adoption after the date hereof of any law, rule, regulation or guideline
regarding capital adequacy, or any change after the date hereof in any of the
foregoing or in the interpretation or administration of any of the foregoing
by any Governmental Authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by any Lender (or
any lending office of such Lender) or Fronting Bank or any Lender's or
Fronting Bank's holding company with any request or directive regarding
capital adequacy (whether or not having the force of law) made or issued after
the date hereof by any such authority, central bank or comparable agency, has
or would have the effect of reducing the rate of return on such Lender's or
Fronting Bank's capital or on the capital of such Lender's or Fronting Bank's
holding company, if any, as a consequence of this Agreement or its obligations
pursuant hereto to a level below that which such Lender or Fronting Bank or
such Lender's or Fronting Bank's holding company would have achieved but for
such adoption, change or compliance (taking into consideration such Lender's
or Fronting Bank's policies and the policies of such Lender's or Fronting
Bank's holding company with respect to capital adequacy) by an amount deemed
by such Lender or Fronting Bank to be material, then from time to time the
Borrower shall pay to such Lender or Fronting Bank upon demand such additional
amount or amounts as will compensate such Lender or Fronting Bank or such
Lender's or Fronting Bank's holding company for any such reduction suffered.
(c) A certificate of each Lender or Fronting Bank setting forth such
amount or amounts as shall be necessary to compensate such Lender or Fronting
Bank or its holding company as specified in paragraph (a) or (b) above, as the
case may be, shall be delivered to the Borrower through the Administrative
Agent and shall be conclusive absent manifest error. The Borrower shall pay
each Lender or Fronting Bank the amount shown as due on any such certificate
delivered by it within 10 days after its receipt of the same.
(d) In the event any Lender or any Fronting Bank delivers a notice
pursuant to paragraph (e) below, the Borrower may require, at the Borrower's
expense and subject to Section 2.15, such Lender or such Fronting Bank to
assign, at par plus accrued interest and fees, without recourse (in accordance
with Section 9.04) all its interests, rights and obligations hereunder
(including, in the case of a Lender, all of its Commitments and the Loans at
the time owing to it and participations in Letters of Credit held by it and
its obligations to acquire such participations) to a financial institution
specified by the Borrower, provided that (i) such assignment shall not
conflict with or violate any law, rule or regulation or order of any court or
other Governmental Authority, (ii) the Borrower shall have received the
written consent of the Administrative Agent (which consent shall not be
unreasonably withheld) and such Fronting Bank to such assignment, (iii) the
Borrower shall have concurrently paid to the assigning Lender or the Fronting
Bank all moneys accrued and owing hereunder to it (including pursuant to this
Section 2.13) and (iv) in the case of a required assignment by any Fronting
Bank, all outstanding Letters of Credit issued by such Fronting Bank shall be
canceled and returned to such Fronting Bank.
(e) Promptly after any Lender or any Fronting Bank has determined, in
its sole judgment, that it will make a request for increased compensation
pursuant to this Section 2.13, such Lender or Fronting Bank will notify the
Borrower thereof. Failure on the part of any Lender or Fronting Bank so to
notify the Borrower or to demand compensation for any increased costs or
reduction in amounts received or receivable or reduction in return on capital
with respect to any period shall not constitute a waiver of such Lender's or
Fronting Bank's right to demand compensation with respect to such period or
any other period, provided that the Borrower shall not be under any obligation
to compensate any Lender or Fronting Bank under paragraph (b) above with
respect to increased costs or reductions with respect to any period prior to
the date that is six months prior to such request if such Lender or Fronting
Bank knew or could reasonably have been expected to be aware of the
circumstances giving rise to such increased costs or reductions and of the
fact that such circumstances would in fact result in a claim for increased
compensation by reason of such increased costs or reductions and provided
further, that the foregoing limitation shall not apply to any increased costs
or reductions arising out of the retroactive application of any law,
regulation, rule, guideline or directive as aforesaid within such six month
period. The protection of this Section 2.13 shall be available to each Lender
and Fronting Bank regardless of any possible contention as to the invalidity
or inapplicability of the law, rule, regulation, guideline or other change or
condition which shall have occurred or been imposed.
SECTION 2.14. Change in Legality. (a) Notwithstanding any other
provision herein, if the adoption of or any change in any law or regulation or
in the interpretation thereof by any Governmental Authority charged with the
administration or interpretation thereof shall make it unlawful for any Lender
to make or maintain any Eurodollar Loan or to give effect to its obligations
as contemplated hereby with respect to any Eurodollar Loan, then, by written
notice to the Borrower and to the Administrative Agent, such Lender may:
(i) declare that Eurodollar Loans will not thereafter be
made by such Lender hereunder, whereupon any request by the Borrower
for a Eurodollar Borrowing shall, as to such Lender only, be deemed a
request for an ABR Loan unless such declaration shall be subsequently
withdrawn; and
(ii) require that all outstanding Eurodollar Loans made by
it be converted to ABR Loans, in which event all such Eurodollar
Loans shall be automatically converted to ABR Loans as of the
effective date of such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under subparagraphs (i) and
(ii) above, all payments and prepayments of principal that would otherwise
have been applied to repay the Eurodollar Loans that would have been made by
such Lender or the converted Eurodollar Loans of such Lender shall instead be
applied to repay the ABR Loans made by such Lender in lieu of, or resulting
from the conversion of, such Eurodollar Loans.
(b) For purposes of this Section 2.14, a notice to the Borrower by
any Lender shall be effective as to each Eurodollar Loan, if lawful, on the
last day of the Interest Period currently applicable to such Eurodollar Loan;
in all other cases such notice shall be effective on the date of receipt by
the Borrower.
SECTION 2.15. Indemnity. The Borrower shall indemnify each Lender
against any loss or expense (other than taxes) that such Lender may sustain or
incur as a consequence of (a) any failure by the Borrower to fulfill on the
date of any Borrowing or proposed Borrowing hereunder the applicable
conditions set forth in Article IV, (b) any failure by the Borrower to borrow
or to refinance, convert or continue any Loan hereunder after irrevocable
notice of such Borrowing, refinancing, conversion or continuation has been
given pursuant to Section 2.03 or 2.10, (c) any payment, prepayment or
conversion of a Eurodollar Loan required by any other provision of this
Agreement or otherwise made or deemed made on a date other than the last day
of the Interest Period applicable thereto, (d) any default in payment or
prepayment of the principal amount of any Loan or any part thereof or interest
accrued thereon, as and when due and payable (at the due date thereof, whether
by scheduled maturity, acceleration, irrevocable notice of prepayment or
otherwise) or (e) the occurrence of any Event of Default, including, in each
such case, any loss or reasonable expense sustained or incurred or to be
sustained or incurred in liquidating or employing deposits from third parties
acquired to effect or maintain such Loan or any part thereof as a Eurodollar
Loan. Such loss or reasonable expense shall exclude loss of margin hereunder
but shall include an amount equal to the excess, if any, as reasonably
determined by such Lender, of (i) its cost of obtaining the funds for the Loan
being paid, prepaid, converted or not borrowed, converted or continued
(assumed to be the Adjusted LIBO Rate applicable thereto) for the period from
the date of such payment, prepayment, conversion or failure to borrow, convert
or continue to the last day of the Interest Period for such Loan (or, in the
case of a failure to borrow, convert or continue, the Interest Period for such
Loan which would have commenced on the date of such failure) over (ii) the
amount of interest (as reasonably determined by such Lender) that would be
realized by such Lender in reemploying the funds so paid, prepaid, converted
or not borrowed, converted or continued for such period or Interest Period, as
the case may be. A certificate of any Lender setting forth any amount or
amounts that such Lender is entitled to receive pursuant to this Section 2.15
(and the reasons therefor) shall be delivered to the Borrower through the
Administrative Agent and shall be conclusive absent manifest error.
SECTION 2.16. Pro Rata Treatment. Except as required under Section
2.14 and subject to Section 2.11, each Borrowing, each payment or prepayment
of principal of any Borrowing, each payment of interest on the Loans, each
reimbursement of L/C Payments, each payment of the Commitment Fees or L/C
Participation Fees, each reduction of the B Term Loan Commitments or the
Revolving Credit Commitments and each refinancing of any Borrowing with,
conversion of any Borrowing to or continuation of any Borrowing as a Borrowing
of any Type shall be allocated (except in the case of Swingline Loans) pro
rata among the Lenders in accordance with their respective applicable
Commitments (or, if such Commitments shall have expired or been terminated, in
accordance with the respective principal amounts of their applicable
outstanding Loans or participations in L/C Payments, as applicable). Each
Lender agrees that in computing such Lender's portion of any Borrowing or L/C
Payment, the Administrative Agent may, in its discretion, round each Lender's
percentage of such Borrowing or L/C Payment, computed in accordance with
Section 2.01, to the next higher or lower whole dollar amount.
SECTION 2.17. Sharing of Setoffs. Each Lender agrees that if it
shall, through the exercise of a right of banker's lien, setoff or
counterclaim against the Borrower or pursuant to a secured claim under Section
506 of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, obtain payment (voluntary or involuntary) in respect of any
Loan or L/C Payment as a result of which the unpaid principal portion of its
Loans or L/C Payments made pursuant to any Commitment (or, after acceleration
of the Loans pursuant to Article VII, applicable to any Loan or L/C Payment)
shall be proportionately less than the unpaid principal portion of the Loans
or L/C Payments of any other Lender made pursuant to such Commitments (or,
after acceleration of the Loans pursuant to Article VII, applicable to any
Loan or L/C Payment), it shall be deemed simultaneously to have purchased from
such other Lender at face value, and shall promptly pay to such other Lender
the purchase price for, an interest in the Loans or L/C Payments of such other
Lender, so that the aggregate unpaid principal amount of the Loans or L/C
Payments and interests in Loans or L/C Payments held by each such Lender shall
be in the same proportion to the aggregate unpaid principal amount of all
Loans or L/C Payments then outstanding under such Commitments as the principal
amount of its Loans or L/C Payments under such Commitments prior to such
exercise of banker's lien, setoff or counterclaim or other event was to the
principal amount of all such Loans or L/C Payments outstanding prior to such
exercise of banker's lien, setoff or counterclaim or other event; provided,
however, that, if any such purchase or purchases or adjustments shall be made
pursuant to this Section 2.17 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the purchase price or prices or
adjustment restored without interest. The Borrower expressly consents to the
foregoing arrangements and agrees that any Lender holding an interest in a
Loan or L/C Payment deemed to have been so purchased may exercise any and all
rights of banker's lien, setoff or counterclaim with respect to any and all
moneys owing by the Borrower to such Lender by reason thereof as fully as if
such Lender had made a Loan directly to, or L/C Payment directly for the
benefit of, the Borrower in the amount of such interest.
SECTION 2.18. Payments. (a) The Borrower shall make each payment
without setoff or counterclaim (including principal of or interest on any
Borrowing or L/C Payment or any Fees or other amounts) required to be made by
it hereunder and under any other Loan Document not later than 12:00 noon, New
York City time, on the date when due in Dollars to the Administrative Agent at
its offices at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, Attention: Deal
Administrator, in immediately available funds. The Administrative Agent shall
distribute such payments to the Lenders and/or the respective Fronting Bank
promptly upon receipt in like funds as received.
(b) Whenever any payment (including principal of or interest on any
Borrowing or L/C Payment or any Fees or other amounts) hereunder or under any
other Loan Document shall become due, or otherwise would occur, on a day that
is not a Business Day, such payment may be made on the next succeeding
Business Day (except in the case of payment of principal of a Eurodollar
Borrowing if the effect of such extension would be to extend such payment into
the next succeeding month, in which event such payment shall be due on the
immediately preceding Business Day), and such extension of time shall in such
case be included in the computation of interest or Fees, if applicable.
SECTION 2.19. Taxes. (a) Any and all payments by the Borrower to the
Administrative Agent, any Fronting Bank or the Lenders hereunder or under the
other Loan Documents shall be made, in accordance with Section 2.18, free and
clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding (i) in the case of each Lender, each Fronting Bank
and the Administrative Agent, taxes imposed on the overall net income (and
franchise taxes imposed in lieu thereof) of such Lender, such Fronting Bank or
the Administrative Agent (as the case may be) and the jurisdiction imposing
such tax, other than a connection arising solely by virtue of the activities
of such Lender, such Fronting Bank or the Administrative Agent (as the case
may be) pursuant to or in respect of this Agreement or under any other Loan
Document, including entering into, lending money or extending credit pursuant
to, receiving payments under, or enforcing, this Agreement or any other Loan
Document, and (ii) in the case of each Lender, each Fronting Bank and the
Administrative Agent, any withholding taxes payable with respect to any
payments made hereunder or under the other Loan Documents under laws
(including any statute, treaty, ruling, determination or regulation) in effect
on the Initial Date (as hereinafter defined) applicable to such Lender, such
Fronting Bank or the Administrative Agent, as the case may be, on such date
but not excluding any withholding taxes payable solely as a result of any
change in such laws occurring after the Initial Date (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities
being hereinafter referred to as "Taxes"). For purposes of this Section 2.19,
the term "Initial Date" shall mean (i) in the case of the Administrative
Agent, any Fronting Bank or any Lender, the date on which such person became a
party to this Agreement and (ii) in the case of any assignment, including any
assignment by a Lender or a Fronting Bank to a new lending office, the date of
such assignment. If any Taxes shall be required by law to be deducted from or
in respect of any sum payable hereunder or under any other Loan Document to
any Lender, any Fronting Bank or the Administrative Agent, (i) the sum payable
by the Borrower shall be increased as may be necessary so that after making
all required deductions for Taxes (including deductions for Taxes applicable
to additional sums payable under this Section 2.19) such Lender, such Fronting
Bank or the Administrative Agent, as the case may be, receives an amount equal
to the sum it would have received had no such deductions for Taxes been made,
(ii) the Borrower shall make such deductions and (iii) the Borrower shall pay
the full amount deducted to the relevant taxation authority or other authority
in accordance with applicable law. The Borrower shall not, however, be
required to pay any amounts pursuant to clause (i) of the preceding sentence
to any Lender, any Fronting Bank or the Administrative Agent not organized
under the laws of the United States of America or a state thereof if such
Lender, such Fronting Bank or the Administrative Agent fails to provide the
Borrower the Internal Revenue Service Forms required to be provided the
Borrower pursuant to paragraph (f) or (g), as the case may be, of this Section
2.19.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from the execution, delivery or registration of, or
otherwise with respect to, this Agreement or any other Loan Document
(hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender, each Fronting Bank and
the Administrative Agent for the full amount of Taxes and Other Taxes
(including any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 2.19) paid by such Lender, Fronting Bank or the
Administrative Agent, as the case may be, and any liability (including
penalties, interest and expenses including reasonable attorney's fees and
expenses) arising therefrom or with respect thereto whether or not such Taxes
or Other Taxes were correctly or legally asserted. A certificate as to the
amount of such payment or liability prepared by a Lender (or transferee), a
Fronting Bank or the Administrative Agent, absent manifest error, shall be
final, conclusive and binding for all purposes, provided that if the Borrower
reasonably believes that such Taxes were not correctly or legally asserted,
such Lender, such Fronting Bank or the Administrative Agent, as the case may
be shall use reasonable efforts to cooperate with the Borrower to obtain a
refund of such Taxes or Other Taxes. Such indemnification shall be made within
10 days after the date any Lender, any Fronting Bank or the Administrative
Agent, as the case may be, makes written demand therefor. If a Lender, a
Fronting Bank or the Administrative Agent shall become aware that it is
entitled to receive a refund in respect of Taxes or Other Taxes, it shall
promptly notify the Borrower of the availability of such refund and shall,
within 30 days after receipt of a request by the Borrower, pursue or timely
claim such refund at the Borrower's expense. If any Lender, any Fronting Bank
or the Administrative Agent receives a refund in respect of any Taxes or Other
Taxes for which such Lender, such Fronting Bank or the Administrative Agent
has received payment from the Borrower hereunder, it shall promptly repay such
refund (plus any interest received) to the Borrower (but only to the extent of
indemnity payments made, or additional amounts paid, by the Borrower under
this Section 2.19 with respect to the Taxes or Other Taxes giving rise to such
refund), provided that the Borrower, upon the request of such Lender, such
Fronting Bank or the Administrative Agent, agrees to return such refund (plus
any penalties, interest or other charges required to be paid) to such Lender,
such Fronting Bank or the Administrative Agent in the event such Lender, such
Fronting Bank or the Administrative Agent is required to repay such refund to
the relevant taxing authority.
(d) Within 30 days after the date of any payment of Taxes or Other
Taxes withheld by the Borrower in respect of any payment to any Lender, any
Fronting Bank or the Administrative Agent, the Borrower will furnish to the
Administrative Agent, at its address referred to in Section 9.01, the original
or a certified copy of a receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section
2.19 shall survive the payment in full of principal and interest hereunder,
the expiration of the Letters of Credit and the termination of the
Commitments.
(f) In the case of any Borrowing by, or L/C Payment for the benefit
of, the Borrower, this paragraph (f) shall apply. Each Lender, each Fronting
Bank and the Administrative Agent that is not organized under the laws of the
United States of America or a state thereof agrees that at least 20 days prior
to the first Interest Payment Date following the Initial Date in respect of
such Fronting Bank or such Lender, it will deliver to the Borrower and the
Administrative Agent (if appropriate) two duly completed copies of either (i)
United States Internal Revenue Service Form ▇-▇▇▇▇, ▇-▇▇▇▇ or W-8IMY or
successor applicable form, as the case may be, certifying in each case that
such Fronting Bank, such Lender or the Administrative Agent, as the case may
be, is entitled to receive payments under this Agreement and the other Loan
Documents payable to it without deduction or withholding of any United States
federal income taxes and backup withholding taxes or is entitled to receive
such payments at a reduced rate pursuant to a treaty provision or (ii) in the
case of a Lender that is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code, deliver to the Borrower and the Administrative Agent
(I) a statement under penalties of perjury that such Lender (w) is not a
"bank" under Section 881(c)(3)(A) of the Code, is not subject to regulatory or
other legal requirements as a bank in any jurisdiction, and has not been
treated as a bank for purposes of any tax, securities law or other filing or
submission made to any Governmental Authority, any application made to a
rating agency or qualification for any exemption from tax, securities law or
other legal requirements, (x) is not a 10-percent shareholder within the
meaning of Section 881(c)(3)(B) of the Code, (y) is not a controlled foreign
corporation receiving interest from a related person within the meaning of
Section 881(c)(3)(C) of the Code and (z) is not a "conduit entity" within the
meaning of U.S. Treasury Regulations Section 1.881-3(a)(2)(iii) and (II) an
Internal Revenue Service Form W-8BEN or successor applicable form. Such Lender
shall certify (i) in the case of a Form ▇-▇▇▇▇, ▇-▇▇▇▇ or W-8IMY (or successor
applicable form), that it is entitled to receive payments under this Agreement
without deduction or withholding of any United States Federal income taxes or
is entitled to receive such payments at a reduced rate pursuant to a treaty
provision and (ii) in the case of a Form W-8, that it is entitled to an
exemption from United States backup withholding tax. In addition, such Lender,
such Fronting Bank and the Administrative Agent shall (I) deliver to the
Borrower and the Administrative Agent a further copy of said Form ▇-▇▇▇▇,
▇-▇▇▇▇ or W-8IMY, or any successor applicable form or other manner of
certification on or before the date that any such Form ▇-▇▇▇▇, ▇-▇▇▇▇ or
W-8IMY or successor applicable form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent form previously
delivered by such Lender, such Fronting Bank or the Administrative Agent; and
(II) obtain such extensions of time for filing and complete such forms or
certifications as may be reasonably requested by the Borrower or the
Administrative Agent; unless in any such case an event (including, without
limitation, any change in treaty, law or regulation or in the official
interpretation thereof by a relevant taxing authority) has occurred prior to
the date on which any such delivery would otherwise be required which renders
any such forms inapplicable or which would prevent such Lender, such Fronting
Bank or the Administrative Agent from duly completing and delivering any such
form with respect to it and such Lender so advises the Borrower and the
Administrative Agent. Each person that shall become a participant pursuant to
Section 9.04 shall, upon the effectiveness of the related transfer, be
required to provide all the forms and statements required pursuant to this
paragraph (f) to the Lender from which the related participation shall have
been purchased. Unless the Borrower and the Administrative Agent have received
forms, certificates and other documents required by this Section 2.19(f)
indicating that payments hereunder or under this Agreement, any other Loan
Document or the Letters of Credit to or for any Fronting Bank or Lender not
incorporated or organized under the laws of the United States or a state
thereof are not subject to United States withholding tax or are subject to
such tax at a rate reduced by an applicable tax treaty, the Borrower or the
Administrative Agent shall withhold such taxes from such payments at the
applicable statutory rate and the Borrower shall have no indemnification
obligations under Section 2.19(c) with respect to such taxes.
(g) In the case of any Borrowing by, or L/C Payment for the benefit
of, the Borrower, this paragraph (g) shall apply. Each Lender, each Fronting
Bank and the Administrative Agent that is organized under the laws of the
United States of America or a state thereof and is not a corporation for U.S.
federal income tax purposes agrees that at least 30 days prior to the first
Interest Payment Date following the Closing Date in respect of such Fronting
Bank or such Lender, it will deliver to the Borrower and the Administrative
Agent (if appropriate) two duly completed copies of United States Internal
Revenue Service Form W-9 or successor applicable form, as the case may be,
certifying in each case that such Fronting Bank, such Lender or the
Administrative Agent, as the case may be, is entitled to receive payments
under this Agreement and the other Loan Documents payable to it without
deduction or withholding of any United States backup withholding taxes. In
addition, such Lender, such Fronting Bank and the Administrative Agent shall
(I) deliver to the Borrower and the Administrative Agent a further copy of
said Form W-9, or any successor applicable form or other manner of
certification on or before the date that any such Form W-9 or successor
applicable form expires or becomes obsolete or after the occurrence of any
event requiring a change in the most recent form previously delivered by such
Lender, such Fronting Bank or the Administrative Agent; and (II) obtain such
extensions of time for filing and complete such forms or certifications as may
be reasonably requested by the Borrower or the Administrative Agent; unless in
any such case an event (including, without limitation, any change in treaty,
law or regulation or in the official interpretation thereof by a relevant
taxing authority) has occurred prior to the date on which any such delivery
would otherwise be required which renders any such forms inapplicable or which
would prevent such Lender, such Fronting Bank or the Administrative Agent from
duly completing and delivering any such form with respect to it and such
Lender, Fronting Bank or Administrative Agent so advises the Borrower and the
Administrative Agent. Each Person that shall become a participant pursuant to
Section 9.04 shall, upon the effectiveness of the related transfer, be
required to provide all the forms and statements required pursuant to this
paragraph (g) to the Lender from which the related participation shall have
been purchased. Unless the Borrower and the Administrative Agent have received
forms, certificates and other documents required by this Section 2.19(g)
indicating that payments hereunder or under this Agreement, any other Loan
Document or the Letters of Credit to or for any Fronting Bank or Lender
incorporated or organized under the laws of the United States or a state
thereof are not subject to United States backup withholding tax, the Borrower
or the Administrative Agent may, but shall not be required to, withhold such
taxes from such payments at the applicable statutory rate and the Borrower
shall have no indemnification obligation under Section 2.19(c).
(h) Any Fronting Bank and any Lender claiming any additional amounts
payable pursuant to this Section 2.19 shall use reasonable efforts (consistent
with legal and regulatory restrictions) to file any certificate or document
requested in writing by the Borrower or to change the jurisdiction of its
applicable lending office, if the making of such a filing or change would
avoid the need for or reduce the amount of any such additional amounts which
would be payable or may thereafter accrue and would not, in the sole
determination of such Fronting Bank or such Lender, be otherwise
disadvantageous to such Fronting Bank or such Lender.
(i) Nothing contained in this Section 2.19 shall require any Lender
or any Fronting Bank or the Administrative Agent to make available any of its
tax returns (or any other information that it deems to be confidential or
proprietary).
SECTION 2.20. Letters of Credit. (a) Letters of Credit. (i) General.
The Borrower may request the issuance of a Standby Letter of Credit or a
Commercial Letter of Credit by delivering notice in the form of Exhibit C
hereto (each a "Letter of Credit Request"), appropriately completed, for the
account of the Borrower at any time and from time to time while the Revolving
Credit Commitments remain in effect and prior to the tenth day preceding the
Revolving Credit Maturity Date. This Section 2.20 shall not be construed to
impose an obligation upon any Fronting Bank to issue any Letter of Credit that
is inconsistent with the terms and conditions of this Agreement or that would
result in there existing Letters of Credit in an aggregate stated amount at
any time in excess of $75,000,000.
(ii) Notice of Issuance, Amendment; Certain Conditions. In order to
request the issuance of a Letter of Credit, the Borrower shall deliver to the
applicable Fronting Bank and the Administrative Agent (reasonably in advance
of the requested date of issuance) a written request (including by way of
facsimile) in the form of Exhibit C hereto, requesting the issuance of such
Letter of Credit in Dollars and on a sight basis. Each such request shall
specify the date of issuance, the date on which such Letter of Credit is to
expire (which shall comply with paragraph (iii) below), the amount of the
Letter of Credit to be issued, the name and address of the account party
(which shall be the Borrower) and the beneficiary thereof and such other
information as shall be necessary to issue such Letter of Credit. In order to
request the amendment of an existing Letter of Credit, the Borrower shall
deliver to the applicable Fronting Bank and the Administrative Agent
(reasonably in advance of the requested date of amendment), a written and
signed request, (including by way of facsimile) on the Borrower's letterhead
specifying the Letter of Credit number to be amended, the nature of the
amendment and such other information as shall be necessary to amend such
Letter of Credit. Each Letter of Credit shall be issued or amended subject to
the terms and conditions and relying on the representations and warranties of
Holdings and the Borrower set forth herein, and in any case only if, and upon
issuance or amendment of each Letter of Credit the Borrower shall be deemed to
represent and warrant that, after giving effect to such issuance or amendment
the Aggregate Revolving Credit Exposure shall not exceed the Total Revolving
Credit Commitment in effect at such time.
(iii) Expiration Date. Each Standby Letter of Credit shall expire at
the close of business on the earlier of the date one year after the date of
the issuance of such Standby Letter of Credit (although any such Standby
Letter of Credit may be automatically extendable for successive periods of up
to one year, but not beyond the fifth Business Day prior to the Revolving
Credit Maturity Date) and the date that is five Business Days prior to the
Revolving Credit Maturity Date and each Commercial Letter of Credit shall
expire at the close of business on the earlier of the date 180 days after the
date of issuance of such Commercial Letter of Credit and the date that is ten
Business Days prior to the Revolving Credit Maturity Date, unless such Letter
of Credit expires by its terms on an earlier date, provided that a Letter of
Credit shall not be issued (nor shall a Letter of Credit be amended or
extended) that would result in the Aggregate Revolving Credit Exposure
exceeding the Total Revolving Credit Commitment in effect at such time.
Compliance with the foregoing proviso shall be determined based upon the
assumption that (A) each Letter of Credit remains outstanding and undrawn in
accordance with its terms until its expiration date (taking into account any
rights of extension that do not require written notice by or consent of any
Fronting Bank, in its sole discretion, in order to effect such extension) and
(B) the Revolving Credit Commitments will not be reduced pursuant to Section
2.09.
(iv) Participations. By the issuance of a Letter of Credit and
without any further action on the part of such Fronting Bank or the Revolving
Credit Lenders, such Fronting Bank will grant to each Revolving Credit Lender,
and each such Lender will acquire from such Fronting Bank, a participation in
such Letter of Credit equal to such Revolving Credit Lender's Applicable
Percentage of the aggregate amount available to be drawn under such Letter of
Credit, effective upon the issuance of such Letter of Credit. In consideration
and in furtherance of the foregoing, each Revolving Credit Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of such Fronting Bank, such Revolving Credit Lender's Applicable
Percentage of each L/C Payment made by such Fronting Bank under such Letter of
Credit and not reimbursed by the Borrower (or, if applicable, another party
pursuant to its obligations under any other Loan Document) on or before the
next Business Day as provided in paragraph (v) below. Each Revolving Credit
Lender acknowledges and agrees that its obligation to acquire participations
pursuant to this paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or an Event of Default,
and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever, provided that nothing in this Agreement
shall be construed to excuse any Fronting Bank from liability to the Revolving
Credit Lenders caused by the gross negligence or willful misconduct (as
determined in a final and non-appealable judgment of a court of competent
jurisdiction) of such Fronting Bank. The Existing Letters of Credit shall, for
the purposes of this Section 2.20(a)(iv) and Section 2.05(b), be deemed to
have been issued hereunder on the Closing Date.
(v) Reimbursement. If any Fronting Bank shall make any L/C Payment in
respect of a Letter of Credit, the Borrower shall pay to the Administrative
Agent, on or before the Business Day immediately following the date of such
L/C Payment, an amount equal to such L/C Payment. If the Borrower shall fail
to pay any amount required to be paid under this paragraph on or before such
Business Day (or to cause payment thereof when due pursuant to a Revolving
Credit Borrowing), then (A) such unpaid amount shall bear interest, for each
day from and including such Business Day to but excluding the date of payment,
at a rate per annum equal to the interest rate applicable to overdue ABR Loans
that are Revolving Credit Loans pursuant to Section 2.07 (provided that the
2.00% margin referred to therein shall not be applicable until the first
Business Day after the Borrower receives notice from the Administrative Agent
that such L/C Payment has been or will be made), (B) the Administrative Agent
shall notify the respective Fronting Bank and the Revolving Credit Lenders
thereof, (C) each Revolving Credit Lender shall comply with its obligation
under paragraph (iv) above by wire transfer of immediately available funds, in
the same manner as provided in Section 2.02(c) with respect to Loans made by
such Revolving Credit Lender (and Section 2.02(d) shall apply, mutatis
mutandis, to the payment obligations of the Revolving Credit Lenders) and (D)
the Administrative Agent shall promptly pay to the respective Fronting Bank
amounts so received by it from the Revolving Credit Lenders. The
Administrative Agent shall promptly pay to the respective Fronting Bank on a
pro rata basis with respect to outstanding L/C Payments any amounts received
by it from the Borrower (or, if applicable, another party pursuant to its
obligations under any other Loan Document) pursuant to this paragraph prior to
the time that any Revolving Credit Lender makes any payment pursuant to
paragraph (iv) above; any such amounts received by the Administrative Agent
thereafter shall be promptly remitted by the Administrative Agent to the
Revolving Credit Lenders that shall have made such payments and to such
Fronting Bank, as their interests may appear.
(vi) Promptly after the issuance of or amendment to any Standby
Letter of Credit, the respective Fronting Bank will notify the Administrative
Agent and the Borrower, in writing, of such issuance or amendment and the
notice will be accompanied by a copy of the issuance or amendment. Promptly
upon receipt of such notice, the Administrative Agent shall notify each
Lender, in writing, of the issuance or amendment and if requested to do so by
a Lender, the Administrative Agent shall provide such Lender with a copy of
the issuance or amendment. With regards to Commercial Letters of Credit, each
Fronting Bank which has issued one or more Commercial Letters of Credit will
send a facsimile transmission to the Administrative Agent promptly on the
first Business Day of each week, stating the daily aggregate amount available
for drawing under Commercial Letters of Credit for the previous week.
(b) Obligations Absolute. The Borrower's obligations to reimburse L/C
Payments as provided in paragraph (a) above shall be absolute, unconditional
and irrevocable, and shall be performed strictly in accordance with the terms
of this Agreement, under any and all circumstances whatsoever, and
irrespective of:
(i) any lack of validity or enforceability of any Letter of
Credit or any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure
from all or any of the provisions of any Letter of Credit or any Loan
Document;
(iii) the existence of any claim, setoff, defense or other
right that the Borrower, any other party guaranteeing, or otherwise
obligated with, the Borrower or any Subsidiary or other Affiliate
thereof or any other person may at any time have against the
beneficiary under any Letter of Credit, any Fronting Bank, any Agent
or any Lender (other than the defense of payment in accordance with
the terms of this Agreement or a defense based on the gross
negligence or willful misconduct (as determined in a final and
non-appealable judgment of a court of competent jurisdiction) of the
respective Fronting Bank) or any other person, whether in connection
with this Agreement, any other Loan Document or any other related or
unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in
any respect, provided that payment by the applicable Fronting Bank
shall not have constituted gross negligence or willful misconduct (as
determined in a final and non-appealable judgment of a court of
competent jurisdiction) of such Fronting Bank;
(v) payment by any Fronting Bank under a Letter of Credit
against presentation of a draft or other document that does not
comply with the terms of such Letter of Credit, provided that payment
by such Fronting Bank shall not have constituted gross negligence or
willful misconduct (as determined in a final and non-appealable
judgment of a court of competent jurisdiction) of such Fronting Bank;
and
(vi) any other act or omission to act or delay of any kind
of any Fronting Bank, the Lenders, any Agent or any other person or
any other event or circumstance whatsoever, whether or not similar to
any of the foregoing, that might, but for the provisions of this
Section 2.20(b), constitute a legal or equitable discharge of the
Borrower's obligations hereunder, provided that such act or omission
shall not have constituted gross negligence or willful misconduct (as
determined in a final and non-appealable judgment of a court of
competent jurisdiction) of such Fronting Bank.
(c) Disbursement Procedures. Each Fronting Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. Each Fronting Bank shall as
promptly as possible give telephonic notification, confirmed by telecopy, to
the Administrative Agent and the Borrower of such demand for payment and
whether such Fronting Bank has made or will make an L/C Payment thereunder,
provided that any failure to give or delay in giving such notice shall not
relieve the Borrower of its obligation to reimburse such Fronting Bank and the
Lenders with respect to any such L/C Payment. The Administrative Agent shall
promptly give each Revolving Credit Lender notice thereof.
(d) Interim Interest. If any Fronting Bank shall make any L/C Payment
in respect of a Letter of Credit, then, unless the Borrower shall reimburse
such L/C Payment in full on such date, the unpaid amount thereof shall bear
interest for the account of such Fronting Bank, for each day from and
including the date of such L/C Payment, to but excluding the earlier of the
date of payment or the date on which interest shall commence to accrue thereon
as provided in subparagraph (a)(v) above, at the rate per annum that would
apply to such amount if such amount were an ABR Loan.
(e) Liability of the Fronting Bank. Without limiting the generality
of paragraph (b) above, it is expressly understood and agreed that the
absolute and unconditional obligation of the Borrower to reimburse L/C
Payments will not be excused by the gross negligence or willful misconduct (as
determined in a final and non-appealable judgment of a court of competent
jurisdiction) of any Fronting Bank, except as otherwise expressly provided in
said paragraph (b). However, nothing in this Agreement shall be construed to
excuse any Fronting Bank from liability to the Borrower to the extent of any
direct damages (as opposed to consequential damages, claims in respect of
which are hereby waived by the Borrower to the extent permitted by applicable
law) suffered by the Borrower that are caused by such Fronting Bank's gross
negligence or willful misconduct in determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof. It
is understood that each Fronting Bank may accept documents that appear on
their face to be in order, without responsibility for further investigation in
making any payment under any Letter of Credit and, except as otherwise
expressly provided in said paragraph (b), (i) such Fronting Bank's exclusive
reliance on the documents presented to it under such Letter of Credit as to
any and all matters set forth therein, including reliance on the amount of any
draft presented under such Letter of Credit, whether or not the amount due to
the beneficiary thereunder equals the amount of such draft and whether or not
any document presented pursuant to such Letter of Credit proves to be
insufficient in any respect, if such document on its face appears to be in
order, and whether or not any other statement or any other document presented
pursuant to such Letter of Credit proves to be forged or invalid or any
statement therein proves to be inaccurate or untrue in any respect whatsoever
and (ii) any noncompliance in any immaterial respect of the documents
presented under such Letter of Credit with the terms thereof shall, in each
case, be deemed not to constitute willful misconduct or gross negligence of
such Fronting Bank.
(f) Resignation or Removal of a Fronting Bank. Any Fronting Bank may
resign at any time by giving 30 days' prior written notice to the
Administrative Agent, the Lenders and the Borrower, and may be removed at any
time by the Borrower by notice to such Fronting Bank, the Administrative Agent
and the Lenders, subject in each case to the appointment by the Borrower of a
replacement Fronting Bank reasonably satisfactory to the Administrative Agent,
provided that (i) Deutsche Bank AG Cayman Islands Branch shall not resign as a
Fronting Bank hereunder so long as it is the Administrative Agent hereunder
for any reason other than compliance with applicable legal and regulatory
requirements and (ii) no Fronting Bank may resign as to any Letter of Credit
previously issued by it. Subject to the next succeeding sentences of this
paragraph (f), upon the acceptance of any appointment as the Fronting Bank
hereunder by a successor Fronting Bank, such successor shall succeed to and
become vested with all the interests, rights and obligations of the retiring
Fronting Bank and the retiring Fronting Bank shall be discharged from its
obligations to issue additional Letters of Credit hereunder to the extent of
the commitment of the successor Fronting Bank to provide Letters of Credit. At
the time such removal or resignation shall become effective, the Borrower
shall pay all accrued and unpaid fees of such Fronting Bank pursuant to
Section 2.05(b)(ii). The acceptance of any appointment as Fronting Bank
hereunder by a successor Fronting Bank shall be evidenced by an agreement
entered into by such successor, in a form satisfactory to the Borrower and the
Administrative Agent, and, from and after the effective date of such
agreement, (i) such successor Fronting Bank shall have all the rights and
obligations of its predecessor Fronting Bank under this Agreement and the
other Loan Documents and (ii) references herein and in the other Loan
Documents to the term "Fronting Bank" shall be deemed to refer to such
successor or to such predecessor Fronting Bank, or to such successor and all
predecessor and current Fronting Banks, as the context shall require. After
the resignation or removal of a Fronting Bank hereunder, such retiring
Fronting Bank shall remain a party hereto and shall continue to have all the
rights and obligations of a Fronting Bank under this Agreement and the other
Loan Documents with respect to Letters of Credit issued by it prior to such
resignation or removal, but shall not be required to issue additional Letters
of Credit.
(g) Cash Collateralization. If any Event of Default shall occur and
be continuing, the Borrower shall, on the Business Day the Borrower receives
notice from the Administrative Agent or Revolving Credit Lenders with combined
Revolving Credit Commitments representing a majority of the aggregate
Revolving Credit Commitments (or, if the maturity of the Loans has been
accelerated, Revolving Credit Lenders holding participations in outstanding
Letters of Credit representing a majority of the aggregate undrawn amount of
all outstanding Letters of Credit) thereof and of the amount to be deposited,
deposit in an account with the Collateral Agent, for the benefit of the
Revolving Credit Lenders an aggregate amount in cash equal to the Revolving
L/C Exposure as of such date. Such deposit shall be held by the Collateral
Agent as collateral for the payment and performance of the Obligations. The
Collateral Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest
earned on the investment of such deposits in Permitted Investments, which
investments shall be made at the option and sole discretion of the Collateral
Agent (provided that the Collateral Agent shall use reasonable efforts to make
such investments), such deposits shall not bear interest. Interest or profits,
if any, on such investments shall accumulate in such account. Moneys in such
account shall (a) automatically be applied by the Administrative Agent to
reimburse any Fronting Bank for L/C Payments that have not been reimbursed,
(b) be held for the satisfaction of the reimbursement obligations of the
Borrower for the Revolving L/C Exposure and (c) if the maturity of the Loans
has been accelerated (but subject to the consent of Revolving Credit Lenders
holding participations in outstanding Letters of Credit representing greater
than 50% of the aggregate undrawn amount of all outstanding Letters of
Credit), be applied to satisfy the Obligations. If the Borrower is required to
provide an amount of cash collateral hereunder as a result of the occurrence
of an Event of Default, such amount (to the extent not applied as aforesaid)
shall be returned to the Borrower within three Business Days after all Events
of Default have been cured or waived.
(h) Additional Fronting Banks. From time to time, the Borrower may by
notice to the Administrative Agent designate other Lenders reasonably
satisfactory to the Administrative Agent, as additional Fronting Banks. Such
additional Fronting Banks shall execute a counterpart of this Agreement upon
approval of the Administrative Agent (which shall not be unreasonably
withheld) and shall thereafter be Fronting Banks hereunder for all purposes
and shall have the Revolving L/C Commitment noted under their signature and,
if applicable, the Revolving L/C Commitment of any other Fronting Bank shall
be reduced by the amount or amounts specified to the Administrative Agent and
each affected Fronting Bank and delivered concurrently with any notice of
designation of an additional Fronting Bank.
SECTION 2.21. Replacement of Lenders. (a) If any Lender is subject to
an order, judgment or decree of any Governmental Authority that purports to
enjoin or restrain such Lender from making Loans hereunder, then the Borrower
may, at its sole expense and effort and subject to Section 2.15, upon notice
to such Lender and the Administrative Agent, require such Lender to assign and
delegate, at par plus accrued interest and fees, without recourse (in
accordance with and subject to the restrictions contained in Section 9.04),
all its interests, rights and obligations under this Agreement (including all
of its Commitments and the Loans at the time owing to it and participations in
Letters of Credit held by it and its obligations to acquire such
participations) to a financial institution specified by the Borrower (which
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 (and, if a Revolving Credit Commitment is being assigned,
the Fronting Bank and Swingline Lender), which consent shall not unreasonably
be withheld or delayed, (ii) such assignment shall not conflict with or
violate any law, rule or regulation or order of any court or other
Governmental Authority and (iii) the Borrower shall have paid to the assigning
Lender all moneys accrued and owing hereunder to it (including pursuant to
this Section 2.21).
(b) (x) If any Lender becomes a Defaulting Lender or otherwise
defaults in its obligations to make Loans, (y) if a Lender is charging to the
Borrower increased costs in excess of those being generally charged by the
other Lenders or (z) in the case of a refusal by a Lender to consent to
certain proposed changes, waivers, discharges or terminations with respect to
this Agreement which have been approved by the Required Lenders as (and to the
extent) provided in Section 9.08, the Borrower shall have the right, if no
Default or Event of Default then exists (or, in the case of preceding clause
(z), will exist immediately after giving effect to such replacement), to
replace such Lender (the "Replaced Lender") with one or more other Eligible
Transferees, none of whom shall constitute a Defaulting Lender (collectively,
the "Replacement Lender") and each of whom shall be required to be reasonably
acceptable to the Administrative Agent, provided that (i) at the time of any
replacement pursuant to this Section 2.21(b), the Replacement Lender shall
enter into an Assignment and Acceptance pursuant to Section 9.04(b) (and with
all fees payable pursuant to said Section 9.04(b) to be paid by the
Replacement Lender and/or the Replaced Lender (as may be agreed to at such
time by and among the Borrower, the Replacement Lender and the Replaced
Lender)) pursuant to which the Replacement Lender shall acquire all of the
Commitments and outstanding Loans of, and in each case participations in
Letters of Credit by, the Replaced Lender and, in connection therewith, shall
pay to (x) the Replaced Lender in respect thereof an amount equal to the sum
of (I) an amount equal to the principal of, and all accrued interest on, all
outstanding Loans of the Replaced Lender, (II) an amount equal to all Unpaid
Drawings that have been funded by such Replaced Lender, together with all then
unpaid interest with respect thereto at such time, and (III) an amount equal
to all accrued, but theretofore unpaid, Fees owing to the Replaced Lender, and
(y) each Fronting Bank an amount equal to such Replaced Lender's share of any
Unpaid Drawing to the extent such amount was not theretofore funded by such
Replaced Lender to such Fronting Bank and (ii) all obligations of the Borrower
due and owing to the Replaced Lender at such time (other than those
specifically described in clause (i) above in respect of which the assignment
purchase price has been, or is concurrently being, paid) shall be paid in full
to such Replaced Lender concurrently with such replacement. Upon the execution
of the respective Assignment and Acceptance, the payment of amounts referred
to in clauses (i) and (ii) above and, if so requested by the Replacement
Lender, delivery to the Replacement Lender of the appropriate Note or Notes
executed by the Borrower, the Replacement Lender shall become a Lender
hereunder and the Replaced Lender shall cease to constitute a Lender
hereunder, except with respect to indemnification provisions under this
Agreement, which shall survive as to such Replaced Lender.
SECTION 2.22. Incremental Revolving Credit Commitments. (a) So long
as the Incremental Commitment Request Requirements are satisfied at the time
of the delivery of the request referred to below, the Borrower shall have the
right, in consultation and coordination with the Administrative Agent as to
all of the matters set forth below in this Section 2.22 and with the consent
of the Administrative Agent, such consent not to be unreasonably withheld, but
without requiring the consent of any of the Lenders, to request at any time
and from time to time after the Closing Date and prior to the date which is 12
months prior to the Revolving Credit Maturity Date, that one or more Lenders
(and/or one or more other persons which will become Lenders as provided below)
provide Incremental Revolving Credit Commitments and, subject to the
applicable terms and conditions contained in this Agreement, make Revolving
Loans pursuant thereto to the Borrower; it being understood and agreed,
however, that (i) no Lender shall be obligated to provide an Incremental
Revolving Credit Commitment as a result of any such request by the Borrower,
and until such time, if any, as such Lender has agreed in its sole discretion
to provide an Incremental Revolving Credit Commitment and executed and
delivered to the Administrative Agent an Incremental Revolving Credit
Commitment Agreement in respect thereof as provided in clause (b) of this
Section 2.22, such Lender shall not be obligated to fund any Revolving Loans
in excess of its Revolving Credit Commitment as in effect prior to giving
effect to such Incremental Revolving Credit Commitment provided pursuant to
this Section 2.22, (ii) any Lender (including any person who will become a
Lender) may so provide an Incremental Revolving Credit Commitment without the
consent of any other Lender, (iii) the provision of Incremental Revolving
Credit Commitments pursuant to this Section 2.22 shall be in a minimum
aggregate amount (for all Lenders (including any person who will become a
Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in
excess thereof, (iv) the aggregate amount of all Incremental Revolving Credit
Commitments provided pursuant to this Section 2.22, when combined with the
aggregate amount of all Incremental B Term Loan Commitments provided pursuant
to Section 2.23, shall not exceed $50,000,000, (v) all Revolving Loans
provided pursuant to an Incremental Revolving Credit Commitment (and all
interest, fees and other amounts payable thereon) shall be Obligations under
this Agreement and the other applicable Loan Documents and shall be secured by
the relevant Security Documents, and guaranteed under each relevant Guarantee
Agreement, on a pari passu basis with all other Obligations secured by each
such Security Document and guaranteed under each such Guarantee Agreement and
(vi) all actions taken by the Borrower pursuant to this Section 2.22 shall be
done in coordination with the Administrative Agent.
(b) At the time of the provision of Incremental Revolving Credit
Commitments pursuant to this Section 2.22, the Borrower, the Administrative
Agent and each such Lender or other person which agrees to provide an
Incremental Revolving Credit Commitment (each, an "Incremental Revolving
Lender") shall execute and deliver to the Administrative Agent an Incremental
Revolving Credit Commitment Agreement, with the effectiveness of such
Incremental Revolving Lender's Incremental Revolving Credit Commitment to
occur on the date set forth in such Incremental Revolving Credit Commitment
Agreement, which date in any event shall be no earlier than the date on which
(u) all fees required to be paid in connection therewith at the time of such
effectiveness shall have been paid (including, without limitation, any agreed
upon up-front or arrangement fees owing to the Administrative Agent), (v) the
Administrative Agent shall have received evidence reasonably satisfactory to
it that the additional Obligations to be incurred pursuant to the Incremental
Revolving Credit Commitment shall constitute "Designated Senior Indebtedness"
and "Senior Indebtedness" under the Senior Subordinated Note Documents, (w)
the Administrative Agent shall have received evidence reasonably satisfactory
to it that the additional Obligations to be incurred pursuant to the
Incremental Revolving Credit Commitments are permitted by the terms of the
outstanding Indebtedness of Holdings, the Borrower, the Co-Borrower and their
respective Subsidiaries including, without limitation, the Second-Lien Credit
Documents, the Senior Note Documents and the Senior Subordinated Note
Documents, (x) all Incremental Commitment Requirements are satisfied, (y) all
other conditions set forth in this Section 2.22 shall have been satisfied, and
(z) all other conditions precedent that may be set forth in such Incremental
Revolving Credit Commitment Agreement shall have been satisfied. The
Administrative Agent shall promptly notify each Lender as to the effectiveness
of each Incremental Revolving Credit Commitment Agreement, and at such time,
(i) the Total Revolving Credit Commitment under, and for all purposes of, this
Agreement shall be increased by the aggregate amount of such Incremental
Revolving Credit Commitments, (ii) Schedule 2.01 shall be deemed modified to
reflect the revised Revolving Credit Commitments of the affected Lenders and
(iii) to the extent requested by any Incremental Revolving Lender, Notes will
be issued at the Borrower's expense, to such Incremental Revolving Lender in
accordance with Section 2.04(e) to the extent needed to reflect the new
Revolving Credit Commitment of such Incremental Revolving Lender.
(c) At the time of any provision of Incremental Revolving Credit
Commitments pursuant to this Section 2.22, the Borrower shall, in coordination
with the Administrative Agent, (x) repay outstanding Revolving Loans of
certain of the Revolving Lenders, and incur additional Revolving Loans from
certain other Revolving Lenders (including the Incremental Revolving Lenders)
and/or (y) take such other actions as may be reasonably required by the
Administrative Agent, in each case to the extent necessary so that all of the
Revolving Lenders participate in each outstanding Borrowing of Revolving Loans
pro rata on the basis of their respective Revolving Credit Commitments (after
giving effect to any increase in the Total Revolving Credit Commitment
pursuant to this Section 2.22) and with the Borrower being obligated to pay to
the respective Revolving Lenders any costs of the type referred to in Section
2.15 in connection with any such repayment. To the extent the provisions of
this clause (c) require that Lenders make new Revolving Loans which are added
to (and deemed to form a part of) the then outstanding Borrowings of Revolving
Loans maintained as Eurodollar Loans, it is acknowledged that the effect
thereof may result in such new Revolving Loans having short Interest Periods
(i.e., an Interest Period that began during an Interest Period then applicable
to outstanding Eurodollar Loans and which will end on the last day of such
Interest Period). In connection therewith, the Borrower may agree, in the
respective Incremental Revolving Credit Commitment Agreement, to compensate
the Lenders making the new Revolving Loans for funding Eurodollar Loans during
an existing Interest Period on such basis as may be agreed by such Borrower
and the respective Lender or Lenders.
SECTION 2.23. Incremental B Term Loan Commitments. (a) So long as the
Incremental Commitment Request Requirements are satisfied at the time of the
delivery of the request referred to below, the Borrower shall have the right,
in consultation and coordination with the Administrative Agent as to all of
the matters set forth below in this Section 2.23 and with the consent of the
Administrative Agent, such consent not to be unreasonably withheld, but
without requiring the consent of any of the Lenders, to request at any time
and from time to time after the Closing Date and prior to the date which is 12
months prior to the B Term Loan Maturity Date, that one or more Lenders
(and/or one or more other persons which will become Lenders as provided below)
provide Incremental B Term Loan Commitments and, subject to the applicable
terms and conditions contained in this Agreement, make B Term Loans pursuant
thereto to the Borrower; it being understood and agreed, however, that (i) no
Lender shall be obligated to provide an Incremental B Term Loan Commitment as
a result of any such request by the Borrower, and until such time, if any, as
such Lender has agreed in its sole discretion to provide an Incremental B Term
Loan Commitment and executed and delivered to the Administrative Agent an
Incremental B Term Loan Commitment Agreement in respect thereof as provided in
clause (b) of this Section 2.23, such Lender shall not be obligated to fund
any B Term Loans, (ii) any Lender (including any person who will become a
Lender) may so provide an Incremental B Term Loan Commitment without the
consent of any other Lender, (iii) the provision of Incremental B Term Loan
Commitments pursuant to this Section 2.23 shall be in a minimum aggregate
amount (for all Lenders (including any person who will become a Lender)) of at
least $10,000,000 and in integral multiples of $1,000,000 in excess thereof,
(iv) the aggregate amount of all Incremental B Term Loan Commitments provided
pursuant to this Section 2.23, when combined with the aggregate amount of all
Incremental Revolving Credit Commitments provided pursuant to Section 2.22,
shall not exceed $50,000,000, (v) all B Term Loans provided pursuant to an
Incremental B Term Loan Commitment shall be deemed to be part of the same
Tranche as the existing B Term Loans hereunder and (and all interest, fees and
other amounts payable thereon) shall be Obligations under this Agreement and
the other applicable Loan Documents and shall be secured by the relevant
Security Documents, and guaranteed under each relevant Guarantee Agreement, on
a pari passu basis with all other Obligations secured by each such Security
Document and guaranteed under each such Guarantee Agreement and (vi) all
actions taken by the Borrower pursuant to this Section 2.23 shall be done in
coordination with the Administrative Agent.
(b) At the time of the provision of Incremental B Term Loan
Commitments pursuant to this Section 2.23, the Borrower, the Administrative
Agent and each such Lender or other person which agrees to provide an
Incremental B Term Loan Commitment (each, an "Incremental B Term Loan Lender")
shall execute and deliver to the Administrative Agent an Incremental B Term
Loan Commitment Agreement, with the effectiveness of such Incremental B Term
Loan Lender's Incremental B Term Loan Commitment to occur on the date set
forth in such Incremental B Term Loan Commitment Agreement, which date in any
event shall be no earlier than the date on which (u) all fees required to be
paid in connection therewith at the time of such effectiveness shall have been
paid (including, without limitation, any agreed upon up-front or arrangement
fees owing to the Administrative Agent), (v) the Administrative Agent shall
have received evidence reasonably satisfactory to it that the additional
Obligations to be incurred pursuant to the Incremental B Term Loan Commitment
shall constitute "Designated Senior Indebtedness" and "Senior Indebtedness"
under the Senior Subordinated Note Documents, (w) the Administrative Agent
shall have received evidence reasonably satisfactory to it that the additional
Obligations to be incurred pursuant to the Incremental B Term Loan Commitments
are permitted by the terms of the outstanding Indebtedness of Holdings, the
Borrower, the Co-Borrower and their respective Subsidiaries including, without
limitation, the Second-Lien Credit Documents, the Senior Note Documents and
the Senior Subordinated Note Documents, (x) all Incremental Commitment Request
Requirements are satisfied, (y) all other conditions set forth in this Section
2.23 shall have been satisfied, and (z) all other conditions precedent that
may be set forth in such Incremental B Term Loan Commitment Agreement shall
have been satisfied. The Administrative Agent shall promptly notify each
Lender as to the effectiveness of each Incremental B Term Loan Commitment
Agreement, and at such time, (i) the B Term Loans to be made pursuant to the
respective Incremental B Term Loan Commitment Agreements shall be permitted to
be made in accordance with the terms of this Agreement and the respective
Incremental B Term Loan Commitment Agreements, (ii) Schedule 2.01 shall be
deemed modified to reflect the revised B Term Loan Commitments of the affected
Lenders and (iii) to the extent requested by any Incremental B Term Loan
Lender, Notes will be issued at the Borrower's expense, to such Incremental B
Term Loan Lender in accordance with Section 2.04(e) to the extent needed to
reflect the additional B Term Loans made by such Incremental B Term Loan
Lender.
(c) All B Term Loans made after the Closing Date pursuant to the
provisions of this Section 2.23 (and the respective Incremental Term Loan
Commitment Agreements) shall be proportionally added to, and thereafter shall
form part of, all then outstanding Borrowings of B Term Loans (with the effect
being that all Lenders of B Term Loans, including the Lenders of B Term Loans
then being made pursuant to this Section 2.23, shall have a percentage
interest in each then outstanding Borrowing of B Term Loans which is the same
as the percentage its aggregate outstanding principal of B Term Loans bears to
the aggregate principal amount of all then outstanding B Term Loans of all
Lenders). To the extent the provisions of this clause (c) require that Lenders
make new B Term Loans which are added to (and deemed to form a part of) the
then outstanding Borrowings of B Term Loans maintained as Eurodollar Loans, it
is acknowledged that the effect thereof may result in such new B Term Loans
having short Interest Periods (i.e., an Interest Period that began during an
Interest Period then applicable to outstanding Eurodollar Loans and which will
end on the last day of such Interest Period). In connection therewith, the
Borrower may agree, in the respective Incremental B Term Loan Commitment
Agreement, to compensate the Lenders making the new B Term Loans for funding
Eurodollar Loans during an existing Interest Period on such basis as may be
agreed by such Borrower and the respective Lender or Lenders.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each of Holdings and the Borrower represents and warrants to each of
the Lenders that:
SECTION 3.01. Organization; Powers. Each of Holdings, the Borrower
and each of their 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, except for such failures to be
in good standing which, individually and in the aggregate, could not be
reasonably expected to have a Material Adverse Effect, (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 every
jurisdiction where such qualification is required, except where the failure so
to qualify could not reasonably be expected to result in 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 their Subsidiaries of each of the Loan
Documents to which it is a party, and the borrowings hereunder and the
transactions forming a part of the Transaction (a) have been duly authorized
by all corporate, stockholder, limited liability company or partnership action
required to be obtained by Holdings, the Borrower and such Subsidiaries 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 or By-laws of Holdings, the Borrower or any such
Subsidiary, (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 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 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, individually or in the aggregate could reasonably be expected to have 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, other than the
Liens created by the Loan Documents and the Second-Lien Credit Documents.
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,
except as enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting creditors' rights generally and
except as enforceability may be limited by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
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 required in connection with the Transaction, except
for (a) the filing of Uniform Commercial Code financing statements and 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, (b) recordation of the Mortgages,
(c) such as have been made or obtained and are in full force and effect and
(d) such actions, consents and approvals the failure to obtain or make which
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.05. Financial Statements. (a)Holdings has heretofore
furnished to the Lenders its consolidated balance sheets and consolidated
statements of operations, cash flows and partner's capital (deficit) (i) as of
and for the fiscal years ended December 31, 2001, 2002 and 2003, audited by
and accompanied by the opinion of Deloitte & Touche LLP, independent public
accountants, and (ii) as of and for the portion of the fiscal year ended June
30, 2004 (in the case of clause (ii), without footnotes and without a
statement of partner's capital (deficit)) in each case as filed with the SEC.
Such financial statements present fairly, in all material respects, the
financial position and results of operations of Holdings and its consolidated
Subsidiaries (including the Borrower) as of such dates and for such periods.
None of Holdings, its consolidated Subsidiaries and the Borrower has or shall
have as of the Closing Date any material Guarantee, contingent liability or
liability for taxes, or any long-term lease or unusual forward or long-term
commitment, including any interest rate or foreign currency hedging
transaction, which is not reflected in the foregoing statements or the notes
thereto, other than pursuant to the Loan Documents, Second-Lien Credit
Documents, Senior Note Documents and Senior Subordinated Note Documents and
except as specifically disclosed in Schedule 3.05 to this Agreement. Such
financial statements were prepared in accordance with GAAP.
(b) Holdings has heretofore furnished to the Lenders (i) the audited
combined balance sheet of the OI Plastic and certain of its affiliates that
are not being acquired pursuant to the Acquisition as of December 31, 2003 and
December 31, 2002 and the related combined statements of results of
operations, cash flows and net parent investment for each of the three years
in the period ended December 31, 2003 (together with the notes thereto and
related report of independent auditors), (ii) the unaudited combined balance
sheet of OI Plastic and certain of its affiliates that are not being acquired
pursuant to the Acquisition as of the six-month period ended June 30, 2004,
and the related unaudited combined statements of results of operations for the
period then ended, in each case, prepared in accordance with GAAP. Except as
provided in the Acquisition Agreement, such financial statements present
fairly in all material respects the combined financial position and combined
statements of results of operations of OI Plastic and certain of its
affiliates that are not being acquired pursuant to the Acquisition, as of the
dates and for the periods stated therein, subject to normal year-end
adjustments consistent with past practice that are not or will not be material
either individually or in the aggregate.
SECTION 3.06. No Material Adverse Change or Material Adverse Effect.
(a) Since December 31, 2003 (but after giving effect to the consummation of
the Transaction) there has been no material adverse change (or occurrence
which is reasonably likely to result in a material adverse change) in the
assets, business, operations, properties, liabilities, profits or condition
(financial or otherwise) of Holdings and its Subsidiaries taken as a whole or
of the Borrower and its Subsidiaries taken as a whole. Furthermore, since
December 31, 2003 (but after giving effect to the Transaction) no Material
Adverse Effect has occurred.
(b) Since July 28, 2004, there has not been any event, change,
circumstance or effect that is materially adverse, individually or in the
aggregate, to the assets, liabilities, prospects, condition (financial or
otherwise) or results of operations of OI Plastic and its Subsidiaries taken
as a whole, excluding any effects related to or resulting from events
affecting (x) the United States or global economy or (y) the blow-molded
plastic container industry generally and, in the case of each of the preceding
clauses (x) and (y), to the extent such events, changes, circumstances or
effects do not affect OI Plastic and its Subsidiaries disproportionately.
SECTION 3.07. Title to Properties; Possession Under Leases. (a) Each
of Holdings, the Borrower and each of their Subsidiaries has good and
insurable title to, or valid leasehold interests in, or easements or other
limited property interests in, all its material properties and assets
(including all Mortgaged Properties), except for minor defects in title that
do not 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 in the aggregate could not
reasonably be expected to have a Material Adverse Effect. All such material
properties and assets are free and clear of Liens, other than Liens expressly
permitted by Section 6.02.
(b) Each of Holdings, the Borrower and each of their Subsidiaries has
complied with all obligations under all material leases to which it is a
party, except where the failure to comply would not have 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 could not
reasonably be expected to have a Material Adverse Effect. Each of Holdings,
the Borrower and each of their Subsidiaries enjoys peaceful and undisturbed
possession under all such material leases, other than leases which,
individually or in the aggregate, are not material to Holdings and its
Subsidiaries taken as a whole or the Borrower and its Subsidiaries taken as a
whole, and in respect of which the failure to enjoy peaceful and undisturbed
possession could not reasonably be expected to, individually or in the
aggregate, result in a Material Adverse Effect.
(c) Each of Holdings, the Borrower and each of their Subsidiaries
owns or, to the best of their knowledge, possesses, or has the right to use,
or to the best of their knowledge could obtain ownership, possession of, or
the right to use on terms not materially adverse to it, all patents,
trademarks, service marks, trade names, copyrights, licenses and rights with
respect thereto necessary for the present conduct of its business, without any
known conflict with the rights of others, and free from any burdensome
restrictions, except where such conflicts and restrictions could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect and except as set forth on Schedule 3.07(c).
(d) As of the Closing Date, none of Holdings, the Borrower and their
Subsidiaries has received any notice of, or has any knowledge of, any pending
or contemplated condemnation proceeding affecting any of the Mortgaged
Properties or any sale or disposition thereof in lieu of condemnation that
remains unresolved as of the Closing Date.
(e) None of Holdings, the Borrower and their 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 Sections 6.02 or
6.05 or as set forth on Schedule 3.07(e).
SECTION 3.08. Co-Borrower; Subsidiaries. (a) As of the Closing Date,
Holdings will have no Subsidiaries other than (x) CapCo II, (y) Opco GP and
(z) the Borrower and its Subsidiaries.
(b) Schedule 3.08 sets forth as of the Closing Date the name and
jurisdiction of incorporation 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.
(c) As of the Closing Date, there are no outstanding subscriptions,
options, warrants, calls, rights or other agreements or commitments (other
than stock options granted to employees or directors and directors' qualifying
shares) of any nature relating to any Equity Interests of Holdings or any of
its Subsidiaries, except under the Loan Documents or as set forth on Schedule
3.08.
SECTION 3.09. Litigation; Compliance with Laws. (a) Except as set
forth in Schedule 3.09, there are not any material actions, suits or
proceedings at law or in equity or by or before any Governmental Authority now
pending or, to the knowledge of Holdings or the Borrower, threatened against
or affecting Holdings, the Borrower or any of their Subsidiaries or any
business, property or rights of any such person (i) which involve any Loan
Document or the Transaction or (ii) as to which there is a reasonable
possibility of an adverse determination and which, if adversely determined,
could, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect or materially adversely affect the Transaction.
(b) None of Holdings, the Borrower, their Subsidiaries and their
respective material 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, Environmental Law, ordinance, code or approval or any building
permit) or any restriction of record or agreement affecting any Mortgaged
Property, or is in default with respect to any judgment, writ, injunction or
decree of any Governmental Authority, where such violation or default could
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.10. Agreements. None of Holdings, the Borrower and their
Subsidiaries is in default in any manner under any provision of any indenture
or other agreement or instrument evidencing Indebtedness, or any other
material agreement or instrument to which it is a party or by which it or any
of its properties or assets are or may be bound, in either case where such
default could reasonably be expected to result in a Material Adverse Effect.
Immediately after giving effect to the Transaction, no Default or Event of
Default shall have occurred and be continuing.
SECTION 3.11. Federal Reserve Regulations. (a) None of Holdings, the
Borrower and their 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 which entails a
violation of, or which is inconsistent with, the provisions of the Regulations
of the Board, including Regulation U or X.
SECTION 3.12. Investment Company Act; Public Utility Holding Company
Act. None of Holdings, the Borrower and their Subsidiaries is (a) an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940, as amended, or (b) a "holding company" as
defined in, or subject to regulation under, the Public Utility Holding Company
Act of 1935, as amended.
SECTION 3.13. Use of Proceeds. The Borrower will use the proceeds of
the Loans and will request the issuance of Letters of Credit only for the
purposes specified in the preamble to this Agreement. The Co-Borrower shall
not use the proceeds of the Loans or Letters of Credit.
SECTION 3.14. Tax Returns. Each of Holdings, the Borrower and each of
their Subsidiaries has timely filed or caused to be timely filed all federal,
and all material state and local, tax returns required to have been filed by
it and has paid or caused to be paid all taxes shown thereon to be due and
payable by it and all assessments in excess of $5,000,000 in the aggregate
received by it, except taxes or assessments that are being contested in good
faith by appropriate proceedings in accordance with Section 5.03 and for which
the Borrower has set aside on its books in accordance with GAAP adequate
reserves and taxes, assessments, charges, levies or claims in respect of
property taxes for property that Holdings, the Borrower or any of their
Subsidiaries has determined to abandon where the sole recourse for such tax,
assessment, charge, levy or claim is to such property. Each of Holdings, the
Borrower and each of their Subsidiaries has paid in full or made adequate
provision (in accordance with GAAP) for the payment of all taxes due with
respect to all periods ending on or before the Closing Date, which taxes, if
not paid or adequately provided for, could reasonably be expected to have a
Material Adverse Effect. Except as set forth on Schedule 3.14, as of the
Closing Date, with respect to each of Holdings, the Borrower and each of their
Subsidiaries, (a) no material claims are being asserted in writing with
respect to any taxes, (b) no presently effective waivers or extensions of
statutes of limitation with respect to taxes have been given or requested, (c)
no tax returns are being examined by, and no written notification of intention
to examine has been received from, the Internal Revenue Service or, with
respect to any material potential tax liability, any other taxing authority
and (d) no currently pending issues have been raised in writing by the
Internal Revenue Service or, with respect to any material potential tax
liability, any other taxing authority. For purposes hereof, "taxes" shall mean
any present or future tax, levy, impost, duty, charge, assessment or fee of
any nature (including interest, penalties and additions thereto) that is
imposed by any Governmental Authority.
SECTION 3.15. No Material Misstatements. (a) The written information,
reports, financial statements, exhibits and schedules furnished by or on
behalf of Holdings, the Borrower or any of their Subsidiaries to the
Administrative Agent or any Lender in connection with the negotiation of any
Loan Document or included therein or delivered pursuant thereto (including the
Confidential Information Memorandum dated September 2004 relating to the
Borrower (the "Information Memorandum") but excluding the financial
projections referred to in Section 3.15(b)), when taken as a whole, did not
contain, and as they may be amended, supplemented or modified from time to
time, will not contain, as of the Closing Date any material misstatement of
fact and did not omit, and as they may be amended, supplemented or modified
from time to time, will not omit, to state as of the Closing Date any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were, are or will be made, not materially
misleading in their presentation of the Transaction or of Holdings, the
Borrower and their Subsidiaries taken as a whole.
(b) All financial projections concerning Holdings, the Borrower and
their Subsidiaries that are or have been made available to the Administrative
Agent or any Lender by Holdings, the Borrower or any such Subsidiary have been
or will be prepared in good faith based upon assumptions believed by Holdings
and the Borrower to be reasonable on the Closing Date.
SECTION 3.16. Employee Benefit Plans. Each of Holdings, the Borrower
and the ERISA Affiliates is in compliance with the applicable provisions of
ERISA and the provisions of the Code relating to ERISA and the regulations and
published interpretations thereunder and any similar applicable non-U.S. law
except for such noncompliance which could not reasonably be expected to result
in a Material Adverse Effect. No Reportable Event has occurred as to which
Holdings, the Borrower or any ERISA Affiliate was required to file a report
with the PBGC, other than reports for which the 30 day notice requirement is
waived, reports that have been filed and reports the failure of which to file
could not reasonably be expected to result in a Material Adverse Effect. As of
the Closing Date, the present value of all benefit liabilities under each Plan
of Holdings, the Borrower and the ERISA Affiliates (on a termination basis and
based on those assumptions used to fund such Plan) did not, as of the last
annual valuation date applicable thereto for which a valuation is available,
exceed by more than $30,000,000 the value of the assets of such Plan, and the
present value of all benefit liabilities of all underfunded Plans (based on
those assumptions used to fund each such Plan) did not, as of the last annual
valuation dates applicable thereto for which valuations are available, exceed
by more than $30,000,000 the value of the assets of all such underfunded
Plans. None of Holdings, the Borrower and the ERISA Affiliates has incurred or
could reasonably be expected to incur any Withdrawal Liability that could
reasonably be expected to result in a Material Adverse Effect. None of
Holdings, the Borrower and the ERISA Affiliates have received any written
notification that any Multiemployer Plan is in reorganization or has been
terminated within the meaning of Title IV of ERISA, and no Multiemployer Plan
is reasonably expected to be in reorganization or to be terminated, where such
reorganization or termination has resulted or could reasonably be expected to
result, through increases in the contributions required to be made to such
Plan or otherwise, in a Material Adverse Effect.
SECTION 3.17. Environmental Matters. Except as set forth in Schedule
3.17:
(a) There has not been a Release or threatened Release of
Hazardous Materials at, on, under or around the properties currently
or formerly owned, operated or leased by Holdings, the Borrower or
any of their Subsidiaries (the "Properties"), nor to the knowledge of
Holdings, the Borrower or any of their Subsidiaries, at any formerly
owned, operated or leased properties, in amounts or concentrations
which (i) constitute or constituted a violation of Environmental
Laws, except as could not reasonably be expected to have a Material
Adverse Effect; (ii) would reasonably be expected to give rise to an
Environmental Claim that, in any such case or in the aggregate, is
reasonably likely to result in a Material Adverse Effect; or (iii)
could reasonably be expected to impair materially the fair saleable
value of any material Property;
(b) The Properties and all operations of Holdings, the
Borrower and their Subsidiaries are in compliance, and in all prior
periods have been in compliance (except for matters of noncompliance
that have been fully resolved), with all Environmental Laws, and all
required Environmental Permits have been obtained and are in effect,
except to the extent that such non-compliance or failure to obtain
any necessary permits, in the aggregate, are not reasonably likely to
result in a Material Adverse Effect;
(c) None of Holdings, the Borrower or any of their
Subsidiaries has received any Environmental Claim in connection with
the Properties or the operations of the Borrower or its Subsidiaries
or with regard to any person whose liabilities for environmental
matters Holdings, the Borrower or any of their Subsidiaries has
retained or assumed, in whole or in part, contractually, by operation
of law or otherwise, which, in either such case or in the aggregate,
is reasonably likely to result in a Material Adverse Effect;
(d) Hazardous Materials have not been transported from the
Properties, nor have Hazardous Materials been generated, treated,
stored or disposed of at, on, under or around any of the Properties
in a manner that could reasonably give rise to liability under any
Environmental Law, nor have any of Holdings, the Borrower or any of
their Subsidiaries retained or assumed any liability, contractually,
by operation of law or otherwise, with respect to the generation,
treatment, storage or disposal of Hazardous Materials, which, in each
case, individually or in the aggregate, is reasonably likely to
result in a Material Adverse Effect; and
(e) No Lien in favor of any Governmental Authority for (i)
any liability under any Environmental Law or (ii) damages arising
from or costs incurred by such Governmental Authority in response to
a Release or threatened Release of Hazardous Materials into the
environment has been recorded with respect to the Properties except
for Liens permitted by Section 6.02.
SECTION 3.18. Capitalization of Holdings and the Borrower. The Equity
Interests issued and outstanding for each of Holdings and the Borrower is set
forth on Schedule 3.18 as of the Closing Date. All outstanding partnership
interests of the Borrower, on and after the Closing Date, will be owned
beneficially and of record by Holdings (except that 1% thereof may be owned by
Opco GP) and, on and after the Closing Date, will be free and clear of all
Liens whatsoever other than the Liens created by the Loan Documents and
Second-Lien Credit Documents.
SECTION 3.19. Security Documents. (a) The Pledge Agreement is
effective to create in favor of the Collateral Agent, as pledgee, for the
ratable benefit of the Secured Parties, a legal, valid and enforceable
security interest in the Pledge Agreement Collateral described in the Pledge
Agreement and, upon the filing of UCC-1 Financing Statements in the required
jurisdictions (which filings have been made or, if this representation and
warranty is made on any date occurring prior to the tenth Business Day
following the Closing Date will be made within ten Business Days following the
Closing Date), the Pledge Agreement shall (to the extent required by the
Pledge Agreement) constitute a fully perfected first priority Lien on, and
security interest in, all right, title and interest of the pledgors thereunder
in such Pledge Agreement Collateral and, to the extent contemplated therein
and 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 Liens expressly permitted by Section 6.02.
(b) The Security Agreement is effective to create in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal,
valid and enforceable security interest in the Security Agreement Collateral
described therein, and, when financing statements in appropriate form are
filed in the offices specified on the schedules to the Security Agreement, the
Security Agreement will (to the extent required by the Security Agreement)
constitute a fully perfected Lien on, and security interest in, all right,
title and interest of the grantors thereunder in such Security Agreement
Collateral and, to the extent contemplated therein and 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 Liens
expressly permitted by Section 6.02. The recordation of (x) the Grant of
Security Interest in U.S. Patents and (y) the Grant of Security Interest in
U.S. Trademarks in the respective form attached to the Security Agreement, in
each case in the United States Patent and Trademark Office, together with
filings on Form UCC-1 made pursuant to the Security Agreement, will create, a
perfected security interest in the United States trademarks and patents
covered by the Security Agreement, and the recordation of the Grant of
Security Interest in U.S. Copyrights in the form attached to the Security
Agreement with the United States Copyright Office, together with filings on
Form UCC-1 made pursuant to the Security Agreement, will create, a perfected
security interest in the United States copyrights covered by the Security
Agreement.
(c) The Mortgages are effective to create in favor of the Collateral
Agent, for the ratable benefit of the Secured Parties, a legal, valid and
enforceable Lien on all of the Loan Parties' right, title and interest in and
to the Mortgaged Properties thereunder and, to the extent contemplated therein
and subject to Section 9-315 of the Uniform Commercial Code, the proceeds
thereof, and when the Mortgages are filed in the offices specified on the
schedules thereto and when financing statements in appropriate form are filed
in the offices specified on the schedules thereto, each Mortgage will
constitute an enforceable mortgage Lien on, and fully perfected security
interest in, all right, title and interest of the Loan Parties in the
Mortgaged Property subject thereto and, to the extent contemplated therein and
subject to ss. 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 persons pursuant to Liens expressly permitted by
Section 6.02.
SECTION 3.20. Location of Real Property and Leased Premises. (a)
Schedule 3.20 lists completely and correctly as of the Closing Date all real
property owned by Holdings and its Subsidiaries and the addresses thereof,
other than individual properties that have an original cost of less than
$200,000. Except as otherwise set forth in Schedule 3.20, as of the Closing
Date, Holdings and its Subsidiaries own in fee all the real property set forth
as being owned by them on Schedule 3.20.
(b) Schedule 3.20 lists completely and correctly as of the Closing
Date each real property leased by Holdings and its Subsidiaries (in each case,
where the aggregate lease payments for the respective lease of such real
property exceed $100,000 per annum) and the addresses thereof. As of the
Closing Date, the Borrower and the Subsidiaries have valid leases in each real
property set forth as being leased by them on Schedule 3.20.
SECTION 3.21. Solvency. (a) Immediately after the consummation of the
Transaction (including the Borrowing of B Term Loans and the use of proceeds
in connection therewith on the Redemption Date as if the same had occurred on
the Closing Date) and the other transactions to occur on the Closing Date and
immediately following the making of each Loan made, and the issuance of each
Letter of Credit issued, on the Closing Date and after giving effect to the
application of the proceeds thereof, (i) the fair value of the assets of each
of Holdings (individually), Holdings and its Subsidiaries on a consolidated
basis, the Borrower (individually) and 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 each of
Holdings (individually), Holdings and its Subsidiaries on a consolidated
basis, the Borrower (individually) and the Borrower and its Subsidiaries on a
consolidated basis; (ii) the present fair saleable value of the property of
each of Holdings (individually), Holdings and its Subsidiaries on a
consolidated basis, the Borrower (individually) and 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 each of Holdings (individually),
Holdings and its Subsidiaries on a consolidated basis, the Borrower
(individually) and the Borrower and its Subsidiaries on a consolidated basis
on their debts and other liabilities, direct, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute and matured;
(iii) each of Holdings (individually), Holdings and its Subsidiaries on a
consolidated basis, the Borrower (individually) and 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) each of Holdings
(individually), Holdings and its Subsidiaries on a consolidated basis, the
Borrower (individually) and 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) Each of Holdings and the Borrower does not intend to, and does
not believe that it or any of its respective 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 3.22. Labor Matters. Except as set forth in Schedule 3.22,
there are no strikes pending or threatened against Holdings, the Borrower or
any of their Subsidiaries that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. The hours
worked and payments made to employees of Holdings, the Borrower and their
Subsidiaries have not been in violation in any material respect of the Fair
Labor Standards Act or any other applicable law dealing with such matters. All
payments due from Holdings, the Borrower or any of their Subsidiaries or for
which any claim may be made against Holdings, the Borrower or any of their
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, in the aggregate, are not reasonably likely to result in a Material
Adverse Effect. Except as set forth on Schedule 3.22, the consummation of the
Transaction will not give rise to a right of termination or right of
renegotiation on the part of any union under any collective bargaining
agreement to which Holdings, the Borrower or any of their Subsidiaries (or any
predecessor) is a party or by which Holdings, the Borrower or any of their
Subsidiaries (or any predecessor) is bound, other than collective bargaining
agreements which, individually or in the aggregate, are not material to
Holdings and its Subsidiaries taken as a whole.
SECTION 3.23. Insurance. Schedule 3.23 sets forth a true, complete
and correct description of all material insurance maintained by or on behalf
of Holdings, the Borrower or their domestic Subsidiaries as of the Closing
Date. As of such date, such insurance is in full force and effect.
SECTION 3.24. Subordination: Designation of the Loan Documents as
"Designated Senior Indebtedness"; Etc. (i) The subordination provisions
contained in the Senior Subordinated Note Documents are enforceable against
the Borrower, the Co-Borrower, Holdings and the holders of the Senior
Subordinated Notes, (ii) all Obligations of the Borrower and the Co-Borrower
hereunder and in the other Loan Documents are within the definitions of
"Designated Senior Indebtedness" and "Senior Indebtedness" included in the
subordination provisions and (iii) this Agreement constitutes (and is hereby
designated by the Borrower as) one of the "Credit Agreements", as such term is
defined in each of the Senior Subordinated Note Documents and the Senior Note
Documents. In addition, the Borrower hereby designates the Indebtedness under
this Agreement as "Designated Senior Indebtedness" for the purposes of the
definition of "Designated Senior Indebtedness" contained in the Senior
Subordinated Note Indenture, with all such Obligations of the Borrower and the
Co-Borrower to be afforded the benefit of the subordination provisions
contained in the Senior Subordinated Note Indenture and the other Senior
Subordinated Note Documents.
SECTION 3.25. Legal Names; Organizational Identification Numbers;
Jurisdiction and Type of Organization; Etc. Schedule 3.25 sets forth a true
and correct list, as of the Closing Date, of the exact legal name of each Loan
Party, the organizational identification number (if any) of such Loan Party,
the jurisdiction of organization of such Loan Party and the type of
organization of such Loan Party.
SECTION 3.26. Acquisition Agreement. On the Closing Date, all
representations and warranties made by the Borrower on the Closing Date
pursuant to the Acquisition Agreement are true and correct in all material
respects.
ARTICLE IV
CONDITIONS OF LENDING
The obligations of (a) the Lenders (including, without limitation,
the Swingline Lender) to make Loans and (b) each Fronting Bank to issue
Letters of Credit hereunder (each, a "Credit Event") are subject to the
satisfaction of the following conditions:
SECTION 4.01. All Credit Events. On the date of each Borrowing
(including a Borrowing of B Term Loans on the Redemption Date but excluding
continuations or conversions of such Borrowings) and on the date of each
issuance or renewal of a Letter of Credit (other than a Borrowing in which
Revolving Loans are refinanced with new Revolving Loans as contemplated by
Section 2.02(f) without any increase in the aggregate principal amount of
Revolving Loans outstanding and any extension or renewal of any Letter of
Credit without any increase in the stated amount of such Letter of Credit):
(a) The Administrative Agent shall have received, in the case of a
Borrowing, a notice of such Borrowing as required by Section 2.03 (or such
notice shall have been deemed given in accordance with the last paragraph of
Section 2.03) or, in the case of the issuance of a Letter of Credit, the
applicable Fronting Bank and the Administrative Agent shall have received a
notice requesting the issuance of such Letter of Credit as required by Section
2.20(a).
(b) The representations and warranties set forth in Article III
hereof shall be true and correct in all material respects on and as of the
date of such Borrowing or issuance of such Letter of Credit, as the case may
be, 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), provided that the
representation and warranty contained in Section 3.06(a) shall only apply to
Credit Events occurring after the Closing Date and the representation and
warranty contained in Section 3.06(b) shall only apply to Credit Events
occurring on the Closing Date.
(c) At the time of and immediately after such Borrowing or issuance
of such Letter of Credit, as the case may be, no Event of Default or Default
shall have occurred and be continuing.
Each Borrowing and each issuance of a Letter of Credit (except those
specified in the parenthetical contained in the introductory paragraph of this
Section 4.01) shall be deemed to constitute a representation and warranty by
the Borrower on the date of such Borrowing or issuance, as the case may be, as
to the matters specified in paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. First Credit Event. On the Closing Date:
(a) The Administrative Agent shall have received, on behalf of
itself, the other Agents and the Lenders, a favorable written opinion of (i)
Skadden, Arps, ▇▇▇▇▇▇▇ Slate & ▇▇▇▇, special counsel for Holdings and the
Borrower, substantially to the effect set forth in Exhibit K-1, (ii) ▇▇▇▇▇▇,
▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special Pennsylvania counsel for Holdings and the
Borrower, substantially to the effect set forth in Exhibit K-2 and (iii) local
counsel satisfactory to the Administrative Agent and the Arrangers, in each
case (A) dated the Closing Date, (B) addressed to the Fronting Bank, the
Agents and the Lenders, and (C) covering such other matters relating to the
Loan Documents and the Transaction as the Administrative Agent or any Arranger
shall reasonably request, and each of Holdings and the Borrower hereby
instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and
extensions of credit hereunder and the other Loan Documents shall be
reasonably satisfactory to the Administrative Agent and the Arrangers.
(c) The Administrative Agent shall have received in the case of each
Loan Party each of the items referred to in clauses (A), (B) and (C) below:
(A) a copy of the certificate or articles of incorporation, partnership
agreement or limited liability agreement, including all amendments thereto, of
each Loan Party, (x) in the case of a corporation, certified as of a recent
date by the Secretary of State of the state of its organization, and a
certificate as to the good standing of each such Loan Party as of a recent
date from such Secretary of State or (y) in the case of a partnership or of a
limited liability company, certified by the Secretary or Assistant Secretary
of each such Loan Party; (B) a certificate of the Secretary or Assistant
Secretary of each Loan Party dated the Closing Date and certifying (w) 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 a date prior to the date of the resolutions described in clause
(x) below, (x) 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, (y) that the certificate or articles
of incorporation, partnership agreement or limited liability agreement of such
Loan Party have not been amended since the date of the last amendment thereto
disclosed pursuant to clause (A) above, and (z) 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; (C) a
certificate of another officer as to the incumbency and specimen signature of
the Secretary or Assistant Secretary executing the certificate pursuant to (B)
above; and (b) such other documents as the Administrative Agent or any
Arranger may reasonably request.
(d) The Administrative Agent shall have received a certificate of the
Borrower, dated the Closing Date and signed by the Borrower, confirming
compliance with the conditions precedent set forth in paragraphs (b) and (c)
of Section 4.01 and (except to the extent that any such condition is required
to be satisfactory or determined by the Lenders, the Administrative Agent
and/or the Arrangers) paragraphs (n), (o) and (p) of this Section 4.02.
(e) Each of the Guarantee Agreements shall have been duly executed by
the parties thereto and delivered to the Collateral Agent and shall be in full
force and effect.
(f) (i) The Pledge Agreement shall have been duly executed by the
parties thereto and delivered to the Collateral Agent and shall be in full
force and effect, and all Certificated Securities (as such term is defined in
the Pledge Agreement), shall have been delivered to the Collateral Agent, (x)
endorsed in blank in the case of promissory notes constituting Pledge
Agreement Collateral, (y) together with executed and undated endorsements for
transfer in the case of equity interests constituting certificated Pledge
Agreement Collateral and (z) together with evidence that all other actions
necessary or, in the reasonable opinion of the Collateral Agent, desirable, to
perfect the security interests purported to be created by the Pledge Agreement
have been taken; and (ii) the Security Agreement shall have been duly executed
by the Loan Parties party thereto and shall have been delivered to the
Collateral Agent and shall be in full force and effect on such date and each
document (including each Uniform Commercial Code financing statement) required
by law or reasonably requested by the Administrative Agent or any Arranger to
be filed, registered or recorded in order to create in favor of the Collateral
Agent for the benefit of the Secured Parties a valid, legal and perfected
first-priority security interest in and lien on the Collateral described in
such agreement (subject to any Lien expressly permitted by Section 6.02) shall
have been delivered to the Collateral Agent.
(g) The Collateral Agent shall have received (i) the results of a
search of the Uniform Commercial Code filings made with respect to the Loan
Parties in the states in which the chief executive office of each such person
is located and the other jurisdictions in which Uniform Commercial Code
filings are to be made pursuant to the preceding paragraph (as well as any
jurisdictions where such Uniform Commercial Code filings would have been made
pursuant to the Uniform Commercial Code as in effect in the relevant States
prior to July 1, 2001), together with copies of the financing statements
disclosed by such search and (ii) the results of equivalent searches made in
each other jurisdiction requested by the Administrative Agent or any Arranger,
in each case accompanied by evidence satisfactory to the Collateral Agent and
the Arrangers that the Liens indicated in any such financing statement (or
similar document) or otherwise disclosed in such searches would be permitted
under Section 6.02 or have been released.
(h) (i) Each of the Mortgages, substantially in the form of Exhibit
E, including appropriate changes for local law, relating to each of the
Mortgaged Properties shall have been duly executed by the parties thereto and
delivered to the Collateral Agent and shall be in full force and effect, (ii)
each of such Mortgaged Properties shall not be subject to any Lien other than
those expressly permitted under Section 6.02, (iii) a lender's title insurance
policy, paid for by the Borrower, in form and substance reasonably acceptable
to the Administrative Agent and the Arrangers, together with such
endorsements, coinsurance and reinsurance as may be reasonably requested by
the Administrative Agent and (iv) such surveys, appraisals and legal opinions
as reasonably requested in writing by the Administrative Agent or any
Arranger.
(i) Each Loan Party, the Administrative Agent, the Second-Lien
Administrative Agent, the Collateral Agent and the Second-Lien Collateral
Agent shall have duly authorized, executed and delivered the Intercreditor
Agreement in the form of Exhibit I hereto (as amended, modified, restated
and/or supplemented from time to time, the "Intercreditor Agreement"), and the
Intercreditor Agreement shall be in full force and effect.
(j) The Administrative Agent shall have received copies of, or an
insurance broker's or agent's certificate as to coverage under, the insurance
policies required by Section 5.02 and the applicable provisions of the
Security Documents, each of which policies shall be endorsed or otherwise
amended to include a "standard" or "New York" lender's loss payable
endorsement and to name the Collateral Agent as additional insured, in form
and substance reasonably satisfactory to the Administrative Agent and the
Arrangers.
(k) The Second-Lien Credit Agreement shall concurrently have been
executed and delivered by the parties thereto and shall be in full force and
effect and the Borrower shall have received gross cash proceeds of
$350,000,000 from the incurrence of Second-Lien Loans thereunder. The
Administrative Agent shall have received true and correct copies of all
Second-Lien Credit Documents, certified as such by the Secretary or Assistant
Secretary of the Borrower, the Second-Lien Credit Documents and all terms and
conditions thereof (including, without limitation, amortization, maturities,
interest rates, covenants, defaults, remedies, guaranties and guarantors)
shall be in form and substance satisfactory to the Administrative Agent and
the Arrangers, and all conditions precedent to the Second-Lien Credit
Agreement shall have been satisfied, and not waived unless consented to by the
Agents and the Arrangers, to the reasonable satisfaction of the Administrative
Agent and the Arrangers.
(l) The Borrower shall concurrently have received gross cash proceeds
(calculated before underwriting fees) of $250,000,000 from the issuance by it
of the Senior Notes. There shall have been delivered to the Administrative
Agent true and correct copies certified as such by the Secretary or Assistant
Secretary of the Borrower of all Senior Note Documents, and all of the terms
and conditions of the Senior Note Documents shall be in form and substance
reasonably satisfactory to the Administrative Agent and the Arrangers.
(m) The Borrower shall concurrently have received gross cash proceeds
(calculated before underwriting fees) of $375,000,000 from the issuance of the
Senior Subordinated Notes. There shall have been delivered to the
Administrative Agent true and correct copies certified as such by the
Secretary or Assistant Secretary of the Borrower of the Senior Subordinated
Note Documents, and all the terms and conditions of the Senior Subordinated
Note Documents (including, without limitation, amortization, maturities,
interest rates, covenants, defaults, remedies, sinking fund provisions,
subordination provisions and other terms) shall be in form and substance
reasonably satisfactory to the Administrative Agent and the Arrangers.
(n) The Acquisition Agreement (together with all exhibits and
schedules thereto), shall be in the form executed on July 28, 2004, as amended
by Amendment No. 1 thereto dated as of October 7, 2004, with any additions or
changes thereto or waivers of the terms thereof to be in form and substance
reasonably satisfactory to the Administrative Agent and the Arrangers. There
shall have been delivered to the Administrative Agent true and correct copies
certified as such by the Secretary or Assistant Secretary of the Borrower of
the Acquisition Documents and all of the material conditions precedent to the
consummation of the Acquisition as set forth in the Acquisition Agreement
shall have been satisfied (and not waived, except with consent of the
Administrative Agent and each of the Arrangers) to the reasonable satisfaction
of the Administrative Agent and each of the Arrangers. The Acquisition shall
have been consummated in accordance in all material respects with the terms
and conditions of the Acquisition Agreement and all applicable laws.
(o) The Refinancing (other than the redemption of the Existing Senior
Discount Notes and the Existing Senior Subordinated Notes on the Redemption
Date by Holdings or the Borrower, as the case may be) shall have been
consummated in all material respects simultaneously with the incurrence of the
initial Loans hereunder in accordance with applicable law and all related
documentation, in each case in the form previously approved by the
Administrative Agent and the Arrangers, and otherwise on terms reasonably
satisfactory to the Administrative Agent and the Arrangers.
(p) After giving effect to the consummation of the Transaction,
Holdings and its Subsidiaries shall have no outstanding Indebtedness or
preferred equity, except as permitted by Sections 6.01 and 6.04.
(q) All necessary material governmental and material third party
approvals and/or consents in connection with the Transaction, the transactions
contemplated by the Loan Documents and otherwise referred to herein shall have
been obtained and remain in effect, and all applicable waiting periods shall
have expired without any action being taken by any competent authority which
restrains, prevents, or imposes materially adverse conditions upon, the
consummation of the Transaction or the transactions contemplated by the Loan
Documents or otherwise referred to herein.
(r) All costs, fees, expenses (including, without limitation,
reasonable legal fees and expenses) and other compensation contemplated
hereby, payable to the Lenders and the Agents or payable in respect of the
Transaction, shall have been paid to the extent due and invoiced.
(s) The Lenders shall have received a solvency certificate from the
Chief Financial Officer of Holdings, in form and substance reasonably
satisfactory to the Administrative Agent and the Arrangers, setting forth the
conclusions that, after giving effect to the Transaction and the incurrence of
all the financings contemplated herein, each of Holdings, individually,
Holdings and its Subsidiaries, taken as a whole, the Borrower, individually,
and the Borrower and its Subsidiaries, taken as a whole, are not insolvent and
will not be rendered insolvent by the indebtedness incurred in connection
therewith, and will not be left with unreasonably small capital with which to
engage in their businesses and will not have incurred debts beyond their
ability to pay such debts as they mature.
(t) The Administrative Agent shall have received (i) no later than 30
days prior to the Closing Date, or such later date at the Administrative
Agent's discretion, historical financial statements for OI Plastic and its
subsidiaries for each quarterly period ended (and for each monthly period
ended, to the extent available) after December 31, 2003 and prior to the
Closing Date (to the extent available), (ii) a pro forma opening balance sheet
of Holdings and its Subsidiaries after giving effect to the Transaction
together with a certificate of the Chief Financial Officer of the Borrower
certifying that such balance sheet accurately presents the pro forma position
of the Borrower and its Subsidiaries in accordance with GAAP and (iii)
projections through December 31, 2011 for Holdings and its Subsidiaries after
giving effect to the Transaction (it being understood that the projections
delivered to the Administrative Agent prior to September 15, 2004 are
satisfactory), all of which financial statements or projections shall be
consistent in all material respects with the financial information previously
provided to the Administrative Agent by Holdings.
(u) The Administrative Agent shall have received an officer's
certificate from a Responsible Officer of the Borrower accompanied by
supporting schedules and other data reasonably satisfactory to the
Administrative Agent and the Arrangers evidencing that Adjusted EBITDA (as
defined in the OI Plastic selling memorandum and, in any event, calculated in
manner reasonably satisfactory to the Administrative Agent and the Arrangers
and before giving effect to corporate allocations) of OI Plastic, after giving
effect to the Transaction, for the trailing four quarters ended immediately
prior to the Closing Date was not less than $180,000,000.
(v) On the Closing Date, the total commitments in respect of the
Existing Credit Agreement shall have been terminated, and all loans and notes
(together with interest thereon) with respect thereto shall have been repaid
in full, all letters of credit issued thereunder shall have been terminated
(or incorporated as Existing Letters of Credit hereunder) and all other
amounts (including any premiums or fees) owing pursuant to the Existing Credit
Agreement shall have been repaid in full and all documents in respect of the
Existing Credit Agreement and all guarantees with respect thereto shall have
been terminated (except as to indemnification and similar provisions, which
may survive to the extent provided therein) and be of no further force and
effect. In addition, the creditors in respect of the Existing Credit Agreement
shall have terminated and released all security interests in and Liens created
pursuant to any security documentation relating to the Existing Credit
Agreement, and such creditors shall have returned all such assets to the
Borrower or the relevant Loan Party. The Administrative Agent shall have
received evidence that the matters set forth in this Section 4.02(v) have been
satisfied on such date.
SECTION 4.03. Credit Events on the Redemption Date. Concurrently with
the making of B Term Loans by the Lenders with B Term Loan Commitments on the
Redemption Date pursuant to Section 2.01, all the outstanding Existing Senior
Discount Notes and Existing Senior Subordinated Notes must be redeemed in full
by Holdings or the Borrowers, as the case may be.
ARTICLE V
AFFIRMATIVE COVENANTS
Each of Holdings and the Borrower covenants and agrees with each
Lender that so long as this Agreement shall remain in effect and until the
Commitments have been terminated and the principal of and interest on each
Loan, all Fees and all other expenses or amounts payable under any Loan
Document shall have been paid in full and all Letters of Credit have been
canceled or have expired and all amounts drawn thereunder have been reimbursed
in full, unless the Required Lenders shall otherwise consent in writing, each
of Holdings and the Borrower will, and will cause each of their Subsidiaries
to:
SECTION 5.01. Existence; Businesses and Properties. (a) Do or cause
to be done all things necessary to preserve, renew and keep in full force and
effect its legal existence, except as otherwise expressly permitted under
Section 6.05, and except for the liquidation or dissolution of Subsidiaries of
the Borrower if the assets of such entities to the extent they exceed
estimated liabilities are acquired by the Borrower or a Wholly Owned
Subsidiary of the Borrower in such liquidation or dissolution, provided that
Subsidiaries of the Borrower that are Guarantors may not be liquidated into
Subsidiaries of the Borrower that are not Guarantors and domestic Subsidiaries
of the Borrower may not be liquidated into Foreign Subsidiaries of the
Borrower.
(b) Do or cause to be done all things necessary to obtain, preserve,
renew, extend and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
material to the conduct of its business, except to the extent that Holdings or
the Borrower reasonably determines that any such rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
are no longer used or useful in its businesses; comply in all material
respects with all applicable laws, rules, regulations (including any zoning,
building, Environmental Law, ordinance, code or approval or any building
permits or any restrictions of record or agreements affecting the Mortgaged
Properties) and orders of any Governmental Authority, whether now in effect or
hereafter enacted; and at all times maintain and preserve all property
material to the conduct of such 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); in each case in this
paragraph (b) except where the failure, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect.
SECTION 5.02. Insurance (a) Keep its insurable properties insured at
all times by financially sound and reputable insurers in such amounts as shall
be customary for similar businesses and maintain such other reasonable
insurance (including, to the extent consistent with past practices,
self-insurance), of such types, to such extent and against such risks, as is
customary with companies in the same or similar businesses, and maintain such
other insurance as may be required by law or any other Loan Document.
(b) Cause all such property and casualty insurance policies with
respect to the Mortgaged Properties to be endorsed or otherwise amended to
include a "standard" or "New York" lender's loss payable endorsement, in form
and substance reasonably satisfactory to the Administrative Agent and the
Collateral Agent, which endorsement shall provide that, from and after the
Closing Date, if the insurance carrier shall have received written notice from
the Administrative Agent or the Collateral Agent of the occurrence of an Event
of Default, the insurance carrier shall pay all proceeds otherwise payable to
the Borrower or the Loan Parties under such policies directly to the
Collateral Agent; cause all such policies to provide that neither the
Borrower, the Administrative Agent, the Collateral Agent nor any other party
shall be a coinsurer thereunder and to contain a "Replacement Cost
Endorsement", without any deduction for depreciation, and such other
provisions as the Administrative Agent or the Collateral Agent may reasonably
(in light of a Default or a material development in respect of the insured
Mortgaged Property) require from time to time to protect their interests;
deliver original or certified copies of all such policies or a certificate of
an insurance broker to the Collateral Agent; cause each such policy to provide
that it shall not be canceled, modified or not renewed upon not less than 30
days' prior written notice thereof by the insurer to the Administrative Agent
and the Collateral Agent; deliver to the Administrative Agent and the
Collateral Agent, prior to the cancellation, modification or nonrenewal of any
such policy of insurance, a copy of a renewal or replacement policy (or other
evidence of renewal of a policy previously delivered to the Administrative
Agent and the Collateral Agent), or insurance certificate with respect
thereto, together with evidence satisfactory to the Administrative Agent and
the Collateral Agent of payment of the premium therefor.
(c) 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, the Collateral Agent or the Required Lenders may
from time to time reasonably require, and otherwise comply with the National
Flood Insurance Program as set forth in the Flood Disaster Protection Act of
1973, as it may be amended from time to time.
(d) With respect to each Mortgaged Property, carry and maintain
comprehensive general liability insurance including the "broad form CGL
endorsement" and coverage on an occurrence basis against claims made for
personal injury (including bodily injury, death and property damage) and
umbrella liability insurance against any and all claims, in no event for a
combined single limit of less than $1,000,000, naming the Collateral Agent as
an additional insured, on forms reasonably satisfactory to the Collateral
Agent.
(e) Notify the Administrative Agent and the Collateral Agent promptly
whenever any separate insurance concurrent in form or contributing in the
event of loss with that required to be maintained under this Section 5.02 is
taken out by Holdings, the Borrower or any of their Subsidiaries; and promptly
deliver to the Administrative Agent and the Collateral Agent a duplicate
original copy of such policy or policies, or insurance certificate with
respect thereto.
(f) In connection with the covenants set forth in this Section 5.02,
it is understood and agreed that:
(i) none of the Agents, the Lenders, any Fronting Bank 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 Borrower
and the other 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 Agents, the Lenders,
any Fronting Bank or their agents or employees. If, however, the
insurance policies do not provide waiver of subrogation rights
against such parties, as required above, then each of Holdings and
the Borrower hereby agree, to the extent permitted by law, to waive,
and to cause each of their Subsidiaries to waive, its right of
recovery, if any, against the Agents, the Lenders, any Fronting Bank
and their agents and employees; and
(ii) the designation of any form, type or amount of
insurance coverage by the Administrative Agent, the Collateral Agent
or the Required Lenders under this Section 5.02 shall in no event be
deemed a representation, warranty or advice by the Administrative
Agent, the Collateral Agent or the Lenders that such insurance is
adequate for the purposes of the business of Holdings, the Borrower
and their Subsidiaries or the protection of their properties.
SECTION 5.03. Taxes. Pay and discharge promptly when due all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits or in respect of its property, before the same shall become
delinquent or in default, as well as all lawful claims for labor, materials
and supplies or otherwise 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, assessment,
charge, levy or claim so long as (a) 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, (b) such tax,
assessment, charge, levy or claim is in respect of property taxes for property
that Holdings, the Borrower or one of their Subsidiaries has determined to
abandon and the sole recourse for such tax, assessment, charge, levy or claim
is to such property or (c) the amount of such taxes, assessments, charges,
levies and claims and interest and penalties thereon does not exceed
$5,000,000 in the aggregate.
SECTION 5.04. Financial Statements, Reports, Etc. Furnish to the
Agents and each Lender:
(a) within 90 days after the end of each fiscal year, a consolidated
balance sheet and related statements of operations, cash flows and owners'
equity or stockholders' equity showing the financial position of each of
Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the
close of such fiscal year and the consolidated results of their operations
during such year, all audited by independent public accountants of recognized
national standing reasonably acceptable to the Administrative Agent and
accompanied by an opinion of such accountants (which shall not be qualified in
any material respect) to the effect that such consolidated financial
statements fairly present, in all material respects, the financial position
and results of operations of each of Holdings and its Subsidiaries and the
Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;
provided that, unless and to the extent the Administrative Agent otherwise
directs the Borrower from time to time, the timely filing by Holdings of its
Form 10-K with the SEC (so long as such Form 10-K breaks out the financial
position and results of operations of the Borrower and its Subsidiaries in a
manner which enables the Lenders to see any differences in the financial
position and results of operation of the Borrower and its Subsidiaries from
those of Holdings and its Subsidiaries other than the Borrower and its
Subsidiaries) shall satisfy the requirements under this Section 5.04(a) for
the respective fiscal year;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year, a consolidated balance sheet and related
statements of operations and cash flows showing the financial position of each
of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of
the close of such fiscal quarter and the consolidated results of their
operations during such fiscal quarter and the then-elapsed portion of the
fiscal year, all certified by a Financial Officer of Holdings or the Borrower,
as the case may be, on behalf of Holdings or the Borrower, respectively, as
fairly presenting, in all material respects, the financial position and
results of operations of Holdings and its Subsidiaries or the Borrower and its
Subsidiaries, as the case may be, in each case on a consolidated basis in
accordance with GAAP (except for the absence of footnotes), subject to normal
year-end audit adjustments; provided that, unless and to the extent the
Administrative Agent otherwise directs the Borrower from time to time, the
timely filing by Holdings of its Form 10-Q with the SEC (so long as such Form
10-Q breaks out the financial position and results of operations of the
Borrower and its Subsidiaries in a manner which enables the Lenders to see any
differences in the financial position and results of operation of the Borrower
and its Subsidiaries from those of Holdings and its Subsidiaries other than
the Borrower and its Subsidiaries) shall satisfy the requirements under this
Section 5.04(b) for the respective fiscal quarter;
(c) concurrently with any delivery of financial statements under (a)
or (b) above, a certificate of the accounting firm or Financial Officer on
behalf of the Borrower opining on or certifying such statements (which
certificate, when furnished by an accounting firm, may be limited to
accounting matters and disclaim responsibility for legal interpretations) (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 and (ii) setting forth computations in reasonable detail satisfactory
to the Administrative Agent demonstrating compliance with the covenants
contained in Sections 6.10, 6.11 and 6.12 (it being understood that the
information required by this clause (ii) may be provided in a certificate of a
Financial Officer on behalf of the Borrower instead of from such accounting
firm);
(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 their Subsidiaries with the SEC, or
distributed to its shareholders generally, as the case may be;
(e) if, as a result of any change in accounting principles and
policies from those as in effect on the date of this Agreement (other than in
respect of the capitalization of repairs and maintenance expenses as provided
in the definition of GAAP), the consolidated financial statements of Holdings
or the Borrower (and their respective Subsidiaries) delivered pursuant to
paragraph (a) or (b) above will differ in any material respect from the
consolidated financial statements that would have been delivered pursuant to
such clauses had no such change in accounting principles and policies been
made, then, together with the first delivery of financial statements pursuant
to paragraph (a) and (b) above following such change, a schedule prepared by a
Financial Officer on behalf of Holdings or the Borrower, as the case may be,
reconciling such changes to what the financial statements would have been
without such changes;
(f) within 30 days after the beginning of each fiscal year, a budget
in form satisfactory to the Agents prepared by Holdings for each of the four
fiscal quarters of such fiscal year prepared in reasonable detail, of Holdings
and its Subsidiaries, accompanied by the statement of a Financial Officer of
Holdings to the effect that, to the best of his knowledge, the budget is a
reasonable estimate for the period covered thereby;
(g) promptly following the creation or acquisition of any Subsidiary,
a certificate from a Responsible Officer, identifying such new Subsidiary and
the ownership interest of the Borrower and the Subsidiaries therein;
(h) simultaneously with the delivery of any financial statements
pursuant to paragraph (a) or (b) above, a balance sheet and related statements
of operations, cash flows and stockholder's equity for each unconsolidated
Subsidiary for the applicable period;
(i) promptly after the receipt thereof by Holdings, the Borrower or
any of their respective Subsidiaries, a copy of all reports submitted in
connection with any material interim or special audit made by independent
accountants of the books of Holdings, the Borrower or any of their
Subsidiaries; and
(j) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of Holdings, the Borrower
or any of their Subsidiaries, or compliance with the terms of any Loan
Document, or such consolidating financial statements, as in each case the
Agents or any Lender, acting through the Administrative Agent, may reasonably
request.
SECTION 5.05. Litigation and Other Notices. Furnish to the
Administrative Agent written notice of the following promptly after any
Responsible Officer of 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,
against Holdings, the Borrower or any of their Subsidiaries in respect of
which there is a reasonable possibility of an adverse determination and which,
if adversely determined, could reasonably be expected to result in a Material
Adverse Effect; and
(c) any other development specific to Holdings, the Borrower or any
of their Subsidiaries that is not a matter of general public knowledge and
that has resulted in, or could reasonably be expected to result in, a Material
Adverse Effect.
SECTION 5.06. Employee Benefits. (a) Comply in all material respects
with the applicable provisions of ERISA and the provisions of the Code
relating to ERISA and any applicable similar non-U.S. law, except for such
noncompliances which could not reasonably be expected to result in a Material
Adverse Effect, and (b) furnish to the Administrative Agent (i) as soon as
possible after, and in any event within 30 days after any Responsible Officer
of Holdings, the Borrower or any ERISA Affiliate knows or has reason to know
that, any Reportable Event has occurred, a statement of a Financial Officer
setting forth details as to such Reportable Event and the action proposed to
be taken with respect thereto, together with a copy of the notice, if any, of
such Reportable Event given to the PBGC, (ii) promptly after any Responsible
Officer learns of receipt thereof, a copy of any notice that the Borrower or
any ERISA Affiliate may receive from the PBGC relating to the intention of the
PBGC to terminate any Plan or Plans (other than a Plan maintained by an ERISA
Affiliate that is considered an ERISA Affiliate only pursuant to subsection
(m) or (o) of Code Section 414) or to appoint a trustee to administer any such
Plan, (iii) within 30 days after the due date for filing with the PBGC
pursuant to Section 412(n) of the Code a notice of failure to make a required
installment or other payment with respect to a Plan, a statement of a
Financial Officer setting forth details as to such failure and the action
proposed to be taken with respect thereto, together with a copy of any such
notice given to the PBGC and (iv) promptly after any Responsible Officer
learns thereof and in any event within 30 days after receipt thereof by
Holdings, the Borrower or any ERISA Affiliate from the sponsor of a
Multiemployer Plan, a copy of each notice received by Holdings, the Borrower
or any ERISA Affiliate concerning (A) the imposition of Withdrawal Liability
or (B) a determination that a Multiemployer Plan is, or is expected to be,
terminated or in reorganization, in each case within the meaning of Title IV
of ERISA, provided that in the case of each of clauses (i) through (iv) above,
notice to the Administrative Agent shall only be required if such event or
condition, together with all other events or conditions referred to in clauses
(i) through (iv) above, could reasonably be expected to result in liability of
Holdings, the Borrower or any of their Subsidiaries in an aggregate amount
exceeding $25,000,000.
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 Agents or any Lender to visit and inspect the
financial records and the properties of Holdings, the Borrower or any of their
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
Agents or 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 their 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 Loans and
request the issuance of Letters of Credit only for the purposes set forth in
the preamble to this Agreement.
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 all Environmental Laws and Environmental Permits
applicable to its operations and Properties; obtain and renew all material
Environmental Permits necessary for its operations and Properties; and conduct
any Remedial Action in accordance with Environmental Laws, except, in each
case with respect to this Section 5.09, to the extent the failure to do so,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
SECTION 5.10. Preparation of Environmental Reports. If a default
caused by reason of a breach of Section 3.17 or 5.09 shall have occurred and
be continuing, at the written request of the Required Lenders through the
Administrative Agent, provide to the Lenders within 90 days after such
request, at the expense of the Borrower, an environmental site assessment
report for the Properties which are the subject of such default prepared by an
environmental consulting firm acceptable to the Administrative Agent,
indicating the presence or absence of Hazardous Materials and the estimated
cost of any Remedial Action required under any applicable Environmental Law in
connection with such Properties.
SECTION 5.11. Further Assurances; Additional Mortgages; Etc. (a)
Execute any and all further documents, financing statements, agreements and
instruments, and take all further action (including filing Uniform Commercial
Code and other financing statements, mortgages and deeds of trust) that may be
required under applicable law, or which the Collateral Agent may reasonably
request, in order to effectuate the transactions contemplated by the Loan
Documents and in order to grant, preserve, protect and perfect the validity
and first priority (subject to Liens permitted by Section 6.02) of the
security interests created or intended to be created by the Security
Documents. In addition, from time to time, Holdings, the Borrower and their
Subsidiaries will, at their cost and expense, on or promptly (but in any event
within 20 Business Days) following the date of acquisition by Holdings or any
Subsidiary of Holdings of any new Subsidiary (subject to the receipt of any
required consents from Governmental Authorities) promptly secure the
Obligations by causing the following to occur: (i) promptly upon creating or
acquiring any additional Subsidiary, all Equity Interests of such Subsidiary
owned by any Loan Party (excluding that portion of the voting stock of any
Foreign Subsidiary which would be in excess of 65% of the total outstanding
voting stock of such Foreign Subsidiary) will be pledged pursuant to the
Pledge Agreement or the Security Agreement, and (ii) such Subsidiary will
(unless such Subsidiary is a Foreign Subsidiary or less than 90% of the Equity
Interests of such Subsidiary is owned by Holdings and its Subsidiaries) (A)
become a party to the Security Agreement and the Pledge Agreement as
contemplated under each such agreement, (B) enter into the Subsidiary
Guarantee Agreement (or become a party thereto if the Subsidiary Guarantee
Agreement shall be in effect at such time) and (C) if such Subsidiary owns any
real property located in the United States having a value at the time of
acquisition of such Subsidiary in excess of $3,000,000, take the actions
specified in paragraph (b) below. All such security interests and Liens will
be created under the Security Documents and other instruments and documents in
form and substance reasonably satisfactory to the Collateral Agent, and
Holdings, the Borrower and their Subsidiaries shall deliver or cause to be
delivered to the Administrative Agent all such instruments and documents
(including legal opinions and lien searches) as the Required Lenders shall
reasonably request to evidence compliance with this Section 5.11. Holdings and
the Borrower agree to provide, and to cause each of their Subsidiaries to
provide, such evidence as the Collateral Agent shall reasonably request as to
the perfection and priority status of each such security interest and Lien.
Notwithstanding anything to the contrary contained above, Holdings and its
Subsidiaries will not be required to (i) cause any Subsidiary acquired after
the Closing Date to pledge any property pursuant to this Section or to execute
any Loan Document pursuant to this Section if, and to the extent that, and for
so long as, doing so would violate a contractual obligation applicable to the
respective Subsidiary which existed at the time of the acquisition thereof and
which was not created (or modified) in anticipation of the acquisition of such
Subsidiary or (ii) take any actions pursuant to this Section 5.11 with respect
to assets acquired after the Closing Date, to the extent that, and for so long
as, taking such actions would violate a contractual obligation applicable to
the assets so acquired which existed at the time of the acquisition thereof
and which was not created (or modified) in anticipation of the acquisition of
such assets.
(b) Holdings and the Borrower will, and will cause each of their
domestic Subsidiaries at least 90% of the Equity Interests in which are owned
by Holdings and its Subsidiaries to, grant to the Collateral Agent security
interests and mortgages (each an "Additional Mortgage") in such real property
of Holdings, Borrower or any such of their domestic Subsidiaries 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 $3,000,000
(each such real property, an "Additional Mortgaged Property"). All such
Additional Mortgages shall be granted 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 (but in no event shall such Additional Mortgages materially increase the
obligations of the mortgagor thereunder or materially decrease the rights of
the mortgagor thereunder) and shall constitute valid and enforceable perfected
Liens superior to and prior to the rights of all third persons (except Liens
under Section 6.02) and subject to no other Liens except as are permitted by
Section 6.02 at the time of perfection thereof. The Additional Mortgages or
instruments related thereto shall be duly recorded or filed 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 all taxes, fees and other charges
payable in connection therewith shall be paid in full.
(c) At the time of the IPO Reorganization, (i) Holdings and its
Subsidiaries will execute any further documents, financing statements,
agreements and instruments, and take all further actions that may be required
under applicable law, which the Collateral Agent may reasonably request, in
order to preserve, protect and maintain the security interests created or
intended to be created by the Security Documents and (ii) CapCo II will
execute any further documents and agreements and take all further actions that
may be required under applicable law, which the Administrative Agent or the
Required Lenders reasonably request so that CapCo II assumes all obligations
of ▇▇▇▇▇▇ Packaging Holdings Company under the Loan Documents. It is
understood that if ▇▇▇▇▇▇ Packaging Holdings Company remains in existence
after the IPO Reorganization, it will remain a Guarantor hereunder and will
execute any further documents and agreements and take all further actions that
may be required under applicable law, or which the Collateral Agent reasonably
requests, in order to preserve, protect and maintain the security interests
created or intended to be created by the Security Documents.
(d) Without limiting the foregoing, within 60 days after any request
by the Administrative Agent, the Collateral Agent or the Required Lenders, the
Borrower will execute any and all further documents, make any requisite
filings or registrations, and take any further actions, in each case as
reasonably requested, in order to grant, preserve, protect and perfect
security interests in any Pledge Agreement Collateral pledged pursuant to the
Pledge Agreement under applicable local law (including, with respect to
Foreign Subsidiaries of Holdings, any actions so requested under the law of
the jurisdiction of incorporation or organization of the respective such
Subsidiary).
SECTION 5.12. Fiscal Year; Accounting. In the case of each of
Holdings, the Borrower and each of their Subsidiaries, cause its respective
fiscal year to end on December 31.
SECTION 5.13. Dividends. In the case of the Borrower, permit its
Subsidiaries to pay dividends and cause such dividends to be paid to the
extent required to pay the monetary Obligations, subject to restrictions
permitted by Section 6.09(c) and to prohibitions imposed by applicable
requirements of law.
SECTION 5.14. Interest Rate Protection ▇▇▇▇▇▇▇▇▇▇.▇▇ the case of the
Borrower, as promptly as practicable and in any event within 90 days after the
Closing Date, enter into, and thereafter maintain in effect for a period of at
least three years following the Closing Date, one or more Interest Rate
Protection Agreements with any of the Lenders or other financial institutions
reasonably satisfactory to the Administrative Agent, the effect of which shall
be to limit at all times the interest payable in connection with Indebtedness
having an aggregate outstanding principal amount not less than an amount equal
to 33% of the aggregate principal amount of Term Borrowings and Second-Lien
Loans, or such other amount as may be agreed to by the Agents and the
Borrower, to a maximum rate and on terms and conditions reasonably acceptable,
taking into account current market conditions, to the Administrative Agent,
and deliver evidence of the execution and delivery thereof to the
Administrative Agent, it being understood and agreed that any Interest Rate
Protection Agreements existing on the date hereof shall be included in
determining compliance with this Section 5.14 until such existing Interest
Rate Protection Agreements expire in accordance with the terms thereof.
SECTION 5.15. Redemption of Existing Notes. (a) Prior to or within
five Business Days following the Closing Date, Holdings shall direct the
trustee under the Existing Senior Discount Notes to deliver a "notice of
redemption" to The Bank of New York (the "Holdings Irrevocable Notice of
Redemption") pursuant to, and in accordance with the requirements of, the
Existing Senior Discount Notes and all documentation in connection therewith.
(b) Prior to or within five Business Days following the Closing Date,
the Borrower shall direct the trustee under the Existing Senior Subordinated
Notes to deliver a "notice of redemption" to The Bank of New York (the
"Borrower Irrevocable Notice of Redemption" and, together with the Holdings
Irrevocable Notice of Redemption, the "Notices of Redemption") pursuant to,
and in accordance with the requirements of, the Existing Senior Subordinated
Notes and all documentation in connection therewith.
(c) On or prior to the 45th day following the mailing of the Notices
of Redemption (the "Redemption Date"), but in any event not later than the
45th day after the Closing Date, (i) Holdings shall (x) redeem all of the
Existing Senior Discount Notes pursuant to, and in accordance with the terms
of, the call provisions of the indenture governing the Existing Senior
Discount Notes and (y) pay all accrued and unpaid interest and related call
premiums and (ii) the Borrower shall (x) redeem all of the Existing Senior
Subordinated Notes pursuant to, and in accordance with the terms of, the call
provisions of the indenture governing the Existing Senior Subordinated Notes
and (y) pay all accrued and unpaid interest and related call premiums.
SECTION 5.16. No Other "Designated Senior Indebtedness". The Borrower
shall not designate, or permit the designation of, any Indebtedness (other
than under this Agreement, the other Loan Documents or the Second Lien Credit
Documents) as "Designated Senior Indebtedness" for the purpose of the
definition of the same or the subordination provisions contained in the Senior
Subordinated Note Indenture or any refinancing or successive refinancing
thereof without the consent of the Administrative Agent.
ARTICLE VI
NEGATIVE COVENANTS
Each of Holdings and the Borrower covenants and agrees with each
Lender that, so long as this Agreement shall remain in effect and until the
Commitments have been terminated and the principal of and interest on each
Loan, all Fees and all other expenses or amounts payable under any Loan
Document have been paid in full and all Letters of Credit have been canceled
or have expired and all amounts drawn thereunder have been reimbursed in full,
unless the Required Lenders shall otherwise consent in writing, neither
Holdings nor the Borrower will, and neither will cause or permit any of their
Subsidiaries to:
SECTION 6.01. Indebtedness. Incur, create, assume or permit to exist
any Indebtedness, except:
(a) Indebtedness existing on the date hereof and set forth in
Schedule 6.01, but not any extensions, renewals or replacements of such
Indebtedness except (i) renewals and extensions expressly provided for in the
agreements evidencing any such Indebtedness as the same are in effect on the
date of this Agreement and (ii) refinancings and extensions of any such
Indebtedness if the average life to maturity thereof is greater than or equal
to that of the Indebtedness being refinanced or extended, provided that such
extending, renewal or replacement Indebtedness shall not be (A) Indebtedness
of an obligor that was not an obligor with respect to the Indebtedness being
extended, renewed or refinanced or (B) in a principal amount which exceeds the
Indebtedness being renewed, extended or refinanced (plus unpaid accrued
interest and premium thereon);
(b) Indebtedness created hereunder and under the other Loan
Documents;
(c) in the case of the Guarantors, the Guarantees under the Guarantee
Agreements;
(d) Indebtedness of the Borrower and its Subsidiaries pursuant to
Interest Rate Protection Agreements entered into in order to fix the effective
rate of interest on the Loans and other Indebtedness, provided that such
transactions shall be entered into to hedge actual interest rate exposures and
not for the purpose of speculation;
(e) Indebtedness owed to (including obligations in respect of letters
of credit for the benefit of) any person providing worker's compensation,
health, disability or other employee benefits or property, casualty or
liability insurance to the Borrower or any Subsidiary of the Borrower,
pursuant to reimbursement or indemnification obligations to such person;
(f) (i) Indebtedness of the Borrower or any Subsidiary of the
Borrower that is a Guarantor to any Subsidiary of the Borrower or to the
Borrower, (ii) Indebtedness of the Borrower or any Subsidiary of the Borrower
that is not a Guarantor to any Subsidiary of the Borrower that is not a
Guarantor; and (iii) Indebtedness of any Subsidiary to the Borrower or any
Subsidiary of the Borrower arising from an investment made pursuant to Section
6.04; provided that, in each case, any Indebtedness of the Borrower or any
Subsidiary Guarantor to any Subsidiary of the Borrower that is not a
Subsidiary Guarantor shall be expressly subordinated to the prior payment in
full in cash of all the Obligations;
(g) intercompany Indebtedness resulting from investments made
pursuant to Sections 6.04(a), (h), (j), (k), (l) and/or (n);
(h) Indebtedness of the Borrower or its Subsidiaries in respect of
performance bonds, bid bonds, appeal bonds, surety bonds and similar
obligations and trade-related letters of credit, 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 and any
extension, renewal or refinancing thereof to the extent that the amount of
refinancing Indebtedness is not greater than the amount of Indebtedness being
refinanced;
(i) 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, provided that such
Indebtedness is extinguished within two Business Days of its incurrence;
(j) Indebtedness of a Subsidiary of the Borrower acquired after the
date hereof and Indebtedness of a corporation merged or consolidated with or
into the Borrower or a Subsidiary of the Borrower after the date hereof and
Indebtedness assumed in connection with the acquisition of assets, which
Indebtedness in each case exists at the time of such acquisition, merger,
consolidation or conversion into a Subsidiary of the Borrower and is not
created in contemplation of such event and where such acquisition, merger or
consolidation is permitted by this Agreement, provided that the aggregate
principal amount of Indebtedness under this paragraph (j) (including the
amount of any Permitted Refinancing Indebtedness incurred pursuant to the last
parenthetical of this paragraph (j) of Section 6.01) shall not at any time
outstanding exceed $60,000,000 for the Borrower and all of its Subsidiaries
(it being understood and agreed that Permitted Refinancing Indebtedness
incurred to refinance Indebtedness otherwise permitted under this paragraph
(j), or refinancings thereof previously effected pursuant to this
parenthetical, shall be permitted);
(k) Capital Lease Obligations, mortgage financings and purchase money
Indebtedness incurred by the Borrower or any Subsidiary of the Borrower prior
to or within 270 days after the acquisition or improvement of the respective
asset permitted under this Agreement in order to finance such acquisition or
improvement, and extensions, renewals and refinancings thereof, in an
aggregate principal amount outstanding at any time not in excess of
$60,000,000, provided that any such refinancing Indebtedness shall not be (i)
Indebtedness of an obligor that was not an obligor with respect to the
Indebtedness being extended, renewed or refinanced, (ii) in a principal amount
which exceeds the Indebtedness being renewed, extended or refinanced or (iii)
additionally secured;
(l) Capital Lease Obligations incurred by the Borrower or any
Subsidiary of the Borrower in respect of any Sale and Lease-Back Transaction
that is permitted under Section 6.03;
(m) Indebtedness of the Borrower or any Subsidiary of the Borrower
supported by a Letter of Credit, in a principal amount not in excess of the
stated amount of such Letter of Credit;
(n) other Indebtedness of the Borrower and its Subsidiaries, in an
aggregate principal amount at any time outstanding pursuant to this clause (n)
not in excess of $150.0 million; provided that the aggregate principal amount
of Indebtedness of all Subsidiaries that are not domestic Subsidiaries which
are Loan Parties outstanding pursuant to this clause (n) shall not at any time
exceed $75.0 million;
(o) Indebtedness of the Borrower and its domestic Subsidiaries
pursuant to the ▇▇▇▇▇▇ County Bond Transactions incurred in accordance with
the definition thereof;
(p) (x) Indebtedness of the Loan Parties under the Second-Lien Credit
Agreement and the other Second-Lien Credit Documents, and any Permitted
Refinancing Indebtedness in respect thereof (or in respect of Permitted
Refinancing Indebtedness previously incurred pursuant to this sub-clause (x)),
in an aggregate principal amount not to exceed $350,000,000 (less the amount
of any repayments of principal made in respect of such Indebtedness after the
Closing Date other than to the extent made with the proceeds of Permitted
Refinancing Indebtedness incurred pursuant to this sub-clause (x)), (y)
Indebtedness of the Borrower and the Guarantors under the Senior Notes and the
other Senior Note Documents, and any Permitted Refinancing Indebtedness in
respect thereof (or in respect of Permitted Refinancing Indebtedness
previously incurred pursuant to this sub-clause (y)), in an aggregate
principal amount not to exceed $250,000,000, and (z) Indebtedness of the
Borrower and the Guarantors under the Senior Subordinated Notes and the other
Senior Subordinated Notes Documents, and any Permitted Refinancing
Indebtedness in respect thereof (or in respect of Permitted Refinancing
Indebtedness previously incurred pursuant to this sub-clause(z)), in an
aggregate principal amount not to exceed $375,000,000;
(q) Indebtedness arising from agreements of the Borrower or a
Subsidiary of the Borrower providing for indemnification, adjustment of
purchase price or similar obligations, in each case, incurred or assumed in
connection with the disposition of any business, assets or a Subsidiary, 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;
(r) obligations in respect of performance and surety bonds and
completion guarantees provided by the Borrower and its Subsidiaries in the
ordinary course of business;
(s) Indebtedness incurred by Borrower or any of its Subsidiaries
constituting reimbursement obligations with respect to letters of credit
issued in the ordinary course of business, including without limitation,
letters of credit in respect of workers' compensation claims or self insurance
and other similar statutory requirements, or other Indebtedness with respect
to reimbursement type obligations regarding workers' compensation claims, so
long as the aggregate principal amount of Indebtedness pursuant to this clause
(s) shall not exceed $30,000,000 at any time outstanding;
(t) Indebtedness evidenced by Other Hedging Agreements entered into
pursuant to Section 6.04(o);
(u) Indebtedness constituting unsecured guarantees or letters of
credit supporting the Indebtedness permitted to be outstanding pursuant to
Section 6.01(n);
(v) Indebtedness of any Foreign Subsidiary that is a Subsidiary of
the Borrower to the Borrower or any domestic Subsidiary of the Borrower in an
aggregate principal amount outstanding at any time not in excess of
$60,000,000; provided that if the Administrative Agent or Required Lenders so
request, any such Indebtedness shall be evidenced by a promissory note which
shall be in form and substance satisfactory to the Administrative Agent and
which shall be pledged pursuant to the Pledge Agreement (so long as such
pledge would not result in adverse tax consequences to Holdings, the Borrower
or the applicable Subsidiary);
(w) all premium (if any), interest (including post-petition
interest), fees, expenses, indemnities, charges and additional or contingent
interest on obligations described in clauses (a) through (v) above and (x)
below; and
(x) until the B Term Loan Commitment Termination Date, Indebtedness
pursuant to the Existing Senior Subordinated Notes and the Existing Senior
Discount Notes that were not surrendered to Holdings or the Borrower, as the
case may be, on or prior to the Closing Date pursuant to a tender offer for
such Existing Senior Subordinated Notes or Existing Senior Discount Notes, as
the case may be.
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 any Subsidiary of Holdings or the Borrower) at the time
owned by it or on any income or revenues or rights in respect of any thereof,
or sell or transfer any account receivable or any right in respect thereof,
except:
(a) Liens on property or assets of the Borrower and its
Subsidiaries existing on the date hereof and set forth in Schedule
6.02, provided that such Liens shall secure only those obligations
which they secure on the date hereof (and extensions, renewals and
refinancings of such obligations permitted by Section 6.01(a)) and
shall not subsequently apply to any other property or assets of
Holdings, the Borrower or any of their Subsidiaries (other than
pursuant to existing after acquired property clauses);
(b) any Lien created under the Loan Documents or permitted
in respect of any Mortgaged Property by the terms of the applicable
Mortgage;
(c) any Lien existing on any property or asset of the
Borrower or any Subsidiary of the Borrower prior to the acquisition
thereof by the Borrower or any Subsidiary of the Borrower, provided
that (i) such Lien is not created in contemplation of or in
connection with such acquisition and (ii) such Lien does not apply to
any other property or asset of the Borrower or any Subsidiary of the
Borrower;
(d) any Lien on any property or asset of the Borrower or a
Subsidiary of the Borrower securing Indebtedness (or Permitted
Refinancing Indebtedness, in which case any such Lien shall be
permitted subject to compliance with clause (iv) of the definition of
Permitted Refinancing Indebtedness contained herein) permitted by
Section 6.01(j) and Section 6.01(w) (to the extent related to
Indebtedness incurred pursuant to Section 6.01(j)), provided that
such Lien does not apply to any other property or assets of Holdings,
the Borrower or any of their 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
permitted hereunder which contains a requirement for the pledging of
after acquired property, it being agreed that such after acquired
property shall not include property of Holdings, the Borrower and
their Subsidiaries, other than any such acquired Subsidiary of the
Borrower, that would have been included but for such acquisition);
(e) Liens for taxes, assessments or other governmental
charges or levies not yet delinquent, or which are for less than
$5,000,000 in the aggregate, or which are being contested in
compliance with Section 5.03 or for property taxes on property that
Holdings, the Borrower or one of their Subsidiaries has determined to
abandon if the sole recourse for such tax, assessment, charge, levy
or claim is to such property;
(f) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business and securing obligations that are not due and payable or
that are being contested in good faith by appropriate proceedings and
in respect of which, if applicable, Holdings, the Borrower or the
relevant Subsidiary shall have set aside on its books reserves in
accordance with GAAP;
(g) pledges and deposits made in the ordinary course of
business in compliance with the Federal Employers Liability Act or
any other workmen's 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;
(h) 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
(the deposits for which shall not exceed $40,000,000 at any time
outstanding), performance bonds and other obligations of a like
nature incurred in the ordinary course of business, including those
incurred to secure health, safety and environmental obligations in
the ordinary course of business;
(i) zoning restrictions, easements, trackage rights, leases
(other than Capital Lease Obligations), licenses, special
assessments, rights-of-way, restrictions on use of real property and
other similar encumbrances incurred in the ordinary course of
business which, in the aggregate, are not substantial in amount and
do not materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business of
Holdings, the Borrower or any of their Subsidiaries;
(j) purchase money security interests in equipment or other
property or improvements thereto hereafter acquired (or, in the case
of improvements, constructed) by the Borrower or any Subsidiary of
the Borrower (including the interests of vendors and lessors under
conditional sale and title retention agreements), provided that (i)
such security interests secure Indebtedness permitted by Section
6.01(k), (ii) such security interests are incurred, and the
Indebtedness secured thereby is created, within 270 days after such
acquisition (or construction), (iii) the Indebtedness secured thereby
does not exceed 100% of the cost of such equipment or other property
or improvements at the time of such acquisition (or construction),
including transaction costs incurred by the Borrower or any
Subsidiary of the Borrower in connection with such acquisition (or
construction), (iv) such expenditures are permitted by this Agreement
and (v) such security interests do not apply to any other property or
assets of the Borrower or any Subsidiary of the Borrower (other than
to accessions to such equipment or other property or improvements and
provided that individual financings of equipment provided by a single
lender may be cross-collateralized to other financings of equipment
provided solely by such lender);
(k) Liens arising out of capitalized or operating 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;
(l) Liens on the assets of a Foreign Subsidiary of the
Borrower which secure such Foreign Subsidiary's obligations under
Indebtedness incurred by one or more Foreign Subsidiaries pursuant to
Section 6.01(n) and under Section 6.01(w) (to the extent relating to
Indebtedness incurred pursuant to Section 6.01(n));
(m) Liens securing judgments for the payment of money in an
aggregate amount not in excess of $25,000,000 (except to the extent
covered by insurance and the Administrative Agent shall be reasonably
satisfied with the credit of such insurer), unless such judgments
shall remain undischarged for a period of more than 30 consecutive
days during which execution shall not be effectively stayed;
(n) any leases or subleases in the ordinary course of
business to other persons of properties or assets owned or leased by
the Borrower or a Subsidiary of the Borrower;
(o) any Lien arising by operation of law pursuant to Section
107(1) of the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. ss. 9607(1), or pursuant to analogous state
law, for costs or damages which are not yet due (by virtue of a
written demand for payment by a Governmental Authority) or which
demand is being contested in compliance with the standard set forth
in Section 5.03(a), or on property that the Borrower or a Subsidiary
of the Borrower has determined to abandon if the sole recourse for
such costs or damages is to such property, provided that the
liability of the Borrower and its Subsidiaries with respect to the
matter giving rise to all such Liens shall not, in the reasonable
estimate of the Borrower (in light of all attendant circumstances,
including the likelihood of contribution by third parties), exceed
$25,000,000;
(p) Liens that are contractual rights of setoff (i) relating
to the establishment of depository relations with banks not given in
connection with the issuance of Indebtedness or (ii) pertaining to
pooled deposit and/or sweep accounts of the Borrower and/or any
Subsidiary of the Borrower to permit satisfaction of overdraft or
similar obligations incurred in the ordinary course of business of
the Borrower and the Subsidiaries of the Borrower;
(q) Liens securing obligations in respect of trade-related
letters of credit permitted under Section 6.01 and covering the goods
(or the documents of title in respect of such goods) financed by such
letters of credit and the proceeds and products thereof;
(r) other Liens with respect to property or assets not
constituting collateral for the Obligations with an aggregate fair
market value (valued at the time of creation thereof) of not more
than $40,000,000 at any time;
(s) Liens disclosed by the title insurance policies
delivered pursuant to Sections 4.02 and 5.11;
(t) construction liens arising in the ordinary course of
business, including liens for work performed for which payment has
not been made, securing obligations that are not due and payable or
are being contested in good faith by appropriate proceedings and in
respect of which, if applicable, Holdings, the Borrower or the
relevant Subsidiary thereof shall have set aside on its books
reserves in accordance with GAAP;
(u) the replacement, extension or renewal of any Lien
permitted by clause (c), (d), (j) or (s) above; 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; and provided further, that the
Indebtedness and other obligations secured by such replacement,
extension or renewal Lien are permitted by this Agreement;
(v) Liens upon specific items of inventory or other goods
and proceeds of the Borrower or any Subsidiary of the Borrower
securing such person's obligations in respect of bankers' acceptances
issued or created for the account of such person to facilitate the
purchase, shipment or storage of such inventory or other goods;
(w) Liens securing reimbursement obligations with respect to
trade letters of credit which encumber documents and the goods
purchased under such letters of credit and products and proceeds
thereof;
(x) Liens arising out of the ▇▇▇▇▇▇ County Bond Transactions
incurred in accordance with the definition thereof; and
(y) Liens created by or pursuant to the Second-Lien Credit
Documents (or the documents relating to Permitted Refinancing
Indebtedness incurred under sub-clause (x) of Section 6.01(p)), so
long as the Liens created pursuant to such documents are limited to
assets constituting Collateral pursuant to the Security Documents and
are at all times subordinated to the Liens pursuant to the Security
Documents on the terms provided in the Intercreditor Agreement or the
respective Additional Intercreditor Agreement.
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 which 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 (i) Sale and Lease-Back Transactions
shall be permitted so long as at no time will the aggregate Remaining Present
Value of all leases entered into pursuant to such Sale and Lease-Back
Transactions (other than leases entered into in connection with any ▇▇▇▇▇▇
County Bond Transactions) exceed $60,000,000 and (ii) any Sale and Lease-Back
Transactions entered into in connection with any ▇▇▇▇▇▇ County Bond
Transactions in accordance with the definition thereof shall be permitted.
SECTION 6.04. Investments, Loans and Advances. Purchase, hold or
acquire any capital stock, evidences of indebtedness or other securities of,
make or permit to exist any loans or advances to, or make or permit to exist
any investment or any other interest in, any other person, except:
(a) investments (i) existing on the Closing Date in the
Equity Interests of the Subsidiaries of Holdings; (ii) by Holdings in
the Equity Interests of the Borrower, CapCo II and Opco GP; (iii) by
the Borrower or any Subsidiary of the Borrower in any 90% Subsidiary
of the Borrower that is a Guarantor (so long as such Guarantor shall
remain a 90% Subsidiary of the Borrower after giving effect to such
investment); (iv) by any 90% Subsidiary of the Borrower in any Wholly
Owned Subsidiary of the Borrower that is a Guarantor; or (v) by any
Subsidiary of the Borrower that is not a Guarantor in any 90%
Subsidiary of the Borrower that is not a Guarantor (so long as such
Subsidiary shall remain a 90% Subsidiary of the Borrower after giving
effect to such investment);
(b) Permitted Investments and investments that were
Permitted Investments when made;
(c) investments arising out of the receipt by the Borrower
or any Subsidiary of the Borrower of noncash consideration for the
sale of assets permitted under Section 6.05;
(d) intercompany loans permitted to be incurred as
Indebtedness under Sections 6.01(a), (f), (n), (o) and (v);
(e) (i) loans and advances to employees of Holdings, the
Borrower or their Subsidiaries not to exceed $10,000,000 in the
aggregate at any time outstanding (calculated without regard to
write-downs or write-offs thereof), (ii) advances of payroll payments
and expenses to employees in the ordinary course of business and
(iii) and (iii) during the period ending on the first anniversary of
the Closing Date, loans to employees of Holdings or its Subsidiaries
for relocation expenses in an aggregate amount (calculated without
regard to write-down or write-offs thereof) not to exceed $3,000,000
at any time outstanding;
(f) (i) accounts receivable arising and trade credit granted
in the ordinary course of business and any 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 (ii) prepayments and other credits to
suppliers made in the ordinary course of business;
(g) Interest Rate Protection Agreements permitted pursuant
to Section 6.01(d);
(h) investments existing on the Closing Date and set forth
on Schedule 6.04;
(i) investments resulting from pledges and deposits referred
to in Section 6.02(g) or (h);
(j) other investments by the Borrower and its Subsidiaries
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 $75,000,000 (plus any returns of capital actually received
by the respective investor in respect of investments theretofore made
by it pursuant to this clause (j)); provided that at any time
additional investments may be made pursuant to this clause (j) at the
election of the Borrower, which additional investments pursuant to
this proviso shall only be permitted to the extent that the Borrower
so elects (x) to apply an amount not to exceed the Available
Investment Basket Amount at such time to the making of the respective
investment pursuant to this clause (j) and/or (y) to make additional
investments pursuant to this clause (j) with the proceeds of
Designated Capital Contributions;
(k) investments by the Borrower and its Subsidiaries in
Foreign Subsidiaries of the Borrower 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 $125,000,000 (plus
any returns of capital actually received by the respective investor
in respect of investments theretofore made by it pursuant to this
clause (k)); provided that at any time additional investments may be
made pursuant to this clause (k) at the election of the Borrower,
which additional investments pursuant to this proviso shall only be
permitted to the extent that the Borrower so elects (x) to apply an
amount not to exceed the Available Investment Basket Amount at such
time to the making of the respective investment pursuant to this
clause (k) and/or (y) to make additional investments pursuant to this
clause (k) with the proceeds of Designated Capital Contributions;
(l) investments constituting Permitted Business
Acquisitions;
(m) Holdings shall be permitted to contribute to the
Borrower the proceeds of (i) Designated Capital Contributions, and
(ii) Special Capital Contributions;
(n) investments by the Borrower and its Subsidiaries in
Joint Ventures, so long as the aggregate amount so invested pursuant
to this clause (n) (valued at the time of the making thereof, and
without giving effect to any write-downs or write-offs thereof) does
not exceed $45,000,000 (plus any returns of capital actually received
by the respective investor in respect of investments theretofore made
by it pursuant to this clause (n)); provided that at any time
additional investments may be made pursuant to this clause (n) at the
election of the Borrower, which additional investments pursuant to
this proviso shall only be permitted to the extent that the Borrower
so elects (x) to apply an amount not to exceed the Available
Investment Basket Amount at such time to the making of the respective
investment pursuant to this clause (n) and/or (y) to make additional
investments pursuant to this clause (n) with the proceeds of
Designated Capital Contributions;
(o) the Borrower and its Subsidiaries may enter into and
perform its obligations under Other Hedging Agreements entered into
in the ordinary course of business and so long as any such Other
Hedging Agreement is not speculative in nature;
(p) investments expressly permitted by Section 6.05;
(q) additional investments may be made from time to time to
the extent made with proceeds of Equity Interests (excluding proceeds
of Designated Capital Contributions, proceeds received as a result of
the exercise of Cure Rights pursuant to Section 7.02 and that portion
(if any) of the proceeds of an initial public offering of the common
stock of Holdings that are utilized to (x) repay up to $25,000,000 of
outstanding Revolving Loans and/or Swingline Loans (to the extent
outstanding) or (y) repay B Term Loans pursuant to Section 2.12(c))
of Holdings, which proceeds or investments in turn are contributed to
the Borrower;
(r) investments made as part of the ▇▇▇▇▇▇ County Bond
Transactions in accordance with the definition thereof;
(s) the IPO Reorganization; and
(t) the Acquisition.
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 any
Equity Interests of 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, except that this Section shall not
prohibit:
(a) the purchase and sale of inventory in the ordinary
course of business by the Borrower or any Subsidiary of the Borrower
or the acquisition of any other asset (excluding assets constituting
investments of the type subject to Section 6.04) in the ordinary
course of business;
(b) if at the time thereof and immediately after giving
effect thereto no Event of Default or Default shall have occurred and
be continuing (i) the merger of any Subsidiary of the Borrower into
the Borrower in a transaction in which the Borrower is the surviving
corporation and (ii) the merger or consolidation of any Subsidiary of
the Borrower into or with any other 90% Subsidiary of the Borrower in
a transaction in which the surviving entity is a 90% Subsidiary of
the Borrower (which shall be a domestic Subsidiary if the
non-surviving person shall be a domestic Subsidiary) and, (A) in the
case of each of clauses (i) and (ii), no person other than the
Borrower or a 90% Subsidiary of the Borrower receives any
consideration and (B) in the case of clause (ii), if any
non-surviving person was a Guarantor the surviving person must be a
Guarantor;
(c) Sale and Lease-Back Transactions permitted by Section
6.03;
(d) investments permitted by Section 6.04;
(e) subject to Section 6.07, sales, leases or transfers (i)
from the Borrower or any Subsidiary of the Borrower to the Borrower
or to a domestic 90% Subsidiary of the Borrower, (ii) from any
Foreign Subsidiary of the Borrower to any Wholly Owned Subsidiary of
the Borrower or the Borrower or (iii) from any Foreign Subsidiary of
the Borrower to any other Foreign Subsidiary of the Borrower;
(f) sales, leases or other dispositions of equipment or
other property (including intellectual property) of the Borrower or
its Subsidiaries determined by the general partner or senior
management of the Borrower to be no longer useful or necessary in the
operation of the business of the Borrower or its Subsidiaries,
provided that the Net Proceeds thereof shall be applied in accordance
with Section 2.12(c);
(g) sales, leases or other dispositions of inventory of the
Borrower and its Subsidiaries not made in the ordinary course of
business determined by the general partner or senior management of
the Borrower to be no longer useful or necessary in the operation of
the business of the Borrower and its Subsidiaries, provided that the
Net Proceeds thereof shall be applied in accordance with Section
2.12(c);
(h) the sale of any Equity Interests of any Subsidiary of
the Borrower in which less than 90% of the Equity Interests is owned
by the Borrower and its Subsidiaries; provided that the Net Proceeds
thereof shall be applied in accordance with Section 2.12(c);
(i) sales, leases or other dispositions of property not
otherwise permitted by this Section 6.05; provided that the aggregate
gross proceeds (including non-cash proceeds) of any and all property
sold, transferred, leased or otherwise disposed of in reliance on
this clause (i) shall not exceed, in any fiscal year of the Borrower,
5% of Consolidated Total Assets as of the immediately preceding
fiscal year; provided, further that the Net Proceeds thereof are
applied in accordance with Section 2.12(c);
(j) the Transaction;
(k) the sale of defaulted receivables in the ordinary course
of business and not as part of an accounts receivables financing
transaction;
(l) sales, leases or other dispositions of the Subject
Property pursuant to the ▇▇▇▇▇▇ County Bond Transactions consummated
in accordance with the definition thereof;
(m) the IPO Reorganization; and
(n) licenses of intellectual property in the ordinary course
of business.
Notwithstanding anything to the contrary contained above, Holdings must at all
times own, directly or indirectly, 100% of the Equity Interests of the
Borrower and Opco GP (except to the extent Opco GP is liquidated or
consolidated with Holdings in connection with or in contemplation of the IPO
Reorganization).
SECTION 6.06. Dividends and Distributions. Declare or pay, directly
or indirectly, 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 the common stock of Holdings payable solely by the issuance
of additional shares of common stock of Holdings) or directly or indirectly
redeem, purchase, retire or otherwise acquire for value (or permit any
Subsidiary to purchase or acquire) any shares of any class of its Equity
Interests or set aside any amount for any such purpose; 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 of the Borrower 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);
(b) Holdings and the Borrower may effect the Transaction,
the IPO Reorganization and transactions related thereto;
(c) the Borrower may declare and pay dividends or make other
distributions to Holdings in respect of overhead, tax liabilities
(other than income tax liabilities for which the Borrower is
permitted (or would be permitted subject to satisfaction of
subclauses (x) and (y) of clause (e) of this Section 6.06) to make
distributions pursuant to clause (e) of this Section 6.06) of
Holdings, legal, accounting and other professional fees and expenses
and other fees and expenses in connection with the maintenance of its
existence and its ownership of the Borrower, CapCo II and Opco GP and
in order to permit Holdings to make payments permitted by Sections
6.07(b) and (c);
(d) Holdings and the Borrower may purchase or redeem (and
the Borrower may declare and pay dividends or make other
distributions to Holdings the proceeds of which are to be used by
Holdings to so purchase or redeem), directly or indirectly, Equity
Interests of Holdings or BMP/▇▇▇▇▇▇ Holdings (including related stock
appreciation rights or similar securities) held by then present or
former officers or employees of Holdings, the Borrower or any of
their Subsidiaries or by any Plan 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 (d)
shall not exceed in any calendar year $7,500,000 (plus the amount of
net proceeds received by Holdings or the Borrower, including such
amounts received from BMP/▇▇▇▇▇▇ Holdings, during such calendar year
from Employee Equity Sales and the amount of net proceeds of any
key-man life insurance received during such calendar year) which, if
not used in any year may be carried forward to any subsequent
calendar year;
(e) for so long as the Borrower or Holdings is Flow-through
Entity for federal income tax purposes, cash distributions may be
made by the Borrower to Borrower Partners or by Holdings to Holdings
Partners, as the case may be, from time to time in amounts not to
exceed the Permitted Tax Amount Distributions of Borrower or
Holdings, as the case may be, so long as (x) the payments are made at
the times permitted by the second sentence of the definition of
Permitted Tax Amount Distributions contained herein and (y) no Event
of Default exists at the time any distribution is made pursuant to
this Section 6.06(e) or would exist after giving effect thereto; and
(f) non-cash 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.
SECTION 6.07. Transactions with Affiliates. (a) 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, unless such transaction forms a part of the Transaction or is (i)
otherwise permitted (or required) under this Agreement and (ii) upon terms no
less favorable to Holdings, the Borrower or such Subsidiary, as the case may
be, than it would obtain in a comparable arm's-length transaction with a
person which was not an Affiliate, provided that the foregoing restriction
shall not apply to (A) the payment to the Fund, a ▇▇▇▇▇▇ Family Entity or any
of their Affiliates or the Fund Affiliates of the monitoring and management
fees referred to in paragraph (c) below or fees payable on the Closing Date or
(B) the indemnification of directors of Holdings, the Borrower and their
Subsidiaries in accordance with customary practice.
(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, stock options and stock ownership
plans approved by the advisory committee or board of directors of Holdings,
(ii) loans or advances to employees of Holdings, the Borrower or any of their
Subsidiaries in accordance with Section 6.04(e), (iii) transactions among the
Borrower and Wholly Owned Subsidiaries which are Loan Parties, and
transactions among Wholly Owned Subsidiaries which are Loan Parties, in each
case which are otherwise permitted by this Agreement, (iv) the payment of fees
and indemnities to directors, officers and employees of Holdings and its
Subsidiaries in the ordinary course of business, (v) transactions pursuant to
permitted agreements in existence on the Closing Date and set forth on
Schedule 6.07, (vi) any employment agreements entered into by any of the
Borrower or any of its Subsidiaries in the ordinary course of business, (vii)
dividends and repurchases permitted under Section 6.06, (viii) any purchase by
the Investors of Equity Interests of Holdings or any purchase by Holdings of
Equity Interests of the Borrower or any contribution by Holdings to the equity
capital of the Borrower, provided that any Equity Interests of the Borrower
purchased by Holdings shall be pledged to the Collateral Agent on behalf of
the Lenders pursuant to the Pledge Agreement, (ix) payments by Holdings, the
Borrower or any of their Subsidiaries to the Fund and Fund Affiliates made for
any financial advisory, financing, underwriting or placement services or in
respect of other investment banking activities, including, without limitation,
in connection with acquisitions or divestitures which payments are approved by
the majority of the disinterested members of the Advisory Committee or board
of directors of Holdings, in good faith, (x) transactions in which the
Borrower delivers to the Administrative Agent a letter from an independent
financial advisor acceptable to the Administrative Agent stating that such
transaction is fair to the Borrower or applicable Subsidiary from a financial
point of view, (xi) any agreement as in effect as of the Closing Date or any
amendment thereto (so long as any such amendment is not disadvantageous to the
Lenders in any material respect) or any transaction contemplated thereby and
(xii) the existence of, or the performance by Holdings, the Borrower or any of
their Subsidiaries of their obligations in connection with, the
Recapitalization Agreement (as defined in the Existing Credit Agreement) or
any agreement relating thereto (including any registration rights agreement or
purchase agreement related thereto) to which it is a party as of the Closing
Date; provided, however, that the existence of, or the performance by
Holdings, the Borrower or any Subsidiary of obligations under any amendment to
any such existing agreement shall only be permitted by this clause (xii) to
the extent that the terms of any such amendment or new agreement are not
otherwise disadvantageous to the Lenders in any material respect.
(c) Make any payment of or on account of monitoring or management or
similar fees payable to the Fund, the Fund Affiliates or a ▇▇▇▇▇▇ Family
Entity in an aggregate amount in any fiscal year in excess of $5,000,000 (plus
reasonable expenses in connection therewith).
SECTION 6.08. Business of Holdings, the Borrower and their
Subsidiaries. Engage at any time in any business or business activity other
than (a) in the case of the Borrower and its Subsidiaries other than the
Co-Borrower, any business or business activity conducted by it on the date
hereof and any business or business activities incidental or related thereto
or the manufacture, marketing or sale of containers or any business or
activity that is reasonably similar thereto or a reasonable extension,
development or expansion thereof or ancillary thereto, including the
consummation of the Transaction, (b) in the case of Holdings, (i) the
ownership of the Equity Interests in the Borrower, CapCo II and Opco GP,
together with activities directly related thereto, (ii) performance of its
obligations under and in connection with the Loan Documents and under the
Second-Lien Credit Documents, the Senior Note Documents, the Senior
Subordinated Notes Documents or any refinancing thereof permitted by this
Agreement, the stockholders agreement executed in connection with the
Recapitalization Agreement and other agreements contemplated thereby, (iii)
actions incidental to the consummation of the Transaction, (iv) actions
required by law to maintain its existence, (v) the IPO Reorganization and (vi)
sales of its capital stock, (c) in the case of Opco GP, (i) the ownership of
the general partnership interest in the Borrower, together with activities
directly related thereto, (ii) performance of its obligations under and in
connection with the Loan Documents, the Stockholders Agreement executed in
connection with the Recapitalization Agreement and other agreements
contemplated thereby, (iii) actions incidental to the consummation of the
Transaction and (iv) actions required by law to maintain its existence and (d)
in the case of CapCo II and the Co-Borrower, (i) performance of their
obligations under and in connection with the Loan Documents, Second-Lien
Credit Documents (or any refinancing thereof permitted by this Agreement),
Senior Notes (or any refinancing thereof permitted by this Agreement), the
Senior Subordinated Notes (or any refinancing thereof permitted by this
Agreement), the Stockholders Agreement executed in connection with the
Recapitalization Agreement and other agreements contemplated thereby, (ii)
actions incidental to the consummation of the Transaction, (iii) actions
required by law to maintain their status as a corporation and (iv) the IPO
Reorganization.
SECTION 6.09. Limitation on Modifications of Indebtedness;
Modifications of Certificate of Incorporation, By-Laws and Certain Other
Agreements; Etc. (a) 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 action shall be adverse to the Lenders), the certificate of incorporation
or By-laws or partnership agreement or limited liability agreement in any
material respect of Holdings, the Borrower or any of their Subsidiaries,
provided that such amendments or modifications may be made in connection with
a transaction permitted under Sections 6.05(b) or (h) of this Agreement.
(b) (i) Make (or give any notice in respect thereof that cannot be
revoked at the option of the Borrower) any voluntary or optional payment or
prepayment on or redemption or acquisition for value of (including, without
limitation, by way of depositing with the trustee with respect thereto money
or securities before the date due for the purpose of paying when due), or any
prepayment or redemption as a result of any asset sale, change of control,
receipt of Net Proceeds, generation of excess cash flow, or any similar event
of, any Senior Notes or any refinancing or successive refinancing thereof, the
Senior Subordinated Notes or any refinancing or successive refinancing
thereof, or the Second-Lien Loans or any refinancing or successive refinancing
thereof, except, (x) in each case, with the proceeds of any Permitted
Refinancing Indebtedness incurred pursuant to the relevant sub-clause of
Section 6.01(p), and (y) in the case of the Second-Lien Loans or any Permitted
Refinancing Indebtedness incurred in respect thereof pursuant to sub-clause
(x) of Section 6.01(p), after all outstanding B Term Loans have been repaid in
full and the aggregate Revolving Credit Commitments having been reduced to
$200 million, the Second-Lien Loans (or any Permitted Refinancing Indebtedness
then outstanding pursuant to sub-clause (x) of Section 6.01(p)) may be repaid
in accordance with, and to the extent required by, the mandatory prepayment
provisions thereof; provided that so long as all B Term Loans have been repaid
in full, the Second-Lien Loans (and any Permitted Refinancing Indebtedness
then outstanding pursuant to sub-clause (x) of Section 6.01(p)) may be repaid
to the extent expressly contemplated in the last proviso to sub-clause (y) of
Section 2.12(e) regardless of whether the aggregate Revolving Credit
Commitments have been reduced to $200,000,000, or (ii) amend or modify, or
permit the amendment of modification of, any Senior Notes (or any refinancing
or successive refinancing thereof), the Senior Subordinated Notes (or any
refinancing or successive refinancing thereof), the Second-Lien Loans (or any
refinancing or successive refinancing thereof), or any agreement (including,
without limitation any Senior Note Document, Senior Subordinated Notes
Document or Second-Lien Credit Document) relating thereto, other than
amendments or modifications which do not in any way adversely affect, in any
material respect, the interest of the Lenders and which do not affect the
subordination provisions thereof, if any.
(c) Permit any Subsidiary of Holdings to enter into any agreement or
instrument which by its terms restricts the payment of dividends or
distributions or the making of cash advances by such Subsidiary to the
Borrower or any Subsidiary that is a direct or indirect parent of such
Subsidiary other than those arising under any Loan Document and other than
those which would not reasonably be expected to have a Material Adverse
Effect.
SECTION 6.10. Capital Expenditures. Permit Holdings or its
Subsidiaries to make any Capital Expenditure, except that:
(a) (x) The Borrower and its Subsidiaries may make Capital
Expenditures during the fiscal quarter of the Borrower (taken as one
accounting period) ended on December 31, 2004 so long as the aggregate amount
of all such Capital Expenditures made in such fiscal quarter does not exceed
$92,500,000, and (y) the Borrower and its Subsidiaries may make Capital
Expenditures during any fiscal year of the Borrower set forth below (taken as
one accounting period) so long as the aggregate amount of all such Capital
Expenditures does not exceed in any fiscal year of the Borrower set forth
below the amount set forth opposite such fiscal year below:
-------------------------------------------------------------------------------
Fiscal Year Ending Amount
-------------------------------------------------------------------------------
December 31, 2005 $250,000,000
-------------------------------------------------------------------------------
December 31, 2006 $270,000,000
-------------------------------------------------------------------------------
December 31, 2007 $270,000,000
-------------------------------------------------------------------------------
December 31, 2008 $290,000,000
-------------------------------------------------------------------------------
December 31, 2009 $310,000,000
-------------------------------------------------------------------------------
December 31, 2010 $325,000,000
-------------------------------------------------------------------------------
(b) Notwithstanding anything to the contrary contained in clause (a)
above, (x) to the extent that the aggregate amount of Capital Expenditures
made by the Borrower and its Subsidiaries in the fiscal quarter specified in
clause (a)(x) above is less than the amount set forth for such fiscal quarter
pursuant to said clause (a)(x), or (y) in any fiscal year of the Borrower set
forth in the preceding clause (a)(y) is less than the amount set forth for
such fiscal year pursuant to preceding clause (a)(y), the amount of such
difference may be carried forward and used to make Capital Expenditures in
succeeding fiscal years, provided that in any fiscal year, the amount
permitted to be applied to make Capital Expenditures pursuant to this clause
(b) shall in no event exceed an amount equal to 50% of the amount set forth in
Section 6.10(a) for such fiscal year.
(c) In addition to the Capital Expenditures permitted pursuant to
preceding clauses (a) and (b), the Borrower and its Subsidiaries may make
additional Capital Expenditures as follows: (i) Capital Expenditures made with
the proceeds of Designated Capital Contributions, (ii) Capital Expenditures
may be made at any time in an amount not to exceed the Cumulative Retained
Excess Cash Flow Amount at such time and (iii) Capital Expenditures may be
made at any time in an amount not to exceed the Cumulative Retained Net
Proceeds Amount at such time.
SECTION 6.11. Interest Coverage Ratio. Permit the ratio (the
"Interest Coverage Ratio") on the last day of any fiscal quarter occurring in
any period set forth below, for the four quarter period ended as of such day
of (a) EBITDA of the Borrower and its Subsidiaries to (b) Cash Interest
Expense to be less than the ratio set forth below for such period, provided
that to the extent any Asset Disposition or any Permitted Business Acquisition
(or any similar transaction or transactions which require a waiver or a
consent of the Required Lenders pursuant to Section 6.05) has occurred during
the relevant Test Period, the Interest Coverage Ratio shall be determined for
the respective Test Period on a Pro Forma Basis for such occurrences:
Period: Ratio:
January 1, 2005 to and including September 30, 2005 1.90:1.00
October 1, 2005 to and including September 30, 2006 1.95:1.00
October 1, 2006 to and including September 30, 2007 2.00:1.00
October 1, 2007 to and including September 30, 2008 2.05:1.00
October 1, 2008 to and including September 30, 2009 2.10:1.00
October 1, 2009 to and including September 30, 2010 2.15:1.00
October 1, 2010 and thereafter 2.20:1.00
SECTION 6.12. Net Leverage Ratio. Permit the Net Leverage Ratio on
the last day of any fiscal quarter ending in any period set forth below, to be
in excess of the ratio set forth below for such period:
Period: Ratio:
January 1, 2005 to and including September 30, 2006 6.75:1.00
October 1, 2006 to and including March 31, 2007 6.50:1.00
April 1, 2007 to and including September 30, 2007 6.25:1.00
October 1, 2007 to and including June 30, 2008 6.00:1.00
July 1, 2008 to and including June 30, 2009 5.75:1.00
July 1, 2009 to and including March 31, 2010 5.50:1.00
April 1, 2010 to and including September 30, 2010 5.25:1.00
October 1, 2010 and thereafter 5.00:1.00
SECTION 6.13. Changes To Legal Names; Organizational Identification
Numbers, Jurisdiction or Type of Organization. No Loan Party shall change, or
permit any change to, its legal name until (i) it shall have given to the
Administrative Agent and the Collateral Agent not less than 10 days prior
written notice of its intention so to do, clearly describing such new name and
providing other information in connection therewith as the Administrative
Agent or Collateral Agent may reasonably request and (ii) with respect to such
new name, it shall have taken all action reasonably requested by the
Administrative Agent or Collateral Agent to maintain the security interests of
the Administrative Agent or Collateral Agent in the Collateral intended to be
granted pursuant to the Security Documents at all times fully perfected and in
full force and effect. In addition, to the extent that any Loan Party does not
have an organizational identification number on the date hereof and later
obtains one, or if there is any change in the organizational identification
number of any Loan Party, the Borrower or such Loan Party shall promptly
notify the Administrative Agent and the Collateral Agent of such new or
changed organizational identification number and shall take all actions
reasonably satisfactory to the Administrative Agent and the Collateral Agent
to the extent necessary to maintain the security interests of the
Administrative Agent or Collateral Agent in the Collateral intended to be
granted pursuant to the Security Documents fully perfected and in full force
and effect. Furthermore, no Loan Party shall change its jurisdiction of
organization or its type of organization until (i) it shall have given to the
Administrative Agent and the Collateral Agent not less than 10 days prior
written notice of its intention so to do, clearly describing such new
jurisdiction of organization and/or type of organization and providing such
other information in connection therewith as the Administrative Agent or
Collateral Agent may reasonably request and (ii) with respect to such new
jurisdiction and/or type of organization, it shall have taken all actions
reasonably requested by the Administrative Agent or the Collateral Agent to
maintain the security interests of the Administrative Agent or Collateral
Agent in the Collateral intended to be granted pursuant to the Security
Documents at all times fully perfected and in full force and effect. If at any
time Schedule 3.25 hereto is not true and correct (as of the date in question,
which may be after the Closing Date), whether because of changes thereto or as
a result of the creation or acquisition of additional Loan Parties, the
Borrower shall promptly furnish to the Administrative Agent and the Collateral
Agent a true and correct updated Schedule 3.25, which shall contain the
updated information required therein with respect to each Loan Party as of the
date of any change thereto.
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01. Events of Default. In case of the happening of any of
the following events ("Events of Default"):
(a) any representation or warranty made or deemed made by
Holdings, the Borrower or any Loan Party in any Loan Document, or any
representation, warranty, statement or information contained in any
report, certificate, financial statement or other instrument
furnished in connection with or pursuant to any Loan Document, shall
prove to have been false or misleading in any material respect when
so made, deemed made or furnished by Holdings, the Borrower or any
other Loan Party;
(b) default shall be made in the payment of any principal of
any Loan or the reimbursement with respect to any L/C Payment 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 on any L/C Payment 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 or any of its Subsidiaries of any covenant,
condition or agreement contained in Section 5.01(a) (with respect to
the Borrower), 5.05(a), 5.08, 5.12 or 5.15 or in Article VI;
(e) default shall be made in the due observance or
performance by Holdings, the Borrower or any of their Subsidiaries of
any covenant, condition or agreement contained in any Loan Document
(other than those specified in (b), (c) or (d) above) and such
default shall continue unremedied for a period of 30 days after
notice thereof from the Administrative Agent or the Required Lenders
to the Borrower;
(f) Holdings or the Borrower shall fail to observe or
perform any term, covenant, condition or agreement contained in any
agreement or instrument evidencing or governing any Indebtedness
(other than (x) any Indebtedness under any Loan Document and (y)
prior to the occurrence of the B Term Loan Commitment Termination
Date, any Indebtedness represented by the Existing Senior
Subordinated Notes and/or Existing Senior Discount Notes) having an
aggregate principal or notional amount in excess of $25,000,000 if
the effect of any such failure is to cause, or to permit the holder
or holders of such Indebtedness or a trustee on its or their behalf
to cause, such Indebtedness to become due prior to its stated
maturity, or Holdings or the Borrower shall fail to pay any principal
in respect of any such Indebtedness at the stated maturity thereof;
(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 their Subsidiaries, or of a substantial part of the
property or assets of Holdings, the Borrower or any of their
Subsidiaries, 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
their Subsidiaries or for a substantial part of the property or
assets of Holdings, the Borrower or any of their Subsidiaries or
(iii) other than with respect to Holdings pursuant to the IPO
Reorganization, the winding-up or liquidation of Holdings, the
Borrower or any of their Subsidiaries; 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 of their Subsidiaries
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 (i) 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
their Subsidiaries or for a substantial part of the property or
assets of Holdings, the Borrower or any of their Subsidiaries, (iv)
file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for
the benefit of creditors, (vi) become unable, admit in writing its
inability or fail generally to pay its debts as they become due or
(vii) take any action for the purpose of effecting any of the
foregoing;
(j) one or more judgments for the payment of money in an
aggregate amount in excess of $25,000,000 (except to the extent
covered by insurance where the Administrative Agent is reasonably
satisfied with the credit of such insurer) shall be rendered against
Holdings, the Borrower, any of their Subsidiaries or any combination
thereof and the same shall remain undischarged for a period of 30
consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor
to levy upon assets or properties of Holdings, the Borrower or any of
their Subsidiaries to enforce any such judgment;
(k) (i) a Reportable Event or Reportable Events, or a
failure to make a required installment or other payment (within the
meaning of Section 412(n)(1) of the Code), shall have occurred with
respect to any Plan or Plans, (ii) a trustee shall be appointed by a
United States district court to administer any Plan or Plans, (iii)
the PBGC shall institute proceedings (including giving notice of
intent thereof) to terminate any Plan or Plans, (iv) the Borrower or
any ERISA Affiliate shall have been notified by the sponsor of a
Multiemployer Plan that it has incurred Withdrawal Liability to such
Multiemployer Plan and the Borrower or such ERISA Affiliate does not
have reasonable grounds for contesting such Withdrawal Liability or
is not contesting such Withdrawal Liability in a timely and
appropriate manner, (v) the Borrower 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, (vi) the Borrower or any
ERISA Affiliate shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan and (vii) any other similar event or condition
shall occur or exist with respect to a Plan; and in each case in
clauses (i) through (vii) above, such event or condition, together
with all other such events or conditions, if any, could reasonably be
expected to have a Material Adverse Effect;
(l) (i) any Loan Document shall for any reason be asserted
by Holdings, the Borrower or any of their Subsidiaries 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 their subsidiaries on a consolidated basis shall cease
to be, or shall be asserted by the Borrower or any other Loan Party
not to be, a valid and perfected security interest (having the
priority required by this Agreement or the relevant Security
Document) in the securities, assets or properties covered thereby,
except to the extent that any such loss of perfection or priority
results from the failure of the Collateral Agent to file UCC
continuation statements 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 Obligations of Holdings or the Borrower or the guarantee
by Holdings thereof pursuant to the Parent Guarantee Agreement shall
cease to constitute senior indebtedness under the subordination
provisions of the Senior Subordinated Notes (or any refinancing or
successive refinancing thereof) or such subordination provisions
shall be invalidated or otherwise cease to be legal, valid and
binding obligations of the parties thereto, enforceable in accordance
with their terms; or
(m) The Intercreditor Agreement or, after the execution and
delivery thereof, any Additional Intercreditor Agreement, or any
provision of any of the foregoing agreements, shall cease to be in
full force and effect, or shall cease to be legal, valid and binding
upon any of the parties thereto or any holder of Second-Lien Loans or
the respective Permitted Refinancing Indebtedness which is subject to
(or purported to be subject to) the respective Intercreditor
Agreement or Additional Intercreditor 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, (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 (iii)
demand cash collateral pursuant to Section 2.20(g); and in any event with
respect to the Borrower described in paragraph (h) or (i) above, the
Commitments shall automatically terminate, 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 and payable and the
Administrative Agent shall be deemed to have made a demand for cash collateral
to the full extent permitted under Section 2.20(g), 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. Borrower's Right to Cure. (a) Financial Performance
Covenants. Notwithstanding anything to the contrary contained in Section 7.01,
in the event that Holdings and the Borrower fail to comply with the
requirements of any Financial Performance Covenant, until the expiration of
the 10th day subsequent to the date the certificate calculating such Financial
Performance Covenant is required to be delivered pursuant to Section 5.04(c),
Holdings shall have the right to issue Permitted Cure Securities for cash or
otherwise receive cash contributions to the capital of Holdings, and, in each
case, to contribute any such cash to the capital of Borrower (collectively,
the "Cure Right"), and upon the receipt by Borrower of such cash (the "Cure
Amount") pursuant to the exercise by Holdings of such Cure Right such
Financial Performance Covenant shall be recalculated giving effect to the
following pro forma adjustments:
(i) EBITDA shall be increased, solely for the purpose of
measuring the Financial Performance Covenants and not for any other
purpose under this Agreement, by an amount equal to the Cure Amount;
and
(ii) if, after giving effect to the foregoing
recalculations, Holdings and Borrower shall then be in compliance
with the requirements of all Financial Performance Covenants,
Holdings and Borrower shall be deemed to have satisfied the
requirements of the Financial Performance Covenants as of the
relevant date of determination with the same effect as though there
had been no failure to comply therewith at such date, and the
applicable breach or default of the Financial Performance Covenants
which had occurred shall be deemed cured for all purposes of the
Agreement.
(b) Limitation on Exercise of Cure Right. Notwithstanding anything
herein to the contrary, (a) in no event shall Holdings be entitled to exercise
the Cure Right in more than three consecutive fiscal quarters, (b) in any ten
fiscal quarter period, there must be a period of at least four consecutive
fiscal quarters during which Holdings has not exercised its Cure Right and (c)
each Cure Amount shall not exceed the amount required to cure the applicable
failure to comply with a Financial Performance Covenant.
ARTICLE VIII
THE AGENTS
SECTION 8.01. Appointment. (a) In order to expedite the transactions
contemplated by this Agreement, Deutsche Bank AG Cayman Islands Branch is
hereby appointed to act as Administrative Agent and Collateral Agent and a
Fronting Bank, each of DBSI, Citigroup and ▇▇▇▇▇▇▇ ▇▇▇▇▇ are hereby appointed
as joint book runners, each of DBSI and Citigroup is hereby appointed as joint
lead arrangers, Citigroup is hereby appointed to act as Syndication Agent,
each of ▇▇▇▇▇▇▇ Sachs, General Electric Capital Corporation and ▇▇▇▇▇▇
Commercial Paper Inc. is hereby appointed to act as Co-Documentation Agent and
each of LaSalle Bank National Association and Manufacturers and Traders Trust
Company is hereby appointed as Senior Managing Agents. Each of the Lenders and
each assignee of any such Lender hereby irrevocably authorizes the Agents to
take such actions on behalf of such Lender or assignee or any Fronting Bank
and to exercise such powers as are specifically delegated to the Agents by the
terms and provisions hereof and of the other Loan Documents, together with
such actions and powers as are reasonably incidental thereto. The
Administrative Agent is hereby expressly authorized by the Lenders and each
Fronting Bank, without hereby limiting any implied authority, (a) to receive
on behalf of the Lenders and such Fronting Bank all payments of principal of
and interest on the Loans, all payments in respect of L/C Payments and all
other amounts due to the Lenders and such Fronting Bank hereunder, and
promptly to distribute to each Lender or Fronting Bank its proper share of
each payment so received; (b) to give notice on behalf of each of the Lenders
to the Borrower of any Event of Default specified in this Agreement of which
the Administrative Agent has actual knowledge acquired in connection with its
agency hereunder; and (c) to distribute to each Lender copies of all notices,
financial statements and other materials delivered by the Borrower pursuant to
this Agreement as received by the Administrative Agent. Without limiting the
generality of the foregoing, the Agents are hereby expressly authorized to
execute any and all documents (including releases) with respect to the
Collateral and the rights of the Secured Parties with respect thereto, as
contemplated by and in accordance with the provisions of this Agreement, the
Intercreditor Agreement and the Security Documents. In the event that any
party other than the Lenders and the Agents shall participate in all or any
portion of the Collateral pursuant to the Security Documents, all rights and
remedies in respect of such Collateral shall be controlled by the Collateral
Agent.
(b) Neither the Agents nor any of their respective directors,
officers, employees or agents shall be liable as such for any action taken or
omitted by any of them except for its or his own gross negligence or willful
misconduct, or be responsible for any statement, warranty or representation
herein or the contents of any document delivered in connection herewith, or be
required to ascertain or to make any inquiry concerning the performance or
observance by the Borrower or any other Loan Party of any of the terms,
conditions, covenants or agreements contained in any Loan Document. The Agents
shall not be responsible to the Lenders for the due execution, genuineness,
validity, enforceability or effectiveness of this Agreement or any other Loan
Documents or other instruments or agreements. The Agents shall in all cases be
fully protected in acting, or refraining from acting, in accordance with
written instructions signed by the Required Lenders and, except as otherwise
specifically provided herein, such instructions and any action or inaction
pursuant thereto shall be binding on all the Lenders. Each Agent shall, in the
absence of knowledge to the contrary, be entitled to rely on any instrument or
document believed by it in good faith to be genuine and correct and to have
been signed or sent by the proper person or persons. Neither the Agents nor
any of their respective directors, officers, employees or agents shall have
any responsibility to the Borrower or any other Loan Party on account of the
failure of or delay in performance or breach by any Lender or any Fronting
Bank of any of its obligations hereunder or to any Lender or any Fronting Bank
on account of the failure of or delay in performance or breach by any other
Lender or any Fronting Bank or the Borrower or any other Loan Party of any of
their respective obligations hereunder or under any other Loan Document or in
connection herewith or therewith. Each of the Agents may execute any and all
duties hereunder by or through agents or employees and shall be entitled to
rely upon the advice of legal counsel selected by it with respect to all
matters arising hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of such counsel.
SECTION 8.02. Nature of Duties. The Lenders hereby acknowledge that
neither Agent shall be under any duty to take any discretionary action
permitted to be taken by it pursuant to the provisions of this Agreement
unless it shall be requested in writing to do so by the Required Lenders. The
Lenders further acknowledge and agree that so long as an Agent shall make any
determination to be made by it hereunder or under any other Loan Document in
good faith, such Agent shall have no liability in respect of such
determination to any person. 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 the
Loan Documents or otherwise exist against the Administrative Agent. Each
Lender recognizes and agrees that the Arrangers, the Syndication Agent and the
Documentation Agent shall not have any duties or responsibilities under this
Agreement or any other Loan Document, or any fiduciary relationship with any
Lender, and shall have no functions, responsibilities, duties, obligations or
liabilities for acting as an Arranger, Syndication Agent or Documentation
Agent hereunder.
SECTION 8.03. Resignation by the Agents. Subject to the appointment
and acceptance of a successor Agent as provided below, any Agent may resign at
any time by notifying the Lenders and the Borrower. Upon any such resignation,
the Required Lenders shall have the right to appoint a successor with the
consent of the Borrower (not to be unreasonably withheld or delayed). If no
successor shall have been so appointed by the Required Lenders and approved by
the Borrower and shall have accepted such appointment within 30 days after the
retiring Agent gives notice of its resignation, then the retiring Agent may,
on behalf of the Lenders with the consent of the Borrower (not to be
unreasonably withheld or delayed), appoint a successor Agent which shall be a
bank with an office in New York, New York, having a combined capital and
surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the
acceptance of any appointment as Agent hereunder by a successor bank, such
successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent and the retiring Agent shall be
discharged from its duties and obligations hereunder. After the Agent's
resignation hereunder, the provisions of this Article and Section 9.05 shall
continue in effect for its benefit in respect of any actions taken or omitted
to be taken by it while it was acting as Agent. It is hereby understood that
in the event that the Syndication Agent or an Arranger resigns, no successor
to the Syndication Agent or such Arranger, as the case may be, shall be
required.
SECTION 8.04. Each Agent in its Individual Capacity. With respect to
the Loans made by it hereunder, each Agent in its individual capacity and not
as Agent shall have the same rights and powers as any other Lender and may
exercise the same as though it were not an Agent, and the Agents and their
Affiliates may accept deposits from, lend money to and generally engage in any
kind of business with the Borrower or any of its Subsidiaries or other
Affiliates thereof as if it were not an Agent. The parties hereto acknowledge
and agree that each Agent may also act in one or more agency or lender
capacities pursuant to the Second-Lien Credit Documents, the same as if it
were not an Agent hereunder.
SECTION 8.05. Indemnification. Each Lender agrees (a) to reimburse
the Agents, on demand, in the amount of its pro rata share (based on its
Commitments hereunder (or if such Commitments shall have expired or been
terminated, in accordance with the respective principal amounts of its
applicable outstanding Loans or participations in L/C Payments, as
applicable)) of any reasonable expenses incurred for the benefit of the
Lenders by the Agents, including counsel fees and compensation of agents and
employees paid for services rendered on behalf of the Lenders, which shall not
have been reimbursed by the Borrower and (b) to indemnify and hold harmless
each Agent and any of its directors, officers, employees or agents, on demand,
in the amount of such pro rata share, from and against any and all
liabilities, taxes, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against it in its
capacity as Agent or any of them in any way relating to or arising out of this
Agreement or any other Loan Document or any action taken or omitted by it or
any of them under this Agreement or any other Loan Document, to the extent the
same shall not have been reimbursed by the Borrower, provided that no Lender
shall be liable to an Agent for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the gross negligence or willful misconduct (as
determined in a final and non-appealable judgment of a court of competent
jurisdiction) of such Agent or any of its directors, officers, employees or
agents.
SECTION 8.06. Lack of Reliance on Agents. Each Lender acknowledges
that it has, independently and without reliance upon the Agents or any other
Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon the Agents or any other Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or
based upon this Agreement or any other Loan Document, any related agreement or
any document furnished hereunder or thereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as
follows:
(a) if to the Borrower, to it at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention of the Chief Financial Officer
(Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), and if to Holdings, to it in care of
the Borrower, in each case with a copy to The Blackstone Group, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇. ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(b) if to the Administrative Agent, to Deutsche Bank AG
Cayman Islands Branch, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No.
(▇▇▇) ▇▇▇-▇▇▇▇);
(c) if to the Fronting Bank (if other than the
Administrative Agent), to it at its address (or telecopy number) set
forth separately in writing; and
(d) if to a Lender, to it at its address (or telecopy
number) set forth on Schedule B.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on
the date of receipt if delivered by hand or overnight courier service or sent
by telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 9.01 or in accordance
with the latest unrevoked direction from such party given in accordance with
this Section 9.01.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrower and the Guarantors 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 each Fronting Bank and shall survive the making by the Lenders of
the Loans, the execution and delivery to the Lenders of the Loan Documents and
the issuance of the Letters of Credit, regardless of any investigation made by
the Lenders 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 L/C Payment 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 (including pursuant to Sections
2.13, 2.15, 2.19 and 9.05) shall survive the payment in full of the principal
and interest hereunder, the expiration of the Letters of Credit 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, the Co-Borrower,
DBCI, Citigroup and ▇▇▇▇▇▇▇ ▇▇▇▇▇ and when the Administrative Agent shall have
received copies hereof which, when taken together, bear the signatures of each
of the other parties hereto, and thereafter shall be binding upon and inure to
the benefit of Holdings, the Borrower, the Co-Borrower, each Fronting Bank,
the Agents and each Lender and their respective permitted successors and
assigns.
SECTION 9.04. Successors and Assigns. (a) This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; provided, however, no Loan Party
may assign or transfer any of its rights, obligations or interest hereunder or
under any other Loan Document without the prior written consent of all of the
Lenders (except in a merger or consolidation transaction permitted by Section
6.05) and, provided further, that, although any Lender may transfer, assign or
grant participations in its rights hereunder in accordance with the terms
hereof, such Lender shall remain a "Lender" for all purposes hereunder (and
may not transfer or assign all or any portion of its Commitments hereunder
except as provided in Section 9.04(b)) and the transferee, assignee or
participant, as the case may be, shall not constitute a "Lender" hereunder
and, provided further, that no Lender shall transfer or grant any
participation under which the participant shall have rights to approve any
amendment to or waiver of this Agreement or any other Loan Document except to
the extent such amendment or waiver would (i) extend the final scheduled
maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit
is not extended beyond the Revolving Credit Maturity Date) in which such
participant is participating, or reduce the rate or extend the time of payment
of interest or Fees thereon (except (x) in connection with a waiver of
applicability of any post-default increase in interest rates and (y) that any
amendment or modification to the financial definitions in this Agreement shall
not constitute a reduction in the rate of interest for purposes of this clause
(i)) or reduce the principal amount thereof, or increase the amount of the
participant's participation over the amount thereof then in effect (it being
understood that a waiver of any Default or Event of Default or of a mandatory
reduction in the total Commitments shall not constitute a change in the terms
of such participation, and that an increase in any Commitment or Loan shall be
permitted without the consent of any participant if the participant's
participation is not increased as a result thereof), (ii) consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement or (iii) release all or substantially all of the
Collateral under all of the Security Documents (except as expressly provided
in the Loan Documents) supporting the Loans hereunder in which such
participant is participating. In the case of any such participation, the
participant shall not have any rights under this Agreement or any of the other
Loan Documents (the participant's rights against such Lender in respect of
such participation to be those set forth in the agreement executed by such
Lender in favor of the participant relating thereto) and all amounts payable
by the Borrower hereunder shall be determined as if such Lender had not sold
such participation.
(b) Notwithstanding the foregoing, any Lender (or any Lender together
with one or more other Lenders) may (x) assign all or a portion of its
Commitments (and related outstanding Obligations hereunder), and/or its
outstanding B Term Loans to its (i) parent company and/or any affiliate of
such Lender which is at least 50% owned by such Lender or its parent company
or (ii) in the case of any Lender that is a fund that invests in loans, any
other fund that invests in loans and is managed and/or advised by the same
investment advisor of such Lender or by an Affiliate of such investment
advisor or (iii) to one or more Lenders or (y) assign all, or if less than
all, (I) a portion equal to at least (i) $1,000,000 in the case of B Term
Loans and (ii) $5,000,000 in the case of Revolving Credit Commitments (and
related outstanding Obligations), in each case, in the aggregate for the
assigning Lender or assigning Lenders (treating (1) any fund that invests in
bank loans and (2) any other fund that invests in bank loans and is managed by
the same investment advisor as such fund or by an Affiliate of such investment
advisor, as a single Eligible Transferee) or (II) a portion equal to all of
such assigning Lender's Commitments or outstanding Loans under a particular
Tranche, of such Revolving Credit Commitments and outstanding principal amount
of B Term Loans hereunder to one or more Eligible Transferees, each of which
assignees shall become a party to this Agreement as a Lender by execution of
an Assignment and Acceptance, provided that, (i) at such time Schedule 2.01
shall be deemed modified to reflect the Commitments (and/or outstanding B Term
Loans, as the case may be) of such new Lender and of the existing Lenders,
(ii) the consent of the Administrative Agent and the Borrower shall be
required in connection with any such assignment pursuant to clause (y) above
(which consents (x) shall not be unreasonably withheld or delayed and (y) in
the case of the Borrower, shall not be required (A) if a Default or Event of
Default under Section 7.01(h) or (i) exists at such time, or (B) in connection
with an assignment by an Agent pursuant to said clause (y) within four weeks
following the Closing Date made in consultation with the Borrower as part of
the primary syndication of Loans and Commitments), (iv) the consent of the
Swingline Lender and DBCI, as Fronting Bank, shall be required in connection
with any assignment of all or any portion of the Revolving Credit Commitments
of any Lender and (v) the Administrative Agent shall receive at the time of
each such assignment, from the assigning or assignee Lender, the payment of a
non-refundable assignment fee of $3,500. To the extent of any assignment
pursuant to this Section 9.04(b), the assigning Lender shall be relieved of
its obligations hereunder with respect to its assigned Commitments (it being
understood that the indemnification provisions under this Agreement
(including, without limitation, Sections 2.13, 2.15, 2.19 and 9.05) shall
survive as to such assigning Lender). At the time of each assignment pursuant
to this Section 9.04(b) to a person which is not already a Lender hereunder
and which is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for federal income tax purposes, the respective
assignee Lender shall provide to the Borrower and the Administrative Agent the
appropriate Internal Revenue Service Forms described in Section 2.19(f).
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at its address referred to in subsection 9.01 a
copy of each Assignment and Acceptance delivered to it and a register (the
"Register") for the recordation of the names and addresses of the Lenders and
the Commitments of, and principal amount of the Loans and L/C Payments owing
to, each Lender from time to time. The Administrative Agent shall also record
the Revolving L/C Exposure of each Lender in the Register. The entries in the
Register shall be conclusive, in the absence of manifest error, and the
Borrower, the Administrative Agent, each Fronting Bank and the Lenders shall
treat each person whose name is recorded in the Register as the owner of
Commitments and the Loans and Revolving L/C Exposures recorded therein for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower, any Fronting Bank, any Lender and their representatives
(including counsel and accountants), at any reasonable time and from time to
time upon reasonable prior notice.
(d) Any Lender or participant may, in connection with any assignment
or participation or proposed assignment or participation pursuant to this
Section 9.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower or any Guarantor
furnished to such Lender by or on behalf of the Borrower or any Guarantor,
provided that, prior to any such disclosure, each such assignee or participant
or proposed assignee or participant shall agree to be bound by Section 9.16.
(e) Any Lender may at any time assign all or any portion of its
rights under this Agreement to a Federal Reserve Bank and, with prior written
notice to the Administrative Agent, any Lender which is a fund that invests in
loans may pledge all or any portion of its Loans or Notes to its trustee or
other representative of creditors in support of its obligations to the trustee
on customary terms, provided that no such assignment shall release a Lender
from any of its obligations hereunder.
(f) In the event that Standard & Poor's Ratings Group or ▇▇▇▇▇'▇
Investors Service, Inc. shall, after the date that any Lender becomes a
Lender, downgrade the long-term certificate deposit ratings or long-term
senior unsecured debt ratings of such Lender (or the parent company thereof),
and the resulting ratings shall be BBB+ or Baa1 or lower, then any Fronting
Bank shall have the right, but not the obligation, at its own expense, upon
notice to such Lender and the Administrative Agent, to replace (or to request
the Borrower, at the sole expense of such Fronting Bank, to use its reasonable
efforts to replace) such Lender with respect to such Lender's Revolving Credit
Commitment with an assignee (in accordance with and subject to the
restrictions contained in paragraph (b) above), and such Lender hereby agrees
to transfer and assign without recourse (in accordance with and subject to the
restrictions contained in paragraph (b) above) all its interests, rights and
obligations in respect of its Revolving Credit Commitment to such assignee;
provided, however, that (i) no such assignment shall conflict with any law,
rule and regulation or order of any Governmental Authority and (ii) such
assignee shall pay to such Lender in immediately available funds on the date
of such assignment the principal of and interest accrued to the date of
payment on the Loans and L/C Payments of such Lender hereunder and all other
amounts accrued for such Lender's account or owed to it hereunder. (g) Except
as provided in Section 2.13(d), no Fronting Bank shall assign or delegate any
of its interests, rights or obligations as a Fronting Bank under this
Agreement without the prior written consent of the Borrower, the
Administrative Agent and the Required Lenders.
SECTION 9.05. Expenses; Indemnity. (a) The Borrower agrees to pay all
reasonable out-of-pocket expenses incurred by the Agents in connection with
the preparation of this Agreement and the other Loan Documents, or by the
Agents 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) or in
connection with any amendments, modifications or waivers of the provisions
hereof or thereof (whether or not the transactions hereby contemplated shall
be consummated) or incurred by the Agents or any Lender in connection with the
enforcement or protection of their rights in connection with this Agreement
and the other Loan Documents or in connection with the Loans made or the
Letters of Credit issued hereunder, including the reasonable fees, charges and
disbursements of White & Case LLP, counsel for the Administrative Agent and
the Collateral Agent, and, in connection with any such enforcement or
protection, the reasonable fees, charges and disbursements of any other
counsel (including the reasonable allocated costs of internal counsel if a
Lender elects to use internal counsel in lieu of outside counsel) for the
Agents, any Fronting Bank or any Lender (but no more than one such counsel for
any Lender).
(b) The Borrower agrees to indemnify the Agents, each Fronting Bank,
each Lender and each of their respective directors, trustees, officers,
employees, affiliates and agents (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, 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 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 Transaction and the other transactions
contemplated hereby and thereby, (ii) the use of the proceeds of the Loans or
the use of any Letter of Credit or (iii) any claim, litigation, investigation
or proceeding relating to any of the foregoing, whether or not any Indemnitee
is a party thereto, provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses result from the gross negligence or willful
misconduct (as determined in a final and non-appealable judgment of a court of
competent jurisdiction) of such Indemnitee (treating, for this purpose only,
any Agent, any Fronting Bank or any Lender and its directors, trustees,
officers, affiliates and employees 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,
incurred by or asserted against any Indemnitee arising out of, in any way
connected with, or as a result of (A) any Environmental Claim related in any
way to Holdings, the Borrower or any of their Subsidiaries, or (B) any actual
or alleged presence, Release or threatened Release of Hazardous Materials on
any Property or any property owned, leased or operated by any predecessor of
Holdings, the Borrower or any of their Subsidiaries, provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that
such losses, claims, damages, liabilities or related expenses are determined
by a court of competent jurisdiction by final and nonappealable judgment to
have resulted from the gross negligence or willful misconduct of such
Indemnitee or any of its directors, trustees, officers or employees. 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 any Agent, any Fronting Bank or any Lender. All amounts due under
this Section 9.05 shall be payable on written demand therefor.
(c) Unless an Event of Default shall have occurred and be continuing,
the Borrower shall be entitled to assume the defense of any action for which
indemnification is sought hereunder with counsel of its choice at its expense
(in which case the Borrower shall not thereafter be responsible for the fees
and expenses of any separate counsel retained by an Indemnitee except as set
forth below); provided, however, that such counsel shall be reasonably
satisfactory to each such Indemnitee. Notwithstanding the Borrower's election
to assume the defense of such action, each Indemnitee shall have the right to
employ separate counsel and to participate in the defense of such action, and
the Borrower shall bear the reasonable fees, costs and expenses of such
separate counsel, if (i) the use of counsel chosen by the Borrower to
represent such Indemnitee would present such counsel with a conflict of
interest; (ii) the actual or potential defendants in, or targets of, any such
action include both the Borrower and such Indemnitee and such Indemnitee shall
have reasonably concluded that there may be legal defenses available to it
that are different from or additional to those available to the Borrower (in
which case the Borrower shall not have the right to assume the defense or such
action on behalf of such Indemnitee); (iii) the Borrower shall not have
employed counsel reasonably satisfactory to such Indemnitee to represent it
within a reasonable time after notice of the institution of such action; or
(iv) the Borrower shall authorize such Indemnitee to employ separate counsel
at the Borrower's expense. The Borrower will not be liable under this
Agreement for any amount paid by an Indemnitee to settle any claims or actions
if the settlement is entered into without the Borrower's consent, which
consent may not be withheld or delayed unless such settlement is unreasonable
in light of such claims or actions against, and defenses available to, such
Indemnitee.
(d) Notwithstanding anything to the contrary in this Section 9.05,
this Section 9.05 shall not apply to taxes, it being understood that the
Borrower's only obligations with respect to taxes shall arise under Sections
2.13 and 2.19.
SECTION 9.06. Right of Setoff. (a) If an Event of Default shall have
occurred and be continuing, each Lender and each Fronting Bank 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 or such Fronting Bank (including, without
limitation, by branches and agencies of such Lender wherever located) to or
for the credit or the account of Holdings or the Borrower 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 or such
Fronting Bank, irrespective of whether or not such Lender or such Fronting
Bank shall have made any demand under this Agreement or such other Loan
Document and although such obligations may be unmatured. The rights of each
Lender and the Fronting Bank under this Section 9.06 are in addition to other
rights and remedies (including other rights of setoff) which such Lender or
such Fronting Bank may have.
(b) NOTWITHSTANDING THE FOREGOING SUBSECTION (a), AT ANY TIME THAT
THE LOANS OR ANY OTHER OBLIGATION SHALL BE SECURED BY REAL PROPERTY LOCATED IN
CALIFORNIA, NO LENDER OR FRONTING BANK SHALL EXERCISE A RIGHT OF SETOFF,
LENDER'S LIEN OR COUNTERCLAIM OR TAKE ANY COURT OR ADMINISTRATIVE ACTION OR
INSTITUTE ANY PROCEEDING TO ENFORCE ANY PROVISION OF THIS AGREEMENT OR ANY
NOTE UNLESS IT IS TAKEN WITH THE CONSENT OF THE REQUIRED LENDERS, IF SUCH
SETOFF OR ACTION OR PROCEEDING WOULD OR MIGHT (PURSUANT TO CALIFORNIA CODE OF
CIVIL PROCEDURE SECTIONS 580a, 580b, 580d AND 726 OF THE CALIFORNIA CODE OF
CIVIL PROCEDURE OR SECTION 2924 OF THE CALIFORNIA CIVIL CODE, IF APPLICABLE,
OR OTHERWISE) AFFECT OR IMPAIR THE VALIDITY, PRIORITY, OR ENFORCEABILITY OF
THE LIENS GRANTED TO THE COLLATERAL AGENT PURSUANT TO THE SECURITY DOCUMENTS
OR THE ENFORCEABILITY OF THE NOTES AND OTHER OBLIGATIONS HEREUNDER, AND ANY
ATTEMPTED EXERCISE BY ANY LENDER OR ANY FRONTING BANK ANY SUCH RIGHT WITHOUT
OBTAINING SUCH CONSENT OF THE REQUIRED LENDERS SHALL BE NULL AND VOID. THIS
SUBSECTION (b) SHALL BE SOLELY FOR THE BENEFIT OF EACH OF THE LENDERS AND EACH
FRONTING BANK HEREUNDER.
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, INCLUDING GENERAL OBLIGATIONS LAW ss. 5-1401. EACH
LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE
WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO SUCH
LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY
CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO.
500 (THE "UNIFORM CUSTOMS") AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM
CUSTOMS, THE LAWS OF THE STATE OF NEW YORK, INCLUDING GENERAL OBLIGATIONS LAW
ss. 5-1401.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the
Agents, any Fronting Bank 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 Agents, each Fronting Bank and
the Lenders hereunder and under the other Loan Documents are cumulative and
are not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Agreement or any other Loan Document or
consent to any departure by Holdings, the Borrower or any Guarantor 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 Guarantor in any case shall entitle
the Borrower to any other or further notice or demand in similar or other
circumstances.
(b) Subject to the provisions of following clause (c), neither this
Agreement nor any other Loan Document nor any provision hereof or thereof may
be changed, waived, discharged or terminated unless such change, waiver,
discharge or termination is in writing signed by the respective Loan Parties
party thereto and the Required Lenders, provided that no such change, waiver,
discharge or termination shall, without the consent of each Lender (with
Obligations being directly affected in the case of following clause (i)), (i)
extend the final scheduled maturity of any Loan or Note, or extend the stated
maturity of any Letter of Credit beyond the Revolving Loan Maturity Date, or
reduce the rate or extend the time of payment of any interest or Fees (except
(x) in connection with the waiver of applicability of any post-default
increase in interest rates and (y) that any amendment or modification to the
financial definitions in this Agreement shall not constitute a reduction in
the rate of interest for purposes of this clause (i)), or reduce the principal
amount thereof (except to the extent repaid in cash), (ii) release all or
substantially all of the Collateral (except as expressly provided in the Loan
Documents) under the Security Documents, (iii) amend, modify or waive any
provision of this Section 9.08, (iv) reduce the percentage specified in the
definition of Required Lenders (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 extensions of B Term Loans and the
Revolving Loan Commitments are included on the Closing Date) or (v) consent to
the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement; provided further, that no such change,
waiver, discharge or termination shall (u) increase the Commitments of any
Lender over the amount thereof then in effect without the 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
Commitment of any Lender, and that an increase in the available portion of any
Commitment of any Lender shall not constitute an increase in the Commitment of
such Lender), (v) without the consent of the Swingline Lender or, in the case
of Letters of Credit, the respective Fronting Bank, amend, modify or waive any
provision of Section 2.01(c) or 2.20, respectively, or alter its rights or
obligations with respect to Letters of Credit or Swingline Loans, (w) without
the consent of each Agent affected thereby, amend, modify or waive any
provision of Article VIII as same applies to such Agent or any other provision
as same relates to the rights or obligations of such Agent, (x) without the
consent of the Collateral Agent, amend, modify or waive any provision relating
to the rights or obligations of the Collateral Agent, (y) without the consent
of the Majority Lenders of each Tranche which is being allocated a lesser
prepayment, repayment or commitment reduction as a result of the actions
described below (or without the consent of the Majority Lenders of each
Tranche in the case of an amendment to the definition of Majority Lenders),
amend the definition of Majority Lenders (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 Majority Lenders on
substantially the same basis as the extensions of B Term Loans and the
Revolving Loan Commitments are included on the Closing Date) or alter the
required application of any prepayments or repayments (or commitment
reductions), as between the various Tranches, pursuant to Section 2.11 or 2.12
(excluding Section 2.11(a)) (although (x) the Required Lenders may waive, in
whole or in part, any such prepayment, repayment or commitment reduction, so
long as the application, as amongst the various Tranches, of any such
prepayment, repayment or commitment reduction which is still required to be
made is not altered and (y) if additional Tranches of term loans are extended
after the Closing Date with the consent of the Required Lenders as required
above, such Tranches may be included on a pro rata basis in the various
prepayments or repayments required pursuant to Sections 2.11 and 2.12
(excluding Section 2.11(a)) and any section providing scheduled installments
for any new Tranche of term loans) or (z) without the consent of each Lender
with Obligations being directly affected thereby, reduce the amount of, or
extend any B Term Loan Installment Date or any installment otherwise due on
any such date applicable to any Tranche or, without the consent of the
Supermajority Lenders of each Tranche, amend the definition of Supermajority
Lenders (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 Supermajority Lenders on substantially the same basis
as the extensions of B Term Loans and the Revolving Loan Commitments are
included on the Closing Date); provided further that, with the written consent
of the Agents and the Borrower, amendments may be made to the Loan Documents
to effect technical or administrative changes required as a result of the IPO
Reorganization.
(c) Notwithstanding the foregoing, (i) this Agreement may be amended
(or amended and restated) with the written consent of the Required Lenders,
the Administrative Agent 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 B Term Loans and extensions of credit under the
Revolving Credit Commitments and the accrued interest and fees in respect
thereof and (b) to include appropriately the Lenders holding such credit
facilities in any determination of the Required Lenders, Majority Lenders and
Supermajority Lenders and (ii) this Agreement may be amended with the written
consent of the Administrative Agent, the Borrower and the Lenders providing
the relevant Replacement Term Loans (as defined below) to permit the
refinancing of all outstanding B Term Loans ("Refinanced Term Loans") with a
replacement term loan tranche hereunder ("Replacement Term Loans"), provided
that (a) the aggregate principal amount of such Refinanced Term Loans shall
not exceed the aggregate principal amount of such Refinanced Term Loans, (b)
the Applicable Margin for such Replacement Term Loans shall not be higher than
the Applicable Margin for such Refinanced Term Loans, (c) the weighted average
life to maturity of such Replacement Term Loans shall not be shorter than the
weighted average life to maturity of such Refinanced Term Loans at the time of
such refinancing and (d) all other terms applicable to such Replacement Term
Loans shall be substantially identical to, or less favorable to the Lenders
providing such Replacement Term Loans than, those applicable to such
Refinanced Term Loans, except to the extent necessary to provide for covenants
and other terms applicable to any period after the latest final maturity of
the B Term Loans in effect immediately prior to such refinancing.
(d) Notwithstanding the foregoing, the Administrative Agent and/or
Collateral Agent may enter into one or more additional Loan Documents
(including without limitation any additional Security Documents and any
Additional Intercreditor Agreement) as contemplated by the provisions of this
Agreement, and shall not require the consent of any Lender in connection
therewith.
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 or any Fronting Bank, 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 or such Fronting Bank, shall be limited to the
Maximum Rate, provided that such excess amount shall be paid to such Lender or
such Fronting Bank 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 with respect to the subject matter hereof is superseded by this
Agreement and the other Loan Documents. 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 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.
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. (a) Each
of Holdings and the Borrower 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, 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 Lender or any Fronting Bank may
otherwise have to bring any action or proceeding relating to this Agreement or
the other Loan Documents against Holdings, the Borrower or any Guarantor or
their properties in the courts of any jurisdiction.
(b) Each of Holdings and the Borrower 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.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 9.16. Confidentiality. Each of the Lenders, the Fronting Bank
and each of the Agents agrees that it shall maintain in confidence any
information relating to Holdings, the Borrower and the other Loan Parties
furnished to it by or on behalf of Holdings, the Borrower or the other Loan
Parties (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, such Fronting Bank or such Agent
without violating this Section 9.16 or (c) was available to such Lender, such
Fronting Bank 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 (i) 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) and (ii) as contemplated by
Section 9.04(d), except: (A) to the extent necessary to comply with law or any
legal process or the requirements of any Governmental Authority 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 Governmental Authorities, (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 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) and (F) to
any pledgee under Section 9.04(e) hereof. Furthermore, prior to the 90th day
after the Closing Date, no Lender, Agent or Fronting Bank shall, without the
prior consent of the Borrower, make any public announcement (except to the
extent required by law) concerning the Transaction or the financing therefor.
Notwithstanding anything herein to the contrary, each of the parties hereto
(and any employee, representative, or other agent thereof) may disclose to any
and all persons, without limitation of any kind, the structure and tax aspects
(as such terms are used in Temporary Treasury Regulations Section
1.6011-4T(b)(3)) of the transactions contemplated by this Agreement, and all
materials of any kind (including opinions or other tax analyses) related to
such structure and tax aspects. Further, each of the parties hereto hereby
acknowledges that it has no proprietary rights to any tax matter or tax idea
related to the transactions contemplated by this Agreement.
SECTION 9.17. Release of Liens and Guarantees. (a) In the event that
Holdings, the Borrower or any of their Subsidiaries conveys, sells, leases,
assigns, transfers or otherwise disposes of all or any portion of any of the
Equity Interests, assets or property of Holdings, the Borrower or any of their
Subsidiaries 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 Administrative
Agent and the Collateral Agent shall promptly (and the Lenders hereby
authorize the Administrative Agent and the Collateral Agent to) take such
action and execute any such documents as may be reasonably requested by the
Borrower and at the Borrower's expense to release any Liens created by any
Loan Document in respect of such Equity Interests, assets or property
(provided that in no event shall the Equity Interests of the Borrower be
released under this Section 9.17), including the release and satisfaction of
record of any mortgage or deed of trust granted in connection herewith, and,
in the case of a disposition of all or substantially all the Equity Interests
of any Subsidiary Guarantor, terminate such Subsidiary Guarantor's obligations
under the Subsidiary Guarantee Agreement. In addition, the Administrative
Agent and the Collateral Agent agree to take such actions as are reasonably
requested by the Borrower and at the Borrower's expense to terminate the Liens
and security interests created by the Loan Documents when all the Obligations
are paid in full and all Letters of Credit and Commitments are terminated. Any
representation, warranty or covenant contained in any Loan Document relating
to any such Equity Interests, assets, property or Subsidiary of Holdings
(other than the Borrower) shall no longer be deemed to be made once such
Equity Interests, assets or property is so conveyed, sold, leased, assigned,
transferred or disposed of.
(b) In the event that Holdings, the Borrower or any of their
Subsidiaries creates any Lien on any property pursuant to Section 6.02(c),
(d), (j) or (k) and the agreements governing such Lien prohibit the Lien on
such property created by the Loan Documents (or require the subordination
thereof), the Administrative Agent and the Collateral Agent shall promptly
(and the Lenders hereby authorize the Administrative Agent and the Collateral
Agent to) take such action and execute any such documents as may be reasonably
requested by the Borrower and act at the Borrower's expense to release (or
subordinate, as the case may be) any Liens created by the Loan Document on
such property; provided that the Borrower will use reasonable good faith
efforts to have the respective lien holder agree to the subordination of the
Liens created by the Loan Documents as opposed to a release thereof.
SECTION 9.18. Co-Borrower's Obligations. The Co-Borrower is a party
hereto for purposes of providing co-extensive obligors for the Obligations (on
a joint and several basis), although the parties acknowledge that the
Co-Borrower shall not have any substantial assets or other property. All
references in this Agreement and the other Loan Documents to the "Borrower"
shall be deemed to include a reference to the Co-Borrower, mutatis mutandis,
whether or not actual reference is made thereto; provided, that, without
limiting the generality of the foregoing, any obligations by any of the
parties hereto to the Borrower shall be deemed fulfilled with respect to the
Co-Borrower when fulfilled with respect to the Borrower.
SECTION 9.19. Limitations on Recourse. Notwithstanding anything
contained herein to the contrary, each Lender and each Agent agree that (a) in
an action to collect any amounts due under, or otherwise in respect of, this
Agreement, any Note or any other Loan Document, no future, current or former
Holdings Partner (except, if any such Holdings Partner is a Loan Party or is
otherwise a party to any Loan Documents, for such person's obligations as a
Loan Party under such Loan Documents) in its capacity as such will be
personally liable for any amounts due or any other liability under this
Agreement, any Note or any other Loan Document, and no deficiency or personal
judgment will be sought against any such Holdings Partner in its capacity as
such for payment of the Indebtedness evidenced by this Agreement, any Note or
any other Loan Document and (b) no property or assets of any such future,
current or former Holdings Partner (except, if any such Holdings Partner is a
Loan Party or is otherwise a party to any Loan Documents, for such person's
obligations under such Loan Documents) in its capacity as such shall be sold,
levied upon or otherwise used to satisfy any judgment rendered in connection
with any action brought with respect to this Agreement or any Note; provided,
however, that nothing contained in this Section 9.19 shall (i) impair the
validity of the Indebtedness evidenced by this Agreement or the Notes, (ii)
prevent the taking of any action permitted by law against the Borrower or any
other Loan Party or the assets of the Borrower or any other Loan Party or the
proceeds of such assets or (iii) in any way affect or impair the right of any
Agent or any Lender to take any action permitted by law to realize upon any
Mortgaged Property, the Collateral or any other security which may secure any
Loan Party's obligations.
SECTION 9.20. Post-Closing Actions. Notwithstanding anything to the
contrary contained in this Agreement or the other Loan Documents, the parties
hereto acknowledge and agree that Holdings and the Borrower and its
Subsidiaries shall be required to take the actions specified in Schedule 9.20
as promptly as practicable, and in any event within the time periods set forth
in Schedule 9.20 or such other time periods as the Administrative Agent may
agree. The provisions of Schedule 9.20 shall be deemed incorporated by
reference herein as fully as if set forth herein in its entirety. All
provisions of this Agreement and the other Loan Documents (including, without
limitation, all conditions precedent, representations, warranties, covenants,
events of default and other agreements herein and therein) shall be deemed
modified to the extent necessary to effect the foregoing (and to permit the
taking of the actions described above within the time periods required above,
rather than as otherwise provided in the Loan Documents); provided that (x) to
the extent any representation and warranty would not be true because the
foregoing actions were not taken on the Closing Date, the respective
representation and warranty shall be required to be true and correct in all
material respects at the time the respective action is taken (or was required
to be taken) in accordance with the foregoing provisions of this Section 9.20
and (y) all representations and warranties relating to the Security Documents
shall be required to be true immediately after the actions required to be
taken by this Section 9.20 have been taken (or were required to be taken). The
acceptance of the benefits of each Credit Event shall constitute a covenant
and agreement by the Borrower to each of the Lenders that the actions required
pursuant to this Section 9.20 will be, or have been, taken within the relevant
time periods referred to in this Section 9.20 and that, at such time, all
representations and warranties contained in this Agreement and the other Loan
Documents shall then be true and correct in all material respects without any
modification pursuant to this Section 9.20. The parties hereto acknowledge and
agree that the failure to take any of the actions required above (other than
any actions that are not material, either individually or in the aggregate),
within the relevant time periods required above, shall give rise to a Default
pursuant to this Agreement upon notice of such failure to the Borrower by the
Administrative Agent or the Required Lenders.
SECTION 9.21. USA Patriot Act. Each Lender subject to the USA PATRIOT
ACT (Title 111 of Pub. L. 107-56 (signed into law October 26, 2001)) (the
"Act") hereby notifies the Borrower that pursuant to the requirements of the
Act, it is required to obtain, verify and record information that identifies
the Borrower and the other Loan Parties and other information that will allow
such Lender to identify the Borrower and the other Loan Parties in accordance
with the Act.
SECTION 9.22. SECOND LIENS ON COLLATERAL; TERMS OF INTERCREDITOR
AGREEMENT; ETC. (a) EACH LENDER PARTY HERETO UNDERSTANDS, ACKNOWLEDGES AND
AGREES THAT LIENS SHALL BE CREATED ON THE COLLATERAL PURSUANT TO THE
SECOND-LIEN LOAN DOCUMENTS, WHICH LIENS SHALL BE REQUIRED TO BE SUBORDINATED
AND JUNIOR TO THE LIENS CREATED PURSUANT TO THE FIRST-LIEN CREDIT DOCUMENTS IN
ACCORDANCE WITH THE TERMS OF THE INTERCREDITOR AGREEMENT. PURSUANT TO THE
EXPRESS TERMS OF SECTION 8.1 OF THE INTERCREDITOR AGREEMENT, IN THE EVENT OF
ANY CONFLICT BETWEEN THE TERMS OF THE INTERCREDITOR AGREEMENT AND ANY OF THE
CREDIT DOCUMENTS, THE PROVISIONS OF THE INTERCREDITOR AGREEMENT SHALL GOVERN
AND CONTROL.
(b) EACH LENDER AUTHORIZES AND INSTRUCTS THE COLLATERAL AGENT AND THE
ADMINISTRATIVE AGENT TO ENTER INTO THE INTERCREDITOR AGREEMENT ON BEHALF OF
THE LENDERS, AND TO TAKE ALL ACTIONS (AND EXECUTE ALL DOCUMENTS) REQUIRED (OR
DEEMED ADVISABLE) BY IT IN ACCORDANCE WITH THE TERMS OF THE INTERCREDITOR
AGREEMENT.
(c) THE PROVISIONS OF THIS SECTION 9.22 ARE NOT INTENDED TO SUMMARIZE
ALL RELEVANT PROVISIONS OF THE INTERCREDITOR AGREEMENT, THE FORM OF WHICH IS
ATTACHED AS AN EXHIBIT TO THIS AGREEMENT. REFERENCE MUST BE MADE TO THE
INTERCREDITOR AGREEMENT ITSELF TO UNDERSTAND ALL TERMS AND CONDITIONS THEREOF.
EACH LENDER IS RESPONSIBLE FOR MAKING ITS OWN ANALYSIS AND REVIEW OF THE
INTERCREDITOR AGREEMENT AND THE TERMS AND PROVISIONS THEREOF, AND NO AGENT OR
ANY OF AFFILIATES MAKES ANY REPRESENTATION TO ANY LENDER AS TO THE SUFFICIENCY
OR ADVISABILITY OF THE PROVISIONS CONTAINED IN THE INTERCREDITOR AGREEMENT.
EACH LENDER IS FURTHER AWARE THAT VARIOUS OF THE AGENTS ARE ALSO ACTING IN
VARIOUS OF THE AGENCY CAPACITIES UNDER, AND AS DEFINED IN, THE SECOND-LIEN
LOAN DOCUMENTS, AND EACH LENDER HEREBY IRREVOCABLY WAIVES ANY OBJECTION
THERETO OR CAUSE OF ACTION ARISING THEREFROM.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and
year first above written.
▇▇▇▇▇▇ PACKAGING HOLDINGS COMPANY
By: BCP/▇▇▇▇▇▇ Holdings L.L.C., its
general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Title: Vice President, Finance and
Administration
▇▇▇▇▇▇ PACKAGING COMPANY, L.P.
By: GPC Opco GP LLC, its general
partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Title: Chief Financial Officer,
Treasurer and Secretary
GPC CAPITAL CORP. I
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Title: Secretary
DEUTSCHE BANK AG CAYMAN ISLANDS
BRANCH,
Individually, as Administrative
Agent and as Fronting Bank
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Title: Director
By: /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Title: Vice President
DEUTSCHE BANK SECURITIES INC.,
as Joint Lead Arranger and Joint
Book Runner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Title: Director
CITIGROUP GLOBAL MARKETS INC.,
as Syndication Agent, Joint Lead
Arranger and Joint Book Runner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Title: Managing Director
CITICORP NORTH AMERICA INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Title: Managing Director and Vice
President
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS, L.P.,
Individually, as Co-Documentation
Agent and Joint Book Runner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Title: Managing Director
GENERAL ELECTRIC CAPITAL CORPORATION,
Individually and as Co-Documentation
Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Title: Duly Authorized Signatory
▇▇▇▇▇▇ COMMERCIAL PAPER INC.,
Individually and as Co-Documentation
Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: Managing Director
CIT LENDING SERVICES CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇
---------------------------------
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION,
Individually and as a Senior
Managing Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------------
Title: Assistant Vice President
MANUFACTURERS AND TRADERS TRUST
COMPANY,
Individually and as a Senior
Managing Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Title: Administrative Vice President
Acknowledged and Agreed:
▇▇▇▇▇▇ PACKAGING POLAND, ▇.▇.
▇▇▇▇▇▇ RECYCLING COMPANY, L.P.
By: GPC Sub GP LLC, their general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Title: Vice President, Finance and
Administration, Treasurer
and Secretary
▇▇▇▇▇▇ PACKAGING FRANCE PARTNERS
By: ▇▇▇▇▇▇ Packaging Company L.P.,
its general partner
By: GPC Opco GP LLC,
its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Title: Chief Financial Officer, Treasurer
and Secretary
▇▇▇▇▇▇ PACKAGING LATIN AMERICA, LLC
▇▇▇▇▇▇ PACKAGING WEST JORDAN, LLC
GPC SUB GP LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Title: Secretary
▇▇▇▇▇▇ PACKAGING ACQUISITION CORP.
▇▇▇▇▇-▇▇▇▇▇▇▇▇ PLASTIC PRODUCTS INC.
CONTINENTAL PET TECHNOLOGIES, INC.
▇▇▇▇▇▇ U.S.A., INC.
CONTROLLERS U.S.A., INC.
COMERC U.S.A., INC.
OI REGIOPLAST STS INC.
TECHNOLOGICAL SPECIALTIES, INC.
OI VENEZUELA PLASTIC PRODUCTS INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Title: Secretary
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS.......................................................2
SECTION 1.01. Defined Terms........................................2
SECTION 1.02. Terms Generally.....................................37
ARTICLE II THE CREDITS.....................................................38
SECTION 2.01. Commitments.........................................38
SECTION 2.02. Loans...............................................41
SECTION 2.03. Borrowing Procedure.................................42
SECTION 2.04. Evidence of Debt; Repayment of Loans................43
SECTION 2.05. Fees................................................44
SECTION 2.06. Interest on Loans...................................45
SECTION 2.07. Default Interest....................................45
SECTION 2.08. Alternate Rate of Interest..........................46
SECTION 2.09. Termination and Reduction of Commitments............46
SECTION 2.10. Conversion and Continuation of Borrowings...........47
SECTION 2.11. Repayment of B Term Borrowings......................48
SECTION 2.12. Prepayment..........................................50
SECTION 2.13. Reserve Requirements; Change in Circumstances.......52
SECTION 2.14. Change in Legality..................................54
SECTION 2.15. Indemnity...........................................54
SECTION 2.16. Pro Rata Treatment..................................55
SECTION 2.17. Sharing of Setoffs..................................55
SECTION 2.18. Payments............................................56
SECTION 2.19. Taxes...............................................56
SECTION 2.20. Letters of Credit...................................60
SECTION 2.21. Replacement of Lenders..............................66
SECTION 2.22. Incremental Revolving Credit Commitments............67
SECTION 2.23. Incremental B Term Loan Commitments.................69
ARTICLE III REPRESENTATIONS AND WARRANTIES.................................71
SECTION 3.01. Organization; Powers................................71
SECTION 3.02. Authorization.......................................71
SECTION 3.03. Enforceability......................................71
SECTION 3.04. Governmental Approvals..............................72
SECTION 3.05. Financial Statements................................72
SECTION 3.06. No Material Adverse Change or Material Adverse
Effect............................................72
SECTION 3.07. Title to Properties; Possession Under Leases........73
SECTION 3.08. Co-Borrower; Subsidiaries...........................74
SECTION 3.09. Litigation; Compliance with Laws....................74
SECTION 3.10. Agreements..........................................74
SECTION 3.11. Federal Reserve Regulations.........................74
SECTION 3.12. Investment Company Act; Public Utility Holding
Company Act.......................................75
SECTION 3.13. Use of Proceeds.....................................75
SECTION 3.14. Tax Returns.........................................75
SECTION 3.15. No Material Misstatements...........................75
SECTION 3.16. Employee Benefit Plans..............................76
SECTION 3.17. Environmental Matters...............................76
SECTION 3.18. Capitalization of Holdings and the Borrower.........77
SECTION 3.19. Security Documents..................................77
SECTION 3.20. Location of Real Property and Leased Premises.......78
SECTION 3.21. Solvency............................................79
SECTION 3.22. Labor Matters.......................................79
SECTION 3.23. Insurance...........................................80
SECTION 3.24. Subordination: Designation of the Loan Documents
as "Designated Senior Indebtedness"; Etc..........80
SECTION 3.25. Legal Names; Organizational Identification Numbers;
Jurisdiction and Type of Organization; Etc........80
SECTION 3.26. Acquisition Agreement...............................80
ARTICLE IV CONDITIONS OF LENDING...........................................81
SECTION 4.01. All Credit Events..................................81
SECTION 4.02. First Credit Event.................................82
SECTION 4.03. Credit Events on the Redemption Date...............86
ARTICLE V AFFIRMATIVE COVENANTS...........................................86
SECTION 5.01. Existence; Businesses and Properties...............87
SECTION 5.02. Insurance..........................................87
SECTION 5.03. Taxes..............................................89
SECTION 5.04. Financial Statements, Reports, Etc.................89
SECTION 5.05. Litigation and Other Notices.......................91
SECTION 5.06. Employee Benefits..................................91
SECTION 5.07. Maintaining Records; Access to Properties
and Inspections..................................92
SECTION 5.08. Use of Proceeds....................................92
SECTION 5.09. Compliance with Environmental Laws.................92
SECTION 5.10. Preparation of Environmental Reports...............93
SECTION 5.11. Further Assurances; Additional Mortgages; Etc......93
SECTION 5.12. Fiscal Year; Accounting............................95
SECTION 5.13. Dividends..........................................95
SECTION 5.14. Interest Rate Protection Agreements................95
SECTION 5.15. Redemption of Existing Notes.......................95
SECTION 5.16. No Other "Designated Senior Indebtedness"..........96
ARTICLE VI NEGATIVE COVENANTS.............................................96
SECTION 6.01. Indebtedness.......................................96
SECTION 6.02. Liens 99
SECTION 6.03. Sale and Lease-Back Transactions...................103
SECTION 6.04. Investments, Loans and Advances....................103
SECTION 6.05. Mergers, Consolidations, Sales of Assets and
Acquisitions.....................................105
SECTION 6.06. Dividends and Distributions........................107
SECTION 6.07. Transactions with Affiliates.......................108
SECTION 6.08. Business of Holdings, the Borrower and their
Subsidiaries.....................................109
SECTION 6.09. Limitation on Modifications of Indebtedness;
Modifications of Certificate of Incorporation,
By-Laws and Certain Other Agreements; Etc........110
SECTION 6.10. Capital Expenditures...............................111
SECTION 6.11. Interest Coverage Ratio............................112
SECTION 6.12. Net Leverage Ratio.................................112
SECTION 6.13. Changes To Legal Names; Organizational
Identification Numbers, Jurisdiction or Type
of Organization..................................112
ARTICLE VII EVENTS OF DEFAULT.............................................113
SECTION 7.01. Events of Default..................................113
SECTION 7.02. Borrower's Right to Cure...........................116
ARTICLE VIII THE AGENTS...................................................117
SECTION 8.01. Appointment........................................117
SECTION 8.02. Nature of Duties...................................118
SECTION 8.03. Resignation by the Agents..........................119
SECTION 8.04. Each Agent in its Individual Capacity..............119
SECTION 8.05. Indemnification....................................119
SECTION 8.06. Lack of Reliance on Agents.........................120
ARTICLE IX MISCELLANEOUS..................................................120
SECTION 9.01. Notices 120
SECTION 9.02. Survival of Agreement..............................121
SECTION 9.03. Binding Effect.....................................121
SECTION 9.04. Successors and Assigns.............................121
SECTION 9.05. Expenses; Indemnity................................124
SECTION 9.06. Right of Setoff....................................125
SECTION 9.07. Applicable Law.....................................126
SECTION 9.08. Waivers; Amendment.................................126
SECTION 9.09. Interest Rate Limitation...........................129
SECTION 9.10. Entire Agreement...................................129
SECTION 9.11. WAIVER OF JURY TRIAL...............................129
SECTION 9.12. Severability.......................................129
SECTION 9.13. Counterparts.......................................129
SECTION 9.14. Headings...........................................130
SECTION 9.15. Jurisdiction; Consent to Service of Process........130
SECTION 9.16. Confidentiality....................................130
SECTION 9.17. Release of Liens and Guarantees....................131
SECTION 9.18. Co-Borrower's Obligations..........................132
SECTION 9.19. Limitations on Recourse............................132
SECTION 9.20. Post-Closing Actions...............................132
SECTION 9.21. USA Patriot Act....................................133
SECTION 9.22. SECOND LIENS ON COLLATERAL; TERMS OF
INTERCREDITOR AGREEMENT; ETC.....................133
Exhibits and Schedules
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Borrowing Request
Exhibit C Form of Letter of Credit Request
Exhibit D-1 Form of Incremental Revolving Credit Commitment
Agreement
Exhibit D-2 Form of Incremental B Term Loan Commitment Agreement
Exhibit E Form of Mortgage
Exhibit F Form of Parent Guarantee Agreement
Exhibit G Form of Pledge Agreement
Exhibit H Form of Security Agreement
Exhibit I Form of Intercreditor Agreement
Exhibit J Form of Subsidiary Guarantee Agreement
Exhibit K-1 Form of Opinion of Skadden, Arps, Meagher, Slate
& ▇▇▇▇
Exhibit K-2 Form of Opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP
Exhibit L Form of Joinder Agreement
Schedule A Pricing Adjustments
Schedule B Lender Addresses
Schedule 1.01 Existing Letters of Credit
Schedule 2.01 Commitments
Schedule 3.05 Contingent Liabilities
Schedule 3.07(c) Intellectual Property
Schedule 3.07(e) Mortgaged Property Rights
Schedule 3.08 Subsidiaries
Schedule 3.09 Litigation
Schedule 3.14 Taxes
Schedule 3.17 Environmental Matters
Schedule 3.18 Capitalization
Schedule 3.20 Real Property and Leased Premises
Schedule 3.22 Labor Matters
Schedule 3.23 Insurance
Schedule 3.25 Loan Parties
Schedule 5.17 Post-Closing Matters
Schedule 6.01 Indebtedness
Schedule 6.02 Liens
Schedule 6.04 Investments
Schedule 6.07 Transactions with Affiliates
Schedule 9.20 Post-Closing Actions
