SECOND AMENDED AND RESTATED CREDIT AGREEMENT Dated as of November 10, 2006 among BUILDING MATERIALS HOLDING CORPORATION, BMC WEST CORPORATION AND OTHER SUBSIDIARY GUARANTORS, WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent, Joint Lead...
SECOND
AMENDED AND RESTATED
Dated
as of
November 10, 2006
among
BUILDING
MATERIALS HOLDING CORPORATION,
BMC
WEST
CORPORATION
AND
OTHER
SUBSIDIARY GUARANTORS,
XXXXX
FARGO
BANK, NATIONAL ASSOCIATION,
as
Administrative Agent, Joint Lead Arranger, Joint Book Manager Swingline Lender
and L/C Issuer,
JPMORGAN
CHASE BANK, N.A.,
as
Documentation Agent
SUNTRUST
BANK,
as
Joint
Lead Arranger and Co-Syndication Agent,
BNP
PARIBAS
as
Joint
Lead Arranger and Co-Syndication Agent
and
THE
OTHER
FINANCIAL INSTITUTIONS PARTY HERETO
X.X.
XXXXXX
SECURITIES INC.,
Joint
Lead
Arranger and Joint Book Manager
Page
Article
I.
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2
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1.01
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1.02
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1.03
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Article
II.
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2.01
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2.02
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Article
III.
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TABLE
OF
CONTENTS
(continued)
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Article
IV.
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4.01
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4.02
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Article
V.
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5.01
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5.02
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5.03
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Article
VI.
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6.16
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6.17
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TABLE
OF
CONTENTS
(continued)
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6.18
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6.19
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6.20
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6.21
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Article
VII.
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7.01
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7.13
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7.14
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Article
VIII.
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TABLE
OF
CONTENTS
(continued)
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Article
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Article
X.
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Article
XI.
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11.01
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11.02
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11.03
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11.04
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TABLE
OF
CONTENTS
(continued)
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11.17
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ANNEXES
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Annex
I
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SCHEDULES
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Schedule
1.01
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Schedule
2.01(b)
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Schedule
2.09(a)
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Schedule
6.05
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Schedule
6.07
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Schedule
6.11
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Schedule
6.12
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Schedule
6.15
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Schedule
6.17
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Schedule
6.18
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Schedule
8.01
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Schedule
8.05
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Schedule
8.08
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Schedule
11.02
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Schedule
11.06
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EXHIBITS
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Exhibit
A
1
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Exhibit
A-2
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Exhibit
B
1
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Exhibit
B-2
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Exhibit
C
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Exhibit
D
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Exhibit
E
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Exhibit
F
1
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Exhibit
F
2
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Exhibit
G
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Exhibit
H
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Exhibit
I
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Exhibit
J
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SECOND
AMENDED AND RESTATED CREDIT AGREEMENT
This
SECOND AMENDED
AND RESTATED CREDIT AGREEMENT (this “Agreement”)
is entered into
as of November 10, 2006, by and among (i) BUILDING MATERIALS HOLDING
CORPORATION, a Delaware corporation (“Holdings”),
as borrower,
(ii) BMC WEST CORPORATION, a Delaware corporation (the “Company”),
and certain
other affiliates of Holdings, as guarantors, (iii) the several financial
institutions from time to time party to this Agreement (individually, a
“Lender”
and,
collectively, the “Lenders”),
(iv) JPMORGAN CHASE BANK, N.A., as Documentation Agent, (v) SUNTRUST
BANK, as Joint Lead Arranger and Co-Syndication Agent, (vi) BNP PARIBAS, as
Joint Lead Arranger and Co-Syndication Agent, and (vii) XXXXX FARGO BANK,
NATIONAL ASSOCIATION (“Xxxxx
Fargo”),
as the L/C
Issuer (as defined herein), the Swingline Lender (as defined herein), the
administrative agent for the Lenders (in such capacity, the “Administrative
Agent”),
Joint Lead
Arranger and Joint Book Manager for the credit facilities described
herein.
RECITALS
A. WHEREAS,
Holdings
previously entered into that certain Amended and Restated Credit Agreement,
dated as of June 30, 2005 (as amended, supplemented and otherwise modified
prior
to the date hereof, the “Existing
Credit
Agreement”),
by and among
(i) Holdings, as borrower, (ii) the Company and certain other
affiliates of Holdings, as guarantors, (iii) the several financial
institutions party thereto, as lenders (each, an “Existing
Lender”
and,
collectively, the “Existing
Lenders”),
(iv) Suntrust Bank, as co-lead arranger and syndication agent,
(v) JPMorgan Chase Bank, N.A., as co-documentation agent, (vi) LaSalle
Business Credit, LLC, as co-documentation agent, (vii) U.S. Bank National
Association, as co-documentation agent, and (vii) Xxxxx Fargo, as letter of
credit issuing bank, swingline bank, and administrative agent for the Existing
Lenders and as sole book runner and co - lead arranger of the credit facilities
provided therein.
B. WHEREAS,
Holdings
has requested that the Existing Credit Agreement be further amended and restated
in order to (i) increase the Revolving Commitments initially to
$500,000,000, which amount may be subsequently increased in accordance with
the
terms and conditions hereof, (ii) reduce the Term A Loans to zero,
(iii) allow for additional Term B Loans to be made on the Effective
Date and thereafter Additional Term B Loans (as defined herein), in each
case, in accordance with the terms and conditions hereof, (iv) replace
certain of the Existing Lenders that do not desire to be party to this Agreement
with new financial institutions which desire to be party to this Agreement
as
Lenders (collectively, the “New
Lenders”),
(v) reallocate the outstanding Obligations among the Existing Lenders that
desire to be party to this Agreement and the New Lenders, and (vi) make
certain other changes.
C. WHEREAS,
the
parties hereto are willing to so amend and restate the Existing Credit Agreement
upon the terms and subject to the conditions set forth herein.
AGREEMENT
NOW,
THEREFORE, in
consideration of the above Recitals and the mutual agreements, provisions and
covenants contained herein, the parties hereto hereby agree as
follows:
DEFINITIONS
1.01 Certain
Defined
Terms.
The following
terms have the following meanings when used herein (including in the Recitals
hereof):
“Acquisition”
means
any
transaction or series of related transactions for the purpose of or resulting,
directly or indirectly, in (i) the acquisition of all or substantially all
of the assets of a Person, or of any business or division of a Person,
(ii) the acquisition of in excess of 50% of the capital stock, partnership
interests, membership interests or equity of any Person, or otherwise causing
any Person to become a Subsidiary, or (iii) a merger or consolidation or
any other combination with another Person (other than a Person that is a
Subsidiary).
“Additional
Lenders”
means
the
financial institutions (if any) which agree to provide Additional Term B
Loans and/or make Additional Revolving Commitments to Holdings in accordance
with the terms and conditions set forth herein on any Subsequent Effective
Date.
“Additional
Guarantor Accession Date”
has
the meaning
specified in Section 7.13.
“Additional
Guarantor Assumption Agreement”
has
the meaning
specified in Section 7.13.
“Additional
Revolving Commitment”
has
the meaning
specified in Section 2.01(d).
“Additional
Term B Commitment”
has
the meaning
specified in Section 2.01(c).
“Additional
Term B Loan”
has
the meaning
specified in Section 2.01(c).
“Administrative
Agent”
has
the meaning
specified in the preamble,
and any successor
Administrative Agent arising under Section 10.06.
“Administrative
Agent Related Persons”
means
Xxxxx Fargo
and any successor Administrative Agent arising under Section 10.06
and any L/C Issuer
hereunder, together with their respective Affiliates, and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
“Administrative
Agent’s Payment Office”
means
the address
for payments set forth on Schedule
11.02
or such other
address as the Administrative Agent may from time to time specify.
“Administrative
Questionnaire”
means
an
Administrative Questionnaire in a form supplied by the Administrative Agent.
“Affiliate”
means,
with
respect to any 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.
“Aggregate
Revolving Commitment”
means
the
combined Revolving Commitments of the Revolving Lenders, which combined
Revolving Commitments shall not exceed $500,000,000 as of the Effective Date,
which amount includes both the L/C Commitment and the Swingline Commitment
and
which amount may be increased on any Subsequent Effective Date pursuant to
Section 2.01(d)
by no more than an
amount equal to the difference of (i) $250,000,000 minus
(ii) the
total of (x) the amount (if any) by which the Aggregate Revolving
Commitment has been increased on all Subsequent Effective Dates that shall
have
occurred prior to the relevant Subsequent Effective Date pursuant to
Section 2.01(d) plus
(y) the
amount (if any) by which the Term B Loans have been increased on all
Subsequent Effective Dates that shall have occurred prior to, or simultaneous
with, the relevant Subsequent Effective Date pursuant to Section 2.01(c).
“Aggregate
Term B Commitment”
means
the
combined Term B Commitments of the Term B Lenders, which Term B
Commitments shall not exceed $350,000,000 as of the Effective Date.
“Agreement”
means
this Credit
Agreement.
“Applicable
Fee
Amount”
means
with
respect to the Commitment Fees and Standby Letter of Credit fees payable
hereunder, the amount set forth opposite the indicated Level below the heading
“Commitment Fee” or “Letter of Credit Fee,” as applicable, in the pricing grid
set forth on Annex I
in accordance with
the parameters for calculations of such amount also set forth on Annex I.
“Applicable
Margin”
means
(i) with respect to Base Rate Loans and Offshore Rate Loans which are
Revolving Loans, the amount set forth opposite the indicated Level below the
heading “Base Rate Spread or “Offshore Rate Spread” in the pricing grid set
forth on Annex I
in accordance with
the parameters for calculations of such amounts also set forth on Annex I,
and
(ii) with respect to Term B Loans which are Base Rate Loans, 1.25%,
and with respect to Term B Loans which are Offshore Rate Loans,
2.50%.
“Approved
Fund”
means
any Fund
that is administered or managed by (a) a Lender, (b) an Affiliate of a
Lender or (c) an entity or an Affiliate of an entity that administers or
manages a Lender.
“Assignee
Group”
means
two or more
Eligible Assignees that are Affiliates of one another or two or more Approved
Funds managed by the same investment advisor.
“Assignment
and
Assumption”
means
an
assignment and assumption entered into by a Lender and an Eligible Assignee
(with the consent of any party whose consent is required
by
Section 11.06),
and accepted by
the Administrative Agent, in substantially the form of Exhibit E
or any other form
approved by the Administrative Agent.
“Attorney
Costs”
means
and
includes all fees and disbursements of any law firm or other external counsel,
the allocated cost of internal legal services and all disbursements of internal
counsel.
“Available
Commitment”
has
the meaning
specified in Section 2.11(b).
“Bankruptcy
Code”
means
the
Bankruptcy Code of the United States (11 U.S.C. §101, et seq.).
“Base
Rate”
means,
for any
day, the higher of: (i) 0.50% per annum above the latest Federal Funds
Rate, and (ii) the rate of interest in effect for such day as publicly
announced from time to time by Xxxxx Fargo at its principal office in San
Francisco as its prime rate. (The prime rate is a rate set by Xxxxx Fargo based
upon various factors including Xxxxx Fargo’s costs and desired return, general
economic conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such announced
rate.) Any change in the prime rate announced by Xxxxx Fargo shall take effect
at the opening of business on the day specified in the public announcement
of
such change.
“Base
Rate
Loan”
means
a Loan that
bears interest based on the Base Rate.
“Borrowing”
means
a borrowing
hereunder consisting of (i) Loans of the same Type made to Holdings on the
same day by the Lenders under Article
II,
and, in the case
of Offshore Rate Loans, having the same Interest Period, (ii) a Swingline
Loan (or Swingline Loans) made to Holdings on the same day by the Swingline
Lender, or (iii) an L/C Borrowing.
“Borrowing
Date”
means
any date on
which a Borrowing occurs.
“Business
Day”
means
any day
other than a Saturday, Sunday or other day on which commercial banks in New
York
City or San Francisco are authorized or required by law to close and, if the
applicable Business Day relates to any Offshore Rate Loan, means such a day
on
which dealings are carried on in the London or other applicable offshore Dollar
interbank market.
“Capital
Lease”
means,
for any
Person, any lease of property (whether real, personal or mixed) which, in
accordance with GAAP, would, at the time a determination is made, be required
to
be recorded as a capital lease in respect of which such Person is liable as
lessee.
“Cash
Collateralize”
means
to pledge
and deposit with or deliver to the Administrative Agent, for the benefit of
the
Administrative Agent, the L/C Issuer and the Revolving Lenders, as additional
collateral for the Obligations pursuant to the Loan Documents, cash or deposit
account balances. Derivatives of such term shall have corresponding
meaning.
“Cash
Management
Services”
means
any
services provided from time to time by any Lender or any of its Affiliates
to
Holdings or any Subsidiary in connection with operating,
collections,
payroll, trust, or other depository or disbursement accounts, including
automatic clearinghouse, controlled disbursement, depository, electronic funds
transfer, information reporting, lockbox, stop payment, overdraft and/or wire
transfer services.
“Change
in
Law”
means
the
occurrence, after the date of this Agreement, of any of the following:
(a) the adoption or taking effect of any law, rule, regulation or treaty,
(b) any change in any law, rule, regulation or treaty or in the
administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any Governmental
Authority.
“Change
of
Control”
means
an event or
series of events by which:
(a) any
“person”
or
“group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of
such
person or its subsidiaries, and any person or entity acting in its capacity
as
trustee, agent or other fiduciary or administrator of any such plan) becomes
the
“beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities
Exchange Act of 1934, except that a person or group shall be deemed to have
“beneficial ownership” of all securities that such person or group has the right
to acquire (such right, an “option
right”),
whether such
right is exercisable immediately or only after the passage of time), directly
or
indirectly, of 20% or more of the equity securities of Holdings entitled to
vote
for members of the board of directors or equivalent governing body of Holdings
on a fully-diluted basis (and taking into account all such securities that
such
person or group has the right to acquire pursuant to any option
right);
(b) during
any period
of 12 consecutive months, a majority of the members of the board of directors
or
other equivalent governing body of Holdings cease to be composed of individuals
(i) who were members of that board or equivalent governing body on the
first day of such period, (ii) whose election or nomination to that board
or equivalent governing body was approved by individuals referred to in
clause (i) above constituting at the time of such election or nomination at
least a majority of that board or equivalent governing body or (iii) whose
election or nomination to that board or other equivalent governing body was
approved by individuals referred to in clauses (i) and (ii) above
constituting at the time of such election or nomination at least a majority
of
that board or equivalent governing body (excluding, in the case of both
clause (ii) and clause (iii), any individual whose initial nomination
for, or assumption of office as, a member of that board or equivalent governing
body occurs as a result of an actual or threatened solicitation of proxies
or
consents for the election or removal of one or more directors by any person
or
group other than a solicitation for the election of one or more directors by
or
on behalf of the board of directors); or
(c) any
Person or two
or more Persons acting in concert shall have acquired by contract or otherwise,
or shall have entered into a contract that, upon consummation thereof, will
result in its or their acquisition of the power to exercise, directly or
indirectly, control over the equity securities of Holdings entitled to vote
for
members of the board of directors or equivalent governing body of Holdings
on a
fully-diluted basis (and taking into account all such securities that such
Person or group has the right to acquire pursuant to any option right)
representing 20% or more of the combined voting power of such
securities.
“Clean-Up
Day”
has
the meaning
specified in Section 2.06(d).
“Code”
means
the
Internal Revenue Code of 1986.
“Collateral”
means
all
tangible and intangible property and interests in property and proceeds thereof
now owned or hereafter acquired by Holdings or any Guarantor in or upon which
a
Lien (i) existed in favor of the Administrative Agent and the Existing
Lenders party to the Existing Credit Agreement immediately prior to the
Effective Date, or (ii) now or hereafter exists in favor of the Lenders, or
the Administrative Agent on behalf of the Lenders and the other Secured Parties
(as defined in the Security Agreement), on and after the Effective Date, whether
under this Agreement or under any other Collateral Document.
“Collateral
Documents”
mean,
collectively, (i) the Security Agreement, the Intellectual Property
Security Agreements and all other security agreements, patent and trademark
assignments, control agreements and other similar agreements between Holdings
or
any Guarantor and the Lenders, or the Administrative Agent for the benefit
of
the Lenders and the other Secured Parties (as defined in the Security
Agreement), now or hereafter delivered to the Lenders or the Administrative
Agent pursuant to or in connection with the transactions contemplated hereby,
and all financing statements (or comparable documents now or hereafter filed
in
accordance with the Uniform Commercial Code or comparable law) against Holdings
or any Guarantor as debtor in favor of the Lenders, or the Administrative Agent
for the benefit of the Lenders and the other Secured Parties (as defined in
the
Security Agreement), as secured party, and (ii) any amendments,
supplements, modifications, renewals, replacements, consolidations,
substitutions and extensions of any of the foregoing.
“Commercial
Letter of Credit”
means
a
commercial Letter of Credit Issued for the account of Holdings in respect of
the
purchase of inventory or other goods and services by Holdings or any of its
Subsidiaries in the ordinary course of business.
“Commitment”
means,
as to each
Lender, the sum of its Revolving Commitment (including its Additional Revolving
Commitment, if any), Term B Commitment and Additional Term B
Commitment, if any.
“Commitment
Fees”
has
the meaning
specified in Section 2.11(b).
“Company”
has
the meaning
specified in the preamble.
“Compliance
Certificate”
means
a
certificate substantially in the form of Exhibit C.
“Consolidated
Net
Worth”
means,
as of the
date of determination, the consolidated shareholders’ equity of Holdings and its
Subsidiaries, exclusive of unrealized gains or losses from non-speculative
interest rate swaps and marketable securities as of such date of determination,
as determined in accordance with GAAP.
“Consolidated
Net
Income”
means,
for any
period, the consolidated net income of Holdings and its Subsidiaries for such
period, as determined in accordance with GAAP.
“Consolidated
Total Assets”
means,
as of the
date of determination, the consolidated total assets of Holdings and its
Subsidiaries, as determined in accordance with GAAP.
“Contingent
Obligation”
means
(without
duplication), as to any Person, any direct or indirect liability of that Person,
whether or not contingent, with or without recourse, (i) with respect to
any Indebtedness, lease, dividend, letter of credit or other obligation (the
“primary
obligations”)
of another
Person (the “primary
obligor”),
including any
obligation of that Person (a) to purchase, repurchase or otherwise acquire
such primary obligations or any security therefor, (b) to advance or
provide funds for the payment or discharge of any such primary obligation,
or to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency or any balance sheet item, level of income
or financial condition of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment
of
such primary obligation, (d) in connection with any synthetic lease or
other similar off balance sheet lease transaction, or (e) otherwise to
assure or hold harmless the holder of any such primary obligation against loss
in respect thereof (each a “Guaranty
Obligation”);
(ii) with
respect to any Surety Instrument issued for the account of that Person or as
to
which that Person is otherwise liable for reimbursement of drawings or payments;
(iii) to purchase any materials, supplies or other property from, or to
obtain the services of, another Person if the relevant contract or other related
document or obligation requires that payment for such materials, supplies or
other property, or for such services, shall be made regardless of whether
delivery of such materials, supplies or other property is ever made or tendered,
or such services are ever performed or tendered; (iv) in respect of
Earn-Out Obligations; (v) in respect of any Swap Contract; and (vi) in
respect of Stock Price Guaranties. The amount of any Contingent Obligation
shall, in the case of Guaranty Obligations, be deemed equal to the stated or
determinable amount of the primary obligation in respect of which such Guaranty
Obligation is made or, if not stated or if indeterminable, the maximum
reasonably anticipated liability in respect thereof, and in the case of other
Contingent Obligations other than in respect of Swap Contracts, shall be equal
to the maximum reasonably anticipated liability in respect thereof and, in
the
case of Contingent Obligations in respect of Swap Contracts, shall be equal
to
the Swap Termination Value.
“Contractual
Obligation”
means,
as to any
Person, any provision of any security issued by such Person or of any agreement,
undertaking, contract, indenture, mortgage, deed of trust or other instrument,
document or agreement to which such Person is a party or by which it or any
of
its property is bound.
“Control”
means
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 ability
to exercise voting power, by contract or otherwise. “Controlling”
and
“Controlled”
have
meanings
correlative thereto.
“Conversion/Continuation
Date”
means
any date on
which, under Section 2.04,
Holdings
(i) converts Loans of one Type to another Type, or (ii) continues as
Loans of the same Type, but with a new Interest Period, Loans having Interest
Periods expiring on such date.
“Credit
Extension”
means
and
includes (i) the making of any Revolving Loans, Term B Loans or
Swingline Loans hereunder, and (ii) the Issuance of any Letters of Credit
hereunder.
“Default”
means
any Event
of Default and any event or circumstance which, with the giving of notice,
the
lapse of time, or both, would constitute an Event of Default.
“Defaulting
Lender”
means
a Lender
that has failed to fund its portion of any Borrowing that it is required to
fund
under this Agreement and has continued in such failure for three (3) Business
Days after written notice from the Administrative Agent.
“Departing
Lender”
means
a Departing
Revolving Lender or a Departing Term B Lender.
“Departing
Revolving Lender”
means
any
Existing Lender that (i) has a “Revolving Commitment” under the Existing
Credit Agreement and (ii) does not desire to be party to this
Agreement.
“Departing
Term B Lender”
means
any
Existing Lender that (i) has made a “Term B Loan” under the Existing
Credit Agreement and (ii) does not desire to be party to this
Agreement.
“Disposition”
means
the sale,
lease, conveyance or other disposition of property, other than sales or other
dispositions expressly permitted under Sections 8.02(a)
through
8.02(f).
“Disposition
Value”
means
the
aggregate net book value of all assets sold, transferred, leased or otherwise
disposed of in any transaction, determined as of the date of such disposition
or
proposed disposition thereof.
“Dollars,”
“dollars”
and
“$”
each
mean lawful
money of the United States.
“Earn-out
Obligations”
means
any
obligations, whether contingent or matured, to pay additional consideration
in
connection with the Acquisition by Holdings or any Subsidiary of any capital
stock or assets of any Person.
“EBITA”
means,
for any
period, for Holdings and its Subsidiaries, the sum of Consolidated Net Income
of
Holdings and its Subsidiaries for such period (exclusive of extraordinary gains
and losses and exclusive of earnings from Minority Investments but including
earnings from Wholly-Owned Subsidiaries and Non-Wholly-Owned Subsidiaries (but
in the case of Non-Wholly-Owned Subsidiaries, only to the extent of the ratable
portion of ownership by Holdings or any Wholly-Owned Subsidiaries of Holdings
in
such Non-Wholly-Owned Subsidiaries)) plus
(to the extent
deducted in determining Consolidated Net Income) (i) Interest Expense for
such period, (ii) income tax expense for such period,
(iii) amortization expense and other non-cash expenses (including non-cash
share-based compensation costs) for such period (other than depreciation
expense) and (iv) cash distributions in respect of Minority Investments, in
each case, measured in accordance with GAAP.
“EBITDA”
means,
for any
period, for Holdings and its Subsidiaries, the sum of Consolidated Net Income
of
Holdings and its Subsidiaries for such period (exclusive of extraordinary gains
and losses and exclusive of earnings from Minority Investments but including
earnings from Wholly-Owned Subsidiaries and Non-Wholly-Owned Subsidiaries (but
in the case of Non-Wholly-Owned Subsidiaries, only to the extent of the ratable
portion of ownership by Holdings or any Wholly-Owned Subsidiaries of Holdings
in
such Non-Wholly-Owned Subsidiaries)) plus
(to the extent
deducted in determining Consolidated Net Income) (i) Interest Expense for
such period, (ii) income tax expense for such period,
(iii) depreciation expense, amortization expense and other non-cash
expenses (including non-cash share-based compensation costs) for such period
and
(iv) cash distributions in respect of Minority Investments, in each case,
measured in accordance with GAAP. For purposes of determining the consolidated
EBITDA of Holdings and its Subsidiaries hereunder for purposes of calculating
the Total EBITDA Ratio hereunder, EBITDA shall be adjusted upon the Permitted
Acquisition of the equity or all or substantially all of the assets of another
Person (the “Acquiree”)
(A) to
include the historical financial results of such Acquiree for the four fiscal
quarter period (“Calculation
Period”)
for which
Holdings’ consolidated EBITDA is calculated hereunder, until such time as the
first day of any Calculation Period falls on or after the date on which the
Acquisition of such Acquiree is consummated; and (B) to exclude any
specific, identifiable expense items which are eliminated as a result of the
Permitted Acquisition of such Acquiree at the closing thereof, provided
that, if
available, audited financial statements accompanied by an unqualified opinion
of
an Independent Auditor are delivered to the Administrative Agent and the Lenders
in respect of such Acquiree for the then most recent fiscal year of such
Acquiree, and provided further
that Holdings
shall have delivered a certificate of a Responsible Officer clearly setting
forth such pro forma
additions and
exclusions to consolidated EBITDA resulting from the Permitted Acquisition
of
such Acquiree.
“Effective
Amount”
means
(i) with respect to any Revolving Loans, Term B Loans and Swingline
Loans on any date, the aggregate outstanding principal amount thereof after
giving effect to any Borrowings and prepayments or repayments of Revolving
Loans, Term B Loans and Swingline Loans occurring on such date; and
(ii) with respect to any outstanding L/C Obligations on any date, the
amount of such L/C Obligations on such date after giving effect to any Issuances
of Letters of Credit occurring on such date and any other changes in the
aggregate amount of the L/C Obligations as of such date, including as a result
of any reimbursements of outstanding unpaid drawings under any Letters of Credit
or any reductions in the maximum amount available for drawing under Letters
of
Credit taking effect on such date; provided
that for purposes
of Section 2.08,
the Effective
Amount shall be determined without giving effect to any mandatory prepayments
to
be made under Section 2.08.
“Effective
Date”
means
the date on
which all conditions precedent set forth in Section 5.01
are satisfied or
waived by all of the Lenders (or, in the case of Section 5.01(f),
waived by the
Person entitled to receive such payment) which date shall not be later than
December 31, 2006.
“Eligible
Assignee”
means
(a) a
Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; and
(d) any other Person (other than a natural person) approved by (i) the
Administrative Agent, (ii) in the case of any assignment of a Revolving
Commitment, the L/C Issuer and the Swingline Lender, and (iii) unless an
Event of Default has occurred and is
continuing,
Holdings (each such approval not to be unreasonably withheld or delayed);
provided
that
notwithstanding the foregoing, “Eligible Assignee” shall not include Holdings or
any of Holdings’ Affiliates or Subsidiaries.
“Environmental
Claims”
means
all claims,
however asserted, by any Governmental Authority or other Person alleging
potential liability or responsibility for violation of any Environmental Law,
or
for release or injury to the environment or threat to public health, personal
injury (including sickness, disease or death), property damage, natural
resources damage, or otherwise alleging liability or responsibility for damages
(punitive or otherwise), cleanup, removal, remedial or response costs,
restitution, civil or criminal penalties, injunctive relief, or other type
of
relief, resulting from or based upon the presence, placement, discharge,
emission or release (including intentional and unintentional, negligent and
non-negligent, sudden or non-sudden, accidental or non-accidental, placement,
spills, leaks, discharges, emissions or releases) of any Hazardous Material
at,
in, or from any property, whether or not owned by Holdings or any
Subsidiary.
“Environmental
Laws”
means
all
federal, state or local laws, statutes, common law duties, rules, regulations,
ordinances and codes, together with all administrative orders, directed duties,
requests, licenses, authorizations and permits of, and agreements with, any
Governmental Authorities, in each case relating to environmental, health, safety
and land use matters; including the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (“CERCLA”),
the Clean Air
Act, the Federal Water Pollution Control Act of 1972, the Solid Waste Disposal
Act, the Federal Resource Conservation and Recovery Act, the Toxic Substances
Control Act, the Emergency Planning and Community Right-to-Know Act, the
California Hazardous Waste Control Law, the California Solid Waste Management,
Resource, Recovery and Recycling Act, the California Water Code and the
California Health and Safety Code.
“ERISA”
means
the
Employee Retirement Income Security Act of 1974.
“ERISA
Affiliate”
means
any trade
or business (whether or not incorporated) under common control with Holdings
or
the Company within the meaning of section 414(b) or (c) of the Code (and
sections 414(m) and (o) of the Code for purposes of provisions relating to
section 412 of the Code).
“ERISA
Event”
means
(i) a
Reportable Event with respect to a Pension Plan; (ii) a withdrawal by
Holdings, the Company or any ERISA Affiliate from a Pension Plan subject to
section 4063 of ERISA during a plan year in which it was a substantial
employer (as defined in section 4001(a)(2) of ERISA) or a cessation of
operations which is treated as such a withdrawal under section 4062(e) of
ERISA; (iii) a complete or partial withdrawal by Holdings, the Company or
any ERISA Affiliate from a Multiemployer Plan or notification that a
Multiemployer Plan is in reorganization; (iv) the filing of a notice of
intent to terminate, the treatment of a Plan amendment as a termination under
section 4041 or 4041A of ERISA, or the commencement of proceedings by the
PBGC to terminate a Pension Plan or Multiemployer Plan; (v) an event or
condition which might reasonably be expected to constitute grounds under
section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (vi) the
imposition of any liability under Title IV
of ERISA, other than PBGC premiums due but not delinquent under section 4007 of ERISA, upon Holdings, the Company or any ERISA Affiliate.
of ERISA, other than PBGC premiums due but not delinquent under section 4007 of ERISA, upon Holdings, the Company or any ERISA Affiliate.
“Event
of
Default”
means
any of the
events or circumstances specified in Section 9.01.
“Event
of
Loss”
means,
with
respect to any property, any of the following: (i) any loss, destruction or
damage of such property; (ii) any pending or threatened institution of any
proceedings for the condemnation or seizure of such property or for the exercise
of any right of eminent domain; or (iii) any actual condemnation, seizure
or taking, by exercise of the power of eminent domain or otherwise, of such
property, or confiscation of such property or the requisition of the use of
such
property.
“Exchange
Act”
means
the
Securities Exchange Act of 1934.
“Excluded
Taxes”
means,
with
respect to the Administrative Agent, any Lender, the L/C Issuer or any other
recipient of any payment to be made by or on account of any obligation of
Holdings hereunder, (a) taxes imposed on or measured by its overall net
income (however denominated), and franchise taxes imposed on it (in lieu of
net
income taxes), by the jurisdiction (or any political subdivision thereof) under
the laws of which such recipient is organized or in which its principal office
is located or, in the case of any Lender, in which its applicable Lending Office
is located, (b) any branch profits taxes imposed by the United States or
any similar tax imposed by any other jurisdiction in which Holdings is located
and (c) in the case of a Foreign Lender (other than an assignee pursuant to
a request by Holdings under Section 4.07),
any withholding
tax that is imposed on amounts payable to such Foreign Lender at the time such
Foreign Lender becomes a party hereto (or designates a new Lending Office)
or is
attributable to such Foreign Lender’s failure or inability (other than as a
result of a Change in Law) to comply with Section 4.01(e),
except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at
the
time of designation of a new Lending Office (or assignment), to receive
additional amounts from Holdings with respect to such withholding tax pursuant
to Section 4.01(a).
“Existing
Credit
Agreement”
has
the meaning
specified in Recital A.
“Existing
Lender”
has
the meaning
specified in Recital A.
“Existing
Letters
of Credit”
means
those
letters of credit issued under the Existing Credit Agreement and set forth
on
Schedule 1.01.
“Federal
Funds
Rate”
means,
for any
day, the rate set forth in the weekly statistical release designated as
H.15(519), or any successor publication, published by the Federal Reserve Bank
of New York with respect to the preceding Business Day opposite the caption
“Federal Funds (Effective)”; or, if for any relevant day such rate is not so
published with respect to any such preceding Business Day, the rate for such
day
will be the arithmetic mean as determined by the Administrative Agent of the
rates for the last transaction in overnight Federal funds arranged prior to
9:00
a.m. (New York City time) on that day by each of three leading brokers of
Federal funds transactions in New York City selected by the Administrative
Agent.
“Fee
Letters”
has
the meaning
specified in Section 2.11(a).
“Foreign
Lender”
means
any Lender
that is organized under the laws of a jurisdiction other than that in which
Holdings is resident for tax purposes. For purposes of this definition, the
United States, each State thereof and the District of Columbia shall be deemed
to constitute a single jurisdiction.
“FRB”
means
the Board
of Governors of the Federal Reserve System, and any Governmental Authority
succeeding to any of its principal functions.
“Fund”
means
any Person
(other than a natural person) that is (or will be) engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business.
“Funded
Debt”
means,
as of any
date of determination, all (x) indebtedness for borrowed money plus
(y) reimbursement obligations in respect of Surety Instruments plus
(z) obligations in respect of Capital Leases, in each case of Holdings and
its Subsidiaries on such date, on a consolidated basis in accordance with GAAP,
including all Revolving Loans, Term B Loans, Swingline Loans and L/C
Borrowings, but excluding all L/C Obligations specified in clause (i) of
the definition thereof.
“GAAP”
means
generally
accepted accounting principles set forth from time to time in the opinions
and
pronouncements of the Accounting Principles Board and the American Institute
of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or agencies with similar functions of comparable
stature and authority within the U.S. accounting profession), which are
applicable to the circumstances as of the date of determination, subject to
Section 1.03.
“Governmental
Authority”
means
the
government of the United States or any other nation, or of any political
subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers
or
functions of or pertaining to government (including any supra-national bodies
such as the European Union or the European Central Bank).
“Guarantor”
means
each direct
or indirect U.S. Wholly-Owned Subsidiary of Holdings that currently exists
or is
hereafter acquired or created and which is a party to a Guaranty in its capacity
as a guarantor of any of the Obligations, and shall include the Company and
each
U.S. Wholly-Owned Subsidiary of Holdings party hereto; provided,
however,
that in no event
shall (i) the definition of Guarantor include BMC Insurance, Inc. and
(ii) any Guarantor be released of its obligations under any Guaranty in the
event such Guarantor ceases to be a U.S. Wholly-Owned Subsidiary, by operation
of any disposition of the equity thereof or otherwise, except as permitted
under
this Agreement.
“Guaranty”
means
the
guaranty of each Guarantor made pursuant to Section 11.10
and any other
guaranty under any separate agreement executed by any Guarantor pursuant to
which it guarantees any of the Obligations.
“Guaranty
Obligation”
has
the meaning
specified in the definition of “Contingent Obligation.”
“Hazardous
Materials”
means
all those
substances that are regulated by, or which may form the basis of liability
under, any Environmental Law, including any substance identified under any
Environmental Law as a pollutant, contaminant, hazardous waste, hazardous
constituent, special waste, hazardous substance, hazardous material, or toxic
substance, or petroleum or petroleum derived substance or waste.
“Holdings”
has
the meaning
specified in the preamble.
“Honor
Date”
has
the meaning
specified in Section 3.03(b).
“Indebtedness”
of
any Person
means, without duplication, (i) all indebtedness for borrowed money;
(ii) all obligations issued, undertaken or assumed as the deferred purchase
price of property or services (other than trade payables entered into in the
ordinary course of business on ordinary terms and (x) not past due for more
than 120 days or (y) if past due for more than 120 days, are being
contested in good faith with any reserves as may be required by GAAP made
therefor, but including all non-contingent Earn-Out Obligations); (iii) all
reimbursement or payment obligations with respect to Surety Instruments
(contingent or otherwise); (iv) all obligations evidenced by notes, bonds,
debentures or similar instruments, including obligations so evidenced incurred
in connection with the acquisition of property, assets or businesses;
(v) all indebtedness created or arising under any conditional sale or other
title retention agreement, or incurred as financing, in either case with respect
to property acquired by the Person (even though the rights and remedies of
the
seller or lender under such agreement in the event of default are limited to
repossession or sale of such property); (vi) all obligations with respect
to Capital Leases; (vii) all indebtedness referred to in clauses (i)
through (vi) above secured by (or for which the holder of such Indebtedness
has
an existing right, contingent or otherwise, to be secured by) any Lien upon
or
in property (including accounts and contract rights) owned by such Person,
even
though such Person has not assumed or become liable for the payment of such
Indebtedness; (viii) all Guaranty Obligations in respect of indebtedness or
obligations of others of the kinds referred to in clauses (i) through (vii)
above; and (ix) all Stock Price Guaranties having a tenor of six (6) months
or more or exceeding $2,000,000 in the aggregate for all Stock Price Guaranties
then outstanding. For all purposes of this Agreement, the Indebtedness of any
Person shall include all recourse Indebtedness of any partnership or joint
venture or limited liability company in which such Person is a general partner
or a joint venturer or a member.
“Indemnified
Taxes”
means
Taxes other
than Excluded Taxes.
“Independent
Auditor”
has
the meaning
specified in Section 7.01(a).
“Insolvency
Proceeding”
means,
with
respect to any Person, (i) any case, action or proceeding with respect to
such Person before any court or other Governmental Authority relating to
bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors, or (ii) any general assignment for the
benefit of creditors, composition, marshalling of assets for creditors, or
other, similar arrangement in respect of its
creditors
generally
or any substantial portion of its creditors; in either case undertaken under
U.S. Federal, state or foreign law, including the Bankruptcy
Code.
“Intellectual
Property Security Agreement”
has
the meaning
specified in the Security Agreement.
“Interest
Expense”
means,
for any
period, for Holdings and its Subsidiaries on a consolidated basis in accordance
with GAAP, all interest in respect of Indebtedness accrued or capitalized during
such period (whether or not actually paid during such period).
“Interest
Payment
Date”
means,
(i) as to any Offshore Rate Loan, the last day of each Interest Period
applicable to such Loan, (ii) as to any Base Rate Loan, the last Business
Day of each calendar quarter and the Revolving Loan Maturity Date (in the case
of Revolving Loans), and the Term B Loan Maturity Date (in the case of
Term B Loans) and (iii) as to any Swingline Loan, each of the last
Business Day of each calendar quarter and the Revolving Loan Maturity Date;
provided,
however,
that if any
Interest Period for an Offshore Rate Loan exceeds three months, the date that
falls three months after the beginning of such Interest Period and after each
Interest Payment Date thereafter is also an Interest Payment Date.
“Interest
Period”
means,
as to any
Offshore Rate Loan, the period commencing on the Borrowing Date of such Loan
or
on the Conversion/Continuation Date on which the Loan is converted into or
continued as an Offshore Rate Loan, and ending on the date one, two, three
or
six months thereafter, as selected by Holdings in its Notice of Borrowing or
Notice of Conversion/Continuation; provided
that:
(i) if
any Interest
Period would otherwise end on a day that is not a Business Day, that Interest
Period shall be extended to the following Business Day unless, in the case
of an
Offshore Rate Loan, the result of such extension would be to carry such Interest
Period into another calendar month, in which event such Interest Period shall
end on the preceding Business Day;
(ii) any
Interest Period
pertaining to an Offshore Rate Loan that begins on the last Business Day of
a
calendar month (or on a day for which there is no numerically corresponding
day
in the calendar month at the end of such Interest Period) shall end on the
last
Business Day of the calendar month at the end of such Interest
Period;
(iii) no
Interest Period
for any Term B Loan shall extend beyond the Term B Loan Maturity Date
and no Interest Period for any Revolving Loan shall extend beyond the Revolving
Loan Maturity Date; and
(iv) no
Interest Period
applicable to a Term B Loan or portion thereof shall extend beyond any date
upon which is due any scheduled principal payment in respect of such Term B
Loan unless the aggregate principal amount of such Term B Loans represented
by Base Rate Loans or Offshore Rate Loans having Interest Periods that will
expire on or before such date, equals or exceeds the amount of such principal
payment.
“Internal
Control
Event”
means
a material
weakness in, or material fraud that involves management or other employees
who
have a significant role in, Holdings’ internal
controls
over
financial reporting, in each case relating to such financial reporting and
as
described in the Securities Laws.
“Investment”
has
the meaning
specified in Section 8.04.
“IRS”
means
the
Internal Revenue Service, and any Governmental Authority succeeding to any
of
its principal functions under the Code.
“Issuance
Date”
has
the meaning
specified in Section 3.01(a).
“Issue”
means,
with
respect to any Letter of Credit, to issue or to extend the expiry of, or to
renew or increase the amount of or otherwise amend, such Letter of Credit;
and
the terms “Issued,”
“Issuing”
and
“Issuance”
have
corresponding meanings.
“Joint
Lead
Arranger”
means
each of
Xxxxx Fargo, X.X. Xxxxxx Securities, Inc., SunTrust Bank and BNP Paribas, each
in their respective capacity as Joint Lead Arranger.
“L/C
Advance”
means
each
Revolving Lender’s participation in any L/C Borrowing in accordance with its
Proportionate Share.
“L/C
Amendment
Application”
means
an
application form for amendment of outstanding Standby or Commercial Letters
of
Credit as shall at any time be in use at the L/C Issuer, as the L/C Issuer
shall
request.
“L/C
Application”
means
an
application form for issuances of Standby or Commercial Letters of Credit as
shall at any time be in use at the L/C Issuer, as the L/C Issuer shall
request.
“L/C
Borrowing”
means
an
extension of credit resulting from a drawing under any Letter of Credit which
shall not have been reimbursed on the date when made nor converted into a
Borrowing of Revolving Loans under Section 3.03(c).
“L/C
Commitment”
means
the
commitment of the L/C Issuer to Issue, and the commitment of the Revolving
Lenders severally to participate in, Letters of Credit from time to time Issued
or outstanding under Article III,
in an aggregate
amount not to exceed on any date the amount of $200,000,000, as the same shall
be reduced as a result of a reduction in the L/C Commitment pursuant to
Section 2.05
or Section 2.08;
provided
that the L/C
Commitment is a part of the combined Revolving Commitments of the Revolving
Lenders rather than a separate, independent commitment; and provided further
that if as a
result of any Commitment reductions hereunder the L/C Commitment shall exceed
the combined Revolving Commitments of the Revolving Lenders, the L/C Commitment
shall automatically reduce by the amount of such excess.
“L/C
Issuer”
means
Xxxxx Fargo
(or Trade Bank, as agent for Xxxxx Fargo) in its capacity as issuer of one
or
more Letters of Credit hereunder, together with any replacement letter of credit
issuer arising under Section 10.06
or Section 11.06.
“L/C
Obligations”
means
at any time
the sum of (i) the aggregate undrawn amount of all Letters of Credit then
outstanding, plus
(ii) the
amount of all unreimbursed drawings under all Letters of Credit, including
all
outstanding L/C Borrowings.
“L/C-Related
Documents”
means
the Letters
of Credit, the L/C Applications, the L/C Amendment Applications and any other
documents relating to any Letter of Credit, including any of the L/C Issuer’s
standard form documents for letter of credit issuances.
“Lender”
has
the meaning
specified in the preamble,
and includes
Revolving Lenders and Term B Lenders, provided,
however,
that from and
after any Subsequent Effective Date, any Additional Lenders shall also be deemed
“Lenders”
for
all purposes
hereunder. References to the “Lenders”
shall
include
Xxxxx Fargo, including in its capacity as L/C Issuer and Swingline Lender;
for
purposes of clarification only, to the extent that Xxxxx Fargo may have any
rights or obligations in addition to those of the Lenders due to its status
as
L/C Issuer or Swingline Lender, its status as such will be specifically
referenced. Unless the context otherwise clearly requires, “Lender”
includes
any such
institution in its capacity as Swap Provider. Unless the context otherwise
clearly requires, references to any such institution as a “Lender”
shall
also
include any of such institution’s Affiliates that may at any time of
determination be Swap Providers.
“Lending
Office”
means,
as to any
Lender, the office or offices of such Lender described as such in such Lender’s
Administrative Questionnaire, or such other office or offices as a Lender may
from time to time notify Holdings and the Administrative Agent.
“Letters
of
Credit”
means
any letters
of credit Issued by the L/C Issuer pursuant to Article III
(which may be
Commercial Letters of Credit or Standby Letters of Credit), and shall include
the Existing Letters of Credit.
“Lien”
means
any
security interest, mortgage, deed of trust, pledge, hypothecation, assignment,
charge or deposit arrangement, encumbrance, lien (statutory or other) or
preferential arrangement of any kind or nature whatsoever in respect of any
property (including those created by, arising under or evidenced by any
conditional sale or other title retention agreement, the interest of a lessor
under a Capital Lease, any financing lease having substantially the same
economic effect as any of the foregoing, or the authorized filing of any
financing statement naming the owner of the asset to which such lien relates
as
debtor, under the Uniform Commercial Code or any comparable law) and any
contingent or other agreement to provide any of the foregoing.
“Loan”
means
an
extension of credit by a Lender to Holdings (i) under Article II,
which may be a
Base Rate Loan or an Offshore Rate Loan (each a “Type”
of
Loan) or a
Swingline Loan, and includes a Revolving Loan or Term B Loan, or
(ii) under Article III
in the form of an
L/C Advance.
“Loan
Documents”
means
this
Agreement, the Notes, each Guaranty, the Collateral Documents, the Fee Letters,
the L/C Related Documents, any documents evidencing or relating to Specified
Swap Contracts and all other documents delivered to the Administrative Agent
or
any Lender in connection herewith.
“Loan
Party”
means
Holdings,
the Company and each other Guarantor.
“Majority
Lenders”
means
two or more
Lenders whose (x) Revolving Commitments (or, if all Revolving Commitments
have been terminated, whose outstanding Revolving Loans plus
Revolving
Proportionate Share, if any, of the Effective Amount of all L/C Obligations
plus
Revolving
Proportionate Share, if any, of the Effective Amount of all Swingline Loans),
plus
(y) outstanding Term B Loans exceed 50% of the sum of (xx) the
Aggregate Revolving Commitment (or, if all Revolving Commitments have been
terminated, the Effective Amount of all Revolving Loans plus
the Effective
Amount of all L/C Obligations plus
the Effective
Amount of all Swingline Loans), plus
(yy) the
Effective Amount of all Term B Loans; provided,
however,
that at any time
any Lender is a Defaulting Lender, all Defaulting Lenders shall be excluded
in
determining “Majority Lenders” and such Defaulting Lenders’ Revolving
Commitments (or Revolving Loans and Revolving Proportionate Share of L/C
Obligations and Swingline Loans, as the case may be) and Term B Loans shall
be excluded in such determination, and “Majority Lenders” shall mean two or more
non-Defaulting Lenders (or if there is only one non-Defaulting Lender, such
Lender) otherwise meeting the criteria set forth in this
definition.
“Majority
Revolving Lenders”
means
two or more
Revolving Lenders whose Revolving Proportionate Shares then exceed fifty percent
(50%); provided,
however,
that at any time
any Revolving Lender is a Defaulting Lender, all Defaulting Lenders shall be
excluded in determining “Majority Revolving Lenders”, and “Majority Revolving
Lenders” shall mean two or more non-Defaulting Lenders (or if there is only one
non-Defaulting Lender, such Lender) having total Revolving Proportionate Shares
exceeding fifty percent (50%) of the total Revolving Proportionate Shares of
all
non-Defaulting Lenders.
“Majority
Term B Lenders”
means
two or more
Term B Lenders whose Term B Proportionate Shares then exceed fifty
percent (50%); provided,
however,
that at any time
any Term B Lender is a Defaulting Lender, all Defaulting Lenders shall be
excluded in determining “Majority Term B Lenders”, and “Majority
Term B Lenders” shall mean two or more non-Defaulting Lenders (or if there
is only one non-Defaulting Lender, such Lender) having total Term B
Proportionate Shares exceeding fifty percent (50%) of the total Term B
Proportionate Shares of all non-Defaulting Lenders.
“Margin
Stock”
means
“margin
stock” as such term is defined in Regulation T, U or X of the FRB.
“Material
Adverse
Effect”
means
(i) a
material adverse change in, or a material adverse effect upon, the operations,
business, properties or condition (financial or otherwise) of Holdings or
Holdings and its Subsidiaries taken as a whole; (ii) a material impairment
of the ability of any Loan Party to perform under any Loan Document and to
avoid
any Event of Default; or (iii) a material adverse effect upon (a) the
legality, validity, binding effect or enforceability against any Loan Party
of
any Loan Document or (b) the perfection or priority of any Lien granted
under the Collateral Documents.
“Minimum
Amount”
means
(i) in
respect of any Borrowing, conversion or continuation of Loans, (a) in the
case of Base Rate Loans, an aggregate minimum amount of
$5,000,000
or any
integral multiple of $1,000,000 in excess thereof, (b) in the case of
Offshore Rate Loans, an aggregate minimum amount of $5,000,000 or any integral
multiple of $1,000,000 in excess thereof and (c) in the case of Swingline
Loans, an aggregate minimum amount of $100,000 or any integral multiple of
$100,000 in excess thereof (or such other amount as shall be acceptable to
the
Swingline Lender), (ii) in the case of any reduction of the Commitments
under Section 2.05,
$5,000,000 or any
multiple of $1,000,000 in excess thereof, and (iii) in the case of any
optional prepayment of Loans under Section 2.07,
$5,000,000 or any
multiple of $1,000,000 in excess thereof (provided
that any optional
prepayment of Offshore Rate Loans under Section 2.07
must also be in a
minimum amount of $5,000,000 or any multiple of $1,000,000 in excess
thereof).
“Minority
Investment”
means
the direct
or indirect Investment by Holdings in the equity interests of any Person,
provided
in each case that
such Person is not a Subsidiary at the time of such Investment and after giving
effect thereto.
“Multiemployer
Plan”
means
a
“multiemployer plan,” within the meaning of section 4001(a)(3) of ERISA, to
which Holdings, the Company or any ERISA Affiliate makes, is making, or is
obligated to make contributions or, during the preceding three calendar years,
has made, or been obligated to make, contributions.
“Net
Issuance
Proceeds”
means,
as to any
issuance of debt or equity by any Person, cash proceeds received or receivable
by such Person in connection therewith, net of costs and expenses paid or
incurred in connection therewith in favor of any Person not an Affiliate of
such
Person.
“Net
Proceeds”
means,
as to any
Disposition by a Person, proceeds in cash, checks or other cash equivalent
financial instruments as and when received by such Person, net of: (i) the
direct costs relating to such Disposition excluding amounts payable to such
Person or any Affiliate of such Person, (ii) sale, use or other transaction
taxes and capital gains taxes paid or payable by such Person as a direct result
thereof, and (iii) amounts required to be applied to repay principal,
interest and prepayment premiums and penalties on Indebtedness secured by a
purchase money security interest on any asset which is the subject of such
Disposition. “Net
Proceeds”
shall
also
include proceeds paid on account of any Event of Loss, net of (a) all money
actually applied to repair or reconstruct the damaged property or property
affected by the condemnation or taking, (b) all of the direct costs and
expenses incurred in connection with the collection of such proceeds, award
or
other payments, and (c) any amounts retained by or paid to parties having
superior rights to such proceeds, awards or other payments. For purposes of
determining the amount of Net Proceeds in respect of any Disposition or Event
of
Loss, however, the amount of proceeds calculated as provided above shall be
reduced by the amount of such proceeds that such Person has used (or intends
to
use within 365 days of the date of receipt of such proceeds as certified by
a
Responsible Officer of such Person) to acquire tangible assets to be used in
the
business of Holdings and its Subsidiaries (which tangible assets must become
Collateral to the extent that such Net Proceeds are attributable to assets
that
were Collateral) or to pay the purchase price in respect of any Permitted
Acquisition permitted hereunder that directly results in either (A) the
acquired Person becoming a U.S. Wholly-Owned Subsidiary that becomes a Guarantor
hereunder pursuant to Section 7.13
or (B) the
acquired assets being owned by Holdings, a Guarantor or a U.S. Wholly-Owned
Subsidiary that becomes a Guarantor
hereunder
pursuant
to Section 7.13
in the case of a
Permitted Acquisition structured as an asset purchase, it being understood
that
any portion of such proceeds that has not been so used within 365 days of the
date of receipt of such proceeds shall be deemed to be Net Proceeds received
on
the last day of such 365-day period and that, in any case, all such proceeds
shall be deemed to be Net Proceeds at any time that an Event of Default exists
hereunder; provided,
however,
that if such
Person only uses a portion of such proceeds for said acquisition of tangible
assets or Permitted Acquisition within such 365-day period, then the amount
of
Net Proceeds calculated as provided above shall be reduced only by the amount
of
such proceeds so used.
“New
Lenders”
has
the meaning
specified in Recital B.
“New
Revolving
Lender”
means
any New
Lender that is joining this Agreement as a Revolving Lender on the Effective
Date and that has no “Revolving Commitment” under the Existing Credit
Agreement.
“New
Term B
Lender”
means
any New
Lender that is joining this Agreement as a Term B Lender on the Effective
Date and that holds no “Term B Loans” under the Existing Credit
Agreement.
“New
Term B
Loan”
has
the meaning
specified in Section 2.01(a)(ii).
“Non-Wholly-Owned
Subsidiaries”
means
all direct
and indirect Subsidiaries of Holdings which are not Wholly-Owned
Subsidiaries.
“Notes”
means,
collectively, the Revolving Notes and the Term B Notes.
“Notice
of
Borrowing”
means
a Notice of
Revolving Loan Borrowing or a Notice of Term B Loan Borrowing, as
applicable.
“Notice
of
Conversion/Continuation”
means
a Notice of
Revolving Loan Conversion/Continuation or a Notice of Term B Loan
Conversion/Continuation, as applicable.
“Notice
of
Revolving Loan Borrowing”
means
a notice in
substantially the form of Exhibit A-1.
“Notice
of
Revolving Loan Conversion/Continuation”
means
a notice in
substantially the form of Exhibit B-1.
“Notice
of
Term B Loan Borrowing”
means
a notice in
substantially the form of Exhibit A-2.
“Notice
of
Term B Loan Conversion/Continuation”
means
a notice in
substantially the form of Exhibit
B-2.
“Obligations”
means
all
advances to, and debts and liabilities of, any Loan Party arising under any
Loan
Document, or otherwise with respect to any Loan or Letter of Credit, whether
direct or indirect (including those acquired by assumption), absolute or
contingent, due
or
to become due, now existing or hereafter arising and including interest and
fees
that accrue after the commencement by or against any Loan Party of any
Insolvency Proceeding naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in such
proceeding.
“Offshore
Rate”
means,
for any
Interest Period with respect to an Offshore Rate Loan, the rate per annum equal
to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by
Reuters (or other commercially available source providing quotations of BBA
LIBOR as designated by the Administrative Agent from time to time) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, for Dollar deposits (for delivery on
the
first day of such Interest Period) with a term equivalent to such Interest
Period. If such rate is not available at such time for any reason, then the
“Offshore Rate” for such Interest Period shall be the rate per annum determined
by the Administrative Agent to be the rate at which deposits in Dollars for
delivery on the first day of such Interest Period in same day funds in the
approximate amount of the Offshore Rate Loan being made, continued or converted
by Xxxxx Fargo and with a term equivalent to such Interest Period would be
offered by Xxxxx Fargo to major banks in the London interbank eurodollar market
at their request at approximately 11:00 a.m. (London time) two Business Days
prior to the commencement of such Interest Period.
“Offshore
Rate
Loan”
means
a Loan that
bears interest based on the Offshore Rate.
“Operating
Lease”
means,
for any
Person, any lease of property (whether real, personal or mixed) which, in
accordance with GAAP, would, at the time a determination is made, be required
to
be recorded as an operating lease in respect of which such Person is liable
as
lessee.
“Organization
Documents”
means,
(a) with respect to any corporation, the certificate or articles of
incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited
liability company, the certificate or articles of formation or organization
and
operating agreement; and (c) with respect to any partnership, joint
venture, trust or other form of business entity, the partnership, joint venture
or other applicable agreement of formation or organization and any agreement,
instrument, filing or notice with respect thereto filed in connection with
its
formation or organization with the applicable Governmental Authority in the
jurisdiction of its formation or organization and, if applicable, any
certificate or articles of formation or organization of such
entity.
“Other
Permitted
Acquisition”
means
a Permitted
Acquisition in respect of which either (i) less than 100% (other than directors’
qualifying shares required by law) of the capital stock or similar equity
interest of any acquired or newly formed corporation, partnership, limited
liability company or other business entity is owned directly by Holdings or
a
U.S. Wholly-Owned Subsidiary such that such acquired or newly formed entity
shall not become a Loan Party in accordance with Section
7.13
or (ii) in the
case of an asset acquisition, the acquired assets are not owned directly by
a
Loan Party.
“Other
Taxes”
means
all present
or future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies arising from any payment made hereunder or under
any
other Loan Document or from the execution, delivery or enforcement of, or
otherwise with respect to, this Agreement or any other Loan
Document.
“Participant”
has
the meaning
specified in Section 11.06(d).
“PBGC”
means
the Pension
Benefit Guaranty Corporation, or any Governmental Authority succeeding to any
of
its principal functions under ERISA.
“PCAOB”
means
the Public
Company Accounting Oversight Board.
“Pension
Plan”
means
a pension
plan (as defined in section 3(2) of ERISA) subject to Title IV of ERISA
which Holdings or the Company sponsors, maintains, or to which it makes, is
making, or is obligated to make contributions, or in the case of a multiple
employer plan (as described in section 4064(a) of ERISA) has made
contributions at any time during the immediately preceding five (5) plan
years.
“Permitted
Acquisition”
means
any
Acquisition that conforms to the following requirements: (i) the assets,
Person, division or line of business to be acquired is in a substantially
similar or ancillary line of business as the Company or one of its U.S.
Wholly-Owned Subsidiaries, (ii) the Administrative Agent and the Lenders
shall have received promptly, and in any event no less than ten (10) Business
Days prior to the consummation of such Acquisition, (a) financial
information regarding the assets, Person, division or business to be acquired,
including the most recent audited financial statements, if available, but in
any
case the most recently prepared balance sheet, statement of income and statement
of cash flows for the assets, Person, division or business to be acquired and
pro forma projected consolidated financial statements of Holdings showing the
effect of the Acquisition of the assets, Person, division or business on
Holdings and its Subsidiaries, including a pro forma balance sheet for Holdings
and its Subsidiaries as of the date of the most recent financial statements
delivered to the Administrative Agent under Section 5.01(c),
Section 7.01(a) or Section 7.01(b) and projected statements of income
and cash flows for Holdings and its Subsidiaries through at least the
Term B Loan Maturity Date, and (b) a completed worksheet in
substantially the form of Schedule 1 to the Compliance Certificate demonstrating
Holdings’ pro forma compliance with the financial covenants set forth in
Section 8.19,
measured as of
the last day of the most recent fiscal quarter for which Holdings has delivered
financial statements under Section 5.01(c),
Section 7.01(a)
or Section 7.01(b),
after giving
effect to such Acquisition, (iii) all transactions related to such
Acquisition shall be consummated in all material respects in accordance with
applicable Requirements of Law, (iv) such Acquisition shall be non-hostile
in nature, (v) the prior, effective written consent or approval to such
Acquisition of the board of directors or equivalent governing body of the
acquiree is obtained, and (vi) immediately after giving effect to such
Acquisition: (a) no Default shall have occurred and be continuing or would
result therefrom, (b) a majority of the capital stock or similar equity
interest of any acquired or newly formed corporation, partnership, limited
liability company or other business entity is owned directly by Holdings or
a
U.S. Wholly-Owned Subsidiary of Holdings such that such acquired or newly formed
entity shall be a U.S. Subsidiary, and (c) all actions required to be taken
with
respect
to such
acquired or newly formed Subsidiary under Section 7.13
or as otherwise
required under Section 7.14
shall have been
taken.
“Permitted
Equity
Offering”
means
an offering
by Holdings of preferred stock or other equity interests of Holdings, if the
rights, preferences, privileges and use of proceeds of such equity offering
have
been approved by the Majority Lenders in writing prior to issuance, provided
that no such
securities shall be issued if a Default exists prior to, or immediately after,
such issuance.
“Permitted
Liens”
has
the meaning
specified in Section 8.01.
“Permitted
Refinancing Indebtedness”
means,
in respect
of any Indebtedness, any refinancings, refundings, renewals or extensions
thereof; provided
that (i) the
amount of such Indebtedness is not increased at the time of such refinancing,
refunding, renewal or extension except by an amount equal to a premium or other
amount paid, and fees and expenses reasonably incurred, in connection with
such
refinancing and by an amount equal to any existing commitments unutilized and
available for borrowing thereunder and (ii) the direct or any contingent
obligor with respect thereto is not changed, as a result of or in connection
with such refinancing, refunding, renewal or extension; and provided further
that (i) such
refinancing, refunding, renewing or extending Indebtedness has a final maturity
that is no sooner than the final maturity of, and a weighted average life to
maturity that is no shorter than the remaining weighted average life of, such
Indebtedness, (ii) if such Indebtedness or any guaranties thereof are
subordinated to the Obligations, such refinancing, refunding, renewing or
extending Indebtedness and any guaranties thereof remain so subordinated on
terms no less favorable to the Lenders, (iii) the material terms taken as a
whole of any such refinancing, refunding, renewing or extending Indebtedness,
and of any agreement entered into and of any instrument issued in connection
therewith, are no less favorable in any material respect to the Loan Parties
or
the Lenders than the terms, taken as a whole, of any agreement or instrument
governing the Indebtedness being refinanced, refunded, renewed or extended
and
(iv) the interest rate applicable to any such refinancing, refunding,
renewing or extending Indebtedness does not exceed the then applicable market
interest rate.
“Permitted
Subordinated Debt”
has
the meaning
specified in Section 8.05(j).
“Permitted
Swap
Obligations”
means
all
obligations (contingent or otherwise) of Holdings or any Subsidiary existing
or
arising under Swap Contracts, provided
that each of the
following criteria is satisfied: (i) such obligations are (or were) entered
into by such Person in the ordinary course of business for the purpose of
directly mitigating risks associated with liabilities, commitments or assets
held or reasonably anticipated by such Person, or changes in the value of
securities issued by such Person in conjunction with a securities repurchase
program not otherwise prohibited hereunder, and not for purposes of speculation
or taking a “market view; and (ii) such Swap Contracts do not contain
(a) any provision (“walk-away” provision) exonerating the non-defaulting
party from its obligation to make payments on outstanding transactions to the
defaulting party, or (b) any provision creating or permitting the
declaration of an event of default, termination event or similar event upon
the
occurrence of an Event of Default hereunder (other than an Event of Default
under Section 9.01(a)).
“Person”
means
any natural
person, corporation, limited liability company, trust, joint venture,
association, company, partnership, Governmental Authority or other
entity.
“Plan”
means
an employee
benefit plan (as defined in section 3(3) of ERISA) which Holdings or the
Company sponsors or maintains or to which Holdings or the Company makes, is
making, or is obligated to make contributions and includes any Pension
Plan.
“Pledged
Collateral”
means
the
“Pledged Collateral” as defined in the Security Agreement and shall include all
products and Proceeds (as defined in the Security Agreement) of the Pledged
Collateral.
“Proportionate
Share”
shall
mean, as to
any Lender at any time, the percentage equivalent (expressed as a decimal,
rounded to the ninth decimal place) at such time of:
(a) in
the case of the
Revolving Commitments, the Revolving Loans, the Swingline Loans or the L/C
Obligations, such Lender’s Revolving Commitment divided by the combined
Revolving Commitments of all Lenders (or, if all Revolving Commitments have
been
terminated, (i) the sum of (A) the Effective Amount of such Lender’s
Revolving Loans, (B) such Lender’s pro rata
share, if any, of
the Effective Amount of all L/C Obligations, and (C) such Lender’s
pro rata
share, if any, of
the Effective Amount of all Swingline Loans) divided by (ii) the sum of
(A) the Effective Amount of all Revolving Loans, (B) the Effective
Amount of all L/C Obligations and (C) the Effective Amount of all Swingline
Loans) (the “Revolving
Proportionate Share”);
(b) in
the case of the
Term B Commitments or the Term B Loans, such Lender’s Term B
Commitment divided by the combined Term B Commitments of all Lenders (or,
if all Term B Commitments have been terminated, the Effective Amount of
such Lender’s Term B Loans divided by the Effective Amount of all
Term B Loans) (the “Term B
Proportionate Share”);
and
(c) in
all other cases,
(i) the sum of (A) such Lender’s Revolving Commitment and
(B) such Lender’s Term B Commitment divided by (ii) the sum of
(A) the combined Revolving Commitments of all Lenders and (B) the
combined Term B Commitments of all Lenders (or, if all Term B
Commitments have been terminated, (i) the sum of (A) such Lender’s
Revolving Commitment and (B) the Effective Amount of such Lender’s
Term B Loans divided by (ii) the sum of (A) the combined
Revolving Commitments of all Lenders and (B) the Effective Amount of all
Term B Loans; or, if all Revolving Commitments and Term B Commitments
have been terminated, (i) the sum of (A) the Effective Amount of such
Lender’s Revolving Loans and Term B Loans, (B) such Lender’s
pro rata
share, if any, of
the Effective Amount of all L/C Obligations, and (C) such Lender’s
pro rata
share, if any, of
the Effective Amount of all Swingline Loans divided by (ii) the sum of
(A) the Effective Amount of all Revolving Loans and Term B Loans,
(B) the Effective Amount of all L/C Obligations and (C) the Effective
Amount of all Swingline Loans).
“Put
Obligations”
mean
obligations
of Holdings either directly or indirectly to purchase from any Person such
Person’s equity interest in Non-Wholly-Owned Subsidiaries or such Person’s
equity interest in Persons in which Holdings has a Minority
Investment.
“Reimbursement
Date”
has
the meaning
specified in Section 3.03(b).
“Related
Parties”
means,
with
respect to any Person, such Person’s Affiliates and the partners, directors,
officers, employees, agents and advisors of such Person and of such Person’s
Affiliates.
“Reportable
Event”
means
any of the
events set forth in section 4043(c) of ERISA or the regulations thereunder,
other than any such event for which the 30-day notice requirement under ERISA
has been waived in regulations issued by the PBGC.
“Requirement
of
Law”
means,
as to any
Person, any law (statutory or common), treaty, rule or regulation or
determination of an arbitrator or of a Governmental Authority, in each case
applicable to or binding upon the Person or any of its property or to which
the
Person or any of its property is subject.
“Responsible
Officer”
means
as to any
Person, the chief executive officer or the president of such Person, or any
other officer having substantially the same authority and responsibility; or,
with respect to compliance with financial covenants, the chief financial officer
or the treasurer of such Person, or any other officer having substantially
the
same authority and responsibility.
“Revolving
Commitment”
means,
as to each
Revolving Lender, its obligation to (a) make Revolving Loans to Holdings
pursuant to Section 2.01(b),
(b) purchase
participations in L/C Obligations, and (c) purchase participations in
Swingline Loans, in an aggregate principal amount at any one time outstanding
not to exceed the amount set forth opposite such Revolving Lender’s name on
Schedule 2.01(b)
or in the
Assignment and Assumption pursuant to which such Revolving Lender becomes a
party hereto, as applicable, as such amount may be adjusted from time to time
in
accordance with this Agreement.
“Revolving
Lender”
means
any Lender
that has a Revolving Commitment as set forth on Schedule 2.01(b)
(or, if the
Revolving Commitments are terminated, any Lender having outstanding Revolving
Loans or a pro rata
share of L/C
Obligations or Swingline Loans as provided herein).
“Revolving
Loan”
has
the meaning
specified in Section 2.01(b).
“Revolving
Loan
Maturity Date”
means
the earlier
to occur of: (i) November __, 2011; and (ii) the date on which
the Revolving Commitments terminate in accordance with the provisions of this
Agreement.
“Revolving
Note”
means
a
promissory note executed by Holdings in favor of a Revolving Lender pursuant
to
Section 2.02(b),
in substantially
the form of Exhibit
F-1.
“Revolving
Proportionate Share”
has
the meaning
specified in the definition of “Proportionate Share.”
“SEC”
means
the
Securities and Exchange Commission, or any Governmental Authority succeeding
to
any of its principal functions.
“Securities
Laws”
means
the
Securities Act of 1933, the Securities Exchange Act of 1934, the Xxxxxxxx-Xxxxx
Act of 2002, and the applicable accounting and auditing principles, rules,
standards and practices promulgated, approved or incorporated by the SEC or
the
PCAOB.
“Security
Agreement”
means
that
certain Third Amended and Restated Security Agreement, dated as of the Effective
Date, among Holdings, the Guarantors and the Administrative Agent for the
benefit of the Lenders and the other Secured Parties (as defined in the Security
Agreement) in substantially the form of Exhibit I.
“Specified
Swap
Contract”
means
any Swap
Contract made or entered into at any time, or in effect at any time (whether
heretofore or hereafter), whether directly or indirectly, and whether as a
result of assignment or transfer or otherwise, between Holdings and any Swap
Provider which Swap Contract is or was intended by Holdings to have been entered
into for purposes of mitigating interest rate or currency exchange risk relating
to any Loan (which intent shall conclusively be deemed to exist if Holdings
so
represents to the Swap Provider in writing), and as to which the final scheduled
payment by Holdings is not later than the Term B Loan Maturity
Date.
“Standby
Letter
of Credit”
means
a standby
Letter of Credit issued for the account of Holdings to support obligations
of
Holdings or any Subsidiary, contingent or otherwise (and excluding all
Commercial Letters of Credit).
“Stock
Price
Guaranty”
means
a guaranty
that (i) is issued by Holdings or an Affiliate of Holdings in connection
with the Acquisition of another Person, and (ii) is for the payment of cash
or issuance of Holdings’ common stock if the common stock issued by Holdings in
connection with such an Acquisition is sold for less than the price provided
for
in the guaranty during its term, provided
that for purposes
of determining the amount of any Stock Price Guaranty at any time, the amount
of
such guaranty shall be equal to (a) the guaranteed stock price multiplied
by the number of shares covered by the guaranty, minus
(b) the
current fair market value of one share of Holdings’ common stock (which fair
market value shall be equal to the five day trailing average closing price
for
Holdings’ common stock as reported by the Nasdaq National Stock Market)
multiplied by the number of shares covered by the guaranty, provided further,
that for purposes
of determining the amount of any Stock Price Guaranty which is payable solely
in
common stock of Holdings, the amount of such Stock Price Guaranty shall equal
zero.
“Subordinated
Debt Documents”
means
any
documents and instruments evidencing any Permitted Subordinated
Debt.
“Subsequent
Effective Date”
means
any date on
which all conditions precedent set forth in Section 5.02
are satisfied or
waived by the respective Additional Lenders; provided
that all such
dates shall occur (if any shall occur) prior to the earlier to occur of
(i) (A) in the case of any Subsequent Effective Date in respect of any
increase in the Term B Loans pursuant to Section 2.01(c),
the Term B
Loan Maturity Date and (B) in the case of any Subsequent Effective Date in
respect of any increase in the Revolving Commitments pursuant to Section 2.01(d),
the Revolving
Loan Maturity Date, and (ii) the date on which all Commitments terminate in
accordance with the provisions of this Agreement.
“Subsidiary”
of
a Person means
any corporation, association, partnership, limited liability company, joint
venture or other business entity of which more than 50% of the voting stock,
membership interests or other equity interests, is owned or controlled directly
or indirectly by the Person, or one or more of the Subsidiaries of the Person,
or a combination thereof. Unless the context otherwise clearly requires,
references herein to a “Subsidiary” refer to a Subsidiary of Holdings;
provided,
however,
that BMC
Insurance, Inc. shall only be included as a Subsidiary for purposes of
Sections 6.01,
6.05,
6.06,
6.10,
6.11,
6.14,
6.19,
7.03(b),
7.03(c),
7.04,
7.07,
7.08,
7.10,
8.03,
8.06,
8.07,
8.19,
9.01(b)-(g),
9.01(i)
and 9.01(j).
“Surety
Instruments”
means
all letters
of credit (including standby and commercial), banker’s acceptances, bank
guaranties, shipside bonds, surety bonds and similar instruments.
“Swap
Contract”
means
any
agreement, whether or not in writing, relating to any transaction that is a
rate
swap, basis swap, forward rate transaction, commodity swap, commodity option,
equity or equity index swap or option, bond, note or xxxx option, interest
rate
option, forward foreign exchange transaction, cap, collar or floor transaction,
currency swap, cross-currency rate swap, swaption, currency option or any other,
similar transaction (including any option to enter into any of the foregoing)
or
any combination of the foregoing, and, unless the context otherwise clearly
requires, any master agreement relating to or governing any or all of the
foregoing.
“Swap
Provider”
means
any Lender,
or any Affiliate of any Lender, that is at the time of determination party
to a
Specified Swap Contract with Holdings.
“Swap
Termination
Value”
means,
in respect
of any one or more Swap Contracts, after taking into account the effect of
any
legally enforceable netting agreement relating to such Swap Contracts,
(i) for any date on or after the date such Swap Contracts have been closed
out and termination value(s) determined in accordance therewith, such
termination value(s), and (ii) for any date prior to the date referenced in
clause (i) the amount(s) determined as the xxxx-to-market value(s) for such
Swap Contracts, as determined by Holdings based upon one or more mid-market
or
other readily available quotations provided by any recognized dealer in such
Swap Contracts (which may include any Lender).
“Swingline
Lender”
means
Xxxxx
Fargo, in its capacity as maker of Swingline Loans hereunder.
“Swingline
Commitment”
has
the meaning
specified in Section 2.06(a).
“Swingline
Loan”
has
the meaning
specified in Section 2.06(a).
“Taxes”
means
all present
or future taxes, levies, imposts, duties, deductions, withholdings, assessments,
fees or other charges imposed by any Governmental Authority, including any
interest, additions to tax or penalties applicable thereto.
“Term B
Commitment,”
as
to each
Term B Lender, means
such
Term B Lender’s obligation to make or otherwise hold Term B Loans
hereunder in
the amounts set
forth on a schedule maintained with the Administrative Agent.
“Term B
Lender”
means
any Lender
that either has a Term B Commitment or a Term B Loan.
“Term B
Loan”
shall
mean each
term loan made under Section 2.01,
and shall include
each Existing Term B Loan, New Term B Loan and Additional Term B
Loan.
“Term B
Loan
Maturity Date”
means
November
__, 2013.
“Term B
Note”
means
a
promissory note executed by Holdings in favor of a Lender pursuant to
Section 2.02(b),
in substantially
the form of Exhibit
F-2.
“Term B
Proportionate Share”
has
the meaning
specified in the definition of “Proportionate Share”.
“Total
EBITDA
Ratio”
means,
as of the
end of any fiscal quarter, measured on a consolidated basis for Holdings and
its
Subsidiaries as of such date, the ratio of (i) Total Funded Debt existing
on such date to (ii) EBITDA for the period of four fiscal quarters ending
on such date.
“Total
Funded
Debt”
means,
as of any
date of determination, all Funded Debt of Holdings and its Subsidiaries on
such
date, on a consolidated basis in accordance with GAAP.
“Trade
Bank”
means
Xxxxx Fargo
HSBC Trade Bank, N.A.
“Type”
has
the meaning
specified in the definition of “Loan.”
“UCC”
means
the Uniform
Commercial Code as in effect from time to time in the State of
California.
“Unfunded
Pension
Liability”
means
the excess
of a Plan’s benefit liabilities under section 4001(a)(16) of ERISA, over
the current value of that Plan’s assets, determined in accordance with the
assumptions used for funding the Pension Plan pursuant to section 412 of
the Code for the applicable plan year.
“United
States”
and
“U.S.”
each
means the
United States of America.
“Update
Certificate”
means
a
certificate in substantially the form of Exhibit
J.
“U.S.
Subsidiary”
and
“U.S.
Wholly-Owned Subsidiary”
means
a
Subsidiary or Wholly-Owned Subsidiary, as the case may be, that is located
in
and a resident of the United States.
“Xxxxx
Fargo”
has
the meaning
specified in the preamble,
or any successor
by merger thereto.
“Wholly-Owned
Subsidiary”
means
any Person
in which (other than directors’ qualifying shares required by law) 100% of the
capital stock or similar equity interest of each class having ordinary voting
power, and 100% of the capital stock or similar equity interest of
every
other class,
in each case, at the time as of which any determination is being made, is owned,
beneficially and of record, by Holdings, or by one or more of the other
Wholly-Owned Subsidiaries, or both.
1.02 Other
Interpretive Provisions.
(a) The
definitions of
terms herein shall apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words “include,”
“includes”
and
“including”
shall
be deemed
to be followed by the phrase “without limitation.” The word “will”
shall
be
construed to have the same meaning and effect as the word “shall.”
Unless
the
context requires otherwise, (i) any definition of or reference to any
agreement, instrument or other document (including any Organization Document)
shall be construed as referring to such agreement, instrument or other document
as from time to time amended, supplemented or otherwise modified (subject to
any
restrictions on such amendments, supplements or modifications set forth herein
or in any other Loan Document), (ii) any reference herein to any Person
shall be construed to include such Person’s successors and assigns,
(iii) the words “herein,”
“hereof”
and
“hereunder,”
and
words of
similar import when used in any Loan Document, shall be construed to refer
to
such Loan Document in its entirety and not to any particular provision thereof,
(iv) all references in a Loan Document to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, the Loan Document in which such references appear,
(v) any reference to any law shall include all statutory and regulatory
provisions consolidating, amending, replacing or interpreting such law and
any
reference to any law or regulation shall, unless otherwise specified, refer
to
such law or regulation as amended, modified or supplemented from time to time,
(vi) the words “asset”
and
“property”
shall
be
construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights, and (vii) the term “documents” includes any
and all instruments, documents, agreements, certificates, indentures, notices
and other writings, however evidenced.
(b) In
the computation
of periods of time from a specified date to a later specified date, the word
“from” means “from and including”; the words “to” and “until” each mean “to but
excluding,” and the word “through” means “to and including.”
(c) The
captions and
headings of this Agreement are for convenience of reference only and shall
not
affect the interpretation of this Agreement.
(d) This
Agreement and
other Loan Documents may use several different limitations, tests or
measurements to regulate the same or similar matters. All such limitations,
tests and measurements are cumulative and shall each be performed in accordance
with their terms. Unless otherwise expressly provided, any reference to any
action of the Administrative Agent or the Lenders by way of consent, approval
or
waiver shall be deemed modified by the phrase “in its/their sole
discretion.”
(e) This
Agreement and
the other Loan Documents are the result of negotiations among the Administrative
Agent, Holdings, the Company and the other parties, have been reviewed by
counsel to the Administrative Agent, Holdings, the Company and such
other
parties, and
are the products of all parties. Accordingly, they shall not be construed
against the Lenders or the Administrative Agent merely because of the
Administrative Agent’s or Lenders’ involvement in their
preparation.
1.03 Accounting
Principles.
i)
Unless the context
otherwise clearly requires, all accounting terms not expressly defined herein
shall be construed, and all financial computations required under this Agreement
shall be made, in accordance with GAAP, consistently applied; provided,
however,
that if GAAP
shall have been modified after the Effective Date and the application of such
modified GAAP shall have a material effect on such financial computations
(including the computations required for the purpose of determining compliance
with the covenants set forth in Article
VIII),
then such
computations shall be made and such financial statements, certificates and
reports shall be prepared, and all accounting terms not otherwise defined herein
shall be construed, in accordance with GAAP as in effect prior to such
modification, unless and until the Majority Lenders and Holdings shall have
agreed upon the terms of the application of such modified GAAP.
(b) References
herein
to “fiscal year” and “fiscal quarter” refer to such fiscal periods of
Holdings.
THE
CREDITS
2.01 Amounts
and
Terms of Commitments and Loans.
(a) The
Term B
Credit.
(i) The
Existing
Term B Loans.
Holdings and each
other Loan Party hereby acknowledge and agree that pursuant to the Existing
Credit Agreement, certain Existing Lenders provided to Holdings Term B Loans
(each such loan, an “Existing
Term B Loan”)
in the aggregate
principal amount of $125,000,000, of which $120,937,500 is outstanding on the
date hereof. On the Effective Date, the amount of Existing Term B Loans
then outstanding and held by each Term B Lender (which for purposes of this
Section 2.01(a)(i)
shall include each
Departing Term B Lender) shall be adjusted to reflect the changes in the
Term B Lenders’ Term B Proportionate Shares of the aggregate
outstanding Term B Loans, subject to Section 4.04.
Each Term B
Lender having Existing Term B Loans then outstanding and whose Term B
Proportionate Share in respect of the aggregate outstanding Term B Loans
has been decreased on the Effective Date shall be deemed to have assigned on
the
Effective Date to each Term B Lender increasing its Term B
Proportionate Share of the aggregate outstanding Term B Loans on the
Effective Date (which for purposes of this Section 2.01(a)(i)
shall include each
New Term B Lender) such portion of such Existing Term B Loans as shall
be necessary to effectuate such adjustment (such assignment to be deemed made
upon the terms and conditions set forth in an Assignment and Assumption in
the
form attached hereto as Exhibit E as if such assignor and such assignee(s)
shall
have entered into such Assignment and Assumption in respect of the Existing
Term B Loans so assigned). Each Term B Lender increasing its
Term B Proportionate Share of the aggregate outstanding Existing
Term B Loans on the Effective Date shall (i) be deemed to have assumed
such portion of such Existing Term B Loans and (ii) fund on
the
Effective Date
such assumed amounts to the Administrative Agent for the account of the
assigning Term B Lender in accordance with the provisions hereof in the
amount notified to such increasing Term B Lender by the Administrative
Agent. For purposes of this Section 2.01(a)(i),
each Departing
Term B Lender shall be deemed to have reduced its Term B Proportionate
Share to zero on the Effective Date. From and after the Effective Date, after
giving effect to the assignments and assumptions contemplated in this
Section 2.01(a)(i),
each Departing
Term B Lender shall cease to be a Term B Lender under and for all
purposes of this Agreement and the other Loan Documents and shall have no
further obligation to make Term B Loans; provided,
however,
that each
Departing Term B Lender shall continue to be entitled to the benefits of
Sections 4.01,
4.03,
4.04
and 11.04
to the extent
accrued or arising on or prior to the Effective Date. With effect on and after
the Effective Date, each New Term B Lender shall be a party to this
Agreement and succeed to all of the rights and be obligated to perform all
of
the obligations of a Term B Lender under this Agreement, including the
requirements concerning confidentiality and the payment of indemnification,
with
Term B Loans in the amounts set forth on a schedule maintained with the
Administrative Agent. Each New Term B Lender agrees that it will perform in
accordance with their terms all of the obligations which by the terms of this
Agreement are required to be performed by it as a Term B Lender. Amounts
that have been borrowed as Existing Term B Loans which are repaid or
prepaid may not be reborrowed, subject, however, to the provisions of
Section
2.01(c).
(ii) The
New
Term B Loans.
On the terms and
subject to the conditions of this Agreement, each Term B Lender severally
agrees to make an additional term loan (each a “New
Term B
Loan”
and,
collectively, the “New
Term B
Loans”)
to Holdings on
the Effective Date denominated in Dollars, in a principal amount up to but
not
exceeding, when added to the principal amount of such Term B Lender’s
Existing Term B Loans after giving effect to the operation of Section 2.01(a)(i)
above, such
Term B Lender’s Term B Commitment. Any amount of the New Term B
Loans repaid or prepaid may not be reborrowed, subject, however, to the
provisions of Section 2.01(c).
(b) The
Revolving
Credit.
On the terms and
subject to the conditions of this Agreement, each Revolving Lender severally
agrees to advance to Holdings from time to time during the period beginning
on
the Effective Date and ending on the Revolving Loan Maturity Date such loans
(each such loan, a “Revolving
Loan”)
in Dollars as
Holdings may request under this Section 2.01(b);
provided,
however,
that
(i) after giving effect to any Borrowing of Revolving Loans, (A) the
Effective Amount of all Revolving Loans and Swingline Loans and the Effective
Amount of all L/C Obligations shall not exceed the combined Revolving
Commitments of the Revolving Lenders and (B) the Effective Amount of the
Revolving Loans of any Revolving Lender plus the participation of such Revolving
Lender in the Effective Amount of all L/C Obligations and in the Effective
Amount of all Swingline Loans shall not at any time exceed such Revolving
Lender’s Revolving Commitment. Within the limits of each Revolving Lender’s
Revolving Commitment, and subject to the other terms and conditions hereof,
Holdings may borrow under this Section 2.01(b),
prepay under
Section 2.07
and reborrow under
this Section 2.01(b).
On the Effective
Date, the amount of Revolving Loans then outstanding and held by each Revolving
Lender (which for purposes of this Section 2.01(b)
shall include each
Departing Revolving Lender) shall be adjusted to reflect the changes in the
Revolving Lenders’ Revolving Proportionate Shares, subject to Section 4.04.
Each Revolving
Lender having Revolving Loans, or participations in L/C Obligations or Swingline
Loans, then
outstanding
and
whose Revolving Proportionate Share has been decreased on the Effective Date
shall be deemed to have assigned on the Effective Date to each Revolving Lender
increasing its Revolving Proportionate Share on the Effective Date (which for
purposes of this Section 2.01(b)
shall include each
New Revolving Lender) such portion of such Revolving Loans and participations
as
shall be necessary to effectuate such adjustment (such assignment to be deemed
made upon the terms and conditions set forth in an Assignment and Assumption
in
the form attached hereto as Exhibit E as if such assignor and such assignee(s)
shall have entered into such Assignment and Assumption in respect of the
Revolving Loans and participations so assigned). Each Revolving Lender
increasing its Revolving Proportionate Share on the Effective Date shall
(i) be deemed to have assumed such portion of such Revolving Loans and
participations and (ii) fund on the Effective Date such assumed amounts to
the Administrative Agent for the account of the assigning Revolving Lender
in
accordance with the provisions hereof in the amount notified to such increasing
Revolving Lender by the Administrative Agent. For purposes of this Section 2.01(b),
each Departing
Revolving Lender shall be deemed to have reduced its Revolving Proportionate
Share to zero on the Effective Date. From and after the Effective Date, after
giving effect to the assignments and assumptions contemplated in this
Section 2.01(b),
each Departing
Revolving Lender shall cease to be a “Revolving Lender” under and for all
purposes of this Agreement and the other Loan Documents and shall have no
further obligation to make Revolving Loans or participate in Letters of Credit
or Swingline Loans; provided,
however,
that each
Departing Revolving Lender shall continue to be entitled to the benefits of
Sections 4.01,
4.03,
4.04
and 11.04
to the extent
accrued or arising on or prior to the Effective Date. With effect on and after
the Effective Date, each New Revolving Lender shall be a party to this Agreement
and succeed to all of the rights and be obligated to perform all of the
obligations of a Revolving Lender under this Agreement, including the
requirements concerning confidentiality and the payment of indemnification,
with
a Revolving Commitment in the amounts set forth on Schedule 2.01(b).
Each New
Revolving Lender agrees that it will perform in accordance with their terms
all
of the obligations which by the terms of this Agreement are required to be
performed by it as a Revolving Lender.
(c) Additional
Term B Loans.
Upon Holding’s
written notice to the Administrative Agent, on any Subsequent Effective Date,
one or more Additional Lenders may, in their sole and absolute discretion,
become parties to this Agreement (to the extent not already a party to this
Agreement) for the purpose of making additional Term B Loans in an amount
in excess of $50,000,000, provided
that the aggregate
amount of such additional Term B Loans shall not exceed the difference of
(A) $250,000,000 minus
(B) the total
of (x) the amount (if any) by which the aggregate outstanding principal
amount of the Term B Loans has been increased on all Subsequent Effective
Dates that shall have occurred prior to the relevant Subsequent Effective Date
pursuant to this Section 2.01(b) plus
(y) the
amount (if any) by which the Aggregate Revolving Commitment has been increased
on all Subsequent Effective Dates that shall have occurred prior to, or
simultaneous with, the relevant Subsequent Effective Date pursuant to
Section 2.01(f)
(each such
additional commitment of the Additional Lenders to make additional Term B
Loans, an “Additional
Term B Commitment”).
On the
applicable Subsequent Effective Date, each Additional Lender holding an
Additional Term B Commitment shall make a new single loan denominated in
Dollars to Holdings in the amount of such Additional Lender’s Additional
Term B Commitment (each such loan, an “Additional
Term B Loan”)
upon the terms
and subject to the conditions contained herein, as such terms and conditions
may
be amended pursuant to Section 11.01
hereof, and any
such Additional Lenders not already party to this
Agreement
shall
become parties to this Agreement by executing a counterpart signature page
to
this Agreement and shall be treated as a Term B Lender for all purposes of
this Agreement from and after the relevant Subsequent Effective Date. Once
the
Additional Term B Loans shall have been made pursuant to this Agreement,
(i) the schedule of Term B Loans maintained by the Administrative
Agent shall be deemed to have been amended to include all Additional Lenders
holding an Additional Term B Loan together with each such Additional
Lender’s respective Term B Proportionate Share, (ii) the schedule of
Term B Loans maintained by the Administrative Agent shall be deemed to have
been amended to adjust the Term B Proportionate Share of all other
Term B Lenders party hereto, and (iii) Schedule
2.09(b)
hereto shall be
deemed to have been amended to include the Additional Term B Loans in the
then applicable Term B Loan amortization schedule based upon the
percentages set forth therein. The Additional Term B Loans of the
Additional Lenders shall be deemed to be Term B Loans of such Term B
Lenders under this Agreement and the other Loan Documents for all
purposes.
(d) Additional
Revolving Commitments.
Upon Holding’s
written notice to the Administrative Agent, on any Subsequent Effective Date
one
or more Additional Lenders may, in their sole and absolute discretion, provide
additional Revolving Commitments in an amount in excess of $50,000,000,
provided
that the aggregate
amount of such additional Revolving Commitments shall not exceed the difference
of (A) $250,000,000 minus
(B) the total
of (x) the amount (if any) by which the Aggregate Revolving Commitment has
been increased on all Subsequent Effective Dates that shall have occurred prior
to the relevant Subsequent Effective Date pursuant to this Section 2.01(d) plus
(y) the
amount (if any) by which the aggregate outstanding principal amount of the
Term B Loans has been increased on all Subsequent Effective Dates that
shall have occurred prior to, or simultaneous with, the relevant Subsequent
Effective Date pursuant to Section 2.01(b)
(each such
additional commitment, an “Additional
Revolving Commitment”),
which
Additional Revolving Commitment may thereafter be made available to Holdings
as
Revolving Loans, Swingline Loans and Letters of Credit (subject to the Swingline
Commitment and L/C Commitment). Any Additional Lender not already party to
this
Agreement shall become a party to this Agreement by executing a counterpart
signature page to this Agreement and shall be treated as a Revolving Lender
for
all purposes of this Agreement from and after the Subsequent Effective Date.
Once such Additional Revolving Commitments shall be deemed to have been made
available pursuant to this Agreement, (i) Schedule 2.01(b)
hereto shall be
deemed to have been amended to include all Additional Lenders holding an
Additional Revolving Commitment together with such Additional Lender’s
respective Revolving Commitment and Revolving Proportionate Share,
(ii) Schedule 2.01(b)
hereto shall be
deemed to have been amended to adjust the Revolving Proportionate Share of
all
other Revolving Lenders party hereto, and (iii) the definition of
“Aggregate Revolving Commitment” shall be deemed to have been amended to include
the Additional Revolving Commitments provided by such Additional Lenders on
the
relevant Subsequent Effective Date. To effect the foregoing, on the Subsequent
Effective Date, the amount of Revolving Loans then outstanding and held by
each
Revolving Lender shall be adjusted to reflect the changes in the Revolving
Lenders’ Revolving Proportionate Shares, subject to Section 4.04.
Each Revolving
Lender having Revolving Loans, or participations in L/C Obligations or Swingline
Loans, then outstanding and whose Revolving Proportionate Share has been
decreased on the Subsequent Effective Date shall be deemed to have assigned
on
the Subsequent Effective Date to each Revolving Lender increasing its Revolving
Proportionate Share on the Subsequent Effective Date such portion of such
Revolving Loans and participations
as
shall be necessary to effectuate such adjustment (such assignment to be deemed
made upon the terms and conditions set forth in an Assignment and Assumption
in
the form attached hereto as Exhibit E as if such assignor and such assignee(s)
shall have entered into such Assignment and Acceptance in respect of the
Revolving Loans and participations so assigned). Each Revolving Lender
increasing its Revolving Proportionate Share on the Subsequent Effective Date
shall (i) be deemed to have assumed such portion of such Revolving Loans
and participations and (ii) fund on the Subsequent Effective Date such
assumed amounts to the Administrative Agent for the account of the assigning
Revolving Lender in accordance with the provisions hereof in the amount notified
to such increasing Revolving Lender by the Administrative Agent. On and after
each Subsequent Effective Date, after giving effect to any Borrowing of
Revolving Loans, (i) the Effective Amount of all Revolving Loans and
Swingline Loans and the Effective Amount of all L/C Obligations shall not exceed
the combined Revolving Commitments (inclusive of the Additional Revolving
Commitments) of the Revolving Lenders; and (ii) the Effective Amount of the
Revolving Loans of any Revolving Lender plus
the participation
of such Revolving Lender in the Effective Amount of all L/C Obligations and
in
the Effective Amount of all Swingline Loans shall not at any time exceed such
Revolving Lender’s Revolving Commitment (inclusive of its Additional Revolving
Commitment, if any). On and after the Subsequent Effective Date, each Additional
Lender holding an Additional Revolving Commitment shall be a Revolving Lender
under this Agreement and the other Loan Documents for all purposes with a
Revolving Commitment and a Revolving Proportionate Share as set forth on
Schedule 2.01(b),
as deemed amended
in clause (i) above, with the rights, duties and obligations of a Revolving
Lender under this Agreement and the other Loan Documents.
2.02 Loan
Accounts.
ii)
The Loans made by
each Lender and the Letters of Credit Issued by the L/C Issuer shall be
evidenced by one or more accounts or records maintained by such Lender or L/C
Issuer, as the case may be, in the ordinary course of business. The accounts
or
records maintained by the Administrative Agent, the L/C Issuer and each Lender
shall be conclusive absent manifest error of the amount of the Loans made by
the
Lenders to Holdings and the Letters of Credit Issued for the account of
Holdings, and the interest and payments thereon. Any failure so to record or
any
error in doing so shall not, however, limit or otherwise affect the obligation
of Holdings hereunder to pay any amount owing with respect to the Loans or
any
Letter of Credit.
(b) Upon
the request of
any Lender made through the Administrative Agent, the Loans made by such Lender
may be evidenced by one or more Notes, instead of or in addition to loan
accounts. Each such Lender shall endorse on the schedules annexed to its Note(s)
the date, amount and maturity of each Loan made by it and the amount of each
payment of principal made by Holdings with respect thereto. Each such Lender
is
irrevocably authorized by Holdings to endorse its Note(s), and each Lender’s
record shall be conclusive absent manifest error; provided,
however,
that the failure
of a Lender to make, or an error in making, a notation thereon with respect
to
any Loan shall not limit or otherwise affect the obligations of Holdings
hereunder or under any such Note to such Lender.
2.03 Procedure
for
Borrowing.
iii)
Each Borrowing of
Revolving Loans and Term B Loans shall be made upon Holdings’ irrevocable
written notice delivered to the Administrative Agent in the form of a Notice
of
Borrowing, which notice must be received by the Administrative Agent
(i) prior to 9:00 a.m. (San Francisco time) at least three (3)
Business
Days
prior to the
requested Borrowing Date, in the case of Offshore Rate Loans, and
(ii) prior to 9:00 a.m. (San Francisco time) on the requested
Borrowing Date, in the case of Base Rate Loans, specifying:
(i) the
amount of the
Borrowing, which shall be in a Minimum Amount, and whether such Borrowing shall
be of Term B Loans or Revolving Loans;
(ii) the
requested
Borrowing Date, which shall be a Business Day;
(iii) the
Type of Loans
comprising the Borrowing; and
(iv) if
applicable, the
duration of the Interest Period applicable to such Loans included in such
notice, subject to the provisions of the definition of “Interest Period” herein.
If the Notice of Borrowing fails to specify the duration of the Interest Period
for any Borrowing comprised of Offshore Rate Loans, such Interest Period shall
be one month;
provided,
however,
that with respect
to the Borrowing to be made on the Effective Date and on any Subsequent
Effective Date, the Notice of Borrowing shall be delivered to the Administrative
Agent not later than 11:00 a.m. (San Francisco time) one (1) Business Day before
the Effective Date or Subsequent Effective Date, as the case may
be.
(b) The
Administrative
Agent will promptly notify each Revolving Lender or Term B Lender, as
applicable, of its receipt of any Notice of Borrowing and of the amount of
such
Lender’s Proportionate Share of that Borrowing.
(c) Each
Lender will
make the amount of its Proportionate Share of each Borrowing available to the
Administrative Agent for the account of Holdings at the Administrative Agent’s
Payment Office by 11:00 a.m. (San Francisco time) on the Borrowing Date
requested by Holdings in funds immediately available to the Administrative
Agent. The proceeds of each such Borrowing will then be made available to
Holdings by the Administrative Agent at such office by crediting the account
of
Holdings on the books of Xxxxx Fargo with the aggregate of the amounts made
available to the Administrative Agent by the Lenders and in like funds as
received by the Administrative Agent, or if requested by Holdings, by wire
transfer in accordance with written instructions provided to the Administrative
Agent by Holdings of such funds as received by the Administrative Agent, unless
on the date of the Borrowing all or any portion of the proceeds thereof shall
then be required to be applied to the repayment of any outstanding Loans or
L/C
Obligations, in which case such proceeds or portion thereof shall be applied
to
the payment of such Loans or L/C Obligations.
(d) After
giving effect
to any Borrowing, unless the Administrative Agent shall otherwise consent,
there
may not be more than eight different Interest Periods in effect.
2.04 Conversion
and
Continuation Elections.
iv)
Holdings may, upon
irrevocable written notice to the Administrative Agent in accordance with
Section 2.04(b):
(i) elect,
as of any
Business Day, in the case of Base Rate Loans, or as of the last day of the
applicable Interest Period, in the case of any Offshore Rate Loans, to convert
any such Loans (or any part thereof in a Minimum Amount) into Loans of any
other
Type; or
(ii) elect,
as of the
last day of the applicable Interest Period, to continue any Offshore Rate Loans
having Interest Periods expiring on such day (or any part thereof in a Minimum
Amount);
provided
that if at any
time the aggregate amount of Offshore Rate Loans in respect of any Borrowing
is
reduced, by payment, prepayment, or conversion of part thereof to be less than
$5,000,000, such Offshore Rate Loans shall automatically convert into Base
Rate
Loans, and on and after such date the right of Holdings to continue such Loans
as, and convert such Loans into, Offshore Rate Loans, shall
terminate.
(b) Holdings
shall
deliver a Notice of Conversion/Continuation to be received by the Administrative
Agent (i) not later than 9:00 a.m. (San Francisco time) at least three (3)
Business Days in advance of the Conversion/Continuation Date, if the Loans
are
to be converted into or continued as Offshore Rate Loans, and (ii) prior to
9:00 a.m. (San Francisco time) on the Conversion/Continuation Date, if the
Loans
are to be converted into Base Rate Loans, specifying:
(i) the
proposed
Conversion/Continuation Date;
(ii) the
aggregate
amount of Loans to be converted or continued;
(iii) the
Type of Loans
resulting from the proposed conversion or continuation;
(iv) other
than in the
case of conversions into Base Rate Loans, the duration of the requested Interest
Period, subject to the provisions of the definition of “Interest Period” herein;
and
(v) whether
such
conversion or continuation shall be of Term B Loans or Revolving Loans.
(c) If
upon the
expiration of any Interest Period applicable to Offshore Rate Loans, Holdings
has failed to select timely a new Interest Period to be applicable to such
Offshore Rate Loans, or if any Default then exists, Holdings shall be deemed
to
have elected to convert such Offshore Rate Loans into Base Rate Loans effective
as of the expiration date of such Interest Period.
(d) The
Administrative
Agent will promptly notify each Term B Lender and Revolving Lender, as
applicable, of its receipt of a Notice of
Conversion/Continuation,
or, if no timely notice is provided by Holdings, the Administrative Agent will
promptly notify each applicable Lender of the details of any automatic
conversion. All conversions and continuations shall be made ratably according
to
the respective outstanding principal amounts of the Loans with respect to which
the notice was given held by each Lender.
(e) Unless
the Majority
Lenders otherwise consent, during the existence of an Event of Default, Holdings
may not elect to have a Loan converted into or continued as an Offshore Rate
Loan.
(f) After
giving effect
to any conversion or continuation of Loans, unless the Administrative Agent
shall otherwise consent, there may not be more than eight (8) different Interest
Periods in effect.
2.05 Voluntary
Termination or Reduction of Commitments.
v)
Holdings may, upon
not less than three (3) Business Days’ prior written notice to the
Administrative Agent, terminate the Revolving Commitments, or permanently reduce
the Revolving Commitments, provided
that the aggregate
amount of any partial reduction is in a Minimum Amount; unless, after giving
effect thereto and to any prepayments of any Loans made on the effective date
thereof, (i) the Effective Amount of all Revolving Loans, Swingline Loans
and L/C Obligations together would exceed the combined Revolving Commitments
of
the Revolving Lenders then in effect, or (ii) the Effective Amount of all
L/C Obligations would exceed the L/C Commitment then in effect. Once reduced
in
accordance with this Section 2.05,
the Revolving
Commitments may not be increased (except pursuant to Section 2.01(f)).
Any reduction of
the Revolving Commitments shall be applied to each Revolving Lender according
to
its Revolving Proportionate Share. If and to the extent specified by Holdings
in
the notice to the Administrative Agent, some or all of the reduction in the
Revolving Commitments shall be applied to reduce the L/C Commitment. All accrued
commitment and letter of credit fees to, but not including, the effective date
of any reduction or termination of Revolving Commitments, shall be paid on
the
effective date of such reduction or termination.
(b) At
no time shall
the Swingline Commitment exceed the combined Revolving Commitments of the
Revolving Lenders, and any reduction of the Revolving Commitments which reduces
the combined Revolving Commitments of the Revolving Lenders below the
then-current amount of the Swingline Commitment shall result in an automatic
corresponding reduction of the Swingline Commitment to the amount of the
combined Revolving Commitments of the Revolving Lenders, as so reduced, without
any action on the part of the Swingline Lender.
2.06 Swingline
Loans.
vi)
On the terms and
subject to the conditions set forth herein, the Swingline Lender agrees to
make
a portion of the Revolving Commitment available to Holdings by making swingline
loans denominated in Dollars (individually, a “Swingline
Loan”,
and,
collectively, the “Swingline
Loans”)
to Holdings on
any Business Day during the period from the Effective Date to the Revolving
Loan
Maturity Date in accordance with the procedures set forth in this Section 2.06
in an aggregate
principal amount at any one time outstanding not to exceed Thirty Million
Dollars ($30,000,000), notwithstanding the fact that such Swingline Loans,
when
aggregated with any other Revolving Loans made by or Letters of
Credit
participated
in by the Swingline Lender, may exceed the Swingline Lender’s Revolving
Commitment (the amount of such commitment of the Swingline Lender to make
Swingline Loans to Holdings pursuant to this Section 2.06(a),
as the same shall
be reduced pursuant to Section 2.05
or Section 2.08
or as a result of
any assignment pursuant to Section 11.08,
the Swingline
Lender’s “Swingline
Commitment”);
provided
that at no time
shall (i) the sum of the Effective Amount of all Swingline Loans
plus
the Effective
Amount of all Revolving Loans plus
the Effective
Amount of all L/C Obligations exceed the combined Revolving Commitments of
the
Revolving Lenders, or (ii) the Effective Amount of all Swingline Loans
exceed the Swingline Commitment. Additionally, no more than three Swingline
Loans may be outstanding at any one time, and all Swingline Loans shall at
all
times accrue interest at the Base Rate plus
the Applicable
Margin (for Base Rate Loans) or at such other rate as may be agreed to by the
Swingline Lender and Holdings. Within the foregoing limits, and subject to
the
other terms and conditions hereof, Holdings may borrow under this Section 2.06(a),
prepay pursuant
to Section 2.07
and reborrow
pursuant to this Section 2.06(a).
(b) Holdings
shall
provide the Administrative Agent irrevocable written notice (including notice
via facsimile confirmed immediately by a telephone call) in the form of a Notice
of Borrowing of any Swingline Loan requested hereunder (which notice must be
received by the Administrative Agent prior to 11:00 a.m. (San Francisco time)
on
the requested Borrowing Date) specifying (i) the amount to be borrowed,
which shall be in a Minimum Amount, and (ii) the requested Borrowing Date,
which shall be a Business Day. Unless the Swingline Lender has received notice
prior to 11:00 a.m. (San Francisco time) on such Borrowing Date from the
Administrative Agent (including at the request of any Revolving Lender)
(A) directing the Swingline Lender not to make the requested Swingline Loan
as a result of the limitations set forth in the proviso
set forth in
Section 2.06(a);
or (B) that
one or more conditions specified in Article
V
are not then satisfied; then,
subject to the
terms and conditions hereof, the Swingline Lender will, not later than 12:00
noon (San Francisco time) on the Borrowing Date specified in such Notice of
Borrowing, make the amount of its Swingline Loan available to Holdings by
crediting the account of Holdings on the books of Xxxxx Fargo or if requested
by
Holdings, by wire transfer in accordance with written instructions provided
to
the Administrative Agent by Holdings. The Administrative Agent will notify
the
Revolving Lenders on a quarterly basis if any Swingline Loan Borrowings occurred
during such quarter.
(c) Holdings
shall
repay to the Swingline Lender in full on the Revolving Loan Maturity Date the
aggregate principal amount of the Swingline Loans outstanding on the Revolving
Loan Maturity Date.
(d) For
one (1)
Business Day during each successive ten (10) Business Day period, the aggregate
principal amount of Swingline Loans shall be $0 (a “Clean-Up
Day”);
Holdings shall
prepay the outstanding principal amount of the Swingline Loans in whole to
the
extent required so that a Clean-Up Day may occur in each such ten (10) Business
Day period as provided in this Section 2.06(d)
(which Swingline
Loans may not be reborrowed until such Clean-Up Day has ended).
(e) If:
(i) any
Swingline Loans
shall remain outstanding at 9:00 a.m. (San Francisco time) on any day required
to be a Clean-Up Day (by virtue of there being Swingline Loans outstanding
for
ten consecutive Business Days) and by such time on such Business Day the
Administrative Agent shall have received neither: (A) a Notice of Borrowing
delivered pursuant to Section 2.03
requesting that
Revolving Loans be made pursuant to Section 2.01
on the Clean-Up
Day in an amount at least equal to the aggregate principal amount of such
Swingline Loans; nor (B) any other notice indicating Holdings’ intent to
repay such Swingline Loans with funds obtained from other sources;
or
(ii) any
Swingline Loans
shall remain outstanding during the existence of an Event of Default and the
Swingline Lender shall in its sole discretion notify the Administrative Agent
that the Swingline Lender desires that such Swingline Loans be converted into
Revolving Loans;
then
the Administrative
Agent shall be deemed to have received a Notice of Borrowing from Holdings
pursuant to Section 2.03
requesting that
Revolving Loans consisting of Base Rate Loans be made pursuant to Section 2.01(b)
on
such Clean-Up Day (in the case of the circumstances described in clause (i)
above) or on the first Business Day subsequent to the date of such notice from
the Swingline Lender (in the case of the circumstances described in
clause (ii) above) in an amount equal to the aggregate amount of such
Swingline Loans, the proceeds of which Revolving Loans shall be applied to
repay
such Swingline Loans, and the procedures set forth in Section 2.03(b)
and Section 2.03(c)
shall be followed
in making such Revolving Loans; provided,
that such
Revolving Loans shall be made notwithstanding Holdings’ failure to comply with
Section 5.03;
and provided,
further,
that if a
Borrowing of Revolving Loans becomes legally impracticable and if so required
by
the Swingline Lender at the time such Revolving Loans are required to be made
by
the Revolving Lenders in accordance with this Section 2.06(e),
each Revolving
Lender agrees that in lieu of making Revolving Loans as described in this
Section 2.06(e),
such Revolving
Lender shall purchase a participation from the Swingline Lender in the
applicable Swingline Loans in an amount equal to such Revolving Lender’s
Revolving Proportionate Share of such Swingline Loans, and the procedures set
forth in Section 2.03(b)
and Section 2.03(c)
shall be followed
in connection with the purchases of such participations. Upon such purchases
of
participations the prepayment requirements of Section 2.06(d)
shall
be deemed
waived with respect to such Swingline Loans. If any Swingline Loan shall remain
outstanding in lieu of a Borrowing of Revolving Loans as provided above,
interest on such Swingline Loan shall be due and payable on demand and shall
accrue at the rate then applicable to Revolving Loans consisting of Base Rate
Loans. A copy of each notice given by the Administrative Agent to the Revolving
Lenders pursuant to this Section 2.06(e)
with respect to
the making of Revolving Loans, or the purchases of participations, shall be
promptly delivered by the Administrative Agent to Holdings. Each Revolving
Lender’s obligation in accordance with this Agreement to make the Revolving
Loans, or purchase the participations, as contemplated by this Section 2.06(e),
shall be absolute
and unconditional and shall not be affected by any circumstance, including
(1) any set-off, counterclaim, recoupment, defense or other right which
such Revolving Lender may have against the Swingline Lender, Holdings or any
other Person for any reason whatsoever; (2) the occurrence or continuance
of a Default, an
Event
of Default or
a Material Adverse Effect; or (3) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing.
2.07 Optional
Prepayments.
Subject to
Section 4.04,
Holdings may, at
any time or from time to time, in the case of Offshore Rate Loans, upon not
less
than three (3) Business Days’ irrevocable written notice to the Administrative
Agent, and in the case of Base Rate Loans, upon irrevocable written notice
to
the Administrative Agent provided prior to 9:00 a.m. on the day of such
prepayment (provided that in the case of Base Rate Loans, if such prepayment
is
received by the Administrative Agent on or prior to 11:00 a.m. (San
Francisco time) on any Business Day, such payment shall be applied against
the
outstanding Loans on the same Business Day), ratably prepay Loans in whole
or in
part, in Minimum Amounts without penalty; provided, however, that such notice
may state that it is conditioned upon the consummation of a refinancing or
other
transaction, in which case such notice may be revoked by Holdings (by written
notice to the Administrative Agent on or prior to the specified prepayment
date), subject to Section
4.04,
if such condition
is not satisfied. Such notice of prepayment shall specify the date and amount
of
such prepayment, whether such prepayment of Loans is of Term B Loans,
Revolving Loans or Swingline Loans (or a combination thereof) and the Type(s)
of
Loans to be prepaid. The Administrative Agent will promptly notify the
Term B Lenders, the Revolving Lenders or the Swingline Lender, as
applicable, of its receipt of any such notice and of such prepayment. If such
notice is given by Holdings, Holdings shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified
therein, together with (other than in the case of Base Rate Loans) accrued
interest to each such date on the amount prepaid and any amounts required
pursuant to Section 4.04.
Optional
prepayments of Term B Loans shall be applied to reduce the Term B
Loans with respect to each remaining installment of principal pro rata
in accordance with
the then remaining installments payable under Section 2.09(a).
2.08 Mandatory
Prepayments of Loans; Mandatory Commitment Reductions.
(a) Mandatory
Prepayments of Loans.
(i) If
at any time the
Effective Amount of all L/C Obligations exceeds the L/C Commitment, Holdings
shall Cash Collateralize on such date the outstanding Letters of Credit in
an
amount equal to the excess of the maximum amount then available to be drawn
under the Letters of Credit over the L/C Commitment.
(ii) If
at any time the
Effective Amount of all Revolving Loans and Swingline Loans plus
the Effective
Amount of all L/C Obligations exceeds the combined Revolving Commitments of
the
Revolving Lenders, Holdings shall immediately, and without notice or demand,
prepay the outstanding principal amount of the Revolving Loans, Swingline Loans
and L/C Advances by an amount equal to the applicable excess.
(iii) If
Holdings, the
Company or any other Subsidiary shall at any time or from time to time during
any fiscal year make or agree to make a Disposition, then (A) Holdings
shall promptly notify the Administrative Agent in advance of such Disposition
(including notice of the amount of the estimated Net Proceeds to be received
by
Holdings, the Company or such other Subsidiary in respect thereof), and
(B) if, after giving effect to such
Disposition,
the
Net Proceeds of all Dispositions which have occurred in such fiscal year are
greater than $50,000,000 in the aggregate, then promptly upon, and in no event
later than one (1) Business Day after, receipt by Holdings, the Company or
the
other Subsidiary of the Net Proceeds of such Disposition, Holdings shall prepay
the Term B Loans in an aggregate amount equal to 100% of the amount by
which the Net Proceeds of such Disposition when added to the Net Proceeds
received by Holdings, the Company or any other Subsidiary on account of all
other Dispositions which have occurred in such fiscal year, less the amount,
if
any, of Net Proceeds already so applied in such fiscal year, exceeds
$50,000,000; provided,
however,
that with respect
to any Non-Wholly-Owned Subsidiary, Holdings shall only be required to prepay
the Term B Loans as provided above in an amount equal to the ratable
portion of the Net Proceeds received by such Non-Wholly-Owned Subsidiary based
on Holdings’ direct or indirect interest in such Non-Wholly-Owned
Subsidiary.
(iv) If
Holdings, the
Company or any other Subsidiary shall at any time or from time to time issue
any
debt securities or otherwise borrow money (other than any Loans and other
Indebtedness permitted under Section 8.05),
then
(i) Holdings shall promptly notify the Administrative Agent in advance of
the estimated Net Issuance Proceeds of such issuance or borrowing, and
(ii) promptly upon, and in no event later than one (1) Business Day after,
receipt by Holdings, the Company or the other Subsidiary of the Net Issuance
Proceeds of such issuance or borrowing, Holdings shall prepay the Term B
Loans in an aggregate amount equal to 100% of the amount of such Net Issuance
Proceeds; provided,
however,
that with respect
to any Non-Wholly-Owned Subsidiary, Holdings shall only be required to prepay
the Term B Loans as provided above in an amount equal to the ratable
portion of the Net Issuance Proceeds received by such Non-Wholly-Owned
Subsidiary in respect of such issuance or borrowing based on Holdings’ direct or
indirect interest in such Non-Wholly-Owned Subsidiary.
(v) Any
prepayments
pursuant to this Section 2.08
shall be subject
to Section 4.04
and applied,
first, to any Base Rate Loans then outstanding and then to Offshore Rate Loans
with the shortest Interest Periods remaining; provided,
however,
that if the
amount of Base Rate Loans then outstanding is not sufficient to satisfy the
entire prepayment requirement, Holdings may, at its option, place any amounts
which it would otherwise be required to use to prepay Offshore Rate Loans on
a
day other than the last day of the Interest Period therefor into an
interest-bearing account pledged to the Administrative Agent for the benefit
of
the Lenders until the end of such Interest Period at which time such pledged
amounts will be applied to prepay such Offshore Rate Loans. Holdings shall
pay,
together with each prepayment under this Section 2.08,
accrued interest
on the amount of any Offshore Rate Loans prepaid and any amounts required
pursuant to Section 4.04.
Prepayments of
Term B Loans shall be applied to reduce the Term B Loans with respect
to each remaining installment of principal pro rata
in accordance with
the then remaining installments payable under Section 2.09(a).
(b) Mandatory
Commitment Reductions.
(i) The
Aggregate
Revolving Commitment shall be automatically and permanently reduced to $0 on
the
Revolving Loan Maturity Date.
(ii) If,
on the
Effective Date, the Aggregate Term B Commitment shall exceed the aggregate
outstanding principal amount of the Existing Term B Loans and the New
Term B Loans made on the Effective Date, such unused portion of the
Aggregate Term B Commitment shall thereafter automatically terminate on the
Effective Date.
(c) Optional
Waiver
of Prepayments.
Any Term B
Lender may elect, by notice to the Administrative Agent at or prior to the
time
and in the manner specified by the Administrative Agent, prior to any mandatory
prepayment required to be made by Holdings under Section 2.01(a)(iii)
or 2.01(a)(iv),
to decline all
(but not a portion) of its pro rata
share of such
prepayment (such declined amounts, the “Declined
Proceeds”).
Any Declined
Proceeds shall be offered to the Term B Lenders not so declining such
prepayment, with such Term B Lenders having the right to decline any
prepayment with Declined Proceeds at the time and in the manner specified by
the
Administrative Agent. Any Declined Proceeds rejected by such Term B Lenders
may be retained by Holdings.
2.09 Repayment.
(a) The
Term B
Loans.
Holdings shall
repay to the Administrative Agent for the account of the Term B Lenders the
aggregate principal amount of Term B Loans in quarterly installments on the
last Business Day of each calendar quarter, commencing on December 31, 2006
in
the applicable amounts set forth on Schedule
2.09(a)
hereto (or as such
Schedule may be amended pursuant to Section 2.01(c)
hereof).
(b) The
Revolving
Loans and Swingline Loans.
Holdings shall
repay to the Administrative Agent for the account of the Revolving Lenders
and
Swingline Lender on the Revolving Loan Maturity Date the aggregate principal
amount of Revolving Loans and Swingline Loans outstanding on such
date.
2.10 Interest.
vii)
(i) Subject
to Section 2.10(c)
below, each
Revolving Loan and Term B Loan shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date at a rate per annum
equal to the Offshore Rate or the Base Rate, as the case may be (and subject
to
Holdings’ right to convert to other Types of Loans under Section 2.04),
plus
the Applicable
Margin; and (ii) each Swingline Loan shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date at a rate per annum
equal to the Base Rate plus
the Applicable
Margin (for Base Rate Loans), or at such other rate as may be agreed to by
the
Swingline Lender.
(b) Interest
on each
Revolving Loan, Term B Loan and Swingline Loan shall be paid in arrears on
each Interest Payment Date. Interest shall also be paid on the date of any
prepayment of Loans (other than Base Rate Loans) under Section 2.07
or Section 2.08
for the portion of
such Loans so prepaid and upon payment (including prepayment) in full thereof,
and on the Revolving Loan Maturity Date or Term B Loan Maturity Date, as
applicable. During the existence of any Event of Default, interest shall be
paid
on demand of the Administrative Agent at the request or with the consent of
the
Majority Lenders.
(c) Notwithstanding
Section 2.10(a),
while any Event
of Default exists or after acceleration, Holdings shall pay interest (after
as
well as before entry of judgment
thereon
to the
extent permitted by law) on the principal amount of all outstanding Loans and
other Obligations of Holdings, at a rate per annum which is determined by adding
2% per annum to the Applicable Margin then in effect for such Loans and other
Obligations and, in the case of Obligations not subject to an Applicable Margin,
at a rate per annum equal to the Base Rate plus
the Applicable
Margin then in effect for Revolving Loans consisting of Base Rate Loans,
plus
2% per annum;
provided,
however,
that on and after
the expiration of any Interest Period applicable to any Offshore Rate Loan
outstanding on the date of occurrence of such Event of Default or acceleration,
the principal amount of such Loan shall, during the continuation of such Event
of Default or after acceleration, bear interest at a rate per annum equal to
the
Base Rate, plus
the Applicable
Margin then in effect for Base Rate Loans, plus
2% per
annum.
(d) Notwithstanding
anything to the contrary contained in any Loan Document, the interest paid
or
agreed to be paid under the Loan Documents shall not exceed the maximum rate
of
non-usurious interest permitted by applicable Law (the “Maximum
Rate”).
If the
Administrative Agent or any Lender shall receive interest in an amount that
exceeds the Maximum Rate, the excess interest shall be applied to the principal
of the Loans or, if it exceeds such unpaid principal, refunded to Holdings.
In
determining whether the interest contracted for, charged, or received by the
Administrative Agent or a Lender exceeds the Maximum Rate, such Person may,
to
the extent permitted by applicable Law, (a) characterize any payment that
is not principal as an expense, fee, or premium rather than interest,
(b) exclude voluntary prepayments and the effects thereof, and
(c) amortize, prorate, allocate, and spread in equal or unequal parts the
total amount of interest throughout the contemplated term of the Obligations
hereunder.
2.11 Fees.
In addition to
certain fees described in Section 3.08:
(a) Arrangement
and
Agency Fees.
Holdings shall
pay the fees specified in (i) that certain letter agreement between
Holdings and Xxxxx Fargo dated October 9, 2006, (ii) that certain letter
agreement among Holdings, JPMorgan Chase Bank, N.A., and X.X. Xxxxxx Securities
Inc. dated October 9, 2006, (iii) that certain letter agreement between
Holdings and SunTrust Bank dated October 9, 2006 and (iv) that certain
letter agreement between Holdings and BNP Paribas dated October 9, 2006 (each
a
“Fee
Letter”
and,
collectively, the “Fee
Letters”).
(b) Commitment
Fees.
Holdings shall
pay to the Administrative Agent for the account of each Revolving Lender a
commitment fee on the actual daily unused portion of such Revolving Lender’s
Revolving Commitment (the “Available
Commitment”),
computed on a
quarterly basis in arrears on the last Business Day of each calendar quarter
based upon the daily utilization for that quarter as calculated by the
Administrative Agent at a rate per annum equal to the Applicable Fee Amount
(such fees, the “Commitment
Fees”).
For purposes of
calculating the Available Commitment under this Section 2.11,
the Revolving
Commitments shall be deemed used to the extent of the Effective Amount of
Revolving Loans then outstanding plus the Effective Amount of L/C Obligations
then outstanding (other than L/C Obligations consisting of the aggregate undrawn
amount of all Commercial Letters of Credit then outstanding). Swingline Loans
shall not constitute utilization for purposes of calculating Available
Commitment. Such Commitment Fees shall accrue from the Effective Date to the
Revolving Loan Maturity Date and shall be due and payable quarterly in arrears
on the last
Business
Day of
each calendar quarter, commencing on December 31, 2006, to the Revolving Loan
Maturity Date, with the final payment to be made on the Revolving Loan Maturity
Date; provided
that in connection
with any termination of Commitments hereunder, the accrued Commitment Fees
calculated for the period ending on such date shall also be paid on the date
of
termination. The Commitment Fees provided in this Section 2.11(b)
shall accrue at
all times after the Effective Date, including at any time during which one
or
more conditions in Article
V
are not met.
2.12 Computation
of
Fees and Interest.
viii)
All computations
of interest for Base Rate Loans when the Base Rate is determined by Xxxxx
Fargo’s “prime rate” shall be made on the basis of a year of 365 or 366 days, as
the case may be, and actual days elapsed. All other computations of fees and
interest shall be made on the basis of a 360-day year and actual days elapsed.
Interest and fees shall accrue during each period during which interest or
such
fees are computed from the first day thereof to the last day
thereof.
(b) Each
determination
of an interest rate by the Administrative Agent shall be conclusive and binding
on Holdings and the Lenders in the absence of manifest error. The Administrative
Agent will, at the request of Holdings or any Lender, deliver to Holdings or
the
Lender, as the case may be, a statement showing the quotations used by the
Administrative Agent in determining any interest rate and the resulting interest
rate.
2.13 Payments
Generally; Administrative Agent’s Clawback.
(a) General.
All payments to
be made by Holdings shall be made without condition or deduction for any
counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by Holdings hereunder shall be made to the
Administrative Agent, for the account of the respective Lenders to which such
payment is owed, at the Administrative Agent’s
Payment Office in
Dollars and in immediately available funds not later than 11:00 a.m. (San
Francisco time) on the date specified herein. The Administrative Agent will
promptly distribute to each Lender its Proportionate Share (or other applicable
share as provided herein) of such payment in like funds as received by wire
transfer to such Lender’s Lending Office. All payments received by the
Administrative Agent after 11:00 a.m. (San Francisco time) shall be deemed
received on the next succeeding Business Day and any applicable interest or
fee
shall continue to accrue. If any payment to be made by Holdings shall come
due
on a day other than a Business Day, payment shall be made on the next following
Business Day, and such extension of time shall be reflected in computing
interest or fees, as the case may be.
(b) (1) Funding
by
Lenders; Presumption by Administrative Agent.
Unless the
Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing (or prior to the time of any Borrowing, in the
case of any same day advance of Base Rate Loans) that such Lender will not
make
available to the Administrative Agent such Lender’s share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share available
on such date in accordance with Section 2.03
and may, in
reliance upon such assumption, make available to Holdings a corresponding
amount. In such event, if a Lender has not in fact made its share of the
applicable Borrowing available to the Administrative Agent, then the applicable
Lender and Holdings severally agree to pay to the
Administrative
Agent forthwith on demand such corresponding amount in immediately available
funds with interest thereon, for each day from and including the date such
amount is made available to Holdings to but excluding the date of payment to
the
Administrative Agent, at (A) in the case of a payment to be made by such
Lender, the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation and (B) in the case of a payment to be made by Holdings, the
interest rate applicable to Base Rate Loans. If Holdings and such Lender shall
pay such interest to the Administrative Agent for the same or an overlapping
period, the Administrative Agent shall promptly remit to Holdings the amount
of
such interest paid by Holdings for such period. If such Lender pays its share
of
the applicable Borrowing to the Administrative Agent, then the amount so paid
shall constitute such Lender’s Loan included in such Borrowing. Any payment by
Holdings shall be without prejudice to any claim Holdings may have against
a
Lender that shall have failed to make such payment to the Administrative
Agent.
(ii) Payments
by
Holdings; Presumptions by Administrative Agent.
Unless the
Administrative Agent shall have received notice from Holdings prior to the
date
on which any payment is due to the Administrative Agent for the account of
the
Lenders or the L/C Issuer hereunder that Holdings will not make such payment,
the Administrative Agent may assume that Holdings has made such payment on
such
date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders or the L/C Issuer, as the case may be, the amount
due.
In such event, if Holdings has not in fact made such payment, then each of
the
Lenders or the L/C Issuer, as the case may be, severally agrees to repay to
the
Administrative Agent forthwith on demand the amount so distributed to such
Lender or the L/C Issuer, in immediately available funds with interest thereon,
for each day from and including the date such amount is distributed to it to
but
excluding the date of payment to the Administrative Agent, at the greater of
the
Federal Funds Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation.
A
notice of the Administrative Agent to any Lender or Holdings with respect to
any
amount owing under this subsection (b)
shall be
conclusive, absent manifest error.
(c) Failure
to
Satisfy Conditions Precedent.
If any Lender
makes available to the Administrative Agent funds for any Loan to be made by
such Lender as provided in the foregoing provisions of this Article
II,
and such funds
are not made available to Holdings by the Administrative Agent because the
conditions to the applicable Credit Extension set forth in Article
V
are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from
such Lender) to such Lender, without interest.
(d) Obligations
of
Lenders Several.
The obligations
of the Lenders hereunder to make Loans, to fund participations in Letters of
Credit and Swingline Loans and to make payments pursuant to Section 11.04(c)
are several and
not joint. The failure of any Lender to make any Loan, to fund any such
participation or to make any payment under Section 11.04(c)
on any date
required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for the
failure of any other Lender to so make its Loan, to purchase its participation
or to make its payment under Section 11.04(c).
2.14 Sharing
of
Payments, Etc.
(a) Except
as otherwise
provided herein:
(i) Each
Revolving Loan
and reduction of the Aggregate Revolving Commitment shall be made or shared
among the Revolving Lenders pro rata
according to their
respective Revolving Proportionate Shares;
(ii) Each
Term B
Loan shall be made or shared among the Term B Lenders pro rata
according to their
respective Term B Proportionate Shares;
(iii) Each
payment of
principal on Loans in any Borrowing shall be shared among the Lenders which
made
or funded the Loans in such Borrowing pro rata
according to the
respective unpaid principal amounts of such Loans then owed to such
Lenders;
(iv) Each
payment of
interest on Loans in any Borrowing shall be shared among the Lenders that made
or funded the Loans in such Borrowing pro rata
according to
(A) the respective unpaid principal amounts of such Loans so made or funded
by such Lenders and (B) the dates on which such Lenders so made or funded
such Loans;
(v) Each
payment of
Commitment Fees pursuant to this Agreement shall be shared among the Revolving
Lenders (except for Defaulting Lenders) pro rata
according to
(A) their respective Revolving Proportionate Shares and (B) in the
case of each Revolving Lender which becomes a Revolving Lender hereunder after
the date hereof, the date upon which such Revolving Lender so became a Revolving
Lender;
(vi) Each
payment of any
fees due in connection with any amendment hereto or any waiver of or forbearance
from any Event of Default existing hereunder shall be shared among those Lenders
consenting to such amendment, waiver or forbearance or as otherwise agreed
to by
such Lenders;
(vii) Each
payment of
interest (other than interest on Loans) and fees (other than Commitment Fees)
shall be shared among the Lenders and the Administrative Agent owed the amount
upon which such interest or fee accrues pro rata
according to
(A) the respective amounts so owed such Lenders and the Administrative
Agent and (B) the dates on which such amounts became owing to such Lenders
and the Administrative Agent; and
(viii) All
other payments
under this Agreement and the other Loan Documents shall be for the benefit
of
the Person or Persons specified.
(b) If
any Lender
shall, by exercising any right of setoff or counterclaim or otherwise, obtain
payment in respect of any principal of or interest on any of the Loans made
by
it, or the participations in L/C Obligations or in Swingline Loans held by
it or
other obligations hereunder resulting in such Lender’s receiving payment of a
proportion of the aggregate amount of such Loans or participations and accrued
interest thereon or other such obligations greater than its pro rata
share thereof as
provided herein, then the Lender receiving such greater proportion shall
(a) notify the Administrative Agent of such fact, and (b) purchase
(for cash at face value) participations in the Loans, subparticipations in
L/C
Obligations and
Swingline
Loans and
participations in such other obligations of the other Lenders, or make such
other adjustments as shall be equitable, so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the aggregate
amount of principal of and accrued interest on their respective Loans and other
amounts owing them, provided
that:
(i) if
any such
participations or subparticipations are purchased and all or any portion of
the
payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the
extent of such recovery, without interest; and
(ii) the
provisions of
this Section 2.14(b)
shall not be
construed to apply to (x) any payment made by Holdings pursuant to and in
accordance with the express terms of this Agreement or (y) any payment
obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or subparticipations in L/C Obligations or
Swingline Loans to any assignee or participant, other than to Holdings or any
Subsidiary thereof (as to which the provisions of this Section 2.14(b)
shall
apply).
Each
Loan Party
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to
the
foregoing arrangements may exercise against such Loan Party rights of setoff
and
counterclaim with respect to such participation as fully as if such Lender
were
a direct creditor of such Loan Party in the amount of such participation. The
Administrative Agent will keep records (which shall be conclusive and binding
in
the absence of manifest error) of participations purchased under this
Section 2.14(b)
and will in each
case notify the applicable Lenders following any such purchases or
repayments.
2.15 Security
and
Guaranty.
ix)
All Obligations
under this Agreement, the Notes and all other Loan Documents shall be secured
in
accordance with the Collateral Documents.
(b) All
Obligations of
Holdings under this Agreement, each of the Notes and all other Loan Documents
to
which it is a party shall be unconditionally guaranteed by each Guarantor
pursuant to its Guaranty.
THE
LETTERS OF CREDIT
3.01 The
Letter of
Credit Subfacility.
x)
On the terms and
subject to the conditions set forth herein (i) the L/C Issuer agrees,
(A) from time to time on any Business Day during the period from the
Effective Date to the Revolving Loan Maturity Date to issue Letters of Credit
for the account of Holdings, and to amend or renew Letters of Credit previously
issued by it, in accordance with Section 3.02(c)
and Section 3.02(d),
and (B) to
honor drafts under the Letters of Credit; and (ii) the Revolving Lenders
severally agree to participate in Letters of Credit Issued for the account
of
Holdings; provided
that the L/C
Issuer shall not be obligated to Issue, and no Revolving Lender shall be
obligated to participate in, any Letter of Credit if such
Letter
of Credit is
not denominated in Dollars or if as of the date of Issuance of such Letter
of
Credit (the “Issuance
Date”)
and after giving
effect thereto (x) the Effective Amount of all L/C Obligations plus
the Effective
Amount of all Revolving Loans and Swingline Loans shall exceed the combined
Revolving Commitments, (y) the participation of any Revolving Lender in the
Effective Amount of all L/C Obligations and in the Effective Amount of all
Swingline Loans plus
the Effective
Amount of the Revolving Loans of such Revolving Lender shall exceed such
Revolving Lender’s Revolving Commitment, or (z) the Effective Amount of L/C
Obligations shall exceed the L/C Commitment. Within the foregoing limits, and
subject to the other terms and conditions hereof, Holdings’ ability to obtain
Letters of Credit shall be fully revolving, and, accordingly, Holdings may,
during the foregoing period, obtain Letters of Credit to replace Letters of
Credit which have expired or which have been drawn upon and reimbursed. All
Existing Letters of Credit shall be deemed to have been issued pursuant hereto,
and from and after the Effective Date shall be subject to and governed by the
terms and conditions hereof.
(b) The
L/C Issuer is
under no obligation to Issue any Letter of Credit if:
(i) any
order, judgment
or decree of any Governmental Authority or arbitrator shall by its terms purport
to enjoin or restrain the L/C Issuer from Issuing such Letter of Credit, or
any
Requirement of Law applicable to the L/C Issuer or any request or directive
(whether or not having the force of law) from any Governmental Authority with
jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer
refrain from, the Issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the L/C Issuer with respect to such
Letter of Credit any restriction, reserve or capital requirement (for which
the
L/C Issuer is not otherwise compensated hereunder) not in effect on the
Effective Date, or shall impose upon the L/C Issuer any unreimbursed loss,
cost
or expense which was not applicable on the Effective Date and which the L/C
Issuer in good xxxxx xxxxx material to it;
(ii) the
L/C Issuer has
received written notice from any Revolving Lender, the Administrative Agent
or
Holdings, on or prior to the Business Day prior to the requested date of
Issuance of such Letter of Credit, that one or more of the applicable conditions
contained in Article
V
is not then satisfied;
(iii) the
expiry date of
any requested Letter of Credit is (A) more than 365 days after the date of
Issuance, unless the Majority Revolving Lenders have approved such expiry date
in writing, or (B) after the Revolving Loan Maturity Date, unless all of
the Revolving Lenders have approved such expiry date in writing;
(iv) the
expiry date of
any requested Letter of Credit is prior to the maturity date of any financial
obligation to be supported by the requested Letter of Credit;
(v) any
requested
Letter of Credit does not provide for drafts, or is not otherwise in form and
substance acceptable to the L/C Issuer, or the Issuance of a Letter of Credit
shall violate any applicable policies of the L/C Issuer;
(vi) any
Standby Letter
of Credit is for the purpose of supporting the issuance of any letter of credit
by any other Person;
(vii) any
Standby Letter
of Credit is in a face amount less than $1,000,000; or
(viii) any
requested
Letter of Credit is to be denominated in a currency other than
Dollars.
(c) Letters
of Credit
issued under this Article
III
shall be either
Commercial Letters of Credit or Standby Letters of Credit.
3.02 Issuance,
Amendment and Renewal of Letters of Credit.
xi)
Each Letter of
Credit shall be issued upon the irrevocable written request of Holdings received
by the L/C Issuer (with a copy sent by Holdings to the Administrative Agent)
at
least four (4) Business Days (or such shorter time as the L/C Issuer may agree
in a particular instance in its sole discretion) prior to the proposed date
of
issuance. Each such request for issuance of a Letter of Credit shall be by
facsimile, confirmed immediately in an original writing, in the form of an
L/C
Application, and shall specify in form and detail satisfactory to the L/C
Issuer: (i) the proposed date of issuance of the Letter of Credit (which
shall be a Business Day); (ii) the face amount of the Letter of Credit;
(iii) the expiry date of the Letter of Credit; (iv) the name and
address of the beneficiary thereof; (v) the documents to be presented by
the beneficiary of the Letter of Credit in case of any drawing thereunder;
(vi) the full text of any certificate to be presented by the beneficiary in
case of any drawing thereunder; and (vii) such other matters as the L/C
Issuer may require.
(b) At
least two (2)
Business Days prior to the Issuance of any Letter of Credit, the L/C Issuer
will
confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of the L/C Application or L/C Amendment
Application from Holdings and, if not, the L/C Issuer will provide the
Administrative Agent with a copy thereof. Unless the L/C Issuer has received
notice on or before the Business Day immediately preceding the date the L/C
Issuer is to issue a requested Letter of Credit from the Administrative Agent
(A) directing the L/C Issuer not to issue such Letter of Credit because
such issuance is not then permitted under Section 3.01(a)
as a result of the
limitations set forth in clauses (x) through (z) thereof or
Section 3.01(b)(ii);
or (B) that
one or more conditions specified in Article
V
are not then satisfied; then, subject to the terms and conditions hereof, the
L/C Issuer shall, on the requested date, issue a Letter of Credit for the
account of Holdings in accordance with the L/C Issuer’s usual and customary
business practices.
(c) From
time to time
while a Letter of Credit is outstanding and prior to the Revolving Loan Maturity
Date, the L/C Issuer will, upon the written request of Holdings received by
the
L/C Issuer (with a copy sent by Holdings to the Administrative Agent) at least
four (4) Business Days (or such shorter time as the L/C Issuer may agree in
a
particular instance in its sole discretion) prior to the proposed date of
amendment (including a renewal or extension thereof), amend any Letter of Credit
issued by it. Each such request for amendment of a Letter of Credit shall be
made by facsimile, confirmed immediately in an original writing, made in the
form of an L/C Amendment Application and shall specify in form and detail
satisfactory to the
L/C
Issuer:
(i) the Letter of Credit to be amended; (ii) the proposed date of
amendment of the Letter of Credit (which shall be a Business Day);
(iii) the nature of the proposed amendment; and (iv) such other
matters as the L/C Issuer may require. The L/C Issuer shall be under no
obligation to amend any Letter of Credit if: (A) the L/C Issuer would have
no obligation at such time to issue such Letter of Credit in its amended form
under the terms of this Agreement; or (B) the beneficiary of any such
Letter of Credit does not accept the proposed amendment to the Letter of Credit.
The Administrative Agent will promptly notify the Revolving Lenders of the
Issuance of any Standby Letter of Credit notified to it by the L/C Issuer.
The
Revolving Lenders acknowledge and agree that the Administrative Agent will
not
notify them of the receipt by the Administrative Agent of any L/C Application
or
L/C Amendment Application or of the Issuance of any Commercial Letter of Credit.
From time to time the Administrative Agent will notify the Revolving Lenders
of
the amount of all outstanding Letters of Credit hereunder.
(d) The
L/C Issuer and
the Revolving Lenders agree that, while a Letter of Credit is outstanding and
prior to the Revolving Loan Maturity Date, the L/C Issuer shall be entitled
to
authorize the renewal of any Letter of Credit issued by it. The L/C Issuer
shall
be under no obligation to so renew any Letter of Credit if: (A) the L/C
Issuer would have no obligation at such time to issue or amend such Letter
of
Credit in its renewed form under the terms of this Agreement; or (B) the
beneficiary of any such Letter of Credit does not accept the proposed renewal
of
the Letter of Credit. If any outstanding Letter of Credit shall provide that
it
shall be automatically renewed unless the beneficiary thereof receives notice
from the L/C Issuer that such Letter of Credit shall not be renewed, and if
at
the time of renewal, the L/C Issuer would be entitled to authorize the renewal
of such Letter of Credit in accordance with this Section 3.02(d)
upon the request
of Holdings, but the L/C Issuer shall not have received any written direction
by
Holdings with respect thereto, the L/C Issuer shall nonetheless be permitted
to
allow such Letter of Credit to renew, and Holdings and the Revolving Lenders
hereby authorize such renewal, and, accordingly, the L/C Issuer shall be deemed
to have received an L/C Amendment Application from Holdings requesting such
renewal.
(e) The
L/C Issuer may,
at its election (or as required by the Administrative Agent at the direction
of
the Majority Revolving Lenders), deliver any notices of termination or other
communications to any Letter of Credit beneficiary or transferee, and take
any
other action as necessary or appropriate, at any time and from time to time,
in
order to cause the expiry date of such Letter of Credit to be a date not later
than the Revolving Loan Maturity Date.
(f) This
Agreement
shall control in the event of any conflict with any L/C Related Document (other
than any Letter of Credit).
(g) The
L/C Issuer will
also deliver to the Administrative Agent, concurrently or promptly following
its
delivery of a Letter of Credit, or amendment to or renewal of a Letter of
Credit, to an advising bank or a beneficiary, a true and complete copy of each
such Letter of Credit or amendment to or renewal of a Letter of
Credit.
3.03 Risk
Participations, Drawings and Reimbursements.
xii)
Immediately upon
the Issuance of each Letter of Credit, each Revolving Lender shall be deemed
to,
and
hereby
irrevocably
and unconditionally agrees to, purchase from the L/C Issuer a participation
in
such Letter of Credit and each drawing thereunder in an amount equal to the
product of (i) the Revolving Proportionate Share of such Revolving Lender,
times (ii) the maximum amount available to be drawn under such Letter of
Credit and the amount of such drawing, respectively. Each Issuance of a Letter
of Credit shall be deemed to utilize the Revolving Commitment of each Revolving
Lender by an amount equal to the amount of such participation.
(b) In
the event of any
request for a drawing under a Letter of Credit by the beneficiary or transferee
thereof, the L/C Issuer will promptly notify Holdings and specify in such notice
the date such drawing will be honored by the L/C Issuer (the “Honor
Date”).
If the L/C
Issuer so notifies Holdings prior to 9:00 a.m. (San Francisco time) on the
Honor
Date, Holdings, as account party under such Letter of Credit, shall reimburse
the L/C Issuer no later than 11:00 a.m. (San Francisco time) on the Honor Date
for the amount paid by the L/C Issuer under such Letter of Credit or, if the
L/C
Issuer shall so notify Holdings after 9:00 a.m. (San Francisco time) on the
Honor Date, Holdings, as account party under such Letter of Credit, shall
reimburse the L/C Issuer no later than 11:00 a.m. (San Francisco time) on the
next succeeding Business Day for the amount paid by the L/C Issuer under such
Letter of Credit on the Honor Date (each such date, a “Reimbursement
Date”),
in each case,
in an amount equal to the amount so paid by the L/C Issuer. In the event
Holdings fails to reimburse the L/C Issuer for the full amount of any drawing
under any Letter of Credit by the required time as provided above on the
Reimbursement Date, the L/C Issuer will promptly notify the Administrative
Agent, and the Administrative Agent will promptly notify each Revolving Lender
thereof (including the amount thereof and such Revolving Lender’s Revolving
Proportionate Share thereof), and Holdings shall be deemed to have requested
that Base Rate Loans be made by the Revolving Lenders to Holdings to be
disbursed on the Reimbursement Date for such Letter of Credit, subject to the
amount of the unutilized portion of the Aggregate Revolving Commitment and
subject to the conditions set forth in Section 5.03.
Holdings hereby
directs that the proceeds of any such Loans deemed to be borrowed by it shall
be
used to pay its reimbursement obligations in respect of any such drawing. Solely
for the purposes of making such Loans, the Minimum Amount limitations set forth
in Section 2.03
shall not be
applicable. Any notice given by the L/C Issuer or the Administrative Agent
pursuant to this Section 3.03(b)
may be oral if
immediately confirmed in writing (including by facsimile); provided
that the lack of
such an immediate confirmation shall not affect the conclusiveness or binding
effect of such notice. In the event that any amount of any drawing under any
Letter of Credit is not reimbursed by Holdings on the Honor Date, such
unreimbursed amount shall bear interest until it is either deemed to be an
L/C
Borrowing as provided in Section 3.03(d)
or deemed to be
converted to a Base Rate Loan as provided in this Section 3.03(b),
at a rate per
annum equal to the Base Rate plus
the Applicable
Margin then in effect for Revolving Loans consisting of Base Rate
Loans.
(c) Each
Revolving
Lender shall, upon receipt of any notice pursuant to Section 3.03(b),
make available to
the Administrative Agent for the account of the L/C Issuer an amount in Dollars
and in immediately available funds equal to its Revolving Proportionate Share
of
the amount of the drawing, whereupon such Revolving Lender shall (subject to
Section 3.03(f))
be deemed to have
made a Revolving Loan consisting of a Base Rate Loan to Holdings in that amount.
The Administrative Agent will promptly give notice of the occurrence of the
Reimbursement Date, but failure of the Administrative Agent to give any such
notice on
the
Reimbursement
Date or in sufficient time to enable any Revolving Lender to effect such payment
on such date shall not relieve such Revolving Lender from its obligations under
this Section 3.03.
(d) With
respect to any
unreimbursed drawing that is not converted into Revolving Loans in whole or
in
part, because of Holdings’ failure to satisfy the conditions set forth in
Section 5.03
or for any other
reason, Holdings shall be deemed to have incurred from the L/C Issuer an L/C
Borrowing in the amount of such drawing, which L/C Borrowing shall be due and
payable on demand (together with interest) and shall bear interest at a rate
per
annum equal to the Base Rate, plus
the Applicable
Margin then in effect for Revolving Loans consisting of Base Rate Loans,
plus
2% per annum. In
such event, each Revolving Lender shall upon receipt of any notice pursuant
to
Section 3.03(b)
make available to
the Administrative Agent for the account of the L/C Issuer an amount in Dollars
and in immediately available funds equal to its Revolving Proportionate Share
of
the amount of the drawing. Each Revolving Lender’s payment to the L/C Issuer
pursuant to this Section 3.03(d)
shall be deemed
payment in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Revolving Lender in satisfaction of its
participation obligation under this Section 3.03.
(e) If
any Revolving
Lender fails to make available to the Administrative Agent for the account
of
the L/C Issuer the amount of such Revolving Lender’s Revolving Proportionate
Share of the amount of any drawing by no later than 12:00 noon (San Francisco
time) on the Reimbursement Date, then interest shall accrue on such Revolving
Lender’s obligation to make such payment, from the Reimbursement Date to the
date such Revolving Lender makes such payment, at (i) the Federal Funds
Rate in effect from time to time during the period commencing on the
Reimbursement Date and ending on the date three (3) Business Days thereafter,
and (ii) thereafter at the Base Rate as in effect from time to time,
payable on demand of the Administrative Agent.
(f) Each
Revolving
Lender’s obligation in accordance with this Agreement to make or participate in
the Revolving Loans or L/C Advances, as contemplated by this Section 3.03,
as a result of a
drawing under a Letter of Credit, shall be absolute and unconditional and
without recourse to the L/C Issuer and shall not be affected by any
circumstance, including (i) any set-off, counterclaim, recoupment, defense
or other right which such Revolving Lender may have against the L/C Issuer,
Holdings or any other Person for any reason whatsoever; (ii) the occurrence
or continuance of a Default, an Event of Default or a Material Adverse Effect;
or (iii) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing; provided,
however,
that each
Revolving Lender’s obligation to make Revolving Loans under this Section 3.03
is subject to the
conditions set forth in Section 5.03;
and provided,
further,
however,
that a Revolving
Lender may have recourse against the L/C Issuer, and the L/C Issuer may be
liable to a Revolving Lender, to the extent, but only to the extent, of any
direct, as opposed to consequential or exemplary, damages suffered by such
Revolving Lender which such Revolving Lender proves were caused by the L/C
Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit.
3.04 Repayment
of
Participations.
xiii)
Upon (and only
upon) receipt by the Administrative Agent for the account of the L/C Issuer
of
immediately available funds from Holdings (i) in reimbursement of any
payment made by the L/C Issuer under the Letter of Credit with respect to which
any Revolving Lender has paid the Administrative Agent for the account of the
L/C Issuer for such Revolving Lender’s participation in the Letter of Credit
pursuant to Section 3.03
or (ii) in
payment of interest thereon, the Administrative Agent will pay to each Revolving
Lender, in the same funds as those received by the Administrative Agent for
the
account of the L/C Issuer, the amount of such Revolving Lender’s Revolving
Proportionate Share of such funds, and the L/C Issuer shall receive the amount
of the Revolving Proportionate Share of such funds of any Revolving Lender
that
did not so pay the Administrative Agent for the account of the L/C
Issuer.
(b) If
the
Administrative Agent or the L/C Issuer is required at any time to return to
Holdings, or to a trustee, receiver, liquidator, custodian, or any official
in
any Insolvency Proceeding, any portion of the payments made by Holdings to
the
Administrative Agent for the account of the L/C Issuer pursuant to Section 3.04(a)
in reimbursement
of a payment made under the Letter of Credit or interest or fee thereon, each
Revolving Lender shall, on demand of the Administrative Agent, forthwith return
to the Administrative Agent or the L/C Issuer the amount of its Revolving
Proportionate Share of any amounts so returned by the Administrative Agent
or
the L/C Issuer plus
interest thereon
from the date such demand is made to the date such amounts are returned by
such
Revolving Lender to the Administrative Agent or the L/C Issuer, at a rate per
annum equal to the Federal Funds Rate in effect from time to time.
3.05 Role
of the L/C
Issuer.
xiv)
Each Revolving
Lender and Holdings agree that, in paying any drawing under a Letter of Credit,
the L/C Issuer shall not have any responsibility to obtain any document (other
than any sight draft and certificates expressly required by the Letter of
Credit) or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such
document.
(b) No
Administrative
Agent-Related Person nor any of the respective correspondents, participants
or
assignees of the L/C Issuer shall be liable to any Revolving Lender for:
(i) any action taken or omitted in connection herewith at the request or
with the approval of the Revolving Lender (including the Majority Revolving
Lenders, as applicable); (ii) any action taken or omitted in the absence of
gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any L/C-Related
Document.
(c) Holdings
hereby
assumes all risks of the acts or omissions of any beneficiary or transferee
with
respect to its use of any Letter of Credit; provided,
however,
that this
assumption is not intended to, and shall not, preclude Holdings pursuing such
rights and remedies as it may have against the beneficiary or transferee at
law
or under any other agreement. No Administrative Agent-Related Person, nor any
of
the respective correspondents, participants or assignees of the L/C Issuer,
shall be liable or responsible for any of the matters described in
clauses (i) through (vii) of Section 3.06;
provided,
however,
anything in such
clauses to the contrary notwithstanding, that Holdings may have a claim against
the L/C Issuer, and the L/C Issuer may be liable to Holdings, to the extent,
but
only to the extent, of any direct, as opposed to consequential or exemplary,
damages suffered by Holdings which Holdings proves were caused by the L/C
Issuer’s willful misconduct or gross negligence or the L/C Issuer’s
willful
failure to
pay under any Letter of Credit after the presentation to it by the beneficiary
of a sight draft and certificate(s) strictly complying with the terms and
conditions of a Letter of Credit. In furtherance and not in limitation of the
foregoing: (i) the L/C Issuer may accept documents that appear on their
face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary; and (ii) the L/C
Issuer shall not be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof,
in
whole or in part, which may prove to be invalid or ineffective for any
reason.
3.06 Obligations
Absolute.
The obligations
of Holdings under this Agreement and any L/C-Related Document to reimburse
the
L/C Issuer for a drawing under a Letter of Credit, and to repay any L/C
Borrowing and any drawing under a Letter of Credit converted into Revolving
Loans, shall be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement and each such other L/C-Related
Document under all circumstances, including the following:
(i) any
lack of
validity or enforceability of this Agreement or any L/C-Related
Document;
(ii) any
change in the
time, manner or place of payment of, or in any other term of, all or any of
the
obligations of Holdings in respect of any Letter of Credit or any other
amendment or waiver of or any consent to departure from all or any of the
L/C-Related Documents;
(iii) the
existence of
any claim, set-off, defense or other right that Holdings may have at any time
against any beneficiary or any transferee of any Letter of Credit (or any Person
for whom any such beneficiary or any such transferee may be acting), the L/C
Issuer or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by the L/C-Related Documents or any
unrelated transaction;
(iv) any
draft, demand,
certificate or other document presented under any Letter of Credit proving
to be
forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; or any loss or delay in
the
transmission or otherwise of any document required in order to make a drawing
under any Letter of Credit;
(v) any
payment by the
L/C Issuer under any Letter of Credit against presentation of a draft or
certificate that does not strictly comply with the terms of any Letter of
Credit; or any payment made by the L/C Issuer under any Letter of Credit to
any
Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee
for the benefit of creditors, liquidator, receiver or other representative
of or
successor to any beneficiary or any transferee of any Letter of Credit,
including any arising in connection with any Insolvency Proceeding;
(vi) any
exchange,
release or non-perfection of any collateral, or any release or amendment or
waiver of or consent to departure from any other guarantee, for all or any
of
the obligations of Holdings in respect of any Letter of Credit; or
(vii) any
other
circumstance or happening whatsoever, whether or not similar to any of the
foregoing, including any other circumstance that might otherwise constitute
a
defense available to, or a discharge of, Holdings or a Guarantor.
3.07 Cash
Collateral
Pledge.
(a) Upon the
request of the Administrative Agent, if the L/C Issuer has honored any full
or
partial drawing request on any Letter of Credit and such drawing has resulted
in
an L/C Borrowing hereunder, or (b) if, as of the Revolving Loan Maturity
Date, any Letters of Credit may for any reason remain outstanding and partially
or wholly undrawn, or (c) the occurrence of the circumstances described in
Section 2.08(a)(i)
requiring Holdings
to Cash Collateralize Letters of Credit, then, Holdings shall immediately Cash
Collateralize the L/C Obligations in an amount equal to such L/C Obligations.
Holdings shall, to the extent necessary, make such additional pledges from
time
to time as shall be necessary to ensure that all L/C Obligations remain at
all
times fully Cash Collateralized. Cash collateral held under this Section 3.07
or Section 9.02
shall be
maintained in blocked, non-interest bearing deposit accounts at Xxxxx Fargo
pursuant to the Security Agreement.
3.08 Letter
of Credit
Fees.
xv)
Holdings shall pay
to the Administrative Agent for the account of each of the Revolving Lenders
in
accordance with its respective Revolving Proportionate Share a letter of credit
fee with respect to the Standby Letters of Credit equal to the rate per annum
equal to the Applicable Fee Amount of the actual daily maximum amount available
to be drawn of the outstanding Standby Letters of Credit, computed on a
quarterly basis in arrears on the last Business Day of each calendar quarter
based upon Standby Letters of Credit outstanding for that quarter as calculated
by the Administrative Agent. Such letter of credit fees shall be due and payable
quarterly in arrears on the last Business Day of each calendar quarter during
which Standby Letters of Credit are outstanding, commencing on the first such
quarterly date to occur after the Effective Date, to the Revolving Loan Maturity
Date (or such later date upon which the outstanding Letters of Credit shall
expire), with the final payment to be made on the Revolving Loan Maturity Date
(or such later expiration date). Such fees are fully earned when due and, once
paid, are non-refundable.
(b) Holdings
shall pay
to the L/C Issuer, for the L/C Issuer’s sole account, a letter of credit fee
with respect to the amount from time to time available to be drawn under
Commercial Letters of Credit in such amount and on such dates as shall
separately be agreed upon between the L/C Issuer and Holdings. Such fees are
fully earned when due and, once paid, are non-refundable.
(c) Holdings
shall pay
to the L/C Issuer, for the L/C Issuer’s sole account, a letter of credit
fronting fee for each Standby Letter of Credit Issued by the L/C Issuer equal
to
0.125% per annum of the actual daily maximum amount available to be drawn of
the
outstanding Standby Letters of Credit, computed on a quarterly basis in arrears
on the last Business Day of each calendar quarter based upon Standby Letters
of
Credit outstanding for that quarter as calculated by the L/C Issuer. Such letter
of credit fronting fees shall be due and payable quarterly in arrears on the
last Business Day of each calendar quarter during which
Standby
Letters of
Credit are outstanding, commencing on the first such quarterly date to occur
after the Effective Date, to the Revolving Loan Maturity Date (or such later
date upon which the outstanding Letters of Credit shall expire), with the final
payment to be made on the Revolving Loan Maturity Date (or such later expiration
date). Such fees are fully earned when due and, once paid, are
non-refundable.
(d) Holdings
shall pay
to the L/C Issuer from time to time on demand the normal issuance, presentation,
transfer, amendment and other processing fees, and other standard costs and
charges, of the L/C Issuer relating to letters of credit as from time to time
in
effect.
(e) Notwithstanding
subsection (a) of this Section 3.08,
while any Event
of Default exists or after acceleration, Holdings shall pay a letter of credit
fee (after as well as before entry of judgment thereon to the extent permitted
by law) on the actual daily maximum amount available to be drawn of the
outstanding Letters of Credit, at a rate per annum which is determined by adding
2% per annum to the rate otherwise then in effect hereunder for such Letters
of
Credit.
3.09 Applicability
of
ISP98 and UCP.
Unless otherwise
expressly agreed by the L/C Issuer and Holdings when a Letter of Credit is
issued (including any such agreement applicable to an Existing Letter of
Credit), (i) the rules of the “International Standby Practices 1998”
published by the Institute of International Banking Law & Practice (or such
later version thereof as may be in effect at the time of issuance) shall apply
to each Standby Letter of Credit, and (ii) the rules of the Uniform Customs
and Practice for Documentary Credits (the “UCP”),
as most
recently published by the International Chamber of Commerce (the “ICC”)
at the time of
issuance (including the ICC decision published by the Commission on Banking
Technique and Practice on April 6, 1998 regarding the European single currency
(euro)) shall apply to each Commercial Letter of Credit.
3.10 Trade
Bank as
L/C Issuer.
The parties
hereto acknowledge and agree that, at its option, Xxxxx Fargo, as L/C Issuer,
may arrange for Letters of Credit to be issued by Trade Bank as agent for Xxxxx
Fargo. All parties hereto understand and agree that to the extent any Letters
of
Credit are issued by Trade Bank as agent for Xxxxx Fargo, (i) Trade Bank is
agent only to Xxxxx Fargo and not to Holdings and has no obligations to
Holdings, (ii) the Letters of Credit issued by Trade Bank will be deemed
Letters of Credit issued by the L/C Issuer for all purposes hereunder and
(iii) any of the obligations performed or rights exercised pursuant to or
in connection with the issuance of any Letter of Credit by Trade Bank shall
be
deemed obligations performed or rights exercised by Xxxxx Fargo as L/C Issuer.
To the extent that the L/C Issuer is required to provide any notices to, or
take
any other actions for the benefit of, the Administrative Agent hereunder, with
respect to any Letter of Credit issued by Trade Bank, no such notice or action
shall be required.
TAXES,
YIELD PROTECTION AND ILLEGALITY
4.01 Taxes.
(a) Payments
Free of
Taxes.
Any and all
payments by or on account of any obligation of Holdings hereunder or under
any
other Loan Document shall be made free and clear of and without reduction or
withholding for any Indemnified Taxes or Other Taxes, provided
that if Holdings
shall be required by applicable law to deduct any Indemnified Taxes (including
any Other Taxes) from such payments, then (i) the sum payable shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section) the
Administrative Agent, Lender or L/C Issuer, as the case may be, receives an
amount equal to the sum it would have received had no such deductions been
made,
(ii) Holdings shall make such deductions and (iii) Holdings shall
timely pay the full amount deducted to the relevant Governmental Authority
in
accordance with applicable law.
(b) Payment
of Other
Taxes by Holdings.
Without limiting
the provisions of subsection (a) above, Holdings shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable
law.
(c) Indemnification
by Holdings.
Holdings shall
indemnify the Administrative Agent, each Lender and the L/C Issuer, within
10
days after demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted
on
or attributable to amounts payable under this Section) paid by the
Administrative Agent, such Lender or the L/C Issuer, as the case may be, and
any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly
or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to Holdings
by a Lender or the L/C Issuer (with a copy to the Administrative Agent), or
by
the Administrative Agent on its own behalf or on behalf of a Lender or the
L/C
Issuer, shall be conclusive absent manifest error.
(d) Evidence
of
Payments.
As soon as
practicable after any payment of Indemnified Taxes or Other Taxes by Holdings
to
a Governmental Authority, Holdings shall deliver to the Administrative Agent
the
original or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative
Agent.
(e) Status
of
Lenders.
Any Foreign
Lender that is entitled to an exemption from or reduction of withholding tax
under the law of the jurisdiction in which Holdings is resident for tax
purposes, or any treaty to which such jurisdiction is a party, with respect
to
payments hereunder or under any other Loan Document shall deliver to Holdings
(with a copy to the Administrative Agent), at the time or times prescribed
by
applicable law or reasonably requested by Holdings or the Administrative Agent,
such properly completed and executed documentation prescribed by applicable
law
as will permit such payments to be made
without
withholding
or at a reduced rate of withholding. In addition, any Lender, if requested
by
Holdings or the Administrative Agent, shall deliver such other documentation
prescribed by applicable law or reasonably requested by Holdings or the
Administrative Agent as will enable Holdings or the Administrative Agent to
determine whether or not such Lender is subject to backup withholding or
information reporting requirements.
Without
limiting
the generality of the foregoing, in the event that Holdings is resident for
tax
purposes in the United States, any Foreign Lender shall deliver to Holdings
and
the Administrative Agent (in such number of copies as shall be requested by
the
recipient) on or prior to the date on which such Foreign Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the request of
Holdings or the Administrative Agent, but only if such Foreign Lender is legally
entitled to do so), whichever of the following is applicable:
(i) duly
completed
copies of Internal Revenue Service Form W-8BEN claiming eligibility for benefits
of an income tax treaty to which the United States is a party,
(ii) duly
completed
copies of Internal Revenue Service Form W-8ECI,
(iii) in
the case of a
Foreign Lender claiming the benefits of the exemption for portfolio interest
under section 881(c) of the Code, (x) a certificate to the effect that
such Foreign Lender is not (A) a “bank” within the meaning of
section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder”
of Holdings within the meaning of section 881(c)(3)(B) of the Code, or
(C) a “controlled foreign corporation” described in
section 881(c)(3)(C) of the Code and (y) duly completed copies of
Internal Revenue Service Form W-8BEN, or
(iv) any
other form
prescribed by applicable law as a basis for claiming exemption from or a
reduction in United States Federal withholding tax duly completed together
with
such supplementary documentation as may be prescribed by applicable law to
permit Holdings to determine the withholding or deduction required to be
made.
(f) Treatment
of
Certain Refunds.
If the
Administrative Agent, any Lender or the L/C Issuer determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by Holdings or with respect to which Holdings
has
paid additional amounts pursuant to this Section, it shall pay to Holdings
an
amount equal to such refund (but only to the extent of indemnity payments made,
or additional amounts paid, by Holdings under this Section with respect to
the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent, such Lender or the L/C Issuer, as the
case
may be, and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund), provided
that Holdings,
upon the request of the Administrative Agent, such Lender or the L/C Issuer,
agrees to repay the amount paid over to Holdings (plus any penalties, interest
or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent, such Lender or the L/C Issuer in the event the
Administrative Agent, such Lender or the L/C Issuer is required to repay such
refund to such Governmental Authority. This subsection shall not be construed
to
require the Administrative
Agent,
any Lender
or the L/C Issuer to make available its tax returns (or any other information
relating to its taxes that it deems confidential) to Holdings or any other
Person.
(g) Nothing
contained
in this Section 4.01
shall override any
term or provision of any Specified Swap Contract regarding withholding taxes
relating to Swap Contracts.
4.02 Illegality.
xvi)
If any Lender
determines that the introduction of any Requirement of Law, or any change in
any
Requirement of Law, or in the interpretation or administration of any
Requirement of Law, has made it unlawful, or that any central bank or other
Governmental Authority has asserted that it is unlawful, for any Lender or
its
applicable Lending Office to make Offshore Rate Loans, then, on notice thereof
by such Lender to Holdings through the Administrative Agent, any obligation
of
that Lender to make Offshore Rate Loans shall be suspended until such Lender
notifies the Administrative Agent and Holdings that the circumstances giving
rise to such determination no longer exist.
(b) If
a Lender
determines that it is unlawful to maintain any Offshore Rate Loan, Holdings
shall, upon its receipt of notice of such fact and demand from such Lender
(with
a copy to the Administrative Agent), prepay in full such Offshore Rate Loans
of
that Lender then outstanding, together with interest accrued thereon and amounts
required under Section 4.04,
either on the
last day of the Interest Period thereof, if such Lender may lawfully continue
to
maintain such Offshore Rate Loans to such day, or immediately, if such Lender
may not lawfully continue to maintain such Offshore Rate Loan. If Holdings
is
required to so prepay any Offshore Rate Loan, then concurrently with such
prepayment, Holdings shall borrow from the affected Lender, in the amount of
such repayment, a Base Rate Loan.
(c) If
the obligation
of any Lender to make or maintain Offshore Rate Loans has been so terminated
or
suspended, Holdings may elect, by giving notice to such Lender through the
Administrative Agent that all Loans which would otherwise be made by such Lender
as Offshore Rate Loans shall be instead Base Rate Loans.
(d) Before
giving any
notice to the Administrative Agent under this Section 4.02,
the affected
Lender shall designate a different Lending Office with respect to its Offshore
Rate Loans if such designation will avoid the need for giving such notice or
making such demand and will not, in the judgment of such Lender, be illegal
or
otherwise disadvantageous to such Lender.
4.03 Increased
Costs.
(a) Increased
Costs
Generally.
If any Change in
Law shall:
(i) impose,
modify or
deem applicable any reserve, special deposit, compulsory loan, insurance charge
or similar requirement against assets of, deposits with or for the account
of,
or credit extended or participated in by, any Lender or the L/C
Issuer;
(ii) subject
any Lender
or the L/C Issuer to any tax of any kind whatsoever with respect to this
Agreement, any Letter of Credit, any participation in a Letter of
Credit
or any
Offshore Rate Loan made by it, or change the basis of taxation of payments
to
such Lender or the L/C Issuer in respect thereof (except for Indemnified Taxes
or Other Taxes covered by Section 4.01
and the imposition
of, or any change in the rate of, any Excluded Tax payable by such Lender or
the
L/C Issuer); or
(iii) impose
on any
Lender or the L/C Issuer or the London interbank market any other condition,
cost or expense affecting this Agreement or Offshore Rate Loans made by such
Lender or any Letter of Credit or participation therein; and the result of
any
of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Offshore Rate Loan (or of maintaining its obligation to make
any
such Loan), or to increase the cost to such Lender or the L/C Issuer of
participating in, issuing or maintaining any Letter of Credit (or of maintaining
its obligation to participate in or to issue any Letter of Credit), or to reduce
the amount of any sum received or receivable by such Lender or the L/C Issuer
hereunder (whether of principal, interest or any other amount) then, upon
request of such Lender or the L/C Issuer, Holdings will pay to such Lender
or
the L/C Issuer, as the case may be, such additional amount or amounts as will
compensate such Lender or the L/C Issuer, as the case may be, for such
additional costs incurred or reduction suffered.
(b) Capital
Requirements.
If any Lender or
the L/C Issuer determines that any Change in Law affecting such Lender or the
L/C Issuer or any Lending Office of such Lender or such Lender’s or the L/C
Issuer’s holding company, if any, regarding capital requirements has or would
have the effect of reducing the rate of return on such Lender’s or the L/C
Issuer’s capital or on the capital of such Lender’s or the L/C Issuer’s holding
company, if any, as a consequence of this Agreement, the Commitments of such
Lender or the Loans made by, or participations in Letters of Credit held by,
such Lender, or the Letters of Credit issued by the L/C Issuer, to a level
below
that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s
holding company could have achieved but for such Change in Law (taking into
consideration such Lender’s or the L/C Issuer’s policies and the policies of
such Lender’s or the L/C Issuer’s holding company with respect to capital
adequacy), then from time to time Holdings will pay to such Lender or the L/C
Issuer, as the case may be, such additional amount or amounts as will compensate
such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding
company for any such reduction suffered.
(c) Certificates
for
Reimbursement.
A certificate of
a Lender or the L/C Issuer delivered pursuant to Section 4.06
setting forth the
amount or amounts necessary to compensate such Lender or the L/C Issuer or
its
holding company, as the case may be, as specified in subsection (a) or (b)
of this Section and delivered to Holdings shall be conclusive absent manifest
error. Holdings shall pay such Lender or the L/C Issuer, as the case may be,
the
amount shown as due on any such certificate within 10 days after receipt
thereof.
(d) Delay
in
Requests.
Failure or delay
on the part of any Lender or the L/C Issuer to demand compensation pursuant
to
the foregoing provisions of this Section shall not constitute a waiver of such
Lender’s or the L/C Issuer’s right to demand such compensation, provided
that Holdings
shall not be required to compensate a Lender or the L/C Issuer pursuant to
the
foregoing provisions of this Section for any increased costs incurred or
reductions suffered more than nine months prior to the date that such Lender
or
the L/C Issuer, as the case may be, notifies Holdings of the Change in Law
giving rise to such increased costs or reductions and of
such
Lender’s or
the L/C Issuer’s intention to claim compensation therefor (except that, if the
Change in Law giving rise to such increased costs or reductions is retroactive,
then the nine-month period referred to above shall be extended to include the
period of retroactive effect thereof).
(e) Reserves
on
Offshore Rate Loans.
Holdings shall
pay to each Lender, as long as such Lender shall be required to maintain
reserves with respect to liabilities or assets consisting of or including
Eurocurrency funds or deposits (currently known as “Eurocurrency liabilities”),
additional interest on the unpaid principal amount of each Offshore Rate Loan
equal to the actual costs of such reserves allocated to such Loan by such Lender
(as determined by such Lender in good faith, which determination shall be
conclusive), which shall be due and payable on each date on which interest
is
payable on such Loan, provided Holdings shall have received at least 10 days’
prior notice (with a copy to the Administrative Agent) of such additional
interest from such Lender. If a Lender fails to give notice 10 days prior to
the
relevant Interest Payment Date, such additional interest shall be due and
payable 10 days from receipt of such notice.
4.04 Funding
Losses.
Upon demand of
any Lender (with a copy to the Administrative Agent) from time to time, Holdings
shall promptly compensate such Lender for and hold such Lender harmless from
any
loss, cost or expense incurred by it as a result of:
(a) any
continuation,
conversion, payment or prepayment of any Loan other than a Base Rate Loan on
a
day other than the last day of the Interest Period for such Loan (whether
voluntary, mandatory, automatic, by reason of acceleration, or
otherwise);
(b) any
failure by
Holdings (for a reason other than the failure of such Lender to make a Loan)
to
prepay, borrow, continue or convert any Loan other than a Base Rate Loan on
the
date or in the amount notified by Holdings; or
(c) any
assignment of a
Offshore Rate Loan on a day other than the last day of the Interest Period
therefor as a result of a request by Holdings pursuant to Section 11.11;
including
any loss
or expense arising from the liquidation or reemployment of funds obtained by
it
to maintain such Loan or from fees payable to terminate the deposits from which
such funds were obtained, such loss or expense to be deemed to include an amount
reasonably determined by such Lender to be the excess, if any, of (i) the amount
of interest that would have accrued on the principal amount of such Loan had
such event not occurred, at the Offshore Rate that would have been applicable
to
such Loan, for the period from the date of such event to the last day of the
then current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period
for
such Loan), over (ii) the amount of interest that would accrue on such principal
amount for such period at the interest rate that such Lender would bid were
it
to bid, at the commencement of such period, for dollar deposits of a comparable
amount and period from other banks in the London interbank market. Holdings
shall also pay any customary administrative fees charged by such Lender in
connection with the foregoing.
For
purposes of
calculating amounts payable by Holdings to the Lenders under this Section 4.04,
each Lender shall
be deemed to have funded each Offshore Rate Loan made by it at the Offshore
Rate
for such Loan by a matching deposit or other borrowing in the London interbank
market for a comparable amount and for a comparable period, whether or not
such
Offshore Rate Loan was in fact so funded.
4.05 Inability
to
Determine Rates.
If the
Administrative Agent or the Majority Lenders determine that for any reason
adequate and reasonable means do not exist for determining the Offshore Rate
for
any requested Interest Period with respect to a proposed Borrowing of Offshore
Rate Loans or conversion into or continuation of Offshore Rate Loans, or that
the Offshore Rate applicable pursuant to Section 2.10(a)
for any requested
Interest Period with respect to a proposed Borrowing of Offshore Rate Loans,
or
a conversion into or continuation of Offshore Rate Loans does not adequately
and
fairly reflect the cost to such Lenders of funding such Loans, the
Administrative Agent will promptly so notify Holdings and each Lender.
Thereafter, the obligation of the Lenders to make or maintain Offshore Rate
Loans, as the case may be, hereunder shall be suspended until the Administrative
Agent upon the instruction of the Majority Lenders revokes such notice in
writing. Upon receipt of such notice, Holdings may revoke any Notice of
Borrowing or Notice of Conversion/Continuation then submitted by it. If Holdings
does not revoke such Notice, the Lenders shall make, convert or continue the
Loans, as proposed by Holdings, in the amount specified in the applicable notice
submitted by Holdings, but such Loans shall be made, converted or continued
as
Base Rate Loans instead of Offshore Rate Loans, as the case may be.
4.06 Certificates
of
Lenders.
Any Lender
claiming reimbursement or compensation under this Article
IV
shall deliver to Holdings (with a copy to the Administrative Agent) a
certificate setting forth in reasonable detail the amount payable to such Lender
hereunder, and the basis for calculation of such amount, and such certificate
shall be conclusive and binding on Holdings in the absence of manifest
error.
4.07 Mitigation
Obligations; Replacement of Lenders.
(a) Designation
of a
Different Lending Office.
If any Lender
requests compensation under Section 4.03,
or Holdings is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 4.01,
or if any Lender
gives a notice pursuant to Section 4.02,
then such Lender
shall use reasonable efforts to designate a different Lending Office for funding
or booking its Loans hereunder or to assign its rights and obligations hereunder
to another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 4.01
or 4.03,
as the case may
be, in the future, or eliminate the need for the notice pursuant to Section 4.02,
as applicable,
and (ii) in each case, would not subject such Lender to any unreimbursed
cost or expense and would not otherwise be disadvantageous to such Lender.
Holdings hereby agrees to pay all reasonable costs and expenses incurred by
any
Lender in connection with any such designation or assignment.
(b) Replacement
of
Lenders.
If any Lender
requests compensation under Section 4.03,
or if Holdings is
required to pay any additional amount to any Lender or any
Governmental
Authority for the account of any Lender pursuant to Section 4.01,
Holdings may
replace such Lender in accordance with Section 11.11.
4.08 Survival.
The agreements
and obligations of Holdings in this Article
IV
shall survive the termination of the Commitments, the termination or expiration
of all Letters of Credit and the payment of all other Obligations.
CONDITIONS
PRECEDENT
5.01 Conditions
to
Effective Date.
The obligations
of each Lender and the L/C Issuer to make its initial Credit Extension hereunder
(including the obligations of any New Lender to advance its Proportionate Share
of any Loans currently outstanding under the Existing Credit Agreement pursuant
to Section 2.01
hereof) shall be
subject to the condition that the Administrative Agent shall have received
on or
before the Effective Date all of the following, in form and substance reasonably
satisfactory to the Administrative Agent and each Lender:
(a) Credit
Agreement.
This Agreement
executed by (i) Holdings, the Company and each direct or indirect U.S.
Wholly-Owned Subsidiary of Holdings; (ii) each Lender, the Swingline Lender
and the L/C Issuer; and (iii) the Administrative Agent.
(b) Resolutions;
Incumbency.
(i) Copies
of the
resolutions of the board of directors of each Loan Party (or other similar
enabling action of each Loan Party that is not a corporation) authorizing the
transactions contemplated hereby, certified as of the Effective Date by the
Secretary or an Assistant Secretary of such Person; and
(ii) a
certificate of
the Secretary or Assistant Secretary of each Loan Party, dated as of the
Effective Date, certifying the names, titles and true signatures of the officers
of such Person authorized to execute, deliver and perform, as applicable, this
Agreement and all other Loan Documents to be delivered by it hereunder;
and
(c) Financial
Statements.
(i) The
audited
consolidated balance sheet of Holdings and its Subsidiaries as at December
31,
2005 and December 31, 2004, and the related consolidated statements of income
or
operations, shareholders’ equity and cash flows for the fiscal year then ended,
certified by a Responsible Officer of Holdings;
(ii) the
unaudited
consolidated balance sheet of Holdings and its Subsidiaries as at September
30,
2006, and the related consolidated statements of income or operations,
shareholders’ equity and cash flows for the fiscal quarter then ended, certified
by a Responsible Officer of Holdings; and
(iii) such
other
financial information as the Administrative Agent or any Lender may reasonably
request.
(d) Organization
Documents; Good Standing.
Each of the
following documents:
(i) the
Organization
Documents of each Loan Party as in effect on the Effective Date, certified
by
the Secretary or Assistant Secretary of such Person as of the Effective Date;
and
(ii) a
good standing
certificate, as of a recent date, for each Loan Party from the Secretary of
State (or similar, applicable Governmental Authority) of its state of
incorporation or formation and each state where its ownership, lease or
operation of property or the conduct of its business requires such Loan Party
be
qualified or otherwise licensed to do business;
(e) Legal
Opinion.
An opinion of
Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel to the Loan Parties and addressed to
the Administrative Agent and the Lenders, dated the Effective Date,
substantially in the form of Exhibit
D;
(f) Payment
of
Fees.
Evidence of
payment by Holdings of all accrued and unpaid fees, costs and expenses to the
extent then due and payable on the Effective Date, together with reasonable
Attorney Costs of Xxxxx Fargo to the extent invoiced prior to or on the
Effective Date, plus
such additional
amounts of reasonable Attorney Costs as shall constitute Xxxxx Fargo’s
reasonable estimate of Attorney Costs incurred or to be incurred by it through
the closing proceedings (provided
that such estimate
shall not thereafter preclude final settling of accounts between Holdings and
Xxxxx Fargo); including any such costs, fees and expenses arising under or
referenced in Section 2.11
and Section 11.04;
(g) Officer’s
Certificate.
A certificate
signed by a Responsible Officer of each of Holdings and the Company, dated
as of
the Effective Date, stating that:
(i) the
representations
and warranties contained in Article
VI
are true and correct on and as of such date, as though made on and as of such
date;
(ii) no
Default exists
or would result from the initial Credit Extension; and
(iii) there
has occurred
since December 31, 2005, no event or circumstance that has resulted or could
reasonably be expected to result in a Material Adverse Effect;
(h) Collateral
Documents.
The Collateral
Documents, executed by each Loan Party, in appropriate form for recording,
where
necessary, together with:
(i) copies
of all
UCC-l, UCC-2 and UCC-3 financing statements to be filed to perfect or amend the
security interests of the Administrative Agent for the benefit of the Lenders,
or other evidence satisfactory to the Administrative Agent that there have
been
filed, registered or recorded all financing statements and other filings,
registrations and recordings necessary and advisable to perfect or amend the
perfection of the Liens of the Administrative Agent for the benefit of the
Lenders in accordance with applicable law;
(ii) written
advice
relating to such Lien and judgment searches as the Administrative Agent shall
have requested, and such termination statements or other documents as may be
necessary to confirm that the Collateral is subject to no other Liens in favor
of any Persons (other than Permitted Liens);
(iii) to
the extent not
previously delivered pursuant to the Existing Credit Agreement, receipt by
the
Administrative Agent of all certificates and instruments representing the
Pledged Collateral, together with stock transfer powers executed in blank with
signatures guaranteed, as the Administrative Agent may specify;
(iv) funds
sufficient to
pay any filing or recording tax or fee in connection with any and all UCC-1
financing statements;
(v) to
the extent not
previously delivered pursuant to the Existing Credit Agreement, such consents,
estoppels, subordination agreements and other documents and instruments executed
by landlords, tenants, bailees and other Persons party to material contracts
relating to any Collateral as to which the Administrative Agent shall be granted
a Lien for the benefit of the Lenders, as requested by the Administrative Agent
or any Lender; and
(vi) evidence
that all
other actions necessary or, in the reasonable opinion of the Administrative
Agent or the Lenders, desirable to perfect and protect the first priority Lien
created by the Collateral Documents, and to enhance the Administrative Agent’s
ability to preserve and protect its and the Lenders’ interests in and access to
the Collateral, have been taken;
(i) Insurance
Policies.
To the extent not
previously delivered pursuant to the Existing Credit Agreement, evidence that
the Administrative Agent has been named as loss payee under all policies of
casualty insurance under a Form 438BFU or other standard lender’s loss payable
endorsement and as additional insured under all policies of liability insurance
required in accordance with Section 7.06
and the Collateral
Documents, together with a certificate of insurance as to all insurance coverage
on the properties of Holdings and its Subsidiaries;
(j) Compliance
Certificate.
A completed
Compliance Certificate, as of September 30, 2006, signed by a Responsible
Officer of Holdings;
(k) Control
Agreements.
Any control
agreements for the perfection of the Administrative Agent’s Lien on the deposit
accounts of Holdings and the Guarantors party hereto which have been requested
by the Administrative Agent prior to the Effective Date shall have been executed
by Holdings or such Guarantor, as applicable, and any applicable financial
institutions;
(l) Assignments
of
Trademarks.
Such actions
shall have been taken as the Administrative Agent deems necessary to ensure
the
Administrative Agent’s and the Lenders’ rights as secured party with respect to
any trademarks of Holdings or any Guarantor party hereto;
(m) Notes.
Notes executed by
Holdings for the Lenders requesting Notes; and
(n) Certain
Transitional Payments.
Evidence of
payment by Holdings to each of the Existing Lenders all accrued and unpaid
interest (to but excluding the Effective Date), fees, expenses and certain
other
amounts owing to the Administrative Agent and the Existing Lenders under the
Existing Credit Agreement as of the Effective Date, including all “Term A Loans”
then outstanding under the Existing Credit Agreement and all amounts, if any,
payable under Section 4.04
of the Existing
Credit Agreement. Such accrued and unpaid interest, fees, expenses and other
amounts owing to the Administrative Agent and the Existing Lenders shall be
set
forth in a closing statement prepared by the Administrative Agent and delivered
to Holdings on or prior to the Effective Date.
(o) Other
Documents.
Such other
approvals, opinions, documents or materials as the Administrative Agent or
any
Lender may reasonably request.
5.02 Conditions
to
each Subsequent Effective Date.
The obligations
of each Additional Lender to become a party hereto and of each Additional Lender
to make the Additional Term B Loans and/or to provide any Additional
Revolving Commitment shall be subject to the condition that the Administrative
Agent shall have received on or before the relevant Subsequent Effective Date
all of the following, in form and substance reasonably satisfactory to the
Administrative Agent and each Additional Lender, and in sufficient copies for
each Additional Lender:
(a) Credit
Agreement
and Notes.
This Agreement
executed by each Additional Lender and Notes executed by Holdings for each
Additional Lender requesting Notes;
(b) Secretary’s
Certificate.
A certificate of
the Secretary or Assistant Secretary of each Loan Party, dated as of the
relevant Subsequent Effective Date, certifying:
(i) that
the
resolutions of the board of directors of each Loan Party (or other similar
enabling action of each Loan Party that is not a corporation) authorizing the
transactions contemplated hereby, as delivered on the Effective Date or the
Additional Guarantor Accession Date, as applicable, are in full force and effect
and have not been amended, supplemented or modified; and
(ii) the
names, titles
and true signatures of the officers of such Person authorized to execute,
deliver and perform, as applicable, this Agreement and all other Loan Documents
to be delivered by it hereunder;
(c) Organization
Documents; Good Standing.
Each of the
following documents:
(i) the
Organization
Documents of each Loan Party as in effect on the relevant Subsequent Effective
Date certified by the Secretary or Assistant Secretary of such Person as of
the
relevant Subsequent Effective Date, or a certification by such Secretary or
Assistant Secretary that the Organization Documents of such Loan Party delivered
to the Administrative Agent on the Effective Date or the Additional Guarantor
Accession Date, as
applicable,
or any
prior Subsequent Effective Date are in full force and effect and have not been
amended, supplemented or modified; and
(ii) a
good standing
certificate, as of a date reasonably prior to the relevant Subsequent Effective
Date as is determined by the Administrative Agent in good faith, for each Loan
Party from the Secretary of State (or similar, applicable Governmental
Authority) of its state of incorporation and each state where its ownership,
lease or operation of property or the conduct of its business requires such
Loan
Party be qualified or otherwise licensed to do business;
(d) Payment
of
Fees.
Evidence of
payment by Holdings of all accrued and unpaid fees, costs and expenses to the
extent then due and payable on the relevant Subsequent Effective Date, together
with reasonable Attorney Costs of Xxxxx Fargo to the extent invoiced prior
to or
on the relevant Subsequent Effective Date, plus
such additional
amounts of reasonable Attorney Costs as shall constitute Xxxxx Fargo’s
reasonable estimate of Attorney Costs incurred or to be incurred by it through
the closing proceedings (provided
that such estimate
shall not thereafter preclude final settling of accounts between Holdings and
Xxxxx Fargo); including any such costs, fees and expenses arising under or
referenced in Section 2.11
and Section 11.04;
(e) Officer’s
Certificate.
A certificate
signed by a Responsible Officer of each of Holdings and the Company, dated
as of
the relevant Subsequent Effective Date, stating that:
(i) the
representations
and warranties contained in Article
VI
are true and correct on and as of such date, as though made on and as of such
date (except to the extent such representations and warranties expressly refer
to an earlier date, in which case they shall be true and correct as of such
earlier date);
(ii) no
Default exists
or would result from the Credit Extensions to be made as of the relevant
Subsequent Effective Date; and, after giving effect to such Credit Extensions,
Holdings would be in pro forma compliance with the financial covenants set
forth
in Section 8.19
measured as of the
last day of the most recent fiscal quarter for which Holdings has delivered
financial statements under Section 5.01(c),
Section 7.01(a)
or Section 7.01(b);
and
(iii) there
has occurred
since the Effective Date, no event or circumstance that has resulted or could
reasonably be expected to result in a Material Adverse Effect;
(f) Additional
Conditions.
The Borrower
shall have complied with all of the conditions set forth in Section 2.01(c)
or Section 2.01(d), as applicable; and
(g) Other
Documents.
Such other
approvals, opinions, documents or materials as the Administrative Agent or
any
Additional Lender may reasonably request.
5.03 Conditions
to
All Credit Extensions.
The obligation of
each Lender (including the Swingline Lender) to make any Credit Extension
(including its initial Credit
Extension)
and the
obligation of the L/C Issuer to Issue any Letter of Credit (including the
initial Letter of Credit) shall be subject to the satisfaction of the following
conditions precedent on the relevant Borrowing Date or Issuance
Date:
(a) Notice,
Application.
The
Administrative Agent shall have received a Notice of Borrowing or in the case
of
any Issuance of any Letter of Credit, the L/C Issuer and the Administrative
Agent shall have received an L/C Application or L/C Amendment Application,
as
required under Section 3.02;
(b) Continuation
of
Representations and Warranties.
The
representations and warranties in Article
VI
shall be true and correct on and as of such Borrowing Date or Issuance Date
with
the same effect as if made on and as of such Borrowing Date or Issuance Date,
except to the extent that such representations and warranties specifically
refer
to an earlier date, in which case they shall be true and correct as of such
earlier date, and except that for purposes of this Section 5.03(b),
the
representations and warranties contained in Section 6.11(a)
shall be deemed to
refer to the most recent statements furnished pursuant to such
Section.
(c) No
Existing
Default.
No Default shall
exist or shall result from such Borrowing or Issuance;
(d) No
Material
Adverse Effect.
There has
occurred since December 31, 2005, no event or circumstance that has
resulted or could reasonably be expected to result in a Material Adverse Effect;
and
(e) No
Future
Advance Notice.
Neither the
Administrative Agent nor any Lender shall have received from Holdings or any
other Person any notice that any Collateral Document will no longer secure
on a
first priority basis future advances or future Loans to be made or extended
under this Agreement.
Each
Notice of
Borrowing and L/C Application or L/C Amendment Application submitted by Holdings
hereunder shall constitute a representation and warranty by Holdings hereunder,
as of the date of each such notice and as of each Borrowing Date or Issuance
Date, as applicable, that the conditions in this Section 5.03
are
satisfied.
REPRESENTATIONS
AND WARRANTIES
Each
of Holdings
and the Company represents and warrants to the Administrative Agent and each
Lender that:
6.01 Corporate
Existence and Power.
Holdings and each
of its Subsidiaries:
(a) is
a corporation,
limited liability company or partnership duly organized or formed, as the case
may be, validly existing and in good standing under the laws of the jurisdiction
of its incorporation or formation;
(b) has
the power and
authority and all governmental licenses, authorizations, consents and approvals
(i) to own its assets and carry on its business and (ii) in the case
of any Loan Party, to execute, deliver, and perform its obligations under the
Loan Documents;
(c) is
duly qualified,
licensed and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification, license or good standing; and
(d) is
in compliance
with all Requirements of Law;
except,
in each
case referred to in clauses (b)(i), (c) or (d) of this Section 6.01,
to the extent
that the failure to do so would not reasonably be expected to have a Material
Adverse Effect.
6.02 Corporate
Authorization; No Contravention.
The execution,
delivery and performance by each Loan Party of this Agreement and each other
Loan Document to which such Loan Party is party, have been duly authorized
by
all necessary corporate, limited liability company or other applicable
organizational action, and do not and will not:
(a) contravene
the
terms of any of that Person’s Organization Documents;
(b) conflict
with or
result in any breach or contravention of, or the creation of any Lien under,
any
document evidencing any Indebtedness or any material Contractual Obligation
to
which such Person is a party or any order, injunction, writ or decree of any
Governmental Authority to which such Person or its property is subject;
or
(c) violate
any
Requirement of Law.
6.03 Governmental
Authorization.
No approval,
consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority (except for recordings or filings in connection
with the Liens granted to the Administrative Agent under the Collateral
Documents and any filings that may be required under Securities Laws in
connection with the enforcement of such Liens) is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan
Document.
6.04 Binding
Effect.
This Agreement
and each other Loan Document to which any Loan Party is a party constitute
the
legal, valid and binding obligations of such Loan Party, enforceable against
such Loan Party in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, or similar
laws affecting the enforcement of creditors’ rights generally or by equitable
principles relating to enforceability.
6.05 Litigation.
Except as
specifically disclosed in Schedule 6.05,
there are no
actions, suits, proceedings, claims or disputes pending, or to the best
knowledge of Holdings and the Company, threatened or contemplated, at law,
in
equity, in arbitration or before any Governmental Authority, against Holdings
or
any of its Subsidiaries or any of their respective properties
which:
(a) purport
to affect
or pertain to this Agreement or any other Loan Document, or any of the
transactions contemplated hereby or thereby; or
(b) are
reasonably
likely to result in an adverse result for Holdings or any of its Subsidiaries,
which adverse result would reasonably be expected to have a Material Adverse
Effect. No injunction, writ, temporary restraining order or any order of any
nature has been issued by any court or other Governmental Authority purporting
to enjoin or restrain the execution, delivery or performance of this Agreement
or any other Loan Document, or directing that the transactions provided for
herein or therein not be consummated as herein or therein provided.
6.06 No
Defaults.
No Default exists
or would result from the incurring of any Obligations by any Loan Party or
from
the grant or perfection of the Liens in favor of the Administrative Agent and
the Lenders on the Collateral. Neither Holdings nor any Subsidiary is in default
under or with respect to any Contractual Obligation in any respect which,
individually or together with all such defaults, could reasonably be expected
to
have a Material Adverse Effect, or that would create an Event of Default under
Section 9.01(e).
6.07 ERISA
Compliance.
Except as
specifically disclosed in Schedule 6.07:
(a) Each
Plan is in
compliance in all material respects with the applicable provisions of ERISA,
the
Code and other federal or state law. Each Plan which is intended to qualify
under section 401(a) of the Code has received a favorable determination
letter from the IRS and to the best knowledge of Holdings and the Company,
nothing has occurred which would cause the loss of such qualification. Holdings,
the Company and each ERISA Affiliate have made all required contributions to
any
Plan subject to section 412 of the Code, and no application for a funding
waiver or an extension of any amortization period pursuant to section 412
of the Code has been made with respect to any Plan.
(b) There
are no
pending or, to the best knowledge of Company, threatened claims, actions or
lawsuits, or action by any Governmental Authority, with respect to any Plan
which has resulted or would reasonably be expected to result in a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan which has resulted
or
could reasonably be expected to result in a Material Adverse
Effect.
(c) Except
as would not
reasonably be expected to have a Material Adverse Effect, (i) no ERISA
Event has occurred or is reasonably expected to occur; (ii) no Pension Plan
has any Unfunded Pension Liability; (iii) neither Holdings nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any liability under
Title IV of ERISA with respect to any Pension Plan (other than premiums due
and
not delinquent under section 4007 of ERISA);
(iv) neither
Holdings nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability (and no event has occurred which, with the giving of notice under
section 4219 of ERISA, would result in such liability) under
section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and
(v) neither Holdings nor any ERISA Affiliate has engaged in a transaction
that could be subject to section 4069 or 4212(c) of ERISA.
6.08 Use
of Proceeds;
Margin Regulations.
The proceeds of
the Loans and the Letters of Credit are to be used solely for the purposes
set
forth in and permitted by Section 7.12
and Section 8.07.
No Loan Party is
generally engaged in the business of purchasing or selling Margin Stock or
extending credit for the purpose of purchasing or carrying Margin
Stock.
6.09 Title
to
Properties; Liens.
Holdings and each
Subsidiary have good record and marketable title in fee simple to, or valid
leasehold interests in, all real property necessary or used in the ordinary
conduct of their respective businesses, except for such defects in title as
could not, individually or in the aggregate, have a Material Adverse Effect.
The
real and personal property of Holdings and its Subsidiaries is subject to no
Liens, other than Permitted Liens.
6.10 Taxes.
Holdings and its
Subsidiaries have filed all Federal and other material tax returns and reports
required to be filed, and have paid all Federal and other material taxes,
assessments, fees and other governmental charges levied or imposed upon them
or
their properties, income or assets otherwise due and payable, except those
which
are being contested in good faith by appropriate proceedings and for which
adequate reserves have been provided in accordance with GAAP. There is no
proposed tax assessment against Holdings or any Subsidiary that would, if made,
have a Material Adverse Effect.
6.11 Financial
Condition.
xvii)
The audited
consolidated balance sheet of Holdings and its Subsidiaries dated December
31,
2005, the unaudited balance sheet of Holdings and its Subsidiaries for the
fiscal quarter ended September 30, 2006 and, in each case, the related
consolidated statements of income or operations and cash flows for the fiscal
period ended on that date:
(i) were
prepared in
accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein, subject to year end audit
adjustments and the absence of footnotes in the case of quarterly financial
statements;
(ii) are
complete and
accurate in all material respects and fairly present the financial condition
of
Holdings and its Subsidiaries as of the date thereof and results of operations
and cash flows for the period covered thereby; and
(iii) except
as
specifically disclosed in Schedule 6.11,
show all material
Indebtedness and other material liabilities, direct or contingent, of Holdings
and its consolidated Subsidiaries as of the date thereof, including liabilities
for taxes, material commitments and Contingent Obligations.
(b) Since
December 31,
2005, there has not been, nor is it reasonably likely that there will be, any
Material Adverse Effect.
(c) Any
pro forma
financial statements of Holdings and its Subsidiaries furnished by Holdings
to
the Administrative Agent hereunder, and any financial projections furnished
to
the Administrative Agent hereunder (including the consolidated forecasted
balance sheet and statements of income and cash flows of Holdings and its
Subsidiaries delivered pursuant to Section 7.02(b)), were prepared by
Holdings based on estimates and assumptions believed to be reasonable and fair
in light of current conditions and facts known to Holdings on the date such
pro
forma financial statements or projections, as the case may be, were furnished
to
the Administrative Agent, and as of the date so furnished reflect, in the case
of pro forma financial statements, Holdings good faith representation of the
pro
forma financial condition of Holdings and its Subsidiaries as of the date
thereof and, in the case of financial projections, Holdings good faith and
reasonable estimates of the future financial performance of Holdings and its
Subsidiaries for the periods set forth therein.
(d) Since
the date of
the most recent audited financial statements delivered to the Administrative
Agent pursuant to Section 5.01(c)(i)
or Section 7.01(a),
no Internal
Control Event has occurred that has had, or would reasonably be expected to
have, a material impact on the financial results of operations of Holdings
and
its Subsidiaries.
6.12 Environmental
Matters.
Holdings conducts
in the ordinary course of business a review of the effect of existing
Environmental Laws and existing Environmental Claims on its business, operations
and properties, and as a result thereof Holdings has reasonably concluded that,
except as specifically disclosed in Schedule 6.12,
such
Environmental Laws and Environmental Claims could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
(a) Except
as
specifically disclosed in Schedule 6.12,
the ongoing
operations of Holdings and each of its Subsidiaries comply in all respects
with
all Environmental Laws, except such non-compliance which would not (if enforced
in accordance with applicable law) result in liability in excess of $5,000,000
in the aggregate.
(b) Holdings
and each
of its Subsidiaries have obtained all licenses, permits, authorizations and
registrations required under any Environmental Law (“Environmental
Permits”)
and necessary
for their respective ordinary course operations, all such Environmental Permits
are in good standing, and Holdings and each of its Subsidiaries are in
compliance with all material terms and conditions of such Environmental Permits,
except to the extent the failure to obtain any such Environmental Permit or
to
maintain any such Environmental Permit in good standing or otherwise to be
in
compliance with the material terms thereof could not reasonably be expected
to
have a Material Adverse Effect.
(c) Except
as
specifically disclosed in Schedule 6.12,
none of Holdings,
any of its Subsidiaries or any of their respective property or operations is
subject to any outstanding written order from or agreement with any Governmental
Authority, nor subject to any judicial or docketed administrative proceeding,
respecting any Environmental Law, Environmental Claim or Hazardous Material
that
would reasonably be expected to give rise to a potential liability of Holdings
and its Subsidiaries in excess of $5,000,000 in the aggregate.
(d) Except
as
specifically disclosed in Schedule 6.12,
there are no
Hazardous Materials or other conditions or circumstances existing with respect
to any property of Holdings or any Subsidiary, or arising from operations prior
to the Effective Date of Holdings or any of its Subsidiaries, that would
reasonably be expected to give rise to Environmental Claims with a potential
liability of Holdings and its Subsidiaries in excess of $5,000,000 in the
aggregate for all such conditions, circumstances or property. In addition,
(i) neither Holdings nor any Subsidiary has any underground storage tanks
(A) that are not properly registered or permitted under applicable
Environmental Laws, or (B) that are leaking or disposing of Hazardous
Materials off-site, in each case, that would reasonably be expected to give
rise
to a potential liability of Holdings and its Subsidiaries in excess of
$5,000,000 in the aggregate and (ii) Holdings and its Subsidiaries have
notified all of their employees of the existence, if any, of any health hazard
arising from the conditions of their employment and have met all notification
requirements under Title III of CERCLA and all other Environmental
Laws.
6.13 Collateral
Documents.
(a) (i) The
provisions of each of the Collateral Documents were, as of the closing of the
Existing Credit Agreement, and as amended remain, effective to create in favor
of the Administrative Agent for the benefit of the Lenders, a legal, valid
and
enforceable first priority Lien in all right, title and interest of Holdings,
or
the applicable Loan Party (as the case may be), in the Collateral described
therein to secure the Obligations, subject only to Permitted Liens,
(ii) all filings and other actions necessary or desirable to perfect and
maintain the perfection and first priority status of such Liens have been duly
made or taken and remain in full force and effect and (iii) each
Intellectual Property Security Agreement has been delivered to the
Administrative Agent when required hereby or by the Security Agreement for
filing in the U.S. Patent and Trademark Office and the U.S. Copyright
Office.
(b) All
representations
and warranties of Holdings and each of its Subsidiaries party thereto contained
in the Collateral Documents are true and correct.
6.14 Regulated
Entities.
None of Holdings,
any Person Controlling Holdings, or any Subsidiary is or is required to be
registered as an “investment company” under the Investment Company Act of
1940.
6.15 No
Burdensome
Restrictions.
Neither Holdings
nor any Subsidiary is a party to or bound by any Contractual Obligation, or
subject to any restriction in any Organization Document, or any Requirement
of
Law, which could reasonably be expected to have a Material Adverse Effect.
Except as set forth on Schedule 6.15
or otherwise
permitted hereunder, neither Holdings nor any Subsidiary is a party to or bound
by any Contractual Obligation which restricts, limits or prohibits the payment
of dividends by any Subsidiary or the making of any other distribution in
respect of such Subsidiary’s capital stock or other equity
interests.
6.16 Copyrights,
Patents, Trademarks and Licenses, Etc.
Holdings or its
Subsidiaries own or are licensed or otherwise have the right to use all of
the
patents, trademarks, service marks, trade names, copyrights, contractual
franchises, authorizations and other rights that are reasonably necessary for
the operation of their respective businesses, without conflict with the rights
of any other Person, except for such conflicts as would not reasonably
be
expected
to have a
Material Adverse Effect. To the best knowledge of Holdings and the Company,
no
slogan or other advertising device, product, process, method, substance, part
or
other material now employed, or now contemplated to be employed, by Holdings
or
any Subsidiary infringes upon any rights held by any other Person, except for
those infringements that would, individually or in the aggregate, not reasonably
be expected to have a Material Adverse Effect. Except as specifically disclosed
in Schedule 6.05,
no claim or
litigation regarding any of the foregoing is pending or, to the best knowledge
of Holdings and the Company, threatened, and no patent, invention, device,
application, principle or any statute, law, rule, regulation, standard or code
is pending or, to the best knowledge of Holdings and the Company, proposed,
which, in either case, could reasonably be expected to have a Material Adverse
Effect.
6.17 Subsidiaries.
As of the
Effective Date, Holdings has no Subsidiaries other than those specifically
disclosed in part (a) of Schedule 6.17
and has no equity
investments in any other Person other than those specifically disclosed in
part (b) of Schedule 6.17.
All U.S.
Subsidiaries of Holdings as of the Effective Date are identified as such on
part (a) of Schedule 6.17,
as well as a
denotation as to whether such Subsidiary is a Wholly-Owned Subsidiary or
Non-Wholly-Owned Subsidiary. All of the outstanding equity interests in the
Subsidiaries of Holdings which are owned directly or indirectly by Holdings
have
been validly issued, are fully paid and nonassessable and are owned, as of
the
Effective Date, in the amounts specified on Part (a) of Schedule 6.17
free and clear of
all Liens, other than Liens granted to the Administrative Agent.
6.18 Insurance.
Except as
specifically disclosed in Schedule 6.18,
the properties of
Holdings and its Subsidiaries are insured with financially sound and reputable
insurance companies not Affiliates of Holdings, in such amounts, with such
deductibles and covering such risks as are deemed to be appropriate by Holdings
in the exercise of its reasonable business judgment.
6.19 Swap
Obligations.
xviii)
Neither Holdings
nor any of its Subsidiaries has incurred any outstanding obligations under
any
Swap Contracts, other than Permitted Swap Obligations. In the ordinary course
of
managing its business, Holdings undertakes its own independent assessment of
its
consolidated assets, liabilities and commitments and considers appropriate
means
of mitigating and managing risks associated with such matters, and Holdings
has
not relied on any swap counterparty or any Affiliate of any swap counterparty
in
determining whether to enter into any Swap Contract.
(b) Neither
Holdings
nor any of its Subsidiaries has entered into any master agreement relating
to
Swap Contracts and under which termination values resulting from Swap Contracts
that are Specified Swap Contracts are nettable against termination values
resulting from Swap Contracts that are not Specified Swap Contracts, unless
only
Specified Swap Contracts are outstanding under such master
agreement.
6.20 Full
Disclosure.
None of the
representations or warranties made by any Loan Party in the Loan Documents
as of
the date such representations and warranties are made or deemed made, and none
of the statements contained in any exhibit, report, statement or certificate
furnished by or on behalf of any Loan Party in connection with the Loan
Documents
(including
the
offering and disclosure materials delivered by or on behalf of any Loan Party
to
the Lenders prior to the Effective Date), contains any untrue statement of
a
material fact (when taken as a whole) or omits any material fact required to
be
stated therein or necessary to make the statements made therein, in light of
the
circumstances under which they are made, not misleading as of the time when
made
or delivered; provided,
however,
that with respect
to information relating to Holdings’ industry generally and not to Holdings or
its Subsidiaries specifically, the Loan Parties’ represent and warrant only that
such information was derived from sources the Loan Parties believe to be
reliable and the Loan Parties have no reason to believe at the time such
information was furnished or provided to the Administrative Agent or any Lender
that such information was misleading; and provided further
that to the extent
any such information, report, financial statement, exhibit or schedule was
based
upon or constitutes a forecast or projection, such Loan Party represents only
that it acted in good faith and utilized reasonable assumptions and due care
in
the preparation of such information, report, financial statement, exhibit or
schedule (it being understood that forecasts and projections by their nature
involve approximations and uncertainties).
6.21 Internal
Controls.
To the extent
that Holdings is a public corporation:
(a) Except
as set forth
in the reports of Holdings filed with the SEC under the Exchange Act, Holdings
has established and maintains disclosure controls and procedures (as such term
is defined in Rule 13a-14 under the Exchange Act), which (i) are designed
to ensure that material information relating to Holdings, including its
consolidated subsidiaries, is made known to Holdings’ principal executive
officer and its principal financial officer or persons performing similar
functions by others within those entities, particularly during the periods
in
which the periodic reports required under the Exchange Act are being prepared;
(ii) have been evaluated for effectiveness as of a date within ninety (90)
days prior to the filing of Holdings’ most recent annual or quarterly report
filed with the SEC; and (iii) are effective in all material respects to
perform the functions for which they were established;
(b) Except
as set forth
in the reports of Holdings filed with the SEC under the Exchange Act, based
on
the evaluation of its disclosure controls and procedures, Holdings is not aware
of (i) any significant deficiency in the design or operation of internal
controls over financial reporting which are reasonably likely to adversely
affect Holdings’ ability to record, process, summarize and report financial
information in any material respect or (ii) any Internal Control Event;
and
(c) Since
the date of
the most recent evaluation of such disclosure controls and procedures, except
as
set forth in the reports of Holdings filed with the SEC under the Exchange
Act,
there have been no significant changes in internal controls over financial
reporting or in other factors that could materially affect internal controls
over financial reporting, including any corrective actions with regard to
significant deficiencies and material weaknesses.
AFFIRMATIVE
COVENANTS
So
long as any Lender shall have any Commitment hereunder, or any Loan or other
Obligation shall remain unpaid or unsatisfied, or any Letter of Credit shall
remain outstanding, unless the Majority Lenders waive compliance in
writing:
7.01 Financial
Statements.
Holdings shall
deliver to the Administrative Agent (which will promptly deliver to each
Lender):
(a) as
soon as
available, but not later than ninety (90) days after the end of each fiscal
year, a copy of the audited consolidated balance sheet of Holdings and its
Subsidiaries as at the end of such year and the related consolidated statements
of income or operations, shareholders’ equity, retained earnings and cash flows
for such year, setting forth in each case in comparative form the figures for
the previous fiscal year, and accompanied by (i) the report and opinion of
KPMG or another nationally recognized registered public accounting firm (the
“Independent
Auditor”)
which report and
opinion shall be prepared in accordance with generally accepted auditing
standards and applicable Securities Laws and shall not be subject to any “going
concern” or like qualification or exception or any qualification or exception as
to the scope of such audit and which shall state that such consolidated
financial statements present fairly the financial position and the results
of
operations and cash flows of Holdings and its Subsidiaries for the periods
indicated in conformity with GAAP applied on a basis consistent with prior
years
and (ii) an attestation report of such Independent Auditor as to Holdings’
internal controls pursuant to Section 404
of
Xxxxxxxx-Xxxxx;
(b) as
soon as
available, but not later than forty-five (45) days after the end of each of
the
first three fiscal quarters of each fiscal year, a copy of the unaudited
consolidated balance sheet of Holdings and its Subsidiaries as of the end of
such quarter and the related consolidated statements of income, shareholders’
equity and cash flows for the period commencing on the first day and ending
on
the last day of such quarter, and certified by a Responsible Officer of Holdings
as being complete and accurate in all material respects and fairly presenting,
in accordance with GAAP (subject to year-end audit adjustments and the absence
of footnotes), the financial position and the results of operations and cash
flows of Holdings and the Subsidiaries; and
(c) promptly,
such
other financial statements and information (including financial information
regarding Minority Investments) as the Administrative Agent, at the request
of
any Lender, may from time to time request.
As
to any information contained in materials furnished pursuant to Section 7.02(d),
Holdings shall
not be separately required to furnish such information under Section 7.01(a)
or Section 7.01(b)
above, but the
foregoing shall not be in derogation of the obligation of Holdings to furnish
the information and materials described in Section 7.01(a)
and Section 7.01(b)
above at the times
specified therein.
7.02 Certificates;
Other Information.
Holdings shall
furnish to the Administrative Agent (which shall promptly furnish to each
Lender), in form and detail satisfactory to the Administrative Agent and the
Majority Lenders:
(a) concurrently
with
the delivery of the financial statements referred to in Section 7.01(a),
a certificate of
the Independent Auditor stating that in the course of the regular examination
of
the financial statements of Holdings and its Subsidiaries, which examination
was
conducted by such accounting firm in accordance with GAAP, nothing has come
to
the attention of the Independent Auditor which would cause it to believe that
an
Event of Default under Section 8.19
has occurred and
is continuing, or if, in the opinion of the Independent Auditor, an Event of
Default under Section 8.19
has occurred and
is continuing, a statement as to the nature thereof.
(b) within
ninety (90)
days after the close of each fiscal year, an update of the projections delivered
to the Administrative Agent and the Lenders prior to the Effective Date (the
“Effective
Date
Projections”)
for the
then-current and next succeeding fiscal years through and including the 2013
fiscal year, certified by a Responsible Officer of Holdings, together with
a
statement of such Responsible Officer explaining in reasonable detail any
significant variances from the Effective Date Projections;
(c) concurrently
with
the delivery of the financial statements referred to in Section 7.01(a)
and Section 7.01(b),
a completed
Compliance Certificate certified by a Responsible Officer of
Holdings;
(d) promptly,
copies of
all financial statements and reports that Holdings sends to its shareholders,
and copies of all financial statements and regular, periodical or special
reports (including Forms 10K, 10Q and 8K) that Holdings or any Subsidiary may
make to, or file with, the SEC;
(e) promptly
upon
sending or receipt, copies of any and all management letters and correspondence
relating to management letters, sent or received by Holdings or any of its
Subsidiaries to or from the Independent Auditor;
(f) at
the same time it
is provided to the holders of any Permitted Subordinated Debt, any notices
and
other information provided to such holders pursuant to the reporting and notices
provisions of the Subordinated Debt Documents (without duplication of any
notices, financial statements and other information required
hereunder);
(g) within
twenty (20)
days of the Administrative Agent’s or any Lender’s request therefor, (i) a
current list of the names, addresses and outstanding debts of all account
debtors, and (ii) a current list of the names, addresses and outstanding
amounts due all creditors of Holdings or any Subsidiary;
(h) concurrently
with
the delivery of the financial statements referred to in Section 7.01(a)
and Section 7.01(b),
a completed
Update Certificate, certified by a Responsible Officer of Holdings;
(i) promptly,
and in
any event within ten Business Days after receipt thereof by Holdings or any
Subsidiary, copies of each notice or other correspondence received from the
SEC
concerning any investigation or possible investigation or other inquiry by
such
agency regarding financial or other operational results of Holdings or any
Subsidiary thereof; and
(j) promptly,
such
additional information regarding the business, financial or corporate affairs
of
Holdings or any Subsidiary as the Administrative Agent, at the request of any
Lender, may from time to time reasonably request.
7.03 Notices.
Holdings shall
promptly notify the Administrative Agent (which shall promptly notify each
Lender):
(a) of
the occurrence
of any Default, and of the occurrence or existence of any event or circumstance
that foreseeably will become a Default;
(b) of
any matter that
has resulted or could reasonably be expected to result in a Material Adverse
Effect, including (i) any breach or non-performance of, or any default
under, any Contractual Obligation of Holdings or any of its Subsidiaries which
has resulted or could result in a Material Adverse Effect; and (ii) any
dispute, litigation, investigation, proceeding or suspension which may exist
at
any time between Holdings or any of its Subsidiaries and any Governmental
Authority (including under or pursuant to any Environmental Laws) which has
resulted or could reasonably be expected to result in a Material Adverse
Effect;
(c) of
the commencement
of, or any material development in, any litigation or proceeding affecting
Holdings or any Subsidiary (i) which, if adversely determined, would
reasonably be expected to have a Material Adverse Effect, or (ii) in which
the relief sought is an injunction or other stay of the performance of this
Agreement or any Loan Document;
(d) upon,
but in no
event later than ten (10) days after, becoming aware of (i) any and all
material enforcement, cleanup, removal or other governmental or regulatory
actions instituted, completed or threatened against Holdings or any Subsidiary
or any of their respective properties pursuant to any applicable Environmental
Laws, (ii) all other Environmental Claims, and (iii) any environmental
or similar condition on any real property adjoining or in the vicinity of the
property of Holdings or any Subsidiary that could reasonably be anticipated
to
cause such property or any part thereof to be subject to any material
restrictions on the ownership, occupancy, transferability or use of such
property under any Environmental Laws;
(e) of
any other
litigation or proceeding affecting Holdings or any of its Subsidiaries which
Holdings would be required to report to the SEC pursuant to the Exchange Act,
within four (4) days after reporting the same to the SEC;
(f) of
the occurrence
of any of the following events affecting Holdings or any ERISA Affiliate (but
in
no event more than ten (10) days after such event), and deliver to the
Administrative Agent and each Lender a copy of any notice with respect to such
event that is
filed
with a
Governmental Authority and any notice delivered by a Governmental Authority
to
Holdings or any ERISA Affiliate with respect to such event:
(i) an
ERISA
Event;
(ii) a
material increase
in the Unfunded Pension Liability of any Pension Plan;
(iii) the
adoption of, or
the commencement of contributions to, any Plan subject to section 412 of
the Code by Holdings or any ERISA Affiliate; or
(iv) the
adoption of any
amendment to a Plan subject to section 412 of the Code, if such amendment
results, or would reasonably be expected to result, in a material increase
in
contributions or Unfunded Pension Liability;
(g) of
any material
change in accounting policies or financial reporting practices by Holdings
or
any of its consolidated Subsidiaries;
(h) upon
the request
from time to time of the Administrative Agent or any Lender, the Swap
Termination Values, together with a description of the method by which such
amounts were determined, relating to any Swap Contracts to which Holdings or
any
of its Subsidiaries is party;
(i) the
occurrence of
any Event of Loss exceeding $5,000,000;
(j) of
the entry by
Holdings into any Specified Swap Contract, together with the details thereof;
(k) of
the occurrence
of any default, event of default, termination event or other event under any
Specified Swap Contract that after the giving of notice, passage of time or
both, would permit either counterparty to such Specified Swap Contract to
terminate early any or all trades relating to such contract; and
(l) of
the occurrence
or existence of any Internal Control Event.
Each
notice under
this Section 7.03
shall be
accompanied by a written statement by a Responsible Officer of Holdings setting
forth details of the occurrence referred to therein, and stating what action
Holdings or any affected Subsidiary proposes to take with respect thereto and
at
what time. Each notice under Section 7.03(a)
shall describe
with particularity any and all clauses or provisions of this Agreement or other
Loan Document that have been (or foreseeably will be) breached or
violated.
7.04 Preservation
of
Corporate Existence, Etc.
Holdings shall,
and shall cause each Subsidiary to, except in connection with transactions
permitted by Section 8.03
and sales of
assets permitted by Section 8.02:
(a) preserve
and
maintain in full force and effect its (i) legal existence and
(ii) good standing under the laws of its state or jurisdiction of
incorporation or formation;
(b) preserve
and
maintain in full force and effect all governmental rights, privileges,
qualifications, permits, licenses and franchises necessary or desirable in
the
normal conduct of its business;
(c) use
reasonable
efforts, in the ordinary course of business, to preserve its business
organization and goodwill; and
(d) preserve
or renew
all of its registered patents, trademarks, trade names and service marks, the
non preservation of which could reasonably be expected to have a Material
Adverse Effect.
7.05 Maintenance
of
Property.
Holdings shall,
and shall cause each Subsidiary to, maintain, and preserve all its property
which is used or useful in its business in good repair and condition (ordinary
wear and tear excepted), and from time to time make necessary repairs, renewals
and replacements thereto so that its property shall be preserved and maintained
consistent with Holdings’ or such Subsidiary’s past practice.
7.06 Insurance.
In addition to
insurance requirements set forth in the Collateral Documents, Holdings shall
maintain, and shall cause each Subsidiary to maintain, with financially sound
and reputable independent insurers, insurance with respect to its properties
and
business against loss or damage of the kinds customarily insured against by
Persons engaged in the same or similar business, of such types and in such
amounts as are customarily carried under similar circumstances by such other
Persons, including workers’ compensation insurance, public liability and
property and casualty insurance. All such insurance shall name the
Administrative Agent as loss payee and as additional insured, for the benefit
of
the Lenders, as their interests may appear. All casualty and key man insurance
maintained by Holdings shall name the Administrative Agent as loss payee and
all
liability insurance shall name the Administrative Agent as additional insured
for the benefit of the Lenders, as their interests may appear. Upon the request
of the Administrative Agent or any Lender, Holdings shall furnish the
Administrative Agent, with sufficient copies for each Lender, at reasonable
intervals (but not more than once per calendar year) a certificate of a
Responsible Officer of Holdings (and, if requested by the Administrative Agent,
any insurance broker of Holdings) setting forth the nature and extent of all
insurance maintained by Holdings and its Subsidiaries in accordance with this
Section 7.06
or any Collateral
Documents (and which, in the case of a certificate of a broker, were placed
through such broker).
7.07 Payment
of
Obligations.
Holdings shall,
and shall cause each of its Subsidiaries to, pay and discharge as the same
shall
become due and payable, all their respective obligations and liabilities,
including:
(a) all
material tax
liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are being contested in good faith by
appropriate proceedings and adequate reserves in accordance with GAAP are being
maintained by Holdings or such Subsidiary;
(b) all
lawful claims
which, if unpaid, would by law become a Lien upon its property not constituting
a Permitted Lien; and
(c) all
Indebtedness,
as and when due and payable, but subject to any subordination provisions
contained in any instrument or agreement evidencing such Indebtedness (except
where failure to do so would not otherwise constitute a Default
hereunder).
7.08 Compliance
with
Laws.
Holdings shall
comply, and shall cause each Subsidiary to comply, with all Requirements of
Law
of any Governmental Authority having jurisdiction over it or its business
(including the Federal Fair Labor Standards Act), except such as may be
contested in good faith or as to which a bona fide dispute may exist or where
the failure to do so could not reasonably be expected to have a Material Adverse
Effect.
7.09 Compliance
with
ERISA.
Holdings shall,
and shall cause each of its ERISA Affiliates to: (a) maintain each Plan in
compliance with the applicable provisions of ERISA, the Code and other federal
or state law except for any noncompliance that would not reasonably be expected
to have a Material Adverse Effect; (b) cause each Plan which is qualified
under section 401(a) of the Code to maintain such qualification; and (c)
make all required contributions to any Plan subject to section 412 of the
Code.
7.10 Inspection
of
Property and Books and Records.
xix)
Holdings shall,
and shall cause each Subsidiary to, maintain proper books of record and account,
in which full, true and correct entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving the
assets and business of Holdings and such Subsidiary. Holdings shall permit,
and
shall cause each Subsidiary to permit, representatives and independent
contractors of the Administrative Agent or any Lender to visit and inspect
any
of their respective properties, to examine their respective corporate,
financial, operating and other records, and make copies thereof or abstracts
therefrom, and to discuss their respective affairs, finances and accounts with
their respective directors, officers, and independent public accountants, all
at
the expense of Holdings and the Company and at such reasonable times during
normal business hours and as often as may be reasonably desired, upon reasonable
advance notice to Holdings; provided,
however,
when an Event of
Default exists the Administrative Agent or any Lender may do any of the
foregoing at any time during normal business hours and without advance
notice.
(b) Without
limiting
the generality of Section 7.10(a),
as frequently as
the Majority Lenders may deem appropriate, each of Holdings and the Company
will
provide Administrative Agent or its designee access to Holdings’ and the
Company’s records and premises and allow such auditors or appraisers to conduct
audits of Holdings’ and its Subsidiaries’ accounts, including accounts and
inventory. Holdings shall pay all reasonable fees and expenses of one such
audit
in any 12-month period; provided,
however,
that during the
existence of any Event of Default, Holdings shall pay all reasonable fees and
expenses of each such audit.
7.11 Environmental
Laws.
xx)
Holdings shall,
and shall cause each Subsidiary to, conduct its operations and keep and maintain
its property in compliance with all Environmental Laws, except to the extent
the
failure to comply therewith could not reasonably be expected to have a Material
Adverse Effect.
(b) Upon
the written
request of the Administrative Agent or any Lender, Holdings shall submit and
cause each of its Subsidiaries to submit, to the Administrative Agent, at
Holdings’ sole cost and expense, at reasonable intervals, a report providing an
update of the status of any environmental, health or safety compliance, hazard
or liability issue identified in any notice or report required pursuant to
Section 7.03(d),
that could,
individually or in the aggregate, result in liability in excess of
$1,000,000.
7.12 Use
of
Proceeds.
Holdings shall,
directly or indirectly, use the proceeds of the Loans (i) for Permitted
Acquisitions, (ii) for making Investments permitted under Section 8.04
or Restricted
Payments under Section 8.11,
(iii) to
refinance existing Indebtedness and (iv) for working capital and other
general corporate purposes not in contravention of any Requirement of Law or
of
any Loan Document.
7.13 Additional
Guarantors.
xxi)
If a Minority
Investment or Subsidiary shall at any time after the Effective Date become
a
U.S. Wholly-Owned Subsidiary, or if Holdings, or any U.S. Wholly-Owned
Subsidiary of Holdings, otherwise shall incorporate, create or acquire any
U.S.
Wholly-Owned Subsidiary, Holdings shall cause such U.S. Wholly-Owned Subsidiary
to furnish promptly, but in no event more than thirty (30) days thereafter,
each
of the following to the Administrative Agent:
(i) a
duly executed
notice and agreement in substantially the form of Exhibit
G
(an “Additional
Guarantor Assumption Agreement”);
(ii) (A) copies
of
the resolutions of the board of directors (or equivalent governing body) of
such
Subsidiary approving and authorizing the execution, delivery and performance
by
such Subsidiary of its Additional Guarantor Assumption Agreement and this
Agreement, certified as of the date of such Additional Guarantor Assumption
Agreement (the “Additional
Guarantor Accession Date”)
by the Secretary
or an Assistant Secretary (or other appropriate officer) of such Subsidiary;
(B) a certificate of the Secretary or Assistant Secretary (or other
appropriate officer) of such Subsidiary certifying the names and true signatures
of the officers of such Subsidiary authorized to execute and deliver and
perform, as applicable, its Additional Guarantor Assumption Agreement, this
Agreement and all other Loan Documents to be delivered hereunder;
(C) copies of the articles or certificate of incorporation and bylaws (or
other applicable Organization Documents) of such Subsidiary as in effect on
the
Additional Guarantor Accession Date, certified by the Secretary or Assistant
Secretary (or other appropriate officer) of such Subsidiary as of the Additional
Guarantor Accession Date; and (D) an opinion of counsel to such Subsidiary
and addressed to the Administrative Agent and the Lenders, substantially in
the
form of Exhibit H;
and
(iii) (A) such
amendments to the schedules to the Security Agreement as shall be required
in
connection with the accession of such Subsidiary thereto; and (B) UCC-1
financing statements for each jurisdiction in which such filing is necessary
to
perfect the security interest of the Administrative Agent on behalf of the
Lenders in the Collateral of such Subsidiary and in which the Administrative
Agent requests that such filing be made.
(b) Additionally,
Holdings and such Subsidiary shall have executed and delivered to the
Administrative Agent such other items as reasonably requested by the
Administrative
Agent in connection with the foregoing, including officers’ certificates, search
reports, control agreements and other certificates and documents.
7.14 Additional
Stock
Pledges.
If Holdings,
directly or indirectly, incorporates, creates or acquires any additional
Subsidiary, or if any Person in which Holdings, directly or indirectly, has
a
Minority Investment shall become a Subsidiary, then within ten (10) days
thereafter, Holdings shall (i) (A) pledge the capital stock,
membership interests or other equity interests of such additional Subsidiary
to
the Administrative Agent pursuant to the Security Agreement, if such stock,
membership interest or other interest is directly owned by Holdings, or
(B) if such stock, membership interest or other interest is owned by a
Subsidiary, cause such Subsidiary to pledge the capital stock, membership
interest or other equity interest of such additional Subsidiary to the
Administrative Agent pursuant to the Security Agreement, and (ii) execute
and deliver, or cause such Subsidiary to have executed and delivered, to the
Administrative Agent stock transfer powers executed in blank with signatures
guaranteed as the Administrative Agent shall request, such UCC-1 financing
statements (as furnished by the Administrative Agent) in each jurisdiction
in
which such filing is necessary to perfect the security interest of the
Administrative Agent in the Collateral with respect to Holdings or such
Subsidiary, and (iii) deliver such other items as reasonably requested by
the Administrative Agent in connection with the foregoing, including
resolutions, incumbency and officers’ certificates, opinions of counsel, search
reports, control agreements and other certificates and documents; provided,
however,
that if any such
additional Subsidiary is not a U.S. Subsidiary, in no event shall more than
65%
of the voting capital stock (and 100% of the non-voting stock) of any such
Subsidiary be required to be so pledged.
7.15 Further
Assurances.
xxii)
Holdings shall
ensure that all written information, exhibits and reports furnished to the
Administrative Agent or the Lenders do not and will not contain, when considered
with all other information so furnished, any untrue statement of a material
fact
and do not and will not omit to state any material fact or any fact necessary
to
make the statements contained therein not misleading in light of the
circumstances in which made, and will promptly disclose to the Administrative
Agent and the Lenders and correct any material defect or error that may be
discovered therein or in any Loan Document or in the execution, acknowledgement
or recordation thereof, provided
that to the extent
any such written information, exhibit or report was based upon or constitutes
a
forecast or projection, Holdings shall ensure only that it acted in good faith
and utilized reasonable assumptions and due care in the preparation of such
information, exhibit or report (it being understood that forecasts and
projections by their nature involve approximations and
uncertainties).
(b) Promptly
upon
request by the Administrative Agent or the Majority Lenders, Holdings shall
(and
shall cause any Guarantor to) do, execute, acknowledge, deliver, record,
re-record, file, re-file, register and re-register, any and all such further
acts, deeds, conveyances, security agreements, assignments, estoppel
certificates, financing statements and continuations thereof, termination
statements, notices of assignment, transfers, certificates, assurances and
other
instruments the Administrative Agent or such Lenders, as the case may be, may
reasonably require from time to time in order (i) to carry out more
effectively the purposes of this Agreement or any other Loan Document,
(ii) to subject to the Liens created by any of the Collateral Documents any
of the properties, rights or interests covered by any of the Collateral
Documents, (iii) to perfect and maintain the validity, effectiveness and
priority of any of the
Collateral
Documents and the Liens intended to be created thereby, and (iv) to better
assure, convey, grant, assign, transfer, preserve, protect and confirm to the
Administrative Agent and Lenders the rights granted or now or hereafter intended
to be granted to the Lenders under any Loan Document or under any other document
executed in connection therewith.
(c) Without
limiting
the generality of the foregoing Sections
7.15(a)
and 7.15(b),
Holdings shall
complete the post-closing undertakings set forth on Schedule
7.15(c)
on or prior to the
applicable dates specified for completion of such undertakings set forth in
such
Schedule.
7.16 Intercompany
Notes.
Holdings shall
use commercially reasonable efforts (i) to deliver to the Administrative
Agent, within sixty (60) days after the Effective Date, as Collateral for the
Obligations, promissory notes in form and substance satisfactory to the
Administrative Agent evidencing all extensions of credit by Holdings to any
of
its Subsidiaries that are not Loan Parties, which extensions of credit shall
be
secured by a first priority Lien on all of the tangible and intangible property
of such Subsidiary, and which Lien shall have been assigned to the
Administrative Agent as Collateral for the Obligations and (ii) to ensure
that any such promissory notes are demand notes (including by way of converting
any notes that are not demand notes as of the Effective Date into demand notes
by the sixtieth day thereafter). In the event that Holdings is unable to comply
with either clause of the preceding sentence, Holdings shall not renew or amend
(including to increase the maximum available borrowings under) the notes with
respect to extensions of credit referred to in the preceding
sentence.
NEGATIVE
COVENANTS
So
long as any Lender shall have any Commitment hereunder, or any Loan or other
Obligation shall remain unpaid or unsatisfied, or any Letter of Credit shall
remain outstanding, unless the Majority Lenders waive compliance in
writing:
8.01 Limitation
on
Liens.
xxiii)
Holdings shall
not, and shall not suffer or permit any Subsidiary to, directly or indirectly,
make, create, incur, assume or suffer to exist any Lien upon or with respect
to
any part of its property, whether now owned or hereafter acquired, other than
the following (“Permitted
Liens”):
(i) any
Lien existing
on the Effective Date and set forth in Schedule 8.01,
provided
that (a) such
Lien (including any Lien securing Permitted Refinancing Indebtedness) shall
not
attach to any property or asset of Holdings or any Subsidiary other than the
property or asset originally so encumbered on the Effective Date and
(b) such Lien shall secure only those obligations that it secures on the
Effective Date and Permitted Refinancing Indebtedness in respect
thereof;
(ii) any
Lien created
under any Loan Document;
(iii) Liens
for taxes,
fees, assessments or other governmental charges which are not delinquent or
remain payable without penalty, or which are being
contested
in good
faith and by appropriate proceedings, if adequate reserves in accordance with
GAAP are maintained by Holdings or such Subsidiary, which proceedings have
the
effect of preventing the forfeiture or sale of the property subject
thereto;
(iv) carriers’,
warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or other
similar Liens arising in the ordinary course of business which are not
delinquent or which are being contested in good faith and by appropriate
proceedings, if adequate reserves in accordance with GAAP are maintained by
Holdings or such Subsidiary, which proceedings have the effect of preventing
the
forfeiture or sale of the property subject thereto;
(v) Liens
(other than
any Lien imposed by ERISA and other than on the Collateral) consisting of
pledges or deposits required in the ordinary course of business in connection
with workers’ compensation, unemployment insurance and other social security
legislation;
(vi) Liens
securing
(A) the non-delinquent performance of bids, trade contracts (other than for
borrowed money), leases (other than Capital Leases), statutory obligations,
(B) contingent obligations on surety and appeal bonds, and (C) other
non-delinquent obligations of a like nature; in each case, incurred in the
ordinary course of business, provided
all such Liens in
the aggregate would not (even if enforced) cause a Material Adverse
Effect;
(vii) Liens
consisting of
judgment or judicial attachment liens with respect to any judgment that does
not
constitute an Event of Default under Section 9.01(i);
(viii) easements,
rights
of way, restrictions and other similar encumbrances incurred in the ordinary
course of business which, in the aggregate, are not substantial in amount,
and
which do not in any case materially detract from the value of the property
subject thereto or interfere with the ordinary conduct of the businesses of
Holdings and its Subsidiaries;
(ix) Liens
on specific
tangible assets of Persons which become Subsidiaries after the date of this
Agreement; provided,
however,
that
(A) such Liens existed at the time the respective Persons became
Subsidiaries and were not created in anticipation thereof, (B) any such
Lien does not by its terms cover any assets after the time such Person becomes
a
Subsidiary which were not covered immediately prior thereto, (C) any such
Lien does not by its terms secure any Indebtedness other than Indebtedness
existing immediately prior to the time such Person becomes a Subsidiary and
Permitted Refinancing Indebtedness in respect thereof, and (D) such
Indebtedness is permitted by Section 8.05(d);
(x) purchase
money
Liens on any property acquired or held by Holdings or its Subsidiaries in the
ordinary course of business, securing Indebtedness incurred or assumed for
the
purpose of financing all or any part of the cost of acquiring such property;
provided
that (i) any
such Lien attaches to such property concurrently with or within one hundred
eighty (180) days after the acquisition thereof, (ii) such Lien attaches
solely to the property so acquired in such transaction, (iii) the principal
amount of the Indebtedness secured
thereby
does not
exceed 100% of the cost of such property, and (iv) such Indebtedness is
permitted under Section 8.05(d);
(xi) Liens
securing
obligations in respect of Capital Leases on assets subject to such leases,
provided
that such Capital
Leases are otherwise permitted hereunder;
(xii) Liens
arising
solely by virtue of any statutory or common law provision relating to banker’s
liens, rights of set-off or similar rights and remedies as to deposit accounts
or other funds maintained with a creditor depository institution; provided
that (A) such
deposit account is not a dedicated cash collateral account and is not subject
to
restrictions against access by Holdings in excess of those set forth by
regulations promulgated by the FRB, and (B) such deposit account is not
intended by Holdings or any Subsidiary to provide collateral to the depository
institution;
(xiii) Liens
consisting of
pledges of cash collateral or government securities to secure on a
xxxx-to-market basis Permitted Swap Obligations only, provided
that (A) the
counterparty to any Swap Contract relating to such Permitted Swap Obligation
is
under a similar requirement to deliver similar collateral from time to time
to
Holdings or the Subsidiary party thereto on a xxxx-to-market basis; and
(B) the aggregate value of such collateral so pledged by Holdings and the
Subsidiaries together in favor of any counterparty does not at any time exceed
$3,000,000;
(xiv) Liens
not otherwise
permitted hereunder securing Indebtedness and other obligations in principal
amount not exceeding $5,000,000 in the aggregate at any time outstanding;
provided
that (A) no
such Lien shall attach to any Collateral and (B) such Indebtedness and
other obligations are otherwise permitted hereunder;
(xv) Liens
on the
property of direct and indirect Subsidiaries of Holdings that are not Loan
Parties in favor of Holdings created in connection with extensions of credit
provided by Holdings to Subsidiaries that are not Loan Parties as permitted
pursuant to Section 8.04(d),
which Liens have
been assigned to the Administrative Agent for the benefit of the Lenders
pursuant to Section 8.04(d);
and
(xvi) precautionary
Uniform Commercial Code financing statement filings in respect of Operating
Leases entered into by Holdings or any of its Subsidiaries in the ordinary
course of business.
(b) Holdings
shall not,
and shall not permit any of its Subsidiaries to, enter into or suffer to exist
any agreement (other than this Agreement) prohibiting or conditioning the
creation or assumption of any Lien upon any of its properties, revenues or
assets, whether now owned or hereafter acquired, except (i) with respect to
specific tangible assets subject to a Permitted Lien, (ii) agreements for
the sale of a Subsidiary or assets, provided
that (A) any
such prohibition or condition on the creation or assumption of any Lien applies
only to the Subsidiary or assets that are to be sold while such sale is pending
and (B) such sale is permitted under Section 8.02,
(iii) stockholders agreements, charter or other formation or joint venture
documents relating to Non-Wholly-Owned Subsidiaries, and (iv) pursuant to
customary
anti-assignment
or
no-subletting clauses in leases, licenses or contracts entered into in the
ordinary course of business, which restrict only the assignment of such lease,
license or contract, as applicable.
Notwithstanding
the
foregoing, no other Liens may exist at any time on or with respect to the
Pledged Collateral.
8.02 Disposition
of
Assets.
Holdings shall
not, and shall not suffer or permit any Subsidiary to, directly or indirectly,
sell, assign, lease, convey, transfer or otherwise dispose of (whether in one
or
a series of transactions) any property (including accounts and notes receivable,
with or without recourse), except:
(a) dispositions
of
inventory or equipment, all in the ordinary course of business;
(b) the
sale of
equipment to the extent that such equipment is exchanged for credit against
the
purchase price of similar replacement equipment, or the proceeds of such sale
are reasonably promptly applied to the purchase price of such replacement
equipment;
(c) dispositions
of
inventory and equipment by the Company or any other Loan Party to the Company
or
any other Loan Party pursuant to reasonable business requirements and in the
ordinary course of business;
(d) the
lease or
sublease of real property by Holdings or any Subsidiary to other Persons in
the
ordinary course of business;
(e) the
sale of cash
equivalents and other short term money market investments in the ordinary course
of business pursuant to Holdings’ usual and customary cash management policies
and procedures;
(f) dispositions
of
inventory and equipment (other than dispositions permitted under
subsection (a)) by Holdings or any Loan Party to any Subsidiary that is not
a Loan Party or to any Person in which Holdings has a Minority Investment,
provided
that the aggregate
amount of such dispositions, plus
the aggregate
amount of Investments under Section 8.04(e),
does not exceed
the limitations specified in clauses (i) and (ii) of Section 8.04(e);
(g) dispositions
pursuant to sales and leaseback transactions permitted under Section 8.14;
and
(h) dispositions
not
otherwise permitted hereunder which are made for fair market value (as
determined in good faith by Holdings); provided
that (i) at
the time of any disposition, no Event of Default shall exist or shall result
from such disposition, (ii) in the case of any disposition, or series of
related dispositions, involving aggregate consideration of less than
$10,000,000, not less than 80%, and in the case of any other disposition, not
less than 100%, of the aggregate sales price from such disposition shall be
paid
in cash, (iii) immediately after giving effect to such disposition, the
Disposition Value of all assets disposed of as permitted by
this
Section 8.02(h)
during the period
of 365 days ending on the date of such disposition shall not exceed 15% of
Consolidated Total Assets determined as of the last day of the fiscal year
then
most recently ended, (iv) no disposition by Holdings of any of its equity
interest in the Company or SelectBuild Construction, Inc. shall be permitted
hereunder, and (v) no dispositions of accounts or notes receivable shall be
permitted hereunder unless in connection with the sale of all or substantially
all of a business unit, division or Subsidiary of Holdings and such sale is
otherwise permitted hereunder.
8.03 Consolidations
and Mergers.
Holdings shall
not, and shall not suffer or permit any Subsidiary to, merge, consolidate with
or into, or convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired) to or in favor of any Person,
except:
(a) any
Subsidiary may
merge with Holdings, provided
that Holdings
shall be the continuing or surviving Person, or with any one or more
Subsidiaries, provided
that if any
transaction shall be between a Subsidiary and a Wholly-Owned Subsidiary, the
Wholly-Owned Subsidiary shall be the continuing or surviving Person,
and provided further
that if any
transaction shall be between a Subsidiary and a Loan Party, the Loan Party
shall
be the continuing or surviving Person;
(b) as
permitted by
Section 8.02;
(c) any
Subsidiary may
distribute or sell all or substantially all of its assets (upon voluntary
liquidation, dissolution or otherwise) to Holdings or to a Wholly-Owned
Subsidiary, provided
that if the
Subsidiary distributing or selling its assets is a Loan Party, then the Person
purchasing or otherwise receiving the assets must also be a Loan Party;
and
(d) Holdings
or any
Subsidiary thereof may merge with or consolidate into any other Person that
is
not a Subsidiary, provided
that (i) in
the case of Holdings, Holdings shall be the continuing or surviving Person,
(ii) if a Loan Party is a party to such merger, then the surviving or
continuing entity must be a Loan Party or become a Loan Party in accordance
with
Section 7.13,
(iii) such
merger or consolidation is in connection with a Permitted Acquisition, and
(iv) no such merger or consolidation shall be made while there exists a
Default or if a Default would occur as a result thereof.
8.04 Loans
and
Investments.
Holdings shall
not purchase or acquire, or suffer or permit any Subsidiary to purchase or
acquire, any capital stock, equity interest, or any obligations or other
securities of, or any interest in, any Person, or make any Acquisitions, or
make
any advance, loan, extension of credit or capital contribution to or any other
investment in, any Person including any Affiliate of Holdings (together,
“Investments”)
except
for:
(a) Investments
held by
Holdings or Subsidiary in the form of cash equivalents and short term money
market investments in the ordinary course of business pursuant to Holdings’
usual and customary cash management policies and procedures;
(b) extensions
of
credit in the nature of accounts receivable or notes receivable arising from
the
sale or lease of goods or services in the ordinary course of
business,
together
with
investments received in satisfaction or partial satisfaction thereof from
financially troubled account debtors to the extent reasonably necessary in
order
to prevent or limit loss;
(c) (i)
Investments by
Holdings and its Subsidiaries in the equity interests of their respective
Subsidiaries outstanding on the date hereof, (ii) additional Investments by
Holdings and its Subsidiaries that are Loan Parties in other Loan Parties (other
than Holdings), (iii) additional Investments by Subsidiaries of Holdings
that are not Loan Parties in other Subsidiaries that are not Loan Parties and
(iv) so long as no Default has occurred and is continuing or would result
from such Investment, additional Investments by the Loan Parties in Subsidiaries
that are not Loan Parties, provided
that (A) the
aggregate amount of such Investments, plus
the aggregate
amount of Investments under Section 8.04(e)
and dispositions
under Section 8.02(f),
does not exceed
the limitations specified in clauses (i) and (ii) of Section 8.04(e),
(B) any such
Investments consisting of loans, advances or other extensions of credit shall
comply with Section 8.04(d)
below and (C) no
such Investment shall be made if the Person that is the subject of such
Investment is located outside the United States;
(d) Loans,
advances and
other extensions of credit by Holdings or any Loan Party to any Subsidiary
in
the ordinary course of business; provided
that with respect
to loans, advances and other extensions of credit by Holdings or any Loan Party
to any Subsidiary that is not a Loan Party (i) such loans, advances and
other extensions of credit are evidenced by one or more demand promissory notes
in form and substance satisfactory to the Administrative Agent, the originals
of
which have been delivered to the Administrative Agent as Collateral for the
Obligations, and (ii) such loans, advances or other extensions of credit
are secured by a first priority Lien on all of the tangible and intangible
property of such Subsidiary, which Lien has been assigned to the Administrative
Agent as Collateral for the Obligations;
(e) Investments
constituting Minority Investments, Investments incurred in order to consummate
Permitted Acquisitions and Investments constituting exercised Put Obligations,
provided
that (i) all
such Investments in the aggregate, plus the aggregate amount of dispositions
under Section 8.02(f)
and Investments
under Section 8.04(c)(iv),
shall not exceed
(A) $300,000,000 for the period from the Effective Date through December
31, 2007 and in any calendar year thereafter and (B) $850,000,000 in the
aggregate from and after the Effective Date; (ii) all such Minority
Investments, Investments incurred in order to consummate Other Permitted
Acquisitions and Investments constituting exercised Put Obligations in the
aggregate, plus the aggregate amount of dispositions under Section
8.02(f)
and Investments
under Section
8.04(c)(iv),
shall not exceed
$250,000,000 from and after the Effective Date; provided,
however,
that, in the case
of the preceding clauses (i) and (ii), any such Investments (or any
applicable portion thereof) for which the consideration provided by Holdings
or
the investing Subsidiary shall consist solely of equity securities shall not
be
subject to the foregoing dollar limitations; and provided further,
however,
that, in the case
of the preceding clause (ii), in the event of any Permitted Acquisition of
any
Person in which Holdings shall have a Minority Investment or any further
Investment in any Non-Wholly Subsidiary, in each case, resulting in such Person
or Non-Wholly Owned Subsidiary becoming a U.S. Wholly Owned Subsidiary that
becomes a Loan Party in accordance with Section
7.13,
then all prior
and future permitted Investments in such U.S. Wholly Owned Subsidiary shall
be
excluded in determining compliance with the $250,000,000 limitation under the
preceding clause (ii); (iii) no such
Investment
shall be
made if the Person that is the subject of such Investment is located outside
the
United States; (iv) no such Investment shall be made while there exists a
Default or if a Default would result therefrom; and (v) Holdings shall be
in full pro forma compliance with the financial covenants set forth in
Section 8.19,
measured as of
the last day of the most recent fiscal quarter for which Holdings has delivered
financial statements under Section 5.01(c),
Section 7.01(a)
or Section 7.01(b),
after giving
effect to such Investment;
(f) Investments
constituting Permitted Swap Obligations or payments or advances under Swap
Contracts relating to Permitted Swap Obligations;
(g) Officer,
shareholder, director and employee loans and guarantees in accordance with
applicable law and with Holdings’ and its Subsidiaries’ usual and customary
practices with respect thereto in an aggregate amount not exceeding $10,000,000
at any time outstanding;
(h) Investments
by
Holdings in BMC Insurance, Inc. in an amount not to exceed the amount needed
to
satisfy actuarial requirements as determined by the Insurance Commissioner
of
the State of Hawaii and in any event which do not exceed $10,000,000 in the
aggregate from and after the Effective Date (and in addition to any premiums
paid in accordance with Section 8.06);
(i) Investments
constituting non-cash consideration received by Holdings or any Subsidiary
in
respect of any asset dispositions permitted under Section 8.02;
and
(j) Restricted
Payments, to the extent permitted under Section 8.11.
Notwithstanding
anything to the contrary in this Section
8.04,
Investments by
any Loan Party in BMC Insurance, Inc., from and after the Effective Date shall
be governed exclusively by Section
8.04(h).
8.05 Limitation
on
Indebtedness.
Holdings shall
not, and shall not suffer or permit any Subsidiary to, create, incur, assume,
suffer to exist, or otherwise become or remain directly or indirectly liable
with respect to, any Indebtedness, except:
(a) Indebtedness
incurred pursuant to this Agreement;
(b) Indebtedness
consisting of Contingent Obligations permitted pursuant to Section 8.08;
(c) Indebtedness
existing on the Effective Date and set forth on Schedule 8.05
and any Permitted
Refinancing Indebtedness in respect thereof;
(d) Indebtedness
secured by Liens permitted by clauses (ix), (x), (xi) and (xiv) of
Section 8.01(a)
in an aggregate
amount outstanding not to exceed $25,000,000;
(e) Indebtedness
of
Holdings or other Loan Parties to Holdings or other Loan Parties;
(f) Indebtedness
of
Subsidiaries that are not Loan Parties to Holdings or any other Loan Party
to
the extent permitted pursuant to Section 8.04(d);
(g) Indebtedness
incurred pursuant to sales and leaseback transactions permitted under
Section 8.14;
(h) Indebtedness
of BMC
Insurance, Inc. to Holdings or any Subsidiary of Holdings;
(i) additional
unsecured Indebtedness incurred after the Effective Date in an aggregate amount
outstanding at any time not to exceed $25,000,000, provided
that (i) no
such Indebtedness shall be incurred while there exists a Default or if a Default
would occur as a result thereof, and (ii) without limiting the generality
of the foregoing, as of the end of the most recent quarter for which Holdings
has delivered financial statements under Section 5.01(c),
Section 7.01(a)
or Section 7.01(b)
and immediately
after giving effect to such incurrence, Holdings shall be in full pro forma
compliance with
the financial covenants set forth in Section 8.19;
and
(j) additional
Indebtedness which by its terms is expressly subordinated to the Obligations,
provided
that (i) the
terms of such subordination shall be satisfactory to the Majority Lenders,
(ii) the terms of such Indebtedness and the indenture or other agreement
evidencing such Indebtedness otherwise shall be satisfactory in all material
respects to the Majority Lenders (including terms and conditions relating to
the
interest rate, fees, amortization, maturity, covenants, events of default and
remedies), (iii) no such Indebtedness shall be incurred while there exists
a Default or if a Default would occur as a result thereof, and (iv) without
limiting the generality of the foregoing, as of the end of the most recent
quarter for which Holdings has delivered financial statements under Section 5.01(c),
Section 7.01(a)
or Section 7.01(b)
and immediately
after giving effect to such incurrence, Holdings shall be in full pro forma
compliance
with the
financial covenants set forth in Section 8.19
(any such
Indebtedness issued in compliance with this Section 8.05(j)
hereinafter
“Permitted
Subordinated Debt”).
Notwithstanding
anything to the contrary in this Section 8.05,
the Indebtedness
of all Subsidiaries that are not Guarantors which is otherwise permitted under
this Section 8.05
shall not exceed
$25,000,000 in the aggregate at any time outstanding, exclusive of any
Indebtedness at any time outstanding under Section
8.05(f).
8.06 Transactions
with Affiliates.
Holdings shall
not, and shall not suffer or permit any Subsidiary to, enter into any
transaction with any Affiliate of Holdings, except upon fair and reasonable
terms no less favorable to Holdings or such Subsidiary than it would obtain
in a
comparable arm’s length transaction with a Person not an Affiliate of Holdings
or such Subsidiary.
8.07 Use
of
Proceeds.
Holdings shall
not, and shall not suffer or permit any Subsidiary to, use any portion of the
Loan proceeds or any Letter of Credit, directly or indirectly, (i) to
purchase or carry Margin Stock, (ii) to repay or otherwise refinance
indebtedness of Holdings or others incurred to purchase or carry Margin Stock,
or (iii) to extend credit for the
purpose
of
purchasing or carrying any Margin Stock, except, in each case, for the purchase,
redemption or other acquisition of shares of common stock of Holdings permitted
under Section 8.11
in a manner that
would not result in the contravention of Regulation T, U or X of the
FRB.
8.08 Contingent
Obligations.
Holdings shall
not, and shall not suffer or permit any Subsidiary to, create, incur, assume
or
suffer to exist any Contingent Obligations, except:
(a) endorsements
for
collection or deposit in the ordinary course of business;
(b) Permitted
Swap
Obligations;
(c) Contingent
Obligations of Holdings in respect of Indebtedness of any other Loan Party,
or
Contingent Obligations of any Loan Party in respect of Indebtedness of another
Loan Party or of Holdings, in each case to the extent such Indebtedness is
permitted hereunder;
(d) Contingent
Obligations of any Subsidiary that is not a Loan Party in respect of
Indebtedness of any other Subsidiary that is not a Loan Party, to the extent
such Indebtedness is permitted hereunder;
(e) Contingent
Obligations of Holdings and its Subsidiaries existing as of the Effective Date
and listed in Schedule
8.08;
(f) Contingent
Obligations with respect to Surety Instruments incurred in the ordinary course
of business and not exceeding at any time $5,000,000 in the aggregate in respect
of Holdings and its Subsidiaries together;
(g) Contingent
Obligations of Holdings with respect to Stock Price Guaranties incurred in
the
ordinary course of business and not exceeding at any time $5,000,000 in the
aggregate;
(h) Contingent
Obligations of Holdings and its Subsidiaries in respect of any Put Obligations
to the extent otherwise permitted under this Agreement;
(i) Contingent
Obligations consisting of normal and customary indemnities issued in the
ordinary course of business (including, without limitation, under professional
services agreements, construction and materials supply agreements, intellectual
property agreements or employment and consulting agreements) or consisting
of
normal and customary indemnities pursuant to the issuance and sale of
securities;
(j) Contingent
Obligations in respect of Operating Leases, to the extent such Operating Leases
are permitted to be entered into hereby; and
(k) Contingent
Obligations consisting of customary indemnification and purchase price
adjustment obligations incurred in connection with asset dispositions permitted
under Section 8.02.
8.09 Subsidiaries.
Holdings shall
not, and shall not suffer or permit any Subsidiary to, incorporate, create
or
acquire any Subsidiary which is not a U.S. Subsidiary.
8.10 Lease
Obligations.
Holdings shall
not, and shall not suffer or permit any Subsidiary to, create or suffer to
exist
any obligations for the payment of rent for any property under any Operating
Lease, which exceed an aggregate amount of $50,000,000 for all Operating Leases
in any fiscal year.
8.11 Restricted
Payments.
Holdings shall
not, and shall not suffer or permit any Subsidiary to, declare or make any
dividend payment or other distribution of assets, properties, cash, rights,
obligations or securities on account of any shares of any class of its capital
stock or other equity interests (other than dividends or other distributions
by
a Subsidiary to Holdings or to a Subsidiary that is a Loan Party), or purchase,
redeem or otherwise acquire for value any shares of its capital stock or other
equity interests or any warrants, rights or options to acquire such shares
or
other equity interests, now or hereafter outstanding (collectively,
“Restricted
Payments”);
except that
Holdings may:
(a) declare
and make
dividend payments or other distributions payable solely in its common
stock;
(b) declare
and make
dividend payments or other distributions payable in cash, and purchase, redeem
or otherwise acquire for cash shares of its capital stock or other equity
interest or any warrants, rights or option to acquire such shares or other
equity interests, provided
that (i) no
Default has occurred and is continuing on the date of, or will result after
giving effect to, any such Restricted Payment and (ii) Holdings shall be in
full pro forma compliance with the financial covenants set forth in Section 8.19,
measured as of
the last day of the most recent fiscal quarter for which Holdings has delivered
financial statements under Section 5.01(c),
Section 7.01(a)
or Section 7.01(b),
after giving
effect to such Restricted Payment;
(c) declare
and make
dividends required to be declared or paid pursuant to the terms of any
securities issued in a Permitted Equity Offering so long as the dividend
provisions of such securities were approved by the Majority Lenders in writing
prior to the issuance of such securities;
(d) purchase,
redeem or
otherwise acquire shares of its common stock or warrants or options to acquire
any such shares with the proceeds received from the substantially concurrent
issue of new shares of its common stock;
(e) allow
any
Non-Wholly-Owned Subsidiary to make distributions to its owners (on a
pro rata
basis);
and
(f) purchase
shares of
Holdings’ common stock either (1) for deposit into the 401(k) trust fund on
behalf of Holdings’ employees by using funds obtained through employee payroll
deductions of such employees, or (2) to the extent necessary to provide
discounts to employees in connection with Holdings’ Employee Stock Purchase
Plan.
8.12 ERISA.
Holdings shall
not, and shall not suffer or permit any of its ERISA Affiliates to:
(a) engage in a prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan which has resulted or could
reasonably expected to result in liability of Holdings in an aggregate amount
in
excess of $5,000,000; or (b) engage in a transaction that could be subject
to section 4069 or 4212(c) of ERISA and that would reasonably be expected
to have a Material Adverse Effect.
8.13 [Intentionally
Omitted]
8.14 Sales
and
Leasebacks.
Holdings shall
not, and shall not permit any of its Subsidiaries to, become liable, directly
or
indirectly, with respect to any lease (a “Subject
Lease”),
whether an
Operating Lease or a Capital Lease, of any property (whether real, personal
or
mixed), whether now owned or hereafter acquired, (i) which Holdings or such
Subsidiary has sold or transferred or is to sell or transfer to any other Person
or (ii) which Holdings or such Subsidiary intends to use for substantially
the same purposes as any other property which has been or is to be sold or
transferred by Holdings or such Subsidiary to any other Person in connection
with such lease; provided
that Holdings and
any of its Subsidiaries may enter into any such lease if either (A) (1) no
Default shall then exist or would occur as a result thereof and (2) such lease
is an Operating Lease with a term of not more than three (3) years entered
into
in connection with the sale of a facility pending the repurchase and
construction of a replacement facility in a new location, or (B) (1) no Default
shall then exist or would occur as a result thereof, (2) as of the end of
the most recent quarter for which Holdings has delivered financial statements
under Section 5.01(c),
Section 7.01(a)
or Section 7.01(b)
and immediately
after giving effect to any such lease, Holdings shall be in full pro forma
compliance with
the financial covenants set forth in Section 8.19,
and (3) the
Disposition Value of the property sold or transferred, or to be sold or
transferred, in connection with the lease, when added to the aggregate
Disposition Value of all other property sold or transferred, or to be sold
or
transferred, in connection with all other leases entered into pursuant to this
Section 8.14
from and after the
Effective Date, does not exceed $50,000,000.
8.15 Certain
Payments.
Holdings shall
not, and shall not permit any of its Subsidiaries to, (i) prepay, redeem,
repurchase or otherwise acquire for value any of the Permitted Subordinated
Debt; or (ii) make any principal, interest or other payments on any
Permitted Subordinated Debt if not permitted by the respective subordination
provisions of the Subordinated Debt Documents.
8.16 Modification
of
Subordinated Debt Documents.
Holdings shall
not, and shall not permit any of its Subsidiaries to, agree to or permit any
amendment, modification or waiver of any provision of any Subordinated Debt
Document (including any amendment, modification or waiver pursuant to an
exchange of other securities or instruments for outstanding Permitted
Subordinated Debt) if the effect of such amendment, modification or waiver
is to
(i) increase the interest rate on such Permitted Subordinated Debt or
change (to earlier dates) the dates upon which principal and interest are due
thereon; (ii) alter the redemption, prepayment or subordination provisions
thereof; (iii) alter the covenants and events of default in a manner which
would make such provisions more onerous or restrictive to Holdings or such
Subsidiary; or (iv) otherwise increase the obligations of Holdings or such
Subsidiary in respect of such
Permitted
Subordinated Debt or confer additional rights upon the holders thereof which
individually or in the aggregate would be adverse to Holdings, its Subsidiaries
or the Lenders.
8.17 Change
in
Business.
Holdings shall
not, and shall not suffer or permit any Subsidiary to, engage in any material
line of business substantially different from those lines of business carried
on
by Holdings and its Subsidiaries on the date hereof and lines of business
ancillary thereto.
8.18 Accounting
Changes.
Holdings shall
not, and shall not suffer or permit any Subsidiary to, make any significant
change in accounting treatment or reporting practices, except as permitted
by
GAAP, or change the fiscal year of Holdings or of any Subsidiary, except to
change the fiscal year of a Subsidiary to conform its fiscal year to that of
Holdings.
8.19 Financial
Covenants.
xxiv)
Holdings shall not
permit its Consolidated Net Worth as of the last day of any fiscal quarter
to be
less than (a) $483,590,500, plus
(b) 50% of
Consolidated Net Income for each fiscal quarter (without giving effect to any
net loss for any such period) ending after the Effective Date, plus
(c) 50% of
all Net Issuance Proceeds for all issuances of equity by Holdings and its
Subsidiaries completed in any fiscal quarter ending after the Effective
Date.
(b) Holdings
shall not
permit as at the end of any fiscal quarter, measured on a consolidated basis
for
Holdings and its Subsidiaries for the period of four fiscal quarters ended
on
such date, the ratio of (i) EBITA to (ii) the sum of (A) cash
Interest Expense, plus
(B) cash
taxes, plus
(C) scheduled
principal payments in respect of Indebtedness, plus
(D) cash
dividend payments made by Holdings (the “EBITA
Ratio”)
to be less than
the following amounts for the respective periods set forth below:
Period
|
EBITA
Ratio
|
|
Effective
Date through and including December 31, 2008
|
1.25:1.00
|
|
January
1,
2009 through and including December 31, 2010
|
1.35:1.00
|
|
January
1,
2011 and thereafter
|
1.45:1.00
|
(c) Holdings
shall not
permit the Total EBITDA Ratio at any time to be greater than the following
amounts for the respective periods set forth below:
Period
|
Total
EBITDA
Ratio
|
|
Effective
Date through and including December 31, 2008
|
3.50:1.00
|
|
January
1,
2009 through and including December 31, 2010
|
3.25:1.00
|
|
January
1,
2011 and thereafter
|
3.00:1.00
|
8.20 No
Restrictions
on Subsidiary Dividends.
Holdings shall
not, and shall not suffer or permit any Subsidiary to, enter into or be bound
by
any Contractual Obligation which restricts, limits or prohibits the payment
of
dividends by any Subsidiary or the making of any other distribution in respect
of such Subsidiary’s capital stock or other equity interests, except for the
following:
(a) agreements
of
Subsidiaries that are not Loan Parties in respect of Indebtedness that is
permitted to be incurred by Subsidiaries that are not Loan Parties pursuant
to
Section 8.05
hereof;
(b) agreements
for the
sale of a Subsidiary or assets, provided
that (i) any
such restriction, limitation or prohibition on the payment of dividends or
other
distributions applies only to the Subsidiary to be sold or to the Subsidiary
that owns the assets to be sold, in each case, while such sale is pending and
(ii) such sale is permitted under Section 8.02;
(c) shareholder
agreements, charter or other formation or joint venture documents in respect
of
Subsidiaries that are not Loan Parties; and
(d) agreements
in
respect of (i) Indebtedness permitted under Section 8.05
of any Subsidiary
acquired after the Effective Date that was incurred by such Subsidiary prior
to
the date on which such Subsidiary was acquired (other than Indebtedness incurred
as consideration for, in contemplation of, or to provide all or any portion
of
the funds or credit support utilized to consummate the transaction or series
of
related transactions pursuant to which such Subsidiary becomes a Subsidiary
or
was otherwise acquired) and (ii) Indebtedness permitted by Section 8.05(j).
EVENTS
OF DEFAULT
9.01 Event
of
Default.
Any of the
following shall constitute an “Event
of
Default”:
(a) Non
Payment.
Holdings fails to
make, (i) when and as required to be made herein, payments of any amount of
principal of any Loan or of any L/C Obligation,
(ii) within
three (3) Business Days after the same becomes due, any payment or transfer
under any Specified Swap Contract, or (iii) within three (3) Business Days
after the same becomes due, payment of any interest, fee or any other amount
payable hereunder or under any other Loan Document (other than a Specified
Swap
Contract); or
(b) Representation
or Warranty.
Any
representation or warranty by any Loan Party made or deemed made herein, in
any
other Loan Document (other than a Specified Swap Contract), or which is
contained in any certificate, document or financial or other statement by any
Loan Party, or any Responsible Officer, furnished at any time under this
Agreement, or in or under any other Loan Document (other than a Specified Swap
Contract), is incorrect in any material respect on or as of the date made or
deemed made; or
(c) Specific
Defaults.
Holdings, or the
Company or any other Loan Party fails to perform or observe any term, covenant
or agreement contained in any of Section 7.03(a),
Section 7.04(a)(i),
or Section 7.12
or in Article VIII;
or
(d) Other
Defaults.
Any Loan Party
fails to perform or observe any other term or covenant contained in this
Agreement or any other Loan Document (other than a Specified Swap Contract),
and
such default shall continue unremedied for a period of twenty (20) days after
the earlier of (i) the date upon which a Responsible Officer of Holdings or
the Company obtained actual knowledge of such failure and (ii) the date
upon which written notice thereof is given to Holdings by the Administrative
Agent or any Lender; or
(e) Cross
Default.
(i) Holdings
or any Subsidiary (A) fails to make any payment in respect of any
Indebtedness or Contingent Obligation (other than in respect of Swap Contracts),
having an aggregate principal amount (including undrawn committed or available
amounts and including amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than $5,000,000 when due (whether by
scheduled maturity, required prepayment, acceleration, demand, or otherwise)
and
such failure continues after the applicable grace or notice period, if any,
specified in the relevant document on the date of such failure; or
(B) fails to perform or observe any other condition or covenant, or any
other event shall occur or condition exist, under any agreement or instrument
relating to any such Indebtedness or Contingent Obligation, and such failure
continues after the applicable grace or notice period, if any, specified in
the
relevant document on the date of such failure if the effect of such failure,
event or condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a trustee
or administrative agent on behalf of such holder or holders or beneficiary
or
beneficiaries) to cause such Indebtedness to be declared to be due and payable
or to be repurchased, prepaid, defeased or redeemed prior to its stated
maturity, or such Contingent Obligation to become payable or cash collateral
in
respect thereof to be demanded; or (ii) there occurs under any Swap
Contract an Early Termination Date (as defined in such Swap Contract) resulting
from (1) any event of default under such Swap Contract as to which Holdings
or any Subsidiary is the Defaulting Party (as defined in such Swap Contract)
or
(2) any Termination Event (as so defined) as to which Holdings or any
Subsidiary is an Affected Party (as so defined), and, in either event, the
Swap
Termination Value owed by Holdings or such Subsidiary as a result thereof is
greater than $5,000,000; or
(f) Insolvency;
Voluntary Proceedings.
Holdings or any
Subsidiary (i) ceases or fails to be solvent, or generally fails to pay, or
admits in writing its inability to pay, its debts as they become due, subject
to
applicable grace periods, if any, whether at stated maturity or otherwise;
(ii) voluntarily ceases to conduct its business in the ordinary course;
(iii) commences any Insolvency Proceeding with respect to itself; or
(iv) takes any action to effectuate or authorize any of the foregoing;
or
(g) Involuntary
Proceedings.
(i) Any
involuntary Insolvency Proceeding is commenced or filed against Holdings or
any
Subsidiary, or any writ, judgment, warrant of attachment, execution or similar
process, is issued or levied against a substantial part of Holdings’ or any
Subsidiary’s properties, and any such proceeding or petition shall not be
dismissed, or such writ, judgment, warrant of attachment, execution or similar
process shall not be released, vacated or fully bonded within sixty (60) days
after commencement, filing or levy; (ii) Holdings or any Subsidiary admits
the material allegations of a petition against it in any Insolvency Proceeding,
or an order for relief (or similar order under non-U.S. law) is ordered in
any
Insolvency Proceeding; or (iii) Holdings or any Subsidiary acquiesces in
the appointment of a receiver, trustee, custodian, conservator, liquidator,
mortgagee in possession (or administrative agent therefor), or other similar
Person for itself or a substantial portion of its property or business;
or
(h) ERISA.
(i) An ERISA
Event shall occur with respect to a Pension Plan or Multiemployer Plan which
has
resulted or could reasonably be expected to result in liability of Holdings
under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC
in
an aggregate amount in excess of $5,000,000; (ii) the aggregate amount of
Unfunded Pension Liability among all Pension Plans at any time exceeds
$5,000,000; or (iii) Holdings or any ERISA Affiliate shall fail to pay when
due, after the expiration of any applicable grace period, any installment
payment with respect to its withdrawal liability under section 4201 of
ERISA under a Multiemployer Plan in an aggregate amount in excess of $5,000,000;
or
(i) Monetary
Judgments.
One or more
non-interlocutory judgments, non interlocutory orders, decrees or arbitration
awards is entered against Holdings or any Subsidiary involving in the aggregate
a liability (to the extent not covered by independent third party insurance
as
to which the insurer does not dispute coverage) as to any single or related
or
unrelated series of transactions, incidents or conditions, of $5,000,000 or
more, and the same shall remain unsatisfied, unvacated and unstayed pending
appeal for a period of thirty (30) days after the entry thereof; or
(j) Non
Monetary
Judgments.
Any non monetary
judgment, order or decree is entered against Holdings or any Subsidiary which
does or would reasonably be expected to have a Material Adverse Effect, and
there shall be any period of thirty (30) consecutive days during which a stay
of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(k) Change
of
Control.
There occurs any
Change of Control; or
(l) Guarantor
Defaults.
Any Guarantor
fails in any material respect to perform or observe any term, covenant or
agreement in its Guaranty; or any Guaranty is for any
reason
partially
(including with respect to future advances) or wholly revoked or invalidated,
or
otherwise ceases to be in full force and effect, or such Guarantor or any other
Person contests in any manner the validity or enforceability thereof or denies
that it has any further liability or obligation thereunder; or any event
described at subsections (f) or (g) of this Section 9.01
occurs with
respect to any Guarantor; or
(m) Invalidity
of
Subordination Provisions.
The subordination
provisions applicable to the Permitted Subordinated Debt shall be for any reason
revoked or invalidated, or otherwise cease to be in full force and effect,
or
the holders thereof or any other Person shall contest in any manner the validity
or enforceability thereof or denies that it has any further liability or
obligation thereunder, or the Indebtedness hereunder is for any reason
subordinated or does not have the priority contemplated by this Agreement or
such subordination provisions.
(n) Collateral.
(i) Any
provision of any Collateral Document shall for any reason cease to be valid
and
binding on or enforceable against Holdings or any Subsidiary party thereto
or
Holdings or any Subsidiary shall so state in writing or bring an action to
limit
its obligations or liabilities thereunder; or (ii) any Collateral Document
shall for any reason (other than pursuant to the terms thereof) cease to create
a valid security interest in the Collateral purported to be covered thereby
or
such security interest shall for any reason cease to be a perfected and first
priority security interest subject only to Permitted Liens.
9.02 Remedies.
At any time after
the occurrence and during the continuance of any Event of Default (other than
an
Event of Default referred to in Section 9.01(f)
or Section 9.01(g)):
(a) the
Administrative
Agent may or shall, upon instructions from the Majority Revolving Lenders,
by
written notice to Holdings (i) terminate the Revolving Commitments, any
obligation of the L/C Issuer to make L/C Credit Extensions and the obligations
of the Revolving Lenders to make Loans, (ii) require that Holdings Cash
Collateralize the L/C Obligations in an amount equal to the then Effective
Amount of the L/C Obligations; and/or (iii) declare all or a portion of the
outstanding Obligations owed to the Revolving Lenders and payable by Holdings
to
be immediately due and payable without presentment, demand, protest or any
other
notice of any kind, all of which are hereby expressly waived, anything contained
herein or in the Notes to the contrary notwithstanding; and
(b) the
Administrative
Agent may or shall, upon instructions from the Majority Term B Lenders, by
written notice to Holdings declare all or a portion of the outstanding
Obligations owed to the Term B Lenders and payable by Holdings to be
immediately due and payable without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived, anything contained
herein or in the Notes to the contrary notwithstanding.
Upon
the occurrence
or existence of any Event of Default described in Section 9.01(f)
or 9.01(g),
immediately and
without notice, (1) the Revolving Commitments, any obligation of the L/C
Issuer to make L/C Credit Extensions and the obligations of the Lenders to
make
Loans shall automatically terminate, (2) the obligation of Holdings to Cash
Collateralize the L/C Obligations
in
an amount equal to the then Effective Amount of the L/C Obligations shall
automatically become effective and (3) all outstanding Obligations payable
by Holdings hereunder shall automatically become immediately due and payable,
without presentment, demand, protest or any other notice of any kind, all of
which are hereby expressly waived, anything contained herein or in the Notes
to
the contrary notwithstanding. In addition to the foregoing remedies, upon the
occurrence or existence of any Event of Default, the Administrative Agent may
exercise any other right, power or remedy available to it under any of the
Loan
Documents or otherwise by law, either by suit in equity or by action at law,
or
both.
9.03 Application
of
Funds.
After the
exercise of remedies provided for in Section 9.02
(or after the
Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set
forth in the last paragraph of Section 9.02),
any amounts
received on account of the Obligations shall be applied by the Administrative
Agent in the following order:
First,
to payment of
that portion of the Obligations constituting fees, indemnities, expenses and
other amounts (including fees, charges and disbursements of counsel to the
Administrative Agent and amounts payable under Article IV)
payable to the
Administrative Agent in its capacity as such;
Second,
to payment of
that portion of the Obligations constituting fees, indemnities and other amounts
(other than principal, interest and fees payable under Section
2.11(b)
and Section 3.08(a))
payable to the
Lenders and the L/C Issuer (including fees, charges and disbursements of counsel
to the respective Lenders and the L/C Issuer and amounts payable under
Article IV),
ratably among
them in proportion to the respective amounts described in this clause
Second
payable to
them;
Third,
to payment of
that portion of the Obligations constituting accrued and unpaid fees payable
under Section
2.11(b)
and Section 3.08(a)
and interest on
the Loans, L/C Borrowings and other Obligations, ratably among the Lenders
and
the L/C Issuer in proportion to the respective amounts described in this clause
Third
payable to
them;
Fourth,
(i) to payment of
that portion of the Obligations constituting unpaid principal of the Loans
and
L/C Borrowings, (ii) to Cash Collateralize that portion of the L/C Obligations
comprised of the aggregate undrawn amount of Letters of Credit and (iii) to
payment of that portion of the Obligations constituting amounts owing to any
Swap Providers in respect of Specified Swap Contracts, ratably among the
Lenders, the L/C Issuer and the Swap Providers in proportion to the respective
amounts described in this clause Fourth held by them;
Fifth,
to payment of all
other Obligations, ratably among the Persons owed such Obligations in proportion
to the respective amounts described in this clause Fifth held by them;
and
Last,
the balance, if
any, after all of the Obligations have been indefeasibly paid in full, to
Holdings or as otherwise required by applicable law.
Subject
to
Section 3.03,
amounts used to
Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant
to
clause Fourth
above shall be
applied to satisfy drawings under such
Letters
of Credit
as they occur. If any amount remains on deposit as Cash Collateral after all
Letters of Credit have either been fully drawn or expired, such remaining amount
shall be applied to the other Obligations, if any, in the order set forth
above.
9.04 Specified
Swap
Contract Remedies.
Notwithstanding
any other provision of this Article IX,
but subject to
Section
9.03,
each Swap
Provider shall have the right, with prior notice to the Administrative Agent,
but without the approval or consent of the Administrative Agent or the other
Lenders, with respect to any Specified Swap Contract of such Swap Provider,
(a) to declare an event of default, termination event or other similar
event thereunder and to create an Early Termination Date (as defined in such
Specified Swap Contract), (b) to determine net termination amounts in
accordance with the terms of such Specified Swap Contracts and to set-off
amounts between such Specified Swap Contracts, and (c) to prosecute any
legal action against Holdings to enforce net amounts owing to such Swap
Provider.
THE
ADMINISTRATIVE AGENT
10.01 Appointment
and
Authority.
Each of the
Lenders and the L/C Issuer hereby irrevocably appoints Xxxxx Fargo to act on
its
behalf as the Administrative Agent hereunder and under the other Loan Documents
and authorizes the Administrative Agent to take such actions on its behalf
and
to exercise such powers as are delegated to the Administrative Agent by the
terms hereof or thereof, together with such actions and powers as are reasonably
incidental thereto. The provisions of this Article are solely for the
benefit of the Administrative Agent, the Lenders and the L/C Issuer, and neither
Holdings nor any other Loan Party shall have rights as a third party beneficiary
of any of such provisions.
10.02 Rights
as a
Lender.
The Person
serving as the Administrative Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the
same
as though it were not the Administrative Agent and the term “Lender” or
“Lenders” shall, unless otherwise expressly indicated or unless the context
otherwise requires, include the Person serving as the Administrative Agent
hereunder in its individual capacity. Such Person and its Affiliates may accept
deposits from, lend money to, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business with Holdings
or any Subsidiary or other Affiliate thereof as if such Person were not the
Administrative Agent hereunder and without any duty to account therefor to
the
Lenders.
10.03 Exculpatory
Provisions.
The
Administrative Agent shall not have any duties or obligations except those
expressly set forth herein and in the other Loan Documents. Without limiting
the
generality of the foregoing, the Administrative Agent:
(a) shall
not be
subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;
(b) shall
not have any
duty to take any discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly contemplated hereby or by
the
other Loan Documents that the Administrative Agent is required to exercise
as
directed
in
writing by the Majority Lenders (or such other number or percentage of the
Lenders as shall be expressly provided for herein or in the other Loan
Documents), provided
that the
Administrative Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Administrative Agent
to
liability or that is contrary to any Loan Document or applicable law;
and
(c) shall
not, except
as expressly set forth herein and in the other Loan Documents, have any duty
to
disclose, and shall not be liable for the failure to disclose, any information
relating to Holdings or any of its Affiliates that is communicated to or
obtained by the Person serving as the Administrative Agent or any of its
Affiliates in any capacity.
The
Administrative
Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Majority Lenders (or such other number
or
percentage of the Lenders as shall be necessary, or as the Administrative Agent
shall believe in good faith shall be necessary, under the circumstances as
provided in Sections 11.01
and 9.02)
or (ii) in
the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until notice describing such Default is given to the Administrative Agent
by
Holdings, a Lender or the L/C Issuer.
The
Administrative
Agent shall not be responsible for or have any duty to ascertain or inquire
into
(i) any statement, warranty or representation made in or in connection with
this Agreement or any other Loan Document, (ii) the contents of any
certificate, report or other document delivered hereunder or thereunder or
in
connection herewith or therewith, (iii) the performance or observance of
any of the covenants, agreements or other terms or conditions set forth herein
or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article V
or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
10.04 Reliance
by
Administrative Agent.
The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed
by
it to be genuine and to have been signed, sent or otherwise authenticated by
the
proper Person. The Administrative Agent also may rely upon any statement made
to
it orally or by telephone and believed by it to have been made by the proper
Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance
of a Letter of Credit, that by its terms must be fulfilled to the satisfaction
of a Lender or the L/C Issuer, the Administrative Agent may presume that such
condition is satisfactory to such Lender or the L/C Issuer unless the
Administrative Agent shall have received notice to the contrary from such Lender
or the L/C Issuer prior to the making of such Loan or the issuance of such
Letter of Credit. The Administrative Agent may consult with legal counsel (who
may be counsel for Holdings), independent accountants and other experts selected
by it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or
experts.
10.05 Delegation
of
Duties.
The
Administrative Agent may perform any and all of its duties and exercise its
rights and powers hereunder or under any other Loan Document by or through
any
one or more sub agents appointed by the Administrative Agent. The Administrative
Agent and any such sub agent may perform any and all of its duties and exercise
its rights and powers by or through their respective Related Parties. The
exculpatory provisions of this Article shall apply to any such sub agent
and to the Related Parties of the Administrative Agent and any such sub agent,
and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.
10.06 Resignation
of
Administrative Agent.
The
Administrative Agent may at any time give notice of its resignation to the
Lenders, the L/C Issuer and Holdings. Upon receipt of any such notice of
resignation, the Majority Lenders shall have the right, in consultation with
Holdings (except during the continuance of an Event of Default, in which case
no
consultation with Holdings shall be required), to appoint a successor, which
shall be a bank with an office in the United States, or an Affiliate of any
such
bank with an office in the United States. If no such successor shall have been
so appointed by the Majority Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may on behalf of the Lenders
and the L/C Issuer, appoint a successor Administrative Agent meeting the
qualifications set forth above; provided
that if the
Administrative Agent shall notify Holdings and the Lenders that no qualifying
Person has accepted such appointment, then such resignation shall nonetheless
become effective in accordance with such notice and (1) the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents (except that in the case of any
collateral security held by the Administrative Agent on behalf of the Lenders
or
the L/C Issuer under any of the Loan Documents, the retiring Administrative
Agent shall continue to hold such collateral security until such time as a
successor Administrative Agent is appointed) and (2) all payments,
communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and the L/C
Issuer directly, until such time as the Majority Lenders appoint a successor
Administrative Agent as provided for above in this Section. Upon the acceptance
of a successor’s appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring (or retired) Administrative Agent, and the retiring
Administrative Agent shall be discharged from all of its duties and obligations
hereunder or under the other Loan Documents (if not already discharged therefrom
as provided above in this Section). The fees payable by Holdings to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between Holdings and such successor. After the retiring
Administrative Agent’s resignation hereunder and under the other Loan Documents,
the provisions of this Article and Section 11.04
shall continue in
effect for the benefit of such retiring Administrative Agent, its sub agents
and
their respective Related Parties in respect of any actions taken or omitted
to
be taken by any of them while the retiring Administrative Agent was acting
as
Administrative Agent.
Any
resignation by
Xxxxx Fargo as Administrative Agent pursuant to this Section shall also
constitute its resignation as L/C Issuer and Swingline Lender. Upon the
acceptance of a successor’s appointment as Administrative Agent hereunder,
(a) such successor shall succeed to
and
become vested
with all of the rights, powers, privileges and duties of the retiring L/C Issuer
and Swingline Lender, (b) the retiring L/C Issuer and Swingline Lender
shall be discharged from all of their respective duties and obligations
hereunder or under the other Loan Documents, and (c) the successor L/C
Issuer shall issue letters of credit in substitution for the Letters of Credit,
if any, outstanding at the time of such succession or make other arrangements
satisfactory to the retiring L/C Issuer to effectively assume the obligations
of
the retiring L/C Issuer with respect to such Letters of Credit.
10.07 Non-Reliance
on
Administrative Agent and Other Lenders.
Each Lender and
the L/C Issuer acknowledges that it has, independently and without reliance
upon
the Administrative Agent or any other Lender or any of their Related Parties
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
and
the L/C Issuer also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender or any of their
Related Parties and based on such documents and information as it shall from
time to time deem appropriate, continue to make its own decisions in taking
or
not taking action under or based upon this Agreement, any other Loan Document
or
any related agreement or any document furnished hereunder or
thereunder.
10.08 No
Other Duties,
Etc.
Anything herein
to the contrary notwithstanding, none of the “Joint Lead Arrangers”, “Joint Book
Managers”, “Documentation Agents” or “Co-Syndication Agents” listed on the cover
page hereof shall have any powers, duties or responsibilities under this
Agreement or any of the other Loan Documents, except in its capacity, as
applicable, as the Administrative Agent, a Lender or the L/C Issuer
hereunder.
10.09 Collateral
Matters.
(a) The
Administrative
Agent is authorized on behalf of all the Lenders, without the necessity of
any
notice to or further consent from the Lenders, from time to time to take any
action with respect to any Collateral or the Collateral Documents which may
be
necessary to perfect and maintain perfected the security interest in and Liens
upon the Collateral granted pursuant to the Collateral Documents.
(b) The
Lenders
irrevocably authorize the Administrative Agent, at its option and in its
discretion, to release any Lien granted to or held by the Administrative Agent
upon any Collateral (i) upon termination of the Commitments and payment in
full of all Loans and all other Obligations known to the Administrative Agent
and payable under this Agreement or any other Loan Document;
(ii) constituting property sold or to be sold or disposed of as part of or
in connection with any disposition permitted hereunder; (iii) constituting
property in which Holdings or any Subsidiary owned no interest at the time
the
Lien was granted or at any time thereafter; (iv) constituting property
leased to Holdings or any Subsidiary in a transaction permitted under this
Agreement; (v) consisting of an instrument evidencing Indebtedness or other
debt instrument, if the indebtedness evidenced thereby has been paid in full;
(vi) if approved, authorized or ratified in writing by the Majority Lenders
or all the Lenders, as the case may be, as provided in Section 11.01.
Upon request by
the Administrative Agent at any time, the Lenders will confirm in writing the
Administrative Agent’s authority to release particular types or items of
Collateral pursuant to this Section 10.09(b),
provided
that the absence
of any
such
confirmation
for whatever reason shall not affect the Administrative Agent’s rights under
this Section 10.09.
(c) Each
Lender agrees
with and in favor of each other (which agreement shall not be for the benefit
of
Holdings or any Subsidiary) that the Obligations to such Lender under this
Agreement and the other Loan Documents shall not be secured by any real property
collateral now or hereafter acquired by such Lender.
10.10 Administrative
Agent May File Proofs of Claim.
In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective
of
whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective
of
whether the Administrative Agent shall have made any demand on Holdings) shall
be entitled and empowered, by intervention in such proceeding or
otherwise
(a) to
file and prove a
claim for the whole amount of the principal and interest owing and unpaid in
respect of the Loans, L/C Obligations and all other Obligations that are owing
and unpaid and to file such other documents as may be necessary or advisable
in
order to have the claims of the Lenders, the L/C Issuer and the Administrative
Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders, the L/C Issuer and the Administrative
Agent and their respective agents and counsel and all other amounts due the
Lenders, the L/C Issuer and the Administrative Agent under Sections 2.11,
3.08
and 11.04)
allowed in such
judicial proceeding; and
(b) to
collect and
receive any monies or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Lender and the L/C Issuer to make such
payments to the Administrative Agent and, in the event that the Administrative
Agent shall consent to the making of such payments directly to the Lenders
and
the L/C Issuer, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due
the
Administrative Agent under Sections 2.11
and 11.04.
Nothing
contained
herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender or the L/C Issuer any
plan
of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Administrative
Agent
to vote in respect of the claim of any Lender in any such
proceeding.
MISCELLANEOUS
(a) Except
as otherwise
provided herein or in any other Loan Document, (i) no amendment to any provision
of this Agreement or any of the other Loan Documents shall in any event be
effective unless the same shall be in writing and signed by Holdings (or other
Loan Party thereto, as applicable), the Administrative Agent and the Majority
Lenders (or the Administrative Agent with the written consent of the Majority
Lenders); and (ii) no waiver of any provision of this Agreement or any other
Loan Document, or consent to any departure by Holdings or other party therefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Administrative Agent and the Majority Lenders (or the Administrative
Agent with the consent of the Majority Lenders). Any such amendment, waiver
or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided,
however,
that no
amendment, waiver or consent shall do any of the following:
(A) increase
the
amount, or extend the stated expiration or termination date, of the Term B
Commitment of any Term B Lender without the consent of such Term B
Lender;
(B) reduce
or forgive
the principal of, or interest or rate of interest on, the Term B Loans of any
Term B Lender or any fee or other amount payable to any Term B Lender hereunder
without the consent of such Term B Lender; provided,
however,
that only the
consent of the Majority Lenders shall be necessary to change the manner of
computation of any financial covenant or related definition used in determining
the Applicable Margin that would result in a reduction of any interest rate
on
any Term B Loan, or to amend the default rate of interest as determined under
Section
2.10(c)
or to waive any
obligation of Holdings to pay interest at the default rate of
interest;
(C) postpone
any date
fixed for any payment in respect of principal of, or interest on, the Term
B
Loans of any Term B Lender or any fee or other amount payable to the any Term
B
Lender hereunder without the consent of such Term B Lender;
and
provided
further, however,
that no
amendment, waiver or consent shall do any of the following:
(D) increase
the
amount, or extend the stated expiration or termination date, of the Revolving
Commitment of any Revolving Lender without the consent of such Revolving
Lender;
(E) reduce
or forgive
the principal of, or interest or rate of interest on, the Revolving Loans of
any
Revolving Lender or any fee or other amount payable to any Revolving Lender
hereunder without the consent of such Revolving Lender; provided,
however,
that only the
consent of the Majority Lenders shall be necessary to change the manner of
computation of any financial covenant or related definition used in determining
the Applicable Margin or Applicable Fee Amount that would result in a reduction
of any interest rate on any Revolving Loan or in a reduction of any Commitment
Fees or Letter of Credit fees, or to amend the default rate of interest as
determined under Section
2.10(c)
or to waive any
obligation of Holdings to pay interest at the default rate of
interest;
(F) postpone
any date
fixed for any payment in respect of principal of, or interest on, the Revolving
Loans of any Revolving Lender or any fee or other amount payable to any
Revolving Lender hereunder without the consent of such Revolving
Lender;
and
provided
further, however,
that, unless in
writing and signed by all of the Lenders (or by the Administrative Agent with
the written consent of all the Lenders), no amendment, waiver or consent shall
do any of the following:
(G) change
the
definition of “Majority Class Lenders”, “Majority Lenders”, “Majority Revolving
Lenders” or “Majority Term B Lenders” or any definition or provision of this
Agreement requiring the approval of Majority Lenders or some other specified
amount of Lenders;
(H) consent
to the
assignment or transfer by Holdings or any other Loan Party of any of its rights
and obligations under the Loan Documents;
(I) release
any
Guarantor or any material portion of the Collateral except as contemplated
herein, in the Guaranty or in the Collateral Documents;
(J) amend,
modify or
waive the provisions of Section
2.14
or Section
9.03;
or
(K) amend,
modify or
waive the provisions of this Section
11.01(a);
provided,
further,
that (1) no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required hereinabove to take
such action, affect the rights, obligations or duties of the Administrative
Agent under any Loan Document, (2) no amendment, waiver or consent shall,
unless in writing and signed by the L/C Issuer in addition to the Lenders
required hereinabove to take such action, affect the rights, obligations or
duties of the L/C Issuer under any Loan Document, (3) no amendment, waiver
or consent shall, unless in writing and signed by the Swingline Lender in
addition to the Lenders required hereinabove to take such action, affect the
rights, obligations or duties of the Swingline Lender under any Loan Document,
(4) the Fee Letters and documents evidencing Specified Swap Contracts may
be amended, or rights or privileges thereunder waived, in a writing executed
only by the parties thereto and (5) Section 11.07(h)
may not be
amended, waived or otherwise modified without the consent of each Granting
Lender all or any part of whose Loans are being funded by an SPC at the time
of
such amendment, waiver or other modification. Notwithstanding anything to the
contrary herein, a Defaulting Lender shall not have any right to approve or
disapprove any amendment, waiver or consent hereunder, except that the
Commitment of such Lender may not be increased without its consent, nor may
any
amendment, waiver or consent reduce or forgive the principal of, or accrued
and
unpaid interest on, the outstanding Loans of such Lender or any accrued fee
or
other accrued amount payable to such Lender without its consent.
(b) In
connection with
any such proposed amendment, waiver or consent requiring the consent of all
Term B Lenders, all Revolving Lenders or all Lenders, as the case may be
(such proposed amendment, waiver or consent, a “Proposed
Change”),
if the consent
of the Majority Term B Lenders (in the case of any proposed amendment,
waiver or
consent
requiring
the consent of all Term B Lenders), the Majority Revolving Lenders (in the
case of any proposed amendment, waiver or consent requiring the consent of
all
Revolving Lenders) or the Majority Lenders (in the case of any proposed
amendment, waiver or consent requiring the consent of all Lenders) is obtained,
but the consent of other Lenders whose consent is required is not obtained
(any
such Lender whose consent is not obtained as described in this Section 11.01
being referred to
as a “Non-Consenting
Lender”),
then, so long
as the Lender that is acting as the Administrative Agent is not a Non-Consenting
Lender, Holdings may replace such Non-Consenting Lender in accordance with
Section 11.11.
No
failure or delay by the Administrative Agent or any Lender in exercising any
right under this Agreement or any other Loan Document shall operate as a waiver
thereof or of any other right hereunder or thereunder nor shall any single
or
partial exercise of any such right preclude any other further exercise thereof
or of any other right hereunder or thereunder. Unless otherwise specified in
such waiver or consent, a waiver or consent given hereunder shall be effective
only in the specific instance and for the specific purpose for which given.
The
Lenders may condition the giving or making of any amendment, waiver or consent
of any term, covenant, agreement or condition of this Agreement or any other
Loan Document on payment of a fee by Holdings.
11.02 Notices;
Effectiveness; Electronic Communication.
(a) Notices
Generally.
Except in the
case of notices and other communications expressly permitted to be given by
telephone (and except as provided in subsection (b) below), all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopier as follows, and all notices and other
communications expressly permitted hereunder to be given by telephone shall
be
made to the applicable telephone number, as follows:
(i) if
to Holdings, the
Administrative Agent, the L/C Issuer or the Swingline Lender, to the address,
telecopier number, electronic mail address or telephone number specified for
such Person on Schedule
11.02;
and
(ii) if
to any other
Lender, to the address, telecopier number, electronic mail address or telephone
number specified in its Administrative Questionnaire.
Notices
sent by
hand or overnight courier service, or mailed by certified or registered mail,
shall be deemed to have been given when received; notices sent by telecopier
shall be deemed to have been given when sent (except that, if not given during
normal business hours for the recipient, shall be deemed to have been given
at
the opening of business on the next business day for the recipient). Notices
delivered through electronic communications to the extent provided in
subsection (b) below, shall be effective as provided in such
subsection (b).
(b) Electronic
Communications.
Notices and other
communications to the Lenders and the L/C Issuer hereunder may be delivered
or
furnished by electronic communication (including e mail and Internet or intranet
websites) pursuant to procedures approved by the Administrative Agent,
provided
that the foregoing
shall not apply to notices to any Lender or the L/C Issuer pursuant to
Article II
or Article III
if such Lender or
the L/C Issuer,
as
applicable, has notified the Administrative Agent that it is incapable of
receiving notices under such Article by electronic communication. The
Administrative Agent or Holdings may, in its discretion, agree to accept notices
and other communications to it hereunder by electronic communications pursuant
to procedures approved by it, provided
that approval of
such procedures may be limited to particular notices or
communications.
Unless
the
Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as by
the “return receipt requested” function, as available, return e-mail or other
written acknowledgement), provided
that if such
notice or other communication is not sent during the normal business hours
of
the recipient, such notice or communication shall be deemed to have been sent
at
the opening of business on the next business day for the recipient, and
(ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient
at
its e-mail address as described in the foregoing clause (i) of
notification that such notice or communication is available and identifying
the
website address therefor.
(c) Change
of
Address, Etc.
Each of Holdings,
the Administrative Agent, the L/C Issuer and the Swingline Lender may change
its
address, telecopier or telephone number for notices and other communications
hereunder by notice to the other parties hereto. Each other Lender may change
its address, telecopier or telephone number for notices and other communications
hereunder by notice to Holdings, the Administrative Agent, the L/C Issuer and
the Swingline Lender.
(d) Reliance
by
Administrative Agent, L/C Issuer and Lenders. The
Administrative
Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon
any
notices (including telephonic Notices of Borrowing) purportedly given by or
on
behalf of Holdings even if (i) such notices were not made in a manner
specified herein, were incomplete or were not preceded or followed by any other
form of notice specified herein, or (ii) the terms thereof, as understood
by the recipient, varied from any confirmation thereof. Holdings shall indemnify
the Administrative Agent, the L/C Issuer, each Lender and the Related Parties
of
each of them from all losses, costs, expenses and liabilities resulting from
the
reliance by such Person on each notice purportedly given by or on behalf of
Holdings. All telephonic notices to and other telephonic communications with
the
Administrative Agent may be recorded by the Administrative Agent, and each
of
the parties hereto hereby consents to such recording.
11.03 No
Waiver;
Cumulative Remedies.
No failure to
exercise and no delay in exercising, on the part of the Administrative Agent
or
any Lender, any right, remedy, power or privilege hereunder, shall operate
as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof
or
the exercise of any other right, remedy, power or privilege. The rights provided
for in this Agreement and the other Loan Documents are cumulative and are not
exclusive of any other rights, powers, privileges or remedies provided by law
or
in equity, or under any other instrument, document or agreement now existing
or
hereafter arising.
(a) Costs
and
Expenses.
Holdings shall
pay (i) all reasonable out of pocket expenses incurred by the
Administrative Agent and its Affiliates (including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent), in connection with
the syndication of the credit facilities provided for herein, the preparation,
negotiation, execution, delivery and administration of this Agreement and the
other Loan Documents or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), (ii) all reasonable out of pocket
expenses incurred by the L/C Issuer in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment
thereunder and (iii) all out of pocket expenses incurred by the
Administrative Agent, any Lender or the L/C Issuer (including the fees, charges
and disbursements of any counsel for the Administrative Agent, any Lender or
the
L/C Issuer), and shall pay all fees and time charges for attorneys who may
be
employees of the Administrative Agent, any Lender or the L/C Issuer, in
connection with the enforcement or protection of its rights (A) in
connection with this Agreement and the other Loan Documents, including its
rights under this Section, or (B) in connection with the Loans made or
Letters of Credit issued hereunder, including all such out of pocket expenses
incurred during any workout, restructuring or negotiations in respect of such
Loans or Letters of Credit.
(b) Indemnification
by Holdings.
Holdings shall
indemnify the Administrative Agent (and any sub-agent thereof), each Lender
and
the L/C Issuer, and each Related Party of any of the foregoing Persons (each
such Person being called an “Indemnitee”)
against, and
hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses (including the fees, charges and disbursements
of any counsel for any Indemnitee), and shall indemnify and hold harmless each
Indemnitee from all fees and time charges and disbursements for attorneys who
may be employees of any Indemnitee, incurred by any Indemnitee or asserted
against any Indemnitee by any third party or by Holdings or any other Loan
Party
arising out of, in connection with, or as a result of (i) the execution or
delivery of this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby or thereby, the performance by the parties hereto
of their respective obligations hereunder or thereunder, the consummation of
the
transactions contemplated hereby or thereby, or, in the case of the
Administrative Agent (and any sub-agent thereof) and its Related Parties only,
the administration of this Agreement and the other Loan Documents, (ii) any
Loan or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by the L/C Issuer to honor a demand for payment under
a
Letter of Credit if the documents presented in connection with such demand
do
not strictly comply with the terms of such Letter of Credit), (iii) any
actual or alleged presence or release of Hazardous Materials on or from any
property owned or operated by Holdings or any of its Subsidiaries, or any
Environmental Claims related in any way to Holdings or any of its Subsidiaries,
or (iv) any actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract, tort
or
any other theory, whether brought by a third party or by Holdings or any other
Loan Party, and regardless of whether 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 (x) 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
(y) result from a claim brought by Holdings or any other Loan Party against
an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder
or under any
other
Loan
Document, if Holdings or such Loan Party has obtained a final and nonappealable
judgment in its favor on such claim as determined by a court of competent
jurisdiction.
(c) Reimbursement
by
Lenders.
To the extent
that Holdings for any reason fails to indefeasibly pay any amount required
under
subsection (a) or (b) of this Section to be paid by it to the
Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related
Party of any of the foregoing, each Lender severally agrees to pay to the
Administrative Agent (or any such sub-agent), the L/C Issuer or such Related
Party, as the case may be, such Lender’s Proportionate Share (determined as of
the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount, provided
that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent (or any such sub-agent) or the L/C Issuer in its capacity
as such, or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent) or L/C Issuer in connection with
such capacity. The obligations of the Lenders under this subsection (c) are
subject to the provisions of Section 2.13(d).
(d) Waiver
of
Consequential Damages, Etc.
To the fullest
extent permitted by applicable law, Holdings shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct
or
actual damages) arising out of, in connection with, or as a result of, this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan or Letter
of
Credit or the use of the proceeds thereof. No Indemnitee referred to in
subsection (b) above shall be liable for any damages arising from the use
by unintended recipients of any information or other materials distributed
by it
through telecommunications, electronic or other information transmission systems
in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby.
(e) Payments.
All amounts due
under this Section shall be payable not later than ten Business Days after
demand therefor.
(f) Survival.
The agreements in
this Section shall survive the resignation of the Administrative Agent and
the
L/C Issuer, the replacement of any Lender, the termination of the Aggregate
Revolving Commitment and Aggregate Term B Commitment and the repayment,
satisfaction or discharge of all the other Obligations.
11.05 Marshalling;
Payments Set Aside.
Neither the
Administrative Agent nor the Lenders shall be under any obligation to marshal
any assets in favor of Holdings or any other Person or against or in payment
of
any or all of the Obligations. To the extent that any Loan Party makes a payment
to the Administrative Agent or the Lenders, or the Administrative Agent or
the
Lenders exercise their right of set-off, and such payment or the proceeds of
such set-off or any part thereof are subsequently invalidated, declared to
be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any Insolvency Proceeding or otherwise, then (a) to the
extent of such recovery the
obligation
or part
thereof originally intended to be satisfied shall be revived and continued
in
full force and effect as if such payment had not been made or such set-off
had
not occurred, and (b) each Lender severally agrees to pay to the
Administrative Agent upon demand its Proportionate Share of any amount so
recovered from or repaid by the Administrative Agent.
11.06 Successors
and
Assigns.
(a) Successors
and
Assigns Generally.
The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except
that
neither Holdings nor any other Loan Party may assign or otherwise transfer
any
of its rights or obligations hereunder without the prior written consent of
the
Administrative Agent and each Lender, and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an
Eligible Assignee in accordance with the provisions of subsection (b) of
this Section, (ii) by way of participation in accordance with the
provisions of subsection (d) of this Section, (iii) by way of pledge
or assignment of a security interest subject to the restrictions of
subsection (f) of this Section, or (iv) to an SPC in accordance with
the provisions of subsection (h) of this Section (and any other attempted
assignment or transfer by any party hereto shall be null and void). Nothing
in
this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent provided in subsection (d) of
this Section and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the L/C Issuer and the Lenders)
any
legal or equitable right, remedy or claim under or by reason of this
Agreement.
(b) Assignments
by
Lenders.
Any Lender may at
any time assign to one or more Eligible Assignees all or a portion of its rights
and obligations under this Agreement (including all or a portion of its
Commitment and the Loans (including for purposes of this subsection (b),
participations in L/C Obligations and in Swingline Loans) at the time owing
to
it); provided
that:
(i) except
in the case
of an assignment of the entire remaining amount of the assigning Lender’s
Commitment and the Loans at the time owing to it or in the case of an assignment
to a Lender or an Affiliate of a Lender or an Approved Fund with respect to
a
Lender, the aggregate amount of the Commitment (which for this purpose includes
Loans outstanding thereunder) or, if the Commitment is not then in effect,
the
principal outstanding balance of the Loans of the assigning Lender subject
to
each such assignment, determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative Agent or,
if
“Trade Date” is specified in the Assignment and Assumption, as of the Trade
Date, shall not be less than $5,000,000, in the case of any assignment in
respect of the Revolving Commitments, or $1,000,000, in the case of any
assignment in respect of the Term B Loans, unless each of the
Administrative Agent and, so long as no Event of Default has occurred and is
continuing, Holdings otherwise consents (each such consent not to be
unreasonably withheld or delayed); provided,
however,
that concurrent
assignments to members of an Assignee Group and concurrent assignments from
members of an Assignee Group to a single Eligible Assignee (or to an Eligible
Assignee and members of its Assignee Group) will be treated as a single
assignment for purposes of determining whether such minimum amount has been
met;
(ii) each
partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender’s rights and obligations under this Agreement with respect to
the Loans or the Commitment assigned, except that this clause (ii) shall
not apply to rights in respect of Swingline Loans;
(iii) any
assignment of a
Revolving Commitment must be approved by the Administrative Agent, the L/C
Issuer and the Swingline Lender unless the Person that is the proposed assignee
is itself a Revolving Lender (whether or not the proposed assignee would
otherwise qualify as an Eligible Assignee) (each such approval not to be
unreasonably withheld or delayed); and
(iv) the
parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Assumption, together with a processing and recordation fee in the amount,
if
any, required as set forth in Schedule 11.06,
and the Eligible
Assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent
an Administrative Questionnaire.
Subject
to
acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the effective date specified
in each Assignment and Assumption, the Eligible Assignee thereunder shall be
a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of
the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 4.01,
4.03,
4.04,
and 11.04.
Upon request,
Holdings (at its expense) shall execute and deliver a Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this subsection shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with subsection (d) of this
Section.
(c) Register.
The
Administrative Agent, acting solely for this purpose as an agent of Holdings,
shall maintain at the Administrative Agent’s Payment Office a copy of each
Assignment and Assumption delivered to it and a register for the recordation
of
the names and addresses of the Lenders, and the Commitments of, and principal
amounts of the Loans and L/C Obligations owing to, each Lender pursuant to
the
terms hereof from time to time (the “Register”).
The entries in
the Register shall be conclusive, and Holdings, the Administrative Agent and
the
Lenders may treat each Person whose name is recorded in the Register pursuant
to
the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by each of Holdings, the L/C Issuer and X.X. Xxxxxx Securities,
Inc.
at any reasonable time and from time to time upon reasonable prior notice.
In
addition, at any time that a request for a consent, waiver or amendment to
the
Loan Documents is pending, any Lender may request and receive from the
Administrative Agent a copy of the Register.
(d) Participations.
Any Lender may at
any time, without the consent of, or notice to, Holdings or the Administrative
Agent, sell participations to any Person (other than a natural person or
Holdings or any of Holdings’s Affiliates or Subsidiaries ) (each, a
“Participant”)
in all or a
portion of such Lender’s rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans (including such
Lender’s participations in L/C Obligations and/or Swingline Loans) owing to it);
provided
that (i) such
Lender’s obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) Holdings, the Administrative
Agent, the Lenders and the L/C Issuer shall continue to deal solely and directly
with such Lender in connection with such Lender’s rights and obligations under
this Agreement.
Any
agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and
to
approve any amendment, modification or waiver of any provision of this
Agreement; provided
that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, waiver or other modification
described in the provisos to Section 11.01(a)
that affects such
Participant. Subject to subsection (e) of this Section, Holdings agrees
that each Participant shall be entitled to the benefits of Sections 4.01,
4.03
and 4.04 to
the same extent
as if it were a Lender and had acquired its interest by assignment pursuant
to
subsection (b) of this Section. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 11.08 as
though it were a
Lender, provided
such Participant
agrees to be subject to Section 2.14
as though it were
a Lender.
(e) Limitations
upon
Participant Rights.
A Participant
shall not be entitled to receive any greater payment under Section 4.01
or 4.03 than
the applicable
Lender would have been entitled to receive with respect to the participation
sold to such Participant, unless the sale of the participation to such
Participant is made with Holdings’s prior written consent. A Participant that
would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 4.01
unless Holdings is
notified of the participation sold to such Participant and such Participant
agrees, for the benefit of Holdings, to comply with Section 4.01(e)
as though it were
a Lender.
(f) Certain
Pledges.
Any Lender may at
any time pledge or assign a security interest in all or any portion of its
rights under this Agreement (including under its Note, if any) to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided
that no such
pledge or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
(g) Electronic
Execution of Assignments.
The words
“execution,” “signed,” “signature,” and words of like import in any Assignment
and Assumption shall be deemed to include electronic signatures or the keeping
of records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as
provided for in any applicable law, including the Federal Electronic Signatures
in Global and
National
Commerce
Act, the New York State Electronic Signatures and Records Act, or any other
similar state laws based on the Uniform Electronic Transactions
Act.
(h) Special
Purpose
Funding Vehicles.
Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting
Lender”)
may grant to a
special purpose funding vehicle identified as such in writing from time to
time
by the Granting Lender to the Administrative Agent and Holdings (an
“SPC”)
the option to
provide all or any part of any Loan that such Granting Lender would otherwise
be
obligated to make pursuant to this Agreement; provided
that
(i) nothing herein shall constitute a commitment by any SPC to fund any
Loan, and (ii) if an SPC elects not to exercise such option or otherwise
fails to make all or any part of such Loan, the Granting Lender shall be
obligated to make such Loan pursuant to the terms hereof or, if it fails to
do
so, to make such payment to the Administrative Agent as is required under
Section 2.13.
Each party hereto
hereby agrees that (i) neither the grant to any SPC nor the exercise by any
SPC of such option shall increase the costs or expenses or otherwise increase
or
change the obligations of Holdings under this Agreement (including its
obligations under Section 4.03),
(ii) no SPC
shall be liable for any indemnity or similar payment obligation under this
Agreement for which a Lender would be liable, and (iii) the Granting Lender
shall for all purposes, including the approval of any amendment, waiver or
other
modification of any provision of any Loan Document, remain the lender of record
hereunder. The making of a Loan by an SPC hereunder shall utilize the Commitment
of the Granting Lender to the same extent, and as if, such Loan were made by
such Granting Lender. In furtherance of the foregoing, each party hereto hereby
agrees (which agreement shall survive the termination of this Agreement) that,
prior to the date that is one year and one day after the payment in full of
all
outstanding commercial paper or other senior debt of any SPC, it will not
institute against, or join any other Person in instituting against, such SPC
any
bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding
under the laws of the United States or any State thereof. Notwithstanding
anything to the contrary contained herein, any SPC may (i) with notice to,
but without prior consent of Holdings and the Administrative Agent and with
the
payment of a processing fee in the amount of $2,500, assign all or any portion
of its right to receive payment with respect to any Loan to the Granting Lender
and (ii) disclose on a confidential basis any non-public information
relating to its funding of Loans to any rating agency, commercial paper dealer
or provider of any surety or guarantee or credit or liquidity enhancement to
such SPC.
(i) Resignation
as
L/C Issuer or Swingline Lender after Assignment.
Notwithstanding
anything to the contrary contained herein, if at any time Xxxxx Fargo assigns
all of its Commitment and Loans pursuant to subsection (b) above, Xxxxx
Fargo may, (i) upon 30 days’ notice to Holdings and the Lenders,
resign as L/C Issuer and/or (ii) upon 30 days’ notice to Holdings, resign
as Swingline Lender. In the event of any such resignation as L/C Issuer or
Swingline Lender, Holdings shall be entitled to appoint from among the Revolving
Lenders a successor L/C Issuer or Swingline Lender hereunder; provided,
however,
that no failure
by Holdings to appoint any such successor shall affect the resignation of Xxxxx
Fargo as L/C Issuer or Swingline Lender, as the case may be. If Xxxxx Fargo
resigns as L/C Issuer, it shall retain all the rights, powers, privileges and
duties of the L/C Issuer hereunder with respect to all Letters of Credit
outstanding as of the effective date of its resignation as L/C Issuer and all
L/C Obligations with respect thereto (including the right to require the
Revolving Lenders to make Base Rate Loans or fund risk participations in
unreimbursed drawings, pursuant to Section 3.03).
If Xxxxx Fargo
resigns as Swingline Lender, it shall retain all the rights of the Swingline
Lender
provided
for
hereunder with respect to Swingline Loans made by it and outstanding as of
the
effective date of such resignation, including the right to require the Revolving
Lenders to make Base Rate Loans or fund risk participations in outstanding
Swingline Loans pursuant to Section 2.06.
Upon the
appointment of a successor L/C Issuer and/or Swingline Lender, (a) such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring L/C Issuer or Swingline Lender, as the
case may be, and (b) the successor L/C Issuer shall issue letters of credit
in substitution for the Letters of Credit, if any, outstanding at the time
of
such succession or make other arrangements satisfactory to Xxxxx Fargo to
effectively assume the obligations of Xxxxx Fargo with respect to such Letters
of Credit.
11.07 Treatment
of
Certain Information; Confidentiality.
Each of the
Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates’
respective partners, directors, officers, employees, agents, advisors and
representatives (it being understood that the Persons to whom such disclosure
is
made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent
requested by any regulatory authority purporting to have jurisdiction over
it
(including any self-regulatory authority, such as the National Association
of
Insurance Commissioners), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other
party hereto, (e) in connection with the exercise of any remedies hereunder
or under any other Loan Document or any action or proceeding relating to this
Agreement or any other Loan Document or the enforcement of rights hereunder
or
thereunder, (f) subject to an agreement containing provisions substantially
the same as those of this Section, to (i) any assignee of or Participant
in, or any prospective assignee of or Participant in, any of its rights or
obligations under this Agreement or (ii) any pledgee referred to in
Section
11.06(f)
or (iii) any
actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to Holdings and its obligations, (g) with the consent
of Holdings or (h) to the extent such Information (x) becomes publicly
available other than as a result of a breach of this Section or (y) becomes
available to the Administrative Agent, any Lender, the L/C Issuer or any of
their respective Affiliates on a nonconfidential basis from a source other
than
Holdings.
For
purposes of
this Section, “Information”
means
all
information received from Holdings or any Subsidiary relating to Holdings or
any
Subsidiary or any of their respective businesses, other than any such
information that is available to the Administrative Agent, any Lender or the
L/C
Issuer on a nonconfidential basis prior to disclosure by Holdings or any
Subsidiary.
Any
Person required
to maintain the confidentiality of Information as provided in this Section
shall
be considered to have complied with its obligation to do so if such Person
has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential
information.
Holdings
acknowledges that (a) the Administrative Agent and/or the Joint Lead
Arrangers will make available to the Lenders and the L/C Issuer materials and/or
information provided by or on behalf of Holdings hereunder (collectively,
“Borrower
Materials”)
by posting the
Borrower Materials on IntraLinks or another similar electronic system (the
“Platform”)
and
(b) certain of the Lenders may be “public-side” Lenders (i.e.,
Lenders that do
not wish to receive
material
non-public
information with respect to the Borrower or its securities) (each, a
“Public
Lender”).
Holdings hereby
agrees that (w) all Borrower Materials that are to be made available to Public
Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum,
shall mean that the word “PUBLIC” shall appear prominently on the first page
thereof; (x) by marking Borrower Materials “PUBLIC,” Holdings shall be deemed to
have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C
Issuer and the Lenders to treat such Borrower Materials as not containing any
material non-public information with respect to Holdings or its securities
for
purposes of United States Federal and state securities laws; (y) all Borrower
Materials marked “PUBLIC” are permitted to be made available through a portion
of the Platform designated “Public Investor;” and (z) the Administrative Agent
and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials
that are not marked “PUBLIC” as being suitable only for posting on a portion of
the Platform not designated “Public Investor.”
11.08 Set
off.
If an Event of
Default shall have occurred and be continuing, each Lender, the L/C Issuer
and
each of their respective Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by applicable law, to set off
and
apply any and all deposits (general or special, time or demand, provisional
or
final, in whatever currency) at any time held and other obligations (in whatever
currency) at any time owing by such Lender, the L/C Issuer or any such Affiliate
to or for the credit or the account of Holdings or any other Loan Party against
any and all of the obligations of Holdings or such Loan Party now or hereafter
existing under this Agreement or any other Loan Document to such Lender or
the
L/C Issuer, irrespective of whether or not such Lender or the L/C Issuer shall
have made any demand under this Agreement or any other Loan Document and
although such obligations of Holdings or such Loan Party may be contingent
or
unmatured or are owed to a branch or office of such Lender or the L/C Issuer
different from the branch or office holding such deposit or obligated on such
indebtedness. The rights of each Lender, the L/C Issuer and their respective
Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender, the L/C Issuer or their
respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify
Holdings and the Administrative Agent promptly after any such setoff and
application, provided
that the failure
to give such notice shall not affect the validity of such setoff and
application.
11.09 USA
PATRIOT Act
Notice.
Each Lender that
is subject to the Act (as hereinafter defined) and the Administrative Agent
(for
itself and not on behalf of any Lender) hereby notifies Holdings that pursuant
to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed
into law October 26, 2001)) (the “Act”),
it is required
to obtain, verify and record information that identifies each Loan Party, which
information includes the name and address of each Loan Party and other
information that will allow such Lender or the Administrative Agent, as
applicable, to identify each Loan Party in accordance with the Act.
11.10 Guaranty.
xxv) Guaranty.
Each of the
Guarantors unconditionally and irrevocably, jointly and severally, guarantees
to
the Administrative Agent, the Joint Lead Arrangers, the L/C Issuer and the
Lenders, and their respective successors, endorsers, transferees and assigns
(the “Guaranteed
Persons”),
the full and
prompt payment when due (whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise) and performance of all
indebtedness, liabilities and other obligations of Holdings to any Guaranteed
Person, whether arising out of or in connection with this Agreement, any other
Loan Document
or
otherwise, including all unpaid principal of the Loans, all L/C Obligations,
all
interest accrued thereon, all fees due under this Agreement and all other
amounts payable by Holdings to any Guaranteed Person thereunder or in connection
therewith. The terms “indebtedness,” “liabilities” and “obligations” are used
herein in their most comprehensive sense and include any and all advances,
debts, obligations and liabilities, now existing or hereafter arising, whether
voluntary or involuntary and whether due or not due, absolute or contingent,
liquidated or unliquidated, determined or undetermined, and whether recovery
upon such indebtedness, liabilities and obligations may be or hereafter become
unenforceable or shall be an allowed or disallowed claim under the Bankruptcy
Code or other applicable law. The foregoing indebtedness, liabilities and other
obligations of Holdings shall hereinafter be collectively referred to as the
“Guaranteed
Obligations.”
The
Guaranteed
Obligations include interest which, but for an Insolvency Proceeding, would
have
accrued on such Guaranteed Obligations, whether or not a claim is allowed
against Holdings for such interest in any such Insolvency
Proceeding.
(b) Separate
Obligation.
Each Guarantor
acknowledges and agrees (i) that the Guaranteed Obligations are separate
and distinct from any indebtedness, obligations or liabilities arising under
or
in connection with any other agreement, instrument or guaranty, including under
any provision of this Agreement other than this Section 11.10,
executed at any
time by such Guarantor in favor of any Guaranteed Person, and (ii) such
Guarantor shall pay and perform all of the Guaranteed Obligations as required
under this Section 11.10,
and each
Guaranteed Person may enforce any and all of its rights and remedies hereunder,
without regard to any other agreement, instrument or guaranty, including any
provision of this Agreement other than this Section 11.10,
at any time
executed by such Guarantor in favor of any Guaranteed Person, regardless of
whether or not any such other agreement, instrument or guaranty, or any
provision thereof or hereof, shall for any reason become unenforceable or any
of
the indebtedness, obligations or liabilities thereunder or hereunder shall
have
been discharged, whether by performance, avoidance or otherwise. Each Guarantor
acknowledges that in providing benefits to Holdings and such Guarantor, the
Guaranteed Persons are relying upon the enforceability of this Section 11.10
and the Guaranteed
Obligations as separate and distinct indebtedness, obligations and liabilities
of such Guarantor, and each Guarantor agrees that each Guaranteed Person would
be denied the full benefit of their bargain if at any time this Section 11.10
or the Guaranteed
Obligations were treated any differently. The fact that the Guaranty of each
Guarantor is set forth in this Agreement rather than in a separate guaranty
document is for the convenience of Holdings and the Guarantors and shall in
no
way impair or adversely affect the rights or benefits of any Guaranteed Person
under this Section 11.10.
Each Guarantor
agrees to execute and deliver a separate agreement, immediately upon request
at
any time of any Guaranteed Person, evidencing such Guarantor’s obligations under
this Section 11.10.
Upon the
occurrence of any Event of Default, a separate action or actions may be brought
against each Guarantor, whether or not Holdings or any other Guarantor or Person
is joined therein or a separate action or actions are brought against Holdings
or any other Guarantor or Person.
(c) Limitation
of
Guaranty.
To the extent
that any court of competent jurisdiction shall impose by final judgment under
applicable law (including the California Uniform Fraudulent Transfer Act and
§§544 and 548 of the Bankruptcy Code) any limitations on the amount of any
Guarantor’s liability with respect to the Guaranteed Obligations which any
Guaranteed Person can enforce under this Section 11.10,
each Guaranteed
Person by its
acceptance
hereof
accepts such limitation on the amount of such Guarantor’s liability hereunder to
the extent needed to make this Section 11.10
fully enforceable
and nonavoidable.
(d) Liability
of
Guarantor.
The liability of
each Guarantor under this Section 11.10
shall be
irrevocable, absolute, independent and unconditional, and shall not be affected
by any circumstance which might constitute a discharge of a surety or guarantor
other than the indefeasible payment and performance in full of all Guaranteed
Obligations. In furtherance of the foregoing and without limiting the generality
thereof, each Guarantor agrees as follows:
(i) such
Guarantor’s
liability hereunder shall be the immediate, direct, and primary obligation
of
such Guarantor and shall not be contingent upon any Guaranteed Person’s exercise
or enforcement of any remedy it may have against Holdings or any other Person,
or against any collateral or other security for any Guaranteed
Obligations;
(ii) this
Guaranty is a
guaranty of payment when due and not merely of collectibility;
(iii) such
Guarantor’s
payment of a portion, but not all, of the Guaranteed Obligations shall in no
way
limit, affect, modify or abridge such Guarantor’s liability for any portion of
the Guaranteed Obligations remaining unsatisfied; and
(iv) such
Guarantor’s
liability with respect to the Guaranteed Obligations shall remain in full force
and effect without regard to, and shall not be impaired or affected by, nor
shall such Guarantor be exonerated or discharged by, any of the following
events:
(A) any
Insolvency
Proceeding;
(B) any
limitation,
discharge, or cessation of the liability of Holdings or any other guarantor
or
Person for any Guaranteed Obligations due to any statute, regulation or rule
of
law, or any invalidity or unenforceability in whole or in part of any of the
Guaranteed Obligations or the Loan Documents;
(C) any
merger,
acquisition, consolidation or change in structure of Holdings or any other
Guarantor or Person, or any sale, lease, transfer or other disposition of any
or
all of the assets or shares of Holdings or any other Guarantor or other
Person;
(D) any
assignment or
other transfer, in whole or in part, of any Guaranteed Person’s interests in and
rights under this Guaranty or the other Loan Documents;
(E) any
claim, defense,
counterclaim or set-off, other than that of prior performance, that Holdings,
such Guarantor, any other guarantor or other Person may have or assert,
including any defense of incapacity or lack of corporate or other authority
to
execute any of the Loan Documents;
(F) any
Guaranteed
Person’s amendment, modification, renewal, extension, cancellation or surrender
of any Loan Document or any Guaranteed Obligations;
(G) any
Guaranteed
Person’s exercise or nonexercise of any power, right or remedy with respect to
any Guaranteed Obligations or any collateral;
(H) any
Guaranteed
Person’s vote, claim, distribution, election, acceptance, action or inaction in
any Insolvency Proceeding; or
(I) any
other guaranty,
whether by any Guarantor or any other Person, of all or any part of the
Guaranteed Obligations or any other indebtedness, obligations or liabilities
of
any Guaranteed Person.
(e) Consents
of
Guarantor.
Each Guarantor
hereby unconditionally consents and agrees that, without notice to or further
assent from such Guarantor:
(i) the
principal
amount of the Guaranteed Obligations may be increased or decreased and
additional indebtedness or obligations of Holdings under the Loan Documents
may
be incurred and the time, manner, place or terms of any payment under any Loan
Document be extended or changed, by one or more amendments, modifications,
renewals or extensions of any Loan Document or otherwise;
(ii) the
time for
Holdings’ (or any other Person’s) performance of or compliance with any term,
covenant or agreement on its part to be performed or observed under any Loan
Document may be extended, or such performance or compliance waived, or failure
in or departure from such performance or compliance consented to, all in such
manner and upon such terms as any Guaranteed Person (or the Majority Lenders,
as
the case may be) may deem proper;
(iii) each
Guaranteed
Person may request and accept other guarantees and may take and hold other
security as collateral for the Guaranteed Obligations, and may, from time to
time, in whole or in part, exchange, sell, surrender, release, subordinate,
modify, waive, rescind, compromise or extend such other guaranties or security
and may permit or consent to any such action or the result of any such action,
and may apply such security and direct the order or manner of sale
thereof;
(iv) each
Guaranteed
Person may exercise, or waive or otherwise refrain from exercising, any other
right, remedy, power or privilege even if the exercise thereof affects or
eliminates any right of subrogation or any other right of such Guarantor against
Holdings.
(f) Guarantor’s
Waivers.
Each Guarantor
waives and agrees not to assert:
(i) any
right to
require the Administrative Agent, the L/C Issuer or any Lender to marshal assets
in favor of Holdings, the Guarantors, any other guarantor or any other Person,
to proceed against Holdings, any other guarantor or any other Person, to proceed
against or exhaust any of the Collateral, to give notice of the terms, time
and
place of
any
public or
private sale of personal property security constituting the Collateral or other
collateral for the Guaranteed Obligations or comply with any other provisions
of
Chapter 6 of Division 9 of the UCC (or any equivalent provision of any other
applicable law) or to pursue any other right, remedy, power or privilege of
the
Administrative Agent, the L/C Issuer or any Lender whatsoever;
(ii) the
defense of the
statute of limitations in any action hereunder or for the collection or
performance of the Guaranteed Obligations;
(iii) any
defense arising
by reason of any lack of corporate or other authority or any other defense
of
Holdings, such Guarantor or any other Person;
(iv) any
defense based
upon any Guaranteed Person’s errors or omissions in the administration of the
Guaranteed Obligations;
(v) any
rights to
set-offs and counterclaims;
(vi) without
limiting
the generality of the foregoing, to the fullest extent permitted by law, any
defenses or benefits that may be derived from or afforded by applicable law
limiting the liability of or exonerating guarantors or sureties, or which may
conflict with the terms of this Section 11.10;
(vii) any
defense based
upon an election of remedies (including, if available, an election to proceed
by
nonjudicial foreclosure) which destroys or impairs the subrogation rights of
such Guarantor or the right of such Guarantor to proceed against Holdings or
any
other obligor of the Guaranteed Obligations for reimbursement;
(viii) without
limiting
the generality of the foregoing, to the fullest extent permitted by law, any
defenses or benefits that may be derived from or afforded by applicable law
limiting the liability of or exonerating guarantors or sureties, or which may
conflict with the terms of this Section 11.10,
including any and
all benefits that otherwise might be available to such Guarantor under
California Civil Code §§1432, 2809, 2787 to 2855, inclusive, 2899 and 3433 and
California Code of Civil Procedure §§580a, 580b, 580d and 726 or Texas Property
Code §§51.003 - 51.005. Accordingly, each Guarantor waives all rights and
defenses that such Guarantor may have because Holdings’ debt is secured by real
property. This means, among other things: (A) the Administrative Agent, the
L/C Issuer and the Lenders may collect from such Guarantor without first
foreclosing on any real or personal property Collateral pledged by Holdings
or
such Guarantor; and (B) if the Administrative Agent forecloses on any real
property Collateral pledged by Holdings or such Guarantor: (1) the amount
of the debt may be reduced only by the price for which that Collateral is sold
at the foreclosure sale, even if the Collateral is worth more than the sale
price, and (2) the Administrative Agent, the L/C Issuer and the Lenders may
collect from such Guarantor even if the Administrative Agent, by foreclosing
on
the real property Collateral, has destroyed any right such Guarantor may have
to
collect from Holdings. This is an unconditional and irrevocable waiver of any
rights and defenses such Guarantor may have because Holdings’ debt is secured by
real property. These rights and defenses include, but are not limited to, any
rights of defenses based upon section 580a, 580b,
580d
or 726 of the
California Code of Civil Procedure or sections 51.003 - 51.005 of the Texas
Property Code; and
(ix) any
and all notice
of the acceptance of this Guaranty, and any and all notice of the creation,
renewal, modification, extension or accrual of the Guaranteed Obligations,
or
the reliance by any Guaranteed Person upon this Guaranty, or the exercise of
any
right, power or privilege hereunder. The Guaranteed Obligations shall
conclusively be deemed to have been created, contracted, incurred and permitted
to exist in reliance upon this Guaranty. Each Guarantor waives promptness,
diligence, presentment, protest, demand for payment, notice of default, dishonor
or nonpayment and all other notices to or upon Holdings, such Guarantor or
any
other Person with respect to the Guaranteed Obligations.
(g) Financial
Condition of Holdings.
No Guarantor
shall have any right to require any Guaranteed Person to obtain or disclose
any
information with respect to: the financial condition or character of Holdings
or
the ability of Holdings to pay and perform the Guaranteed Obligations; the
Guaranteed Obligations; any collateral or other security for any or all of
the
Guaranteed Obligations; the existence or nonexistence of any other guarantees
of
all or any part of the Guaranteed Obligations; any action or inaction on the
part of any Guaranteed Person or any other Person; or any other matter, fact
or
occurrence whatsoever. Each Guarantor hereby acknowledges that it has undertaken
its own independent investigation of the financial condition of Holdings and
the
other Loan Parties and all other matters pertaining to this Guaranty and further
acknowledges that it is not relying in any manner upon any representation or
statement of any Guaranteed Person with respect thereto.
(h) Subrogation.
Until the
Guaranteed Obligations shall be satisfied in full and the Commitments shall
be
terminated, each Guarantor shall not have, and shall not directly or indirectly
exercise (i) any rights that it may acquire by way of subrogation under
this Section 11.10,
by any payment
hereunder or otherwise, (ii) any rights of contribution, indemnification,
reimbursement or similar suretyship claims arising out of this Section 11.10
or (iii) any
other right which it might otherwise have or acquire (in any way whatsoever)
which could entitle it at any time to share or participate in any right, remedy
or security of any Guaranteed Person as against Holdings or other guarantors,
whether in connection with this Section 11.10,
any of the other
Loan Documents or otherwise. If any amount shall be paid to any Guarantor on
account of the foregoing rights at any time when all the Guaranteed Obligations
shall not have been paid in full, such amount shall be held in trust for the
benefit of each Guaranteed Person and shall forthwith be paid to the
Administrative Agent to be credited and applied to the Guaranteed Obligations,
whether matured or unmatured, in accordance with the terms of the Loan
Documents.
(i) Continuing
Guaranty.
This Guaranty is
a continuing guaranty and agreement of subordination and shall continue in
effect and be binding upon each Guarantor until termination of the Commitments
and payment and performance in full of all Guaranteed Obligations, including
Guaranteed Obligations which may exist continuously or which may arise from
time
to time under successive transactions, and each Guarantor expressly acknowledges
that this Guaranty shall remain in full force and effect notwithstanding that
there may be periods in which no Guaranteed Obligations exist.
(j) Reinstatement.
This Guaranty
shall continue to be effective or shall be reinstated and revived, as the case
may be, if, for any reason, any payment of the Guaranteed Obligations by or
on
behalf of Holdings (or receipt of any proceeds of collateral) shall be
rescinded, invalidated, declared to be fraudulent or preferential, set aside,
voided or otherwise required to be repaid to Holdings, its estate, trustee,
receiver or any other Person (including under the Bankruptcy Code or other
state
or federal law), or must otherwise be restored by any Guaranteed Person, whether
as a result of Insolvency Proceedings or otherwise. All losses, damages, costs
and expenses that any Guaranteed Person may suffer or incur as a result of
any
voided or otherwise set aside payments shall be specifically covered by the
indemnity in favor of the Lenders and the Administrative Agent contained in
Section 11.04.
(k) Substantial
Benefits.
The funds that
have been borrowed from the Lenders by Holdings have been and are to be
contemporaneously used for the direct or indirect benefit of Holdings and each
Guarantor. It is the position, intent and expectation of the parties that
Holdings and each Guarantor have derived and will derive significant and
substantial direct or indirect benefits from the accommodations that have been
made by the Lenders under the Loan Documents.
(l) Knowing
and
Explicit Waivers.
EACH GUARANTOR
ACKNOWLEDGES THAT IT EITHER HAS OBTAINED THE ADVICE OF LEGAL COUNSEL OR HAS
HAD
THE OPPORTUNITY TO OBTAIN SUCH ADVICE IN CONNECTION WITH THE TERMS AND
PROVISIONS OF THIS SECTION 11.10.
EACH GUARANTOR
ACKNOWLEDGES AND AGREES THAT EACH OF THE WAIVERS AND CONSENTS SET FORTH HEREIN
ARE MADE WITH FULL KNOWLEDGE OF THEIR SIGNIFICANCE AND CONSEQUENCES, AND THAT
ALL SUCH WAIVERS AND CONSENTS HEREIN ARE EXPLICIT AND KNOWING AND WHICH EACH
GUARANTOR EXPECTS TO BE FULLY ENFORCEABLE.
(m) Release
of
Subsidiary Guarantors.
Holdings may at
any time deliver to the Administrative Agent a certificate from a Responsible
Officer of Holdings certifying as of the date of the certificate that, after
the
consummation of the transaction or series of transactions described in such
certificate (which certification shall also state that such transactions,
individually or in the aggregate, will be in compliance with the terms and
conditions of this Agreement, including to the extent applicable Section 8.02
and Section 8.03,
and that no Event
of Default existed, exists or will exist, as the case may be, immediately
before, as a result of or immediately after giving effect to such transaction
or
transactions and termination), the Guarantor identified in such certification
will no longer be a Subsidiary of Holdings. Effective upon the consummation
of
the transaction or series of transactions described in such certificate effected
in compliance with this Agreement, the Subsidiary identified in such
certification shall thereupon automatically cease to be a Guarantor hereunder
and shall cease to be a party hereto and shall thereupon automatically be
released from its obligations under this Section 11.10
and under the
Security Agreement, and all Liens in favor of the Administrative Agent and
the
Lenders under the Collateral Documents in respect of the property of such
Subsidiary shall thereupon terminate. Holdings shall promptly notify the
Administrative Agent of the consummation of any such transaction or series
of
transactions. The Administrative Agent, on behalf of the Lenders, shall, at
Holdings’ expense, execute and deliver such instruments as Holdings may
reasonably request to evidence such release and Lien termination.
11.11 Replacement
of
Lenders.
If any Lender
requests compensation under Section 4.03,
or if Holdings is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 4.01,
or if any Lender
is a Defaulting Lender or if any other circumstance exists hereunder that gives
Holdings the right to replace a Lender as a party hereto (including pursuant
to
Section
11.01(b)),
then Holdings
may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in,
and
consents required by, Section 11.06),
all of its
interests, rights and obligations under this Agreement and the related Loan
Documents to an assignee that shall assume such obligations (which assignee
may
be another Lender, if a Lender accepts such assignment), provided
that:
(i) Holdings
shall have
paid to the Administrative Agent the assignment fee specified in Section 11.06;
(ii) such
Lender shall
have received payment of an amount equal to the outstanding principal of its
Loans and L/C Advances, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder and under the other Loan Documents (including
any amounts under Section 4.04)
from the assignee
(to the extent of such outstanding principal and accrued interest and fees)
or
Holdings (in the case of all other amounts);
(iii) in
the case of any
such assignment resulting from a claim for compensation under Section 4.03
or payments
required to be made pursuant to Section 4.01,
such assignment
will result in a reduction in such compensation or payments thereafter;
and
(iv) such
assignment
does not conflict with any Requirement of Law.
A
Lender shall not be required to make any such assignment or delegation if,
prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling Holdings to require such assignment and delegation cease to
apply.
11.12 Notification
of
Addresses, Lending Offices, Etc.
Each Lender shall
notify the Administrative Agent in writing of any changes in the address to
which notices to such Lender should be directed, of addresses of any Lending
Office, of payment instructions in respect of all payments to be made to it
hereunder and of such other administrative information as the Administrative
Agent shall reasonably request.
11.13 Counterparts;
Integration; Effectiveness.
This Agreement
may be executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which
when
taken together shall constitute a single contract. This Agreement and the other
Loan Documents constitute the entire contract among the parties relating to
the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 5.01,
this Agreement
shall become effective when it shall have been executed by the Administrative
Agent and when the Administrative Agent shall have received counterparts hereof
that, when taken together, bear the signatures of each of the other parties
hereto. Delivery
of
an executed counterpart of a signature page of this Agreement by telecopy or
by
email in pdf format shall be effective as delivery of a manually executed
counterpart of this Agreement.
11.14 Severability.
Whenever
possible, each provision of the Loan Documents shall be interpreted in such
manner as to be effective and valid under all applicable laws and regulations.
If, however, any provision of any of the Loan Documents shall be prohibited
by
or invalid under any such law or regulation in any jurisdiction, it shall,
as to
such jurisdiction, be deemed modified to conform to the minimum requirements
of
such law or regulation, or, if for any reason it is not deemed so modified,
it
shall be ineffective and invalid only to the extent of such prohibition or
invalidity without affecting the remaining provisions of such Loan Document,
or
the validity or effectiveness of such provision in any other
jurisdiction.
11.15 No
Third Parties
Benefited.
This Agreement is
made and entered into for the sole protection and legal benefit of Holdings,
the
Company and the other Loan Parties, the Lenders, the Administrative Agent and
the Administrative Agent-Related Persons, the Indemnitees and their respective
permitted successors and assigns, and no other Person shall be a direct or
indirect legal beneficiary of, or have any direct or indirect cause of action
or
claim in connection with, this Agreement or any of the other Loan
Documents.
11.16 Governing
Law;
Jurisdiction, Etc.
(a) GOVERNING
LAW.
THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE
OF
CALIFORNIA.
(b) SUBMISSION
TO
JURISDICTION.
HOLDINGS AND EACH
OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
CALIFORNIA SITTING IN XXX XXXXXXXXX XXXXXX XXX XX XXX XXXXXX XXXXXX DISTRICT
COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, AND ANY APPELLATE COURT FROM
ANY
THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF
ANY
JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES
THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH CALIFORNIA STATE COURT OR, TO THE FULLEST EXTENT PERMITTED
BY
APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT
A
FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY
BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL
AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER
MAY
OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR
ANY OTHER LOAN DOCUMENT AGAINST HOLDINGS OR
ANY
OTHER LOAN
PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) WAIVER
OF
VENUE.
HOLDINGS AND EACH
OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE
TO
THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH
(B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT.
(d) SERVICE
OF
PROCESS.
EACH PARTY HERETO
IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES
IN
SECTION 11.02.
NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY APPLICABLE LAW.
(e) Nothing
in this
Section 11.16
shall override any
contrary provision contained in any Specified Swap Contract.
11.17 Waiver
of Jury
Trial.
EACH PARTY HERETO
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED
ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON 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 BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
11.18 Treatment
of
Existing Credit Agreement.
On the Effective
Date, all loans outstanding under the Existing Credit Agreement shall be
purchased by the Lenders in accordance with, and to the extent required under,
Section 2.01,
and all
outstanding letters of credit issued under the Existing Credit Agreement shall
be deemed to be Letters of Credit issued and outstanding under this Agreement
(and all accrued unpaid fees thereon shall begin to accrue at the rates set
forth in this Agreement). On and after the Effective Date, this Agreement shall
amend, restate and supersede in its entirety and replace the Existing Credit
Agreement; provided,
however,
that the
execution and delivery of this Agreement and the other Loan Documents shall
not
(a) operate as a waiver of any right, power or remedy of the Existing
Lenders under the
Existing
Credit
Agreement and the other related documents, except to the extent expressly waived
in this Agreement and the other Loan Documents, (b) extinguish, impair or
constitute a novation of any obligations of Holdings or the Guarantors under
the
Existing Credit Agreement or the related documents except to the extent any
such
obligation is actually satisfied by Holdings or a Guarantor thereunder or
(c) extinguish or impair any indemnification or similar rights under the
Existing Credit Agreement which by their terms would survive the termination
of
the Existing Credit Agreement. Promptly upon the closing of this Agreement
and
the receipt by the Lenders of their respective Notes, such Lenders that were
also Existing Lenders under the Existing Credit Agreement shall return to
Holdings any Notes delivered to such Existing Lender in connection with the
Existing Credit Agreement marked “cancelled”.
(remainder
of
page intentionally left blank)
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered in San Francisco, California, by their proper and duly
authorized officers as of the day and year first above written.
THE
BORROWER
By:_______________________________________
Name:
Title:
THE
GUARANTORS
BMC
WEST
CORPORATION
By:_____________________________________
Name:
Title:
BMC
WEST
CORPORATION SOUTHCENTRAL
By:_____________________________________
Name:
Title:
BMCW
SOUTHCENTRAL,
L.P.
By:
BMC WEST
CORPORATION
SOUTHCENTRAL,
its
General Partner
By:_____________________________________
Name:
Title:
BMCW,
LLC
By:
BMC WEST
CORPORATION, its Managing Member
By:_____________________________________
Name:
Title:
SELECTBUILD
CONSTRUCTION, INC.
(formerly known as BMC Construction, Inc.)
(formerly known as BMC Construction, Inc.)
By:_____________________________________
Name:
Title:
KBI
CONSTRUCTION,
LLC
By:
SELECTBUILD
CONSTRUCTION, INC., its Managing Member
By:_____________________________________
Name:
Title:
SELECTBUILD,
LP
By:
BUILDING
MATERIALS HOLDING CORPORATION, its General Partner
By:_____________________________________
Name:
Title:
XXXXXX
ROAD, L.L.C.
By:
SELECTBUILD
CONSTRUCTION, INC., its Sole Member
By:_____________________________________
Name:
Title:
C
CONSTRUCTION, INC.
(successor by merger to KBI Concrete, LLC and Total Concrete, LLC)
(successor by merger to KBI Concrete, LLC and Total Concrete, LLC)
By:_____________________________________
Name:
Title:
KBI
CONSTRUCTION,
LLC
By:
SELECTBUILD
CONSTRUCTION, INC., its Sole Member
By:_____________________________________
Name:
Title:
RJ
NORCAL, LLC
By:
SELECTBUILD
CONSTRUCTION, INC., its Sole Member
By:_____________________________________
Name:
Title:
KBI
NORCAL GENERAL
PARTNERSHIP
By:_____________________________________
Name:
Title:
KBI
NORCAL WINDOWS,
INC.
By:_____________________________________
Name:
Title:
KBI
STUCCO,
INC.
By:_____________________________________
Name:
Title:
TWF
CONSTRUCTION,
INC.
By:_____________________________________
Name:
Title:
KBI
WINDOWS,
INC.
By:_____________________________________
Name:
Title:
H.N.R.
FRAMING
SYSTEMS INC.
By:_____________________________________
Name:
Title:
FSC
CONSTRUCTION,
INC.
By:_____________________________________
Name:
Title:
BMC
REALTY,
INC.
By:_____________________________________
Name:
Title:
SELECTBUILD
FLORIDA, LLC
By:_____________________________________
Name:
Title:
BBP
CONCRETE
CO.
By:_____________________________________
Name:
Title:
BBP
CONSTRUCTION
CO.
By:_____________________________________
Name:
Title:
BBP
COMMERCIAL
CO.
By:_____________________________________
Name:
Title:
TBA
MATERIALS,
LLC
By:
SELECTBUILD
CONSTRUCTION, INC., its Sole Member
By:_____________________________________
Name:
Title:
SEVENTIETH
AND
NORTHERN AVENUE HOLDINGS, LLC
By:
SELECTBUILD
CONSTRUCTION, INC., its Sole Member
By:_____________________________________
Name:
Title:
SELECTBUILD
DISTRIBUTION, LLC
By:
SELECTBUILD
CONSTRUCTION, INC., its Sole Member
By:_____________________________________
Name:
Title:
SELECTBUILD
ARIZONA, LLC
By:
SELECTBUILD
CONSTRUCTION, INC., its Sole Member
By:_____________________________________
Name:
Title:
XXXXX
FARGO BANK,
NATIONAL ASSOCIATION,
as
Administrative Agent, Joint Lead Arranger,
Joint Book Runner, L/C Issuer, Swingline Lender,
Revolving Lender and Term B Lender
Joint Book Runner, L/C Issuer, Swingline Lender,
Revolving Lender and Term B Lender
By:_____________________________________
Title:____________________________________
JPMORGAN
CHASE
BANK, N.A.,
as
Documentation Agent, Revolving Lender and Term B Lender
By:_____________________________________
Title:____________________________________
SUNTRUST
BANK,
as
Joint Lead Arranger, Co-Syndication Agent,
Revolving Lender and Term B Lender
Revolving Lender and Term B Lender
By:_____________________________________
Title:____________________________________
BNP
PARIBAS,
as
Joint Lead Arranger, Co-Syndication Agent,
Revolving Lender and Term B Lender
Revolving Lender and Term B Lender
By:_____________________________________
Title:____________________________________
By:_____________________________________
Title:____________________________________
THE
LENDERS
COMMERZBANK
AG,
New York and Grand Cayman Branches
New York and Grand Cayman Branches
By:_____________________________________
Title:____________________________________
LASALLE
BANK,
NATIONAL ASSOCIATION
By:_____________________________________
Title:____________________________________
U.S.
BANK NATIONAL
ASSOCIATION
By:_____________________________________
Title:____________________________________
COOPERATIVE
CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
“RABOBANK INTERNATIONAL”, NEW YORK BRANCH
RAIFFEISEN-BOERENLEENBANK B.A.,
“RABOBANK INTERNATIONAL”, NEW YORK BRANCH
By:_____________________________________
Title:____________________________________
UNION
BANK OF
CALIFORNIA, N.A.
By:_____________________________________
Title:____________________________________
HSBC
BANK USA,
NATIONAL ASSOCIATION
By:_____________________________________
Title:____________________________________
GUARANTY
BANK
By:_____________________________________
Title:____________________________________
XXXXXXX
XXXXX BANK
FSB
By:_____________________________________
Title:____________________________________
PNC
BANK
By:_____________________________________
Title:____________________________________
WHITNEY
NATIONAL
BANK
By:_____________________________________
Title:____________________________________
BANK
LEUMI
USA
By:_____________________________________
Title:____________________________________
WEST
COAST
BANK
By:_____________________________________
Title:_____________________________________
AMERICAN
AGCREDIT,
PCA
By:_____________________________________
Title:____________________________________
EXISTING
LETTERS OF CREDIT
LC
#
|
Maturity
Date
|
Face
Xxxxxx
|
000000
|
7/13/07
|
$3,200,000
|
410365
|
6/30/07
|
$513,000
|
417949
|
5/30/07
|
$3,935,000
|
418264
|
8/18/07
|
$500,000
|
463973
|
11/14/06
|
$300,000
|
468963
|
1/3/07
|
$1,424,000
|
505461
|
12/11/06
|
$29,540,030
|
551995
|
8/25/07
|
$3,049,519
|
551996
|
8/25/07
|
$2,585,611
|
559165
|
12/2/06
|
$25,500,000
|
574042
|
6/19/07
|
$1,359,038
|
TOTAL
|
$71,906,198
|
REVOLVING
LOAN COMMITMENTS AND PROPORTIONATE SHARES
Banks
|
Revolving
Commitment
|
Proportionate
Share
(Revolving
Commitment)
|
Xxxxx
Fargo
Bank, National Association
|
$70,000,000
|
14.000000000%
|
JPMorgan
Chase Bank, N.A.
|
$60,000,000
|
12.000000000%
|
SunTrust
Bank
|
$60,000,000
|
12.000000000%
|
BNP
Paribas
|
$60,000,000
|
12.000000000%
|
American
AgCredit, PCA
|
$46,000,000
|
9.200000000%
|
Rabobank
International
|
$35,000,000
|
7.000000000%
|
LaSalle
Bank,
National Association
|
$25,000,000
|
5.000000000%
|
U.S.
Bank
National Association
|
$25,000,000
|
5.000000000%
|
Union
Bank of
California, N.A.
|
$20,000,000
|
4.000000000%
|
Whitney
National Bank
|
$20,000,000
|
4.000000000%
|
HSBC
Bank
USA, N.A.
|
$15,000,000
|
3.000000000%
|
PNC
Bank
|
$15,000.000
|
3.000000000%
|
Commerzbank
AG
|
$10,000,000
|
2.000000000%
|
Guaranty
Bank
|
$10,000,000
|
2.000000000%
|
Xxxxxxx
Xxxxx
Bank FSB
|
$10,000,000
|
2.000000000%
|
West
Coast
Bank
|
$10,000,000
|
2.000000000%
|
Bank
Leumi
USA
|
$9,000,000
|
1.800000000%
|
TOTAL
|
$500,000,000
|
100.000000000%
|
TERM
B
LOAN AMORTIZATION SCHEDULE
Date
|
%
of
Total Due
|
Payment
Due Based
on
Aggregate
Term B
Commitment
as
of
Effective Date
|
12/31/06
|
0.25%
|
$875,000
|
|
|
|
3/31/07
|
0.25%
|
$875,000
|
6/30/07
|
0.25%
|
$875,000
|
9/30/07
|
0.25%
|
$875,000
|
12/31/07
|
0.25%
|
$875,000
|
|
|
|
3/31/08
|
0.25%
|
$875,000
|
6/30/08
|
0.25%
|
$875,000
|
9/30/08
|
0.25%
|
$875,000
|
12/31/08
|
0.25%
|
$875,000
|
|
|
|
3/31/09
|
0.25%
|
$875,000
|
6/30/09
|
0.25%
|
$875,000
|
9/30/09
|
0.25%
|
$875,000
|
12/31/09
|
0.25%
|
$875,000
|
|
|
|
3/31/10
|
0.25%
|
$875,000
|
6/30/10
|
0.25%
|
$875,000
|
9/30/10
|
0.25%
|
$875,000
|
12/31/10
|
0.25%
|
$875,000
|
|
|
|
3/31/11
|
0.25%
|
$875,000
|
6/30/11
|
0.25%
|
$875,000
|
9/30/11
|
0.25%
|
$875,000
|
12/31/11
|
0.25%
|
$875,000
|
|
|
|
3/31/12
|
0.25%
|
$875,000
|
6/30/12
|
0.25%
|
$875,000
|
9/30/12
|
0.25%
|
$875,000
|
12/31/12
|
0.25%
|
$875,000
|
|
|
|
3/31/13
|
0.25%
|
$875,000
|
6/30/13
|
0.25%
|
$875,000
|
9/30/13
|
0.25%
|
$875,000
|
11/10/13
|
93%
|
$325,500,000
|
|
100.00%
|
$350,000,000
|
LITIGATION
None.
ERISA
None.
PERMITTED
LIABILITIES
None.
ENVIRONMENTAL
MATTERS
None.
CONTRACTUAL
OBLIGATIONS
Holdings,
through
its subsidiary SelectBuild Construction, Inc., is a party to certain contractual
arrangements to acquire the minority interest in the following: SelectBuild
Mid-Atlantic, LLC, A-1 Building Components, LLC, KBI Mechanical, LLC,
SelectBuild Illinois, LLC and Xxxxx Plumbing, LLC AND BBD Construction,
LP.1
1.
|
The
Amended
and Restated Limited Liability Company Operating Agreement of
SelectBuild-Mid Atlantic, LLC, dated October 1,
2003.
|
2.
|
The
Amended
and Restated Limited Liability Company Operating Agreement of A-1
Building
Components, LLC, dated September 1,
2004.
|
3.
|
The
Amended
and Restated Limited Liability Company Operating Agreement of KBI
Mechanical, LLC, dated October 5,
2004.
|
4.
|
The
Amended
and Restated Limited Liability Company Operating Agreement of SelectBuild
Illinois, LLC, dated January 1,
2005.
|
5.
|
The
Amended
and Restated Limited Liability Company Operating Agreement of Xxxxx
Plumbing, LLC, dated April 1, 2005.
|
6.
|
The
Amended
and Restated Limited Partnership Agreement of BBD Construction, LP,
dated
July 16, 2003.
|
1 |
This
entity
is inactive and is scheduled to be dissolved by the end of
2005.
|
PART
(A)
SUBSIDIARIES
AND MINORITY INTERESTS
Wholly
Owned
Subsidiaries:
BMC
West
Corporation (Delaware corporation)
BMCW
SouthCentral,
L.P. (a Texas limited partnership)
BMC
West
Corporation SouthCentral (Delaware corporation)
BMCW,
LLC (Delaware
limited liability company)
SelectBuild
Construction, Inc. (Delaware corporation)
SelectBuild,
LP
(California limited partnership)
Xxxxxx
Road, LLC
(California limited liability company)
KBI
Norcal
(California general partnership)
KBI
Construction,
LLC (Delaware limited liability company)
RJ
Norcal, LLC (California limited liability company)
KBI
Stucco, Inc.
(Delaware corporation)
KBI
Norcal Windows,
Inc. (Delaware corporation)
SelectBuild
Florida, LLC (Delaware limited liability company)
FSC
Construction,
Inc. (Delaware corporation)
C
Construction, Inc. (Delaware corporation)
TWF
Construction,
Inc. (Delaware corporation)
H.N.R.
Framing
Systems, Inc. (California corporation)
KBI
Windows, Inc.
(Delaware corporation)
BMC
Realty, Inc.
(Delaware corporation)
BBP
Concrete Co.
(Arizona corporation)
BBP
Construction
Co. (Arizona corporation)
BBP
Commercial Co.
(Arizona corporation)
TBA
Materials, LLC
(Arizona limited liability company)
Seventieth
and
Northern Avenues Holdings, LLC (Arizona limited liability company)
SelectBuild
Distribution, LLC (Delaware limited liability company)
SelectBuild
Arizona, LLC (Delaware limited liability company)
Non-Wholly
Owned
Subsidiaries:
A-1
Building
Components, LLC (Delaware limited liability company)
KBI
Mechanical, LLC
(Delaware limited liability company)
SelectBuild
Mid-Atlantic, LLC (Delaware limited liability company)
SelectBuild
Illinois, LLC (Delaware limited liability company)
Xxxxx
Plumbing, LLC
(Arizona limited liability company)
BBD
Construction,
L.P. (Texas limited partnership)2
PART
(B)
MINORITY
EQUITY INTERESTS
None.
2 |
This
entity
is inactive and is scheduled to be dissolved by the end of
2005.
|
INSURANCE
MATTERS
N/A
POST-CLOSING
UNDERTAKINGS
Description
of Undertaking
|
Completion
Deadline
|
Holdings
shall, and shall cause each of the Guarantors to, deliver to the
Administrative Agent such control agreements as the Administrative
Agent
may request for the perfection of the Administrative Agent’s Lien on the
Primary Accounts (as defined in the Security Agreement) of Holdings
and
the Guarantors, executed by Holdings or such Guarantor, as applicable,
and
any applicable financial institutions.
|
Forty-five
calendar days following the date hereof.
|
Holdings
shall, and shall cause each of the Guarantors to, deliver to the
Administrative Agent such consents, estoppels, subordination agreements
and other documents and instruments executed by landlords, tenants,
bailees and other Persons party to material contracts relating to
any
Collateral as to which the Administrative Agent shall be granted
a Lien
for the benefit of the Lenders, as may be requested by the Administrative
Agent.
|
Commercially
reasonable efforts to obtain such agreements within forty-five calendar
days following the date hereof.
|
Holdings
shall, and shall cause each of the Guarantors to, execute and deliver
to
the Administrative Agent such Intellectual Property Security Agreements
as
the Administrative Agent may reasonably request, and shall authorize
the
Administrative Agent to record such Intellectual Property Security
Agreements with the U.S. Copyright Office or the U.S. Patent and
Trademark
Office, as applicable, and take such other action as may be necessary,
or
as the Administrative Agent or the Majority Lenders may reasonably
request, to perfect the Administrative Agent’s security interest in such
Intellectual Property Collateral.
|
Forty-five
calendar days following the date hereof.
|
To
the extent
not previously delivered pursuant to the Existing Credit Agreement,
Holdings shall, and shall cause each Guarantor to, deliver to the
Administrative Agent all certificates and instruments representing
the
Pledged Collateral, together with stock transfer powers executed
in
blank.
|
Thirty
calendar days following the date
hereof.
|
PERMITTED
LIENS
In
addition to Liens (including Capital Leases) described on Schedule 8.05, Liens
set forth on Annex I attached hereto.
PERMITTED
INDEBTEDNESS
BMCW
SouthCentral,
L.P. is a party to a note arising out of a 1999 acquisition, which has an
outstanding balance of $2,697,193 as of September 30, 2006.
SelectBuild,
Florida, LLC is a party to a certain note involving equipment, which has an
outstanding balance of $29,778 as of September 30, 2006.
A-1
Building
Components, LLC is a party to certain capital leases, which have an outstanding
balance of $359,194 as of September 30, 2006.
A-1
Building
Components, LLC is a party to a certain notes involving equipment, which have
an
outstanding balance of $153,268 as of September 30, 2006.
A-1
Building
Components, LLC is a party to a certain bond involving equipment, which has
an
outstanding balance of $332,777 as of September 30, 2006.
SelectBuild
Illinois, LLC is a party to certain notes involving equipment, which have an
outstanding balance of $1,477 as of September 30, 2006.
BMC
West
Corporation is a party to certain capital leases, which have an outstanding
balance of $181,649 as of September 30, 2006.
BMC
West
Corporation is a party to certain notes, which have an outstanding balance
of
$149,922 as of September 30, 2006.
BMC
West
Corporation is a party to certain notes involving land and buildings, which
have
an outstanding balance of $1,085,541 as of September 30, 2006.
BBP
is a party to
certain notes involving equipment, which have an outstanding balance of
$8,222,783 as of September 30, 2006.
All
indebtedness
secured by Liens set forth in Schedule 8.01.
CONTINGENT
OBLIGATIONS
Under
the Amended
and Restated Partnership Agreement of SelectBuild Mid-Atlantic, LLC, Holdings,
through its subsidiary SelectBuild Construction, Inc., has the option to
purchase, directly or indirectly, the remaining 32.7% interest in WBC
Mid-Atlantic from October 1, 2006 (immediately) through October 1, 2010. Under
the Put Agreement, the principals of ANM Carpentry have the option to require
Holdings to purchase the remaining 32.7% of WBC Mid-Atlantic from October 1,
2008 through October 1, 2010. The purchase price for the remaining 32.7% will
generally be based on a multiple of historical earnings. The option and the
put
may be exercised early under certain circumstances.
Under
the Amended
and Restated Limited Partnership Agreement of A-1 Building Components, LLC,
Holdings, through its subsidiary SelectBuild Construction, Inc., has the option
to purchase, directly or indirectly, the remaining 49% interest in A-1 Building
Components from September 1, 2009 (immediately) through September 1, 2014.
Under
the Put Agreement, the principals of A-1 Building Components, LLC, the
principals of A-1 Building Components, and Xxxx Xxxxxxx have the option to
require Holdings to purchase the remaining 49% of A-1 Building Components from
September 1, 2009 through September 1, 2014. The purchase price for the
remaining 49% will generally be based on a multiple of historical earnings.
The
option and the put may be exercised early under certain
circumstances.
Under
the Amended
and Restated Limited Liability Company Operating Agreement of KBI Mechanical,
LLC, Holdings, through its subsidiary SelectBuild Construction, Inc., has the
option to purchase, directly or indirectly, the remaining 40% interest in KBI
Mechanical from December 31, 2009 through December 31, 2014. Under the Put
Agreement, the principals of KBI Mechanical have the option to require Holdings
to purchase the remaining 40% of KBI Mechanical from December 31, 2009 through
December 31, 2014. The purchase price for the remaining 40% will generally
be
based on a multiple of historical earnings. The option and the put may be
exercised early under certain circumstances.
Under
the Amended
and Restated Limited Liability Company Operating Agreement of SelectBuild
Illinois, LLC, Holdings, through its subsidiary SelectBuild Construction, Inc.,
has the option to purchase, directly or indirectly, the remaining 49% interest
in RCI from January 25, 2008 through January 25, 2012. Under the Put Agreement,
the principals of Residential Carpentry, Inc., Xxxxxx Xxxxx, Xxxxx Xxxxxx,
and
Xxxxxx Xxxxxx have the option to require Holdings to purchase the remaining
49%
of RCI from January 25, 2008 through January 25, 2012. The purchase price for
the remaining 49% will generally be based on a multiple of historical earnings.
The option and the put may be exercised early under certain
circumstances.
Under
the Amended
and Restated Limited Partnership Agreement of Xxxxx Plumbing, LLC, Holdings,
through its subsidiary SelectBuild Construction, Inc., has the option to
purchase, directly or indirectly, the remaining 27% interest in Xxxxx Plumbing
from April 1, 2008 through April 1, 2013. Under the Put Agreement, the
principals of Xxxxx Plumbing, LLC and Xxxxx & Associates, LLC have the
option to require Holdings to purchase the remaining 27% of Xxxxx Plumbing
from
April 1, 2010 through April 1, 2013. The purchase price for the remaining 27%
will generally be based on a multiple of historical earnings. The option and
the
put may be exercised early under certain circumstances.
Under
the Amended
and Restated Limited Partnership Agreement of XXX Xxxxxxxxxxxx,
X.X.,0
Holdings has the
option to purchase, directly or indirectly, the remaining 49% interest in BBD
Construction from July 1, 2005 through June 30, 2008. Under the Put Agreement,
the principals of Better Builders-Dallas, Inc. have the option to require
Holdings to purchase the remaining 49% of BBD Construction from July 1, 2008
through June 30, 2010. The purchase price for the remaining 49% will generally
be based on a multiple of historical earnings. The option and the put may be
exercised early under certain circumstances.
PAYMENT
OFFICES; ADDRESSES FOR NOTICES; LENDING OFFICES
Addresses
for
Notices:
If
to Holdings:
0
Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxxxxx, XX
00000-0000
[Lender
Addresses
for Notices to be Provided]
PROCESSING
AND RECORDATION FEES
The
Administrative
Agent will charge a processing and recordation fee (an “Assignment
Fee”)
in the amount of
$300.00 for each assignment effected more than 45 days following the Effective
Date of the Credit Agreement; provided,
however,
that in the event
of two or more concurrent assignments to members of the same Assignee Group
(which may be effected by a suballocation of an assigned amount among members
of
such Assignee Group) or two or more concurrent assignments by members of the
same Assignee Group to a single Eligible Assignee (or to an Eligible Assignee
and members of its Assignee Group), the Assignment Fee will be $300.00 plus
the
amount set forth below:
Transaction
|
Assignment
Fee
|
|
First
four
concurrent assignments or
suballocations to members of an Assignee Group (or from members of an Assignee Group, as applicable) |
-0-
|
|
Each
additional concurrent assignment or
suballocation to a member of such Assignee Group (or from a member of such Assignee Group, as applicable) |
$100
|
PRICING
GRID
The
Applicable
Margin for Revolving Loans and the Applicable Fee Amount for any day shall
be
the amount per annum set forth below based on the Total EBITDA Ratio set forth
in the most recently delivered Compliance Certificate delivered by Holdings
pursuant to Section 7.02(c)
of the Credit
Agreement. Changes in the Applicable Margin for Revolving Loans and the
Applicable Fee Amount resulting from a change in the Total EBITDA Ratio shall
become effective on the date of delivery by Holdings to the Administrative
Agent
of a new Compliance Certificate pursuant to Section 7.02(c).
If Holdings shall
fail to deliver a Compliance Certificate and accompanying financial statements
within the number of days after the end of any fiscal quarter or fiscal year
as
required pursuant to Section 7.02(c),
the parties agree
that the Applicable Margin and the Applicable Fee Amount shall be fixed at
Level
5 until such time as Holdings delivers such new Compliance Certificate and
accompanying financial statements pursuant to Section 7.02(c).
Notwithstanding
the foregoing, for the period from the Effective Date until the date of delivery
by Holdings to the Administrative Agent of a new Compliance Certificate pursuant
to Section 7.02(c)
for the fiscal
quarter ending March 31, 2007, the Applicable Margin for Revolving Loans and
the
Applicable Fee Amount shall be no lower than Level 2 (with Level 1 being the
lowest and Level 5 being the highest).
Level
|
Total
EBITDA Ratio
|
Offshore
Rate Spread
|
Base
Rate
Spread
|
Letter
of
Credit
Fee
|
Commitment
Fee
|
Level
5
|
greater
than
or equal to 4.00:1.00
|
2.000%
|
0.750%
|
2.000%
|
0.350%
|
Xxxxx
0
|
greater
than
or equal to 3.25:1.00 but less than 4.00:1.00
|
1.750%
|
0.500%
|
1.750%
|
0.300%
|
Xxxxx
0
|
greater
than
or equal to 2.50:1.00 but less than 3.25:1.00
|
1.500%
|
0.250%
|
1.500%
|
0.250%
|
Xxxxx
0
|
greater
than
or equal to 1.75:1.00 but less than 2.50:1.00
|
1.250%
|
0.000%
|
1.250%
|
0.225%
|
Xxxxx
0
|
less
than
1.75:1.00
|
1.000%
|
0.000%
|
1.000%
|
0.200%
|
Annex
I
1
1
Date:
____________________
FORM
OF NOTICE
OF REVOLVING BORROWING
To:
|
Xxxxx
Fargo
Bank,
|
National
Association,
as
Administrative
Agent
Ladies
and
Gentlemen:
The
undersigned,
Building Materials Holding Corporation (“Holdings”),
refers to the
Second Amended and Restated Credit Agreement, dated as of November __,
2006 (as
extended, renewed, amended or restated from time to time, the “Credit
Agreement”),
among Holdings,
BMC West Corporation (the “Company”)
and certain
other affiliates of Holdings, as guarantors, JPMorgan Chase Bank, N.A.,
as
Documentation Agent, SunTrust Bank, as Joint Lead Arranger and Co-Syndication
Agent, BNP Paribas, as Joint Lead Arranger and Co-Syndication Agent, the
several
financial institutions from time to time party thereto (the “Lenders”)
and Xxxxx Fargo
Bank, National Association, as issuing bank of certain letters of credit
(in
such capacity, the “L/C
Issuer”),
as Swingline
Lender, as administrative agent (in such capacity, the “Administrative
Agent”),
as Joint Lead
Arranger and Joint Book Manager, the terms defined therein being used herein
as
therein defined, and hereby gives you notice irrevocably, pursuant to
Section
2.03
of the Credit
Agreement, of the Borrowing specified below:
1. The
Business Day of
the proposed Borrowing is __________.
2. The
aggregate
amount of the proposed Borrowing is $______.
3. The
Borrowing is to
be comprised of $ ______ of [Base Rate Loans][Offshore Rate Loans].
4. [The
duration of
the Interest Period for the Offshore Rate Loans included in the Borrowing
shall
be ____ months.]
The
undersigned
hereby certifies that the following statements are true on the date hereof,
and
will be true on the date of the proposed Borrowing, before and after giving
effect thereto and to the application of the proceeds therefrom:
(a) the
representations
and warranties of Holdings contained in Article
VI
of the Credit Agreement are true and correct as though made on and as of
such
date, except to the extent such representations and warranties expressly
refer
to an earlier date, in which case they are true and correct as of such
date, and
except that this notice shall be deemed instead to refer to the last day
of the
most recent fiscal year and fiscal quarter for which financial statements
have
then been delivered in respect of the representation and warranty made
in
Section
6.11(a)
of the Credit
Agreement;
(b) no
Default or Event
of Default has occurred and is continuing, or would result from such proposed
Borrowing;
(c) there
has occurred
since December 31, 2005, no event or circumstance that has resulted or
could
reasonably be expected to result in a Material Adverse Effect; and
(d) after
giving effect
to the proposed Borrowing, the Effective Amount of all outstanding Revolving
Loans plus
the Effective
Amount of all outstanding Swingline Loans plus
the Effective
Amount of all L/C Obligations shall not exceed the Aggregate Revolving
Commitment.
By:______________________________________
Title:
Date:
____________________
FORM
OF NOTICE
OF TERM LOAN BORROWING
To:
|
Xxxxx
Fargo
Bank,
|
National
Association,
as
Administrative
Agent
Ladies
and
Gentlemen:
The
undersigned,
Building Materials Holding Corporation (“Holdings”),
refers to the
Second Amended and Restated Credit Agreement, dated as of November __,
2006 (as
extended, renewed, amended or restated from time to time, the “Credit
Agreement”),
among Holdings,
BMC West Corporation (the “Company”)
and certain
other affiliates of Holdings, as guarantors, JPMorgan Chase Bank, N.A.,
as
Documentation Agent, SunTrust Bank, as Joint Lead Arranger and Co-Syndication
Agent, BNP Paribas, as Joint Lead Arranger and Co-Syndication Agent, the
several
financial institutions from time to time party thereto (the “Lenders”)
and Xxxxx Fargo
Bank, National Association, as issuing bank of certain letters of credit
(in
such capacity, the “L/C
Issuer”),
as Swingline
Lender, as administrative agent (in such capacity, the “Administrative
Agent”),
as Joint Lead
Arranger and Joint Book Manager, the terms defined therein being used herein
as
therein defined, and hereby gives you notice irrevocably, pursuant to
Section
2.03
of the Credit
Agreement, of the Borrowing specified below:
1. The
Business Day of
the proposed Borrowing is __________.
2. The
aggregate
amount of the proposed Borrowing is $______ of Term B Loans.
3. The
Borrowing is to
be comprised of $______ of [Base Rate Loans][Offshore Rate Loans].
4. [The
duration of
the Interest Period for the Offshore Rate Loans included in the Borrowing
shall
be ____ months.]
The
undersigned
hereby certifies that the following statements are true on the date hereof,
and
will be true on the date of the proposed Borrowing, before and after giving
effect thereto and to the application of the proceeds therefrom:
(a) the
representations
and warranties of Holdings contained in Article VI of the Credit Agreement
are
true and correct as though made on and as of such date, except to the extent
such representations and warranties expressly refer to an earlier date,
in which
case they are true and correct as of such date, and except that this notice
shall be deemed instead to refer to the last day of the most recent fiscal
year
and fiscal quarter for which financial statements have then been delivered
in
respect of the representation and warranty made in Section 6.11 of the
Credit
Agreement;
(b) no
Default or Event
of Default has occurred and is continuing, or would result from such proposed
Borrowing; and
(c) there
has occurred
since December 31, 2005, no event or circumstance that has resulted or
could
reasonably be expected to result in a Material Adverse Effect.
By:_______________________________________
Title:
FORM
OF NOTICE
OF REVOLVING LOAN CONVERSION/CONTINUATION
Date:
__________________
To:
|
Xxxxx
Fargo
Bank, National Association,
|
as
Administrative
Agent
Ladies
and
Gentlemen:
The
undersigned,
Building Materials Holding Corporation (“Holdings”),
refers to the
Second Amended and Restated Credit Agreement, dated as of November __,
2006 (as
extended, renewed, amended or restated from time to time, the “Credit
Agreement”),
among Holdings,
BMC West Corporation (the “Company”)
and certain
other affiliates of Holdings, as guarantors, JPMorgan Chase Bank, N.A.,
as
Documentation Agent, SunTrust Bank, as Joint Lead Arranger and Co-Syndication
Agent, BNP Paribas, as Joint Lead Arranger and Co-Syndication Agent, the
several
financial institutions from time to time party thereto (the “Lenders”)
and Xxxxx Fargo
Bank, National Association, as issuing bank of certain letters of credit
(in
such capacity, the “L/C
Issuer”),
as Swingline
Lender, as administrative agent (in such capacity, the “Administrative
Agent”),
as Joint Lead
Arranger and Joint Book Manager, the terms defined therein being used herein
as
therein defined, and hereby gives you notice irrevocably, pursuant to
Section
2.04
of the Credit
Agreement, of the [conversion] [continuation] of Loans specified
below:
1. The
Conversion/Continuation Date is __________________.
2. The
aggregate
amount of the Revolving Loans to be [converted] [continued] is
$____________.
3. The
Loans are to be
[converted into] [continued as] [Offshore Rate Loans] [Base Rate
Loans].
4. [The
duration of
the Interest Period for the Offshore Rate Loans included in the [conversion]
[continuation] shall be
months.]
BUILDING
MATERIALS
HOLDING CORPORATION
By:______________________________________
Title:_____________________________________
XXXX
XX XXXXXX
XX XXXX X LOAN CONVERSION/CONTINUATION
Date:
_______________
To:
|
Xxxxx
Fargo
Bank,
|
National
Association,
as
Administrative
Agent
Ladies
and
Gentlemen:
The
undersigned,
Building Materials Holding Corporation (“Holdings”),
refers to the
Second Amended and Restated Credit Agreement, dated as of November __,
2006 (as
extended, renewed, amended or restated from time to time, the “Credit
Agreement”),
among Holdings,
BMC West Corporation (the “Company”)
and certain
other affiliates of Holdings, as guarantors, JPMorgan Chase Bank, N.A., as
Documentation Agent, SunTrust Bank, as Joint Lead Arranger and Co-Syndication
Agent, BNP Paribas, as Joint Lead Arranger and Co-Syndication Agent, the
several
financial institutions from time to time party thereto (the “Lenders”)
and Xxxxx Fargo
Bank, National Association, as issuing bank of certain letters of credit
(in
such capacity, the “L/C
Issuer”),
as Swingline
Lender, as administrative agent (in such capacity, the “Administrative
Agent”),
as Joint Lead
Arranger and Joint Book Manager, the terms defined therein being used herein
as
therein defined, and hereby gives you notice irrevocably, pursuant to
Section
2.04
of the Credit
Agreement, of the [conversion] [continuation] of Loans specified
below:
1. The
Conversion/Continuation Date is _______________.
2. The
aggregate
amount of the [Term B Loans to be [converted] [continued] is
$_________________.
3. The
Loans are to be
[converted into] [continued as] [Offshore Rate Loans] [Base Rate
Loans].
4. [The
duration of
the Interest Period for the Offshore Rate Loans included in the [conversion]
[continuation] shall be _______ months.]
BUILDING
MATERIALS
HOLDING CORPORATION
By:_______________________________________
Title:______________________________________
FORM
OF
COMPLIANCE CERTIFICATE
BUILDING
MATERIALS HOLDING CORPORATION
Financial
Statements Date: _________________
Reference
is made
to that certain Second Amended and Restated Credit Agreement, dated as
of
November __, 2006 (as extended, renewed, amended or restated from time
to time,
the “Credit
Agreement”),
among Building
Materials Holding Corporation (“Holdings”),
BMC West
Corporation (the “Company”)
and certain
other affiliates of Holdings, as guarantors, JPMorgan Chase Bank, N.A.,
as
Documentation Agent, SunTrust Bank, as Joint Lead Arranger and Co-Syndication
Agent, BNP Paribas, as Joint Lead Arranger and Co-Syndication Agent, the
several
financial institutions from time to time party thereto (the “Lenders”)
and Xxxxx Fargo
Bank, National Association, as issuing bank of certain letters of credit
(in
such capacity, the “L/C
Issuer”),
as Swingline
Lender, as administrative agent (in such capacity, the “Administrative
Agent”),
as Joint Lead
Arranger and Joint Book Manager. Unless otherwise defined herein, capitalized
terms used herein have the respective meanings assigned to them in the
Credit
Agreement.
The
undersigned
Responsible Officer of Holdings hereby certifies as of the date hereof
that
he/she is the [___________] of Holdings, and that, as such, he/she is authorized
to execute and deliver this Certificate to the Administrative Agent on
the
behalf of Holdings and its consolidated Subsidiaries, and that:
[Use
the following paragraph if this Certificate is delivered in connection
with the
annual financial statements required by Section 7.01(a) of the Credit
Agreement.]
(a) Attached
hereto are
true and correct copies of the audited consolidated balance sheet of Holdings
and its Subsidiaries as at the end of the fiscal year ended ___________
and the
related consolidated statements of income or operations, shareholders’ equity,
retained earnings and cash flows for such year, setting forth in each case
in
comparative form the figures for the previous fiscal year, accompanied
by (a)
the report and opinion of the Independent Auditor, which report and opinion
shall be prepared in accordance with generally accepted auditing standards
and
applicable Securities Laws and shall not be subject to any “going concern” or
like qualification or exception or any qualification or exception as to
the
scope of such audit and which states that such consolidated financial
statements present fairly the financial position and the results of operations
and cash flows of Holdings and its Subsidiaries for the periods indicated
in
conformity with GAAP applied on a basis consistent with prior years and
(b) an attestation report of such Independent Auditor as to Holdings’
internal controls pursuant to Section 404 of Xxxxxxxx-Xxxxx.
or
[Use
the following paragraph if this Certificate is delivered in connection
with the
quarterly financial statements required by Section 7.01(b) of the Credit
Agreement.]
(a) Attached
hereto are
true and correct copies of the unaudited consolidated balance sheet of
Holdings
and its Subsidiaries as of the end of the fiscal quarter ended ________
and the
related consolidated statements of income, shareholders’ equity and cash flows
for the period commencing on the first day and ending on the last day of
such
quarter, which are complete and accurate in all material respects and fairly
present, in accordance with GAAP (subject to year-end audit adjustments
and the
absence of footnotes), the financial position, the results of operations
and the
cash flows of Holdings and the Subsidiaries.
(b) The
undersigned has
reviewed and is familiar with the terms of the Credit Agreement and has
made, or
has caused to be made under his/her supervision, a detailed review of the
transactions and condition (financial or otherwise) of Holdings and its
Subsidiaries during the accounting period covered by the attached financial
statements.
(c) Holdings
and its
Subsidiaries, during such period, have observed, performed or satisfied
all of
the covenants and other agreements, and satisfied every condition in the
Credit
Agreement to be observed, performed or satisfied by Holdings and its
Subsidiaries, and the undersigned has no knowledge of any Default or Event
of
Default.
(d) The
representations
and warranties of Holdings and the Company contained in Article VI
of the Credit
Agreement are true and correct as though made on and as of the date hereof
(except to the extent such representations and warranties relate to an
earlier
date, in which case they shall be true and correct as of such date; and
except
that this notice shall be deemed instead to refer to the last day of the
most
recent year and fiscal quarter for which financial statements have then
been
delivered in respect of the representation and warranty made in Section 6.11(a)
of the Credit
Agreement).
(e) The
financial
covenant analyses and information set forth on Schedule
1
attached hereto are true and accurate on and as of the date of this
Certificate.
IN
WITNESS WHEREOF, the undersigned has executed this Certificate as the __________
of Holdings as of __________.
BUILDING
MATERIALS
HOLDING CORPORATION
By:______________________________________
Title:
Schedule
I
to
Compliance
Certificate
[to
be
provided]
[to
be
provided]
FORM
OF
ASSIGNMENT AND ASSUMPTION
This
Assignment and
Assumption (the “Assignment
and
Assumption”)
is dated as of
the Effective Date set forth below and is entered into by and between the
each
Assignor identified in item 1 below (the “Assignor”)
and the Assignee
identified in item 2 below (the “Assignee”).
Capitalized
terms used but not defined herein shall have the meanings given to them
in the
Credit Agreement identified below (as amended, the “Credit
Agreement”),
receipt of a
copy of which is hereby acknowledged by the Assignee. The Standard Terms
and
Conditions set forth in Annex 1 attached hereto are hereby agreed to and
incorporated herein by reference and made a part of this Assignment and
Assumption as if set forth herein in full.
For
an agreed
consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from
the
Assignor, subject to and in accordance with the Standard Terms and Conditions
and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of the Assignor’s rights and
obligations in its capacity as a Lender under the Credit Agreement and
any other
documents or instruments delivered pursuant thereto to the extent related
to the
amount and percentage interest identified below of all of such outstanding
rights and obligations of the Assignor under the respective facilities
identified below (including without limitation any letters of credit,
guarantees, and swingline loans included in such facilities) and (ii) to
the
extent permitted to be assigned under applicable law, all claims, suits,
causes
of action and any other right of the Assignor (in its capacity as a Lender)
against any Person, whether known or unknown, arising under or in connection
with the Credit Agreement, any other documents or instruments delivered
pursuant
thereto or the loan transactions governed thereby or in any way based on
or
related to any of the foregoing, including, but not limited to, contract
claims,
tort claims, malpractice claims, statutory claims and all other claims
at law or
in equity related to the rights and obligations sold and assigned pursuant
to
clause (i) above (the rights and obligations sold and assigned by the Assignor
to the Assignee pursuant to clauses (i) and (ii) above being referred to
herein
collectively as the “Assigned
Interest”).
Each such sale
and assignment is without recourse to the Assignor and, except as expressly
provided in this Assignment and Assumption, without representation or warranty
by the Assignor.
1. | Assignor: | ______________________________ |
______________________________ | ||
2. | Assignee: | ___________________________ |
___________________________ | ||
[for
Assignee, indicate [Affiliate][Approved Fund] of [identify
Lender]
|
||
3. | Borrower(s): | Building Materials Holding Corporation |
4. | Administrative Agent: | Xxxxx Fargo Bank, National Association, as the administrative agent under the Credit Agreement |
5. | Credit Agreement: | The Second Amended and Restated Credit Agreement dated as of November __, 2006 among Borrower, BMC West Corporation and certain other affiliates of Borrower, as guarantors, JPMorgan Chase Bank, N.A., as Documentation Agent, SunTrust Bank, as Joint Lead Arranger and Co-Syndication Agent, BNP Paribas, as Joint Lead Arranger and Co-Syndication Agent, the several financial institutions from time to time party thereto and Xxxxx Fargo Bank, National Association, as issuing bank of certain letters of credit, as Swingline Lender, as Administrative Agent, as Joint Lead Arranger and Joint Book Manager. |
6. | Assigned Interest: |
Facility
Assigned1
|
Aggregate
Amount of Commitment/ Loans for all Lenders2
|
Amount
of Commitment/ Loans Assigned8
|
Percentage
Assigned of Commitment/ Loans3
|
CUSIP
Number
|
$
|
$
|
%
|
||
$
|
$
|
%
|
||
$
|
$
|
%
|
[7. | Trade Date: | ______________________________]4 |
1 |
Fill
in
the appropriate terminology for the types of facilities under
the Credit
Agreement that are being assigned under this Assignment (e.g.
“Revolving
Commitment,” “Term
|
2 |
Amount
to be adjusted by the counterparties to take into account any
payments or
prepayments made between the Trade Date and the Effective
Date.
|
3 |
Set
forth, to at least 9 decimals, as a percentage of the Commitment/Loans
of
all Lenders
thereunder.
|
4 |
To
be
completed if the Assignor and the Assignee intend that the
minimum
assignment amount is to be determined as of the Trade
Date.
|
[Page
break]
Effective
Date:
_____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH
SHALL
BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The
terms set forth
in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
|
|
[NAME
OF
ASSIGNOR]
|
|
By:______________________________
Title:
|
|
ASSIGNEE
|
|
[NAME
OF
ASSIGNEE]
|
|
By:______________________________
Title:
|
|
[Consented
to
and]5
Accepted:
|
|
XXXXX
FARGO
BANK, NATIONAL ASSOCIATION, as Administrative Agent
|
|
By:______________________________
Title:
|
|
[Consented
to:]6
|
|
XXXXX
FARGO
BANK, NATIONAL ASSOCIATION, as Administrative Agent
|
|
By:______________________________
Title:
|
5 |
To
be added
only if the consent of the Administrative Agent is required
by the terms
of the Credit Agreement.
|
6 |
To
be added
only if the consent of the Borrower and/or other parties (e.g.
Swingline
Lender, Issuing Bank) is required by the terms of the Credit
Agreement.
|
ANNEX
1
STANDARD
TERMS AND
CONDITIONS FOR
ASSIGNMENT
AND
ASSUMPTION
1. Representations
and Warranties.
1.1 Assignor.
The Assignor (a)
represents and warrants that (i) it is the legal and beneficial owner of
the
Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien,
encumbrance or other adverse claim and (iii) it has full power and authority,
and has taken all action necessary, to execute and deliver this Assignment
and
Assumption and to consummate the transactions contemplated hereby; and
(b)
assumes no responsibility with respect to (i) any statements, warranties
or
representations made in or in connection with the Credit Agreement or any
other
Loan Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its
Subsidiaries or Affiliates or any other Person obligated in respect of
any Loan
Document or (iv) the performance or observance by the Borrower, any of
its
Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.
1.2 Assignee.
The Assignee (a)
represents and warrants that (i) it has full power and authority, and has
taken
all action necessary, to execute and deliver this Assignment and Assumption
and
to consummate the transactions contemplated hereby and to become a Lender
under
the Credit Agreement, (ii) it meets all the requirements to be an assignee
under
Section 11.06(b) of the Credit Agreement (subject to such consents, if
any, as
may be required under Section 11.06(b) of the Credit Agreement), (iii)
from and
after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of the Assigned Interest,
shall have the obligations of a Lender thereunder, (iv) it is sophisticated
with
respect to decisions to acquire assets of the type represented by the Assigned
Interest and either it, or the person exercising discretion in making its
decision to acquire the Assigned Interest, is experienced in acquiring
assets of
such type, (v) it has received a copy of the Credit Agreement, and has
received
or has been accorded the opportunity to receive copies of the most recent
financial statements delivered pursuant to Section 7.01 thereof, as applicable,
and such other documents and information as it deems appropriate to make
its own
credit analysis and decision to enter into this Assignment and Assumption
and to
purchase the Assigned Interest, (vi) it has, independently and without
reliance
upon the Administrative Agent or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis
and
decision to enter into this Assignment and Assumption and to purchase the
Assigned Interest, and (vii) if it is a Foreign Lender, attached to the
Assignment and Assumption is any documentation required to be delivered
by it
pursuant to the terms of the Credit Agreement, duly completed and executed
by
the Assignee; and (b) agrees that (i) it will, independently and without
reliance on the Administrative Agent, the Assignor or any other Lender,
and
based on such documents and information as it shall deem appropriate at
the
time, continue to make its own credit decisions in taking or not taking
action
under the Loan
Documents,
and (ii)
it will perform in accordance with their terms all of the obligations which
by
the terms of the Loan Documents are required to be performed by it as a
Lender.
2. Payments.
From and after
the Effective Date, the Administrative Agent shall make all payments in
respect
of the Assigned Interest (including payments of principal, interest, fees
and
other amounts) to the Assignor for amounts which have accrued to but excluding
the Effective Date and to the Assignee for amounts which have accrued from
and
after the Effective Date.
3. General
Provisions.
This Assignment
and Assumption shall be binding upon, and inure to the benefit of, the
parties
hereto and their respective successors and assigns. This Assignment and
Assumption may be executed in any number of counterparts, which together
shall
constitute one instrument. Delivery
of an
executed counterpart of a signature page of this Assignment
and
Assumption
by telecopy shall
be effective as delivery of a manually executed counterpart of this
Assignment
and
Assumption.
This Assignment
and Assumption shall be governed by, and construed in accordance with,
the law
of the State of California.
FORM
OF
REVOLVING NOTE
U.S.
$______________________________________________________
FOR
VALUE RECEIVED,
the undersigned, BUILDING MATERIALS HOLDING CORPORATION, a Delaware corporation
(“Holdings”),
hereby promises
to pay to the order of _____________ (the “Lender”)
the principal
sum of _______________________ Dollars
($_____________) or, if less, the aggregate unpaid principal amount of
all
Revolving Loans made by the Lender to Holdings pursuant to the Second
Amended and
Restated Credit Agreement, dated as of November __, 2006 (as extended,
renewed,
amended or restated from time to time, the “Credit
Agreement”),
among Holdings,
BMC West Corporation (the “Company”)
and certain
other affiliates of Holdings, as guarantors, JPMorgan Chase Bank, N.A.,
as
Documentation Agent, SunTrust Bank, as Joint Lead Arranger and Co-Syndication
Agent, BNP Paribas, as Joint Lead Arranger and Co-Syndication Agent, the
several
financial institutions from time to time party thereto (the “Lenders”)
and Xxxxx Fargo
Bank, National Association, as issuing bank of certain letters of credit
(in
such capacity, the “L/C
Issuer”),
as Swingline
Lender, as administrative agent (in such capacity, the “Administrative
Agent”),
as Joint Lead
Arranger and Joint Book Manager,
on the dates and
in the amounts provided in the Credit Agreement. Holdings further promises
to
pay interest on the unpaid principal amount of the Revolving Loans evidenced
hereby from time to time at the rates, on the dates, and otherwise as provided
in the Credit Agreement.
The
Lender is
authorized to endorse the amount of each Revolving Loan, the date on which
each
Revolving Loan is made, and each payment of principal with respect thereto
on
the schedule annexed hereto and made a part hereof, or on continuations
thereof
which shall be attached hereto and made a part hereof; provided
that any failure
to endorse such information on such schedule or continuation thereof shall
not
in any manner affect any obligation of Holdings under the Credit Agreement
and
this promissory note (this “Note”).
This
Note is one of
the Notes referred to in, and is entitled to the benefits of, the Credit
Agreement, which Credit Agreement, among other things, contains provisions
for
acceleration of the maturity hereof upon the happening of certain stated
events
and also for prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified.
This
Note is
secured by certain Collateral more specifically described in the Credit
Agreement and the Collateral Documents.
Terms
defined in
the Credit Agreement are used herein with their defined meanings therein
unless
otherwise defined herein.
This
Note shall be
governed by, and construed and interpreted in accordance with, the laws
of the
State of California.
BUILDING
MATERIALS
HOLDING CORPORATION
By:_______________________________________
Title:
SCHEDULE
to
Revolving
Note
Date
Loan Disbursed
|
Amount
of Loan
|
Principal
Payment
|
Date
Principal Paid
|
FORM
OF TERM B
NOTE
U.S.
$______________________________________________________
FOR
VALUE RECEIVED,
the undersigned, BUILDING MATERIALS HOLDING CORPORATION, a Delaware
corporation (“Holdings”),
hereby promises
to pay to
the order
of_________________________ (the “Lender”)
the principal
sum of _______________________ Dollars ($__________________) or, if less,
the
aggregate unpaid principal amount of the Term B Loan made by the Lender
to
Holdings pursuant to the Credit Agreement referred to below and outstanding
on
the Term B Loan Maturity Date. Holdings further promises to pay interest
on the
unpaid principal amount of the Term B Loan evidenced hereby from
time to time
at the rates, on the dates, and otherwise as provided in the Credit
Agreement.
The
Lender is
authorized to endorse the amount of and the date on which the Term B Loan
is
made and each payment of principal with respect thereto on the schedule
annexed
hereto and made a part hereof, or on continuations thereof which shall
be
attached hereto and made a part hereof; provided
that any failure
to endorse such information on such schedule or continuation thereof shall
not
in any manner affect any obligation of Holdings under the Credit Agreement
and
this Promissory Note (this “Note”).
This
Note is one of
the Notes referred to in, and is entitled to the benefits of, the Second
Amended and
Restated Credit Agreement, dated as of November __, 2006 (as extended,
renewed,
amended or restated from time to time, the “Credit
Agreement”),
among Holdings,
BMC West Corporation (the “Company”)
and certain
other affiliates of Holdings, as guarantors, JPMorgan Chase Bank, N.A.,
as
Documentation Agent, SunTrust Bank, as Joint Lead Arranger and Co-Syndication
Agent, BNP Paribas, as Joint Lead Arranger and Co-Syndication Agent, the
several
financial institutions from time to time party thereto (the “Lenders”)
and Xxxxx Fargo
Bank, National Association, as issuing bank of certain letters of credit
(in
such capacity, the “L/C
Issuer”),
as Swingline
Lender, as administrative agent (in such capacity, the “Administrative
Agent”),
as Joint Lead
Arranger and Joint Book Manager,
which Credit
Agreement, among other things, contains provisions for acceleration of
the
maturity hereof upon the happening of certain stated events and also for
payments and prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified.
This
Note is
secured by certain Collateral more specifically described in the Credit
Agreement and the Collateral Documents.
Terms
defined in
the Credit Agreement are used herein with their defined
meanings therein
unless otherwise defined herein.
This
Note shall be
governed by, and construed and interpreted in accordance with,
the laws of the
State of California.
BUILDING
MATERIALS
HOLDING CORPORATION
By:______________________________________
Title:
SCHEDULE
to
Term B
Note
Date
Loan
Disbursed
|
Amount
of
Loan
|
Principal
Payment
|
Date
Principal Paid
|
FORM
OF
ADDITIONAL GUARANTOR ASSUMPTION AGREEMENT
Date:
_________________
To
each of the Lenders party to the Credit Agreement
referred
to below,
and to Xxxxx Fargo Bank, National
Association,
as
Administrative Agent
Ladies
and
Gentlemen:
This
Additional
Guarantor Assumption Agreement, dated as of __________, is made and delivered
pursuant to Section
7.13
of that certain
Second Amended and Restated Credit Agreement, dated as of November __,
2006 (as
extended, renewed, amended or restated from time to time, the “Credit
Agreement”),
among Building
Materials Holding Corporation (“Holdings”),
BMC West
Corporation (the “Company”)
and certain
other affiliates of Holdings, as guarantors, JPMorgan Chase Bank, N.A.,
as
Documentation Agent, SunTrust Bank, as Joint Lead Arranger and Co-Syndication
Agent, BNP Paribas, as Joint Lead Arranger and Co-Syndication Agent, the
several
financial institutions from time to time party thereto and Xxxxx Fargo
Bank,
National Association, as issuing bank of certain letters of credit (in
such
capacity, the “L/C
Issuer”),
as Swingline
Lender, as administrative agent (in such capacity, the “Administrative
Agent”),
as Joint Lead
Arranger and Joint Book Manager. All capitalized terms used in this Additional
Guarantor Assumption Agreement and not otherwise defined herein shall have
the
meanings assigned to them in the Credit Agreement.
__________________________
(the “Subsidiary”)
hereby confirms,
represents and warrants to the Administrative Agent and the Lenders that
the
Subsidiary is a U.S. Subsidiary effective as of _________________.
The
documents
required to be delivered to the Administrative Agent under clauses (ii) and
(iii) of Section 7.13(a)
of the Credit
Agreement will be furnished to the Administrative Agent in accordance with
the
requirements of the Credit Agreement.
The
parties hereto
hereby confirm that with effect from the date hereof, the Subsidiary shall
be a
party to the Credit Agreement and a party to the Security Agreement (as
amended), and shall have the obligations which the Subsidiary would have
had if
the Subsidiary had been an original party to the Credit Agreement as a
Guarantor
and the Security Agreement as a Grantor (and pursuant to Section 2(a) of
the
Security Agreement (and subject to Section 3(h) of the Security Agreement),
the
Subsidiary hereby grants to the Administrative Agent a security interest
in all
Collateral (as defined in the Security Agreement) in which Subsidiary has
an
interest to secure the Secured Obligations (as defined in the Security
Agreement)). The Subsidiary confirms its acceptance of, and consents to,
all
terms and provisions of the Credit Agreement (including, without limitation,
Section 11.10 thereof), and the Security Agreement applicable to the Guarantors
or the Grantors, as the case may be, and to any other Loan Documents to
which
the Guarantors or Grantors are parties.
Without
limiting
the generality of the foregoing, the Subsidiary hereby (a) unconditionally
and
irrevocably guarantees to the Guaranteed Persons (as defined in Section
11.10 of
the Credit Agreement), jointly and severally with each other Guarantor,
the full
and prompt payment when due (whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise) and performance of all
Guaranteed Obligations (as defined in Section 11.10 of the Credit Agreement)
of
Holdings to any such Guaranteed Person, whether arising out of or in connection
with the Credit Agreement, any other Loan Document or otherwise, including
all
unpaid principal of the Loans, all L/C Obligations, all interest accrued
thereon, all fees due under the Credit Agreement and all other amounts
payable
by Holdings to any such Guaranteed Person thereunder or in connection therewith;
and (b) subject to Section 3(h) of the Security Agreement, pledges, assigns,
transfers, hypothecates, sets over and grants to the Administrative Agent,
for
the benefit of itself and on behalf of and for the ratable benefit of the
Joint
Lead Arrangers, the L/C Issuer and the Lenders, and their respective successors,
endorsers, transferees and assigns, a security interest in all of its right,
title and interest in, to and under any Collateral (as defined in the Security
Agreement) to secure the payment and performance of the Secured Obligations
(as
defined in the Security Agreement).
This
Additional
Guarantor Assumption Agreement shall constitute a Loan Document under the
Credit
Agreement.
THIS
ADDITIONAL
GUARANTOR ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF CALIFORNIA.
IN
WITNESS WHEREOF, the Subsidiary has caused this Additional Guarantor Assumption
Agreement to be duly executed and delivered in ____________ by its proper
and
duly authorized officer as of the day and year first above written.
[SUBSIDIARY]
By:____________________________
Title:
FORM
OF LEGAL
OPINION OF ADDITIONAL GUARANTOR’S COUNSEL
[to
be
provided]
THIRD
AMENDED
AND RESTATED SECURITY AGREEMENT
THIS
THIRD AMENDED
AND RESTATED SECURITY AGREEMENT (this “Agreement”),
dated as of
November 10, 2006, is made by and among Building Materials Holding Corporation,
a Delaware corporation (“Holdings”),
BMC West
Corporation, a Delaware corporation (the “Company”),
certain other
affiliates of Holdings signatories hereto or acceding hereto as provided
in
Section 25 hereof, and Xxxxx Fargo Bank, National Association
(“Xxxxx
Fargo”),
as
administrative agent for itself and the other Secured Parties (in such
capacity,
the “Administrative
Agent”).
RECITALS
WHEREAS,
the
parties hereto previously entered into that certain Second Amended and
Restated
Security Agreement, dated as of June 30, 2005 (as amended through the date
hereof, the “Existing
Security Agreement”)
pursuant to
which, to secure the Secured Obligations, the Grantors (as defined herein)
pledged to, and granted a security interest in, all Collateral described
herein
in favor of the Secured Parties (as defined herein).
WHEREAS,
Holdings,
the Company, the other Loan Parties named therein, certain lending institutions
as lenders, the L/C Issuer and the Administrative Agent are parties to
that
certain Second Amended and Restated Credit Agreement dated as of November
10,
2006, (as amended, restated, modified, renewed or extended from time to
time,
the “Credit Agreement”); and
WHEREAS,
it is a
condition precedent to the borrowings under the Credit Agreement that the
Grantors enter into this Agreement amending and restating the Existing
Security
Agreement and grant to the Administrative Agent, for itself and for the
ratable
benefit of the other Secured Parties, the security interests hereinafter
provided to secure the Secured Obligations described below.
NOW,
THEREFORE, the
parties hereto agree as follows:
SECTION
1
Definitions;
Interpretation.
(a) Terms
Defined in
Credit Agreement. All capitalized terms used in this Agreement (including
in the
recitals hereof) and not otherwise defined herein shall have the meanings
assigned to them in the Credit Agreement.
(b) Certain
Defined
Terms. As used in this Agreement, the following terms shall have the following
meanings:
“Accounts”
means
any and all
of any Grantor’s accounts, as such term is defined in Article 9 of the
UCC.
“Books”
means
all books,
records and other written, electronic or other documentation in whatever
form
maintained now or hereafter by or for any Grantor in connection with the
ownership of its assets or the conduct of its business or evidencing or
containing information relating to the Collateral, including: (i) ledgers;
(ii) records indicating, summarizing, or evidencing any Grantor’s assets
(including Inventory and Rights to Payment), business operations or financial
condition; (iii) computer programs and software; (iv) computer discs,
tapes, files, manuals, spreadsheets; (v) computer printouts and output of
whatever kind; (vi) any other computer prepared or electronically stored,
collected or reported information and equipment of any kind; and (vii) any
and all other rights now or hereafter arising out of any contract or agreement
between any Grantor and any service bureau, computer or data processing
company
or other Person charged with preparing or maintaining any of any Grantor’s books
or records or with credit reporting, including with regard to any Grantor’s
Accounts.
“Chattel
Paper”
means
any and all
of any Grantor’s chattel paper, as such term is defined in Article 9 of the
UCC, including all Electronic Chattel Paper.
“Collateral”
has
the meaning
set forth in Section 2.
“Commercial
Tort
Claims”
means
any and all
of any Grantor’s commercial tort claims, as such term is defined in
Article 9 of the UCC, including any described in
Schedule 1.
“Control
Agreement”
means
any control
agreement or other agreement with any securities intermediary, bank or
other
Person establishing the Administrative Agent’s control with respect to any
Deposit Accounts, Letter-of-Credit Rights or Investment Property, for purposes
of Article 9 of the UCC.
“Deposit
Account”
means
any deposit
account, as such term is defined in Article 9 of the UCC, maintained by or
for the benefit of the Grantors, whether or not restricted or designated
for a
particular purpose.
“Documents”
means
any of the Grantors’ documents, as such term is defined in Article 9 of the
UCC.
“Electronic
Chattel Paper”
means
any and all
of any Grantor’s electronic chattel paper, as such term is defined in
Article 9 of the UCC.
“Equipment”
means
any and all
of any Grantors’ equipment, including any and all fixtures, as such terms are
defined in Article 9 of the UCC.
“Filing
Offices”
has
the meaning
set forth in Section 3(a).
“General
Intangibles”
means
any and all
of any Grantor’s general intangibles, as such term is defined in Article 9
of the UCC.
“Instruments”
means
any and all
of any Grantor’s instruments, as such term is defined in Article 9 of the
UCC.
“Intellectual
Property Collateral”
means
the
following properties and assets owned or held by any Grantor or in which
any
Grantor otherwise has any interest, now existing or hereafter acquired
or
arising:
(i) all
patents and patent applications, domestic or foreign, all licenses relating
to
any of the foregoing and all income and royalties with respect to any licenses
(including such patents, patent applications and patent licenses as described
in
Schedule 2), all rights to xxx for past, present or future infringement
thereof, all rights arising therefrom and pertaining thereto and all reissues,
divisions, continuations, renewals, extensions and continuations-in-part
thereof;
(ii)
all copyrights
and applications for copyright, domestic or foreign, together with the
underlying works of authorship (including titles), whether or not the underlying
works of authorship have been published and whether said copyrights are
statutory or arise under the common law, and all other rights and works
of
authorship (including the copyrights and copyright applications described
in
Schedule 2), all computer programs, computer databases, computer program
flow diagrams, source codes, object codes and all tangible property embodying
or
incorporating any copyrights, all licenses relating to any of the foregoing
and
all income and royalties with respect to any licenses, and all other rights,
claims and demands in any way relating to any such copyrights or works,
including royalties and rights to xxx for past, present or future infringement,
and all rights of renewal and extension of copyright;
(iii) all
state (including common law), federal and foreign trademarks, service marks
and
trade names, and applications for registration of such trademarks, service
marks
and trade names, all licenses relating to any of the foregoing and all
income
and royalties with respect to any licenses (including such marks, names,
applications and licenses as described in Schedule 2), whether registered
or unregistered and wherever registered, all rights to xxx for past, present
or
future infringement or unconsented use thereof, all rights arising therefrom
and
pertaining thereto and all reissues, extensions and renewals
thereof;
(iv) all
trade
secrets, trade dress, trade styles, logos, other source of business identifiers,
mask-works, mask-work registrations, mask-work applications, software,
confidential information, customer lists, license rights, advertising materials,
operating manuals, methods, processes, know-how, algorithms, formulae,
databases, quality control procedures, product, service and technical
specifications, operating, production and quality control manuals, sales
literature, drawings, specifications, blue prints, descriptions, inventions,
name plates and catalogs;
(v) the
entire
goodwill of or associated with the businesses now or hereafter conducted
by such
Grantor connected with and symbolized by any of the aforementioned properties
and assets; and
(vi)
all accounts,
all intangible intellectual or other similar property and other general
intangibles associated with or arising out of any of the aforementioned
properties and assets and not otherwise described above.
“Intellectual
Property Security Agreement”
means
each Patent
and Trademark Security Agreement, each Copyright Security Agreement or
any
amendment thereto, in form and substance satisfactory to the Administrative
Agent, supplementary to this Agreement and prepared for purposes of recordation
with the U.S. Copyright Office or the U.S. Patent and Trademark Office,
as
applicable.
“Inventory”
means
any of any
Grantor’s inventory, as such term is defined in Article 9 of the
UCC.
“Investment
Property”
means
any of any
Grantor’s investment property, as such term is defined in Article 9 of the
UCC.
“Lenders”
has
the meaning
specified in the Credit Agreement, and includes the Revolving Lenders,
the Term
B Lenders, and Additional Lenders, the L/C Issuer, the Swingline Lender
and any
Swap Providers.
“Letter-of-Credit
Rights”
means
any and all
of any Grantor’s letter-of-credit rights, as such term is defined in
Article 9 of the UCC.
“Partnership
and
LLC Collateral”
means
any and all
limited, limited liability and general partnership interests and limited
liability company interests of any type or nature, whether now existing
or
hereafter acquired or arising, including any more specifically described
in
Schedule 3.
“Pledged
Collateral”
means
any and all
(i) Pledged Shares; (ii) additional capital stock or other equity
securities of the direct or indirect Subsidiaries of Holdings (other than
Subsidiaries which are owned by Non-Wholly-Owned Subsidiaries), whether
certificated or uncertificated; (iii) other Investment Property of any
Grantor; (iv) warrants, options or other rights entitling any Grantor
to acquire any interest in capital stock or other securities of such
Subsidiaries or any other Person; (v) Partnership and LLC Collateral;
(vi) Instruments; (vii) Pledged Debt; (viii) securities,
property, interest, dividends and other payments and distributions issued
as an
addition to, in redemp-tion of, in renewal or exchange for, in substitution
or
upon conversion of, or otherwise on account of, any of the foregoing;
(ix) certificates and instruments now or hereafter representing or
evidencing any of the foregoing; (x) rights, interests and claims with
respect to the foregoing, including under any and all related agreements,
instruments and other documents, and (xi) cash and non-cash proceeds of any
of the foregoing, in each case whether presently existing or owned or hereafter
arising or acquired and wherever located, and as from time to time received
or
receivable by, or otherwise paid or distributed to or acquired by, any
Grantor.
“Pledged
Shares”
means
all of the
issued and outstanding shares of capital stock, whether certificated or
uncertificated, of Holdings’ direct or indirect Subsidiaries (other than
Subsidiaries which are owned by Non-Wholly-Owned Subsidiaries) now owned
by any
Grantor, as more specifically described in Schedule 3.
“Primary
Account”
means
each
Deposit Account for which a Control Agreement in form and substance reasonably
satisfactory to the Administrative Agent has been executed and delivered
to the
Administrative Agent by the applicable Grantor and the bank or other depository
institution at which such Deposit Account is maintained.
“Proceeds”
means
all
proceeds, as such term is defined in Article 9 of the UCC.
“Rights
to
Payment”
means
any and all
of any Grantor’s Accounts and any and all of any Grantor’s rights and claims to
the payment or receipt of money or other forms of consideration of any
kind in,
to and under or with respect to its Chattel Paper, Documents, General
Intangibles, Instruments, Investment Property, Letter-of-Credit Rights,
Proceeds
and Supporting Obligations.
“Secured
Obligations”
means
all
indebtedness, liabilities and other obligations of the Grantors to the
Secured
Parties created under, or arising out of or in connection with, the Credit
Agreement, the Notes or any of the other Loan Documents, and any and all
other
indebtedness, liabilities and other obligations of the Grantors to the
Administrative Agent, the Lenders or any Affiliate thereof, including all
unpaid
principal of the Loans, all interest accrued thereon, all fees due under
the
Credit Agreement, all Secured Swap Obligations, and all other amounts payable
by
the Grantors to any Secured Party thereunder or in connection therewith,
whether
now existing or hereafter arising, and whether due or to become due, absolute
or
contingent, liquidated or unliquidated, determined or undetermined, and
including interest that accrues after the commencement by or against any
Grantor
of any Insolvency Proceedings naming such Person as the debtor in such
proceeding.
“Secured
Parties”
means
the Lenders
and the Administrative Agent, and each of their respective successors,
transferees and assigns.
“Secured
Swap
Obligations”
means
all
obligations and liabilities of any Grantor of any kind arising under all
Specified Swap Contracts, including obligations and liabilities arising
in
connection with or as a result of early termination of a Swap Contract,
whether
or not occurring as a result of a default thereunder), absolute or contingent,
due or to become due, now existing or hereafter created or incurred, liquidated
or unliquidated, determined or undetermined.
“Supporting
Obligations”
means
all
supporting obligations, as such term is defined in Article 9 of the
UCC.
“UCC”
means
the Uniform
Commercial Code as the same may, from time to time, be in effect in the
State of
California.
“Zero
Balance
Account”
means
each
Deposit Account designated as a “zero balance” account on Schedule
I
hereto and any other Deposit Account designated as a “zero balance” account in a
written notice to the Administrative Agent pursuant to Section 5(m)
hereof.
(c) Terms
Defined in
UCC.
Where applicable and except as otherwise defined herein, terms used in
this
Agreement shall have the meanings assigned to them in the UCC.
(d) Interpretation.
The rules of
interpretation set forth in Section 1.02 of the Credit Agreement shall be
applicable to this Agreement and are incorporated herein by this
reference.
SECTION
2
Security
Interest.
(a) Grant
of Security
Interest.
As security for
the payment and performance of the Secured Obligations, each Grantor hereby
reaffirms that the security interests granted to the Administrative Agent
under
the Existing Security Agreement constitute, and shall constitute on and
after
the date hereof, valid and perfected Liens on the Collateral (subject only
to
Permitted Liens) to secure the Secured Obligations. Additionally, as security
for the payment and performance of the Secured Obligations, each Grantor
hereby
further grants to the Administrative Agent, for itself and on behalf of
and for
the ratable benefit of the other Secured Parties, a security interest in
all of
such Grantor’s right, title and interest in, to and under all of its personal
property, wherever located and whether now existing or owned or hereafter
acquired or arising, including the following property (collectively, the
“Collateral”):
(i) all
Accounts; (ii) all Chattel Paper; (iii) all Commercial Tort Claims; (iv)
all
Deposit Accounts; (v) all Documents; (vi) all Equipment; (vii) all General
Intangibles; (viii) all Instruments; (ix) all Inventory; (x) all Investment
Property; (xi) all Letter-of-Credit Rights; and (xii) all money, all products
and Proceeds of any and all of the foregoing, and all Supporting Obligations
of
any and all of the foregoing. Notwithstanding the foregoing, except for
fixtures
(to the extent covered by Article 9 of the UCC), such grant of a security
interest shall not extend to, and the term “Collateral” shall not include, any
Chattel Paper, contracts and other General Intangibles which are now or
hereafter held by any Grantor as licensee, lessee or otherwise, to the
extent
that (i) such Chattel Paper, contracts and other General Intangibles are
not
assignable or capable of being encumbered as a matter of law or under the
terms
of the license, lease or other agreement applicable thereto (but solely
to the
extent that any such restriction shall be enforceable under applicable
law),
without the consent of the licensor or lessor thereof or other applicable
party
thereto and (ii) such consent has not been obtained; provided, however,
that the
foregoing grant of security interest shall extend to, and the term "Collateral"
shall include (A) any General Intangible which is Rights to Payment or
a proceed
of, or otherwise related to the enforcement and
collection
of, any
Rights to Payment, or goods which are the subject of any Rights to Payment,
(B)
any and all proceeds of such Chattel Paper, contracts and other General
Intangibles to the extent that the assignment or encumbering of such proceeds
is
not so restricted and (C) upon any such licensor's, lessor's or other applicable
party's consent with respect to any such otherwise excluded Chattel Paper,
contracts or other General Intangibles being obtained, thereafter such
Chattel
Paper, contracts or other General Intangibles as well as any and all proceeds
thereof that might have theretofore been excluded from such grant of a
security
interest and the term “Collateral.”
(b) Grantors
Remain
Liable.
Anything herein
to the contrary notwithstanding, (i) each Grantor shall remain liable under
any contracts, agreements and other documents included in the Collateral,
to the
extent set forth therein, to perform all of its duties and obligations
thereunder to the same extent as if this Agreement had not been executed,
(ii) the exercise by the Administrative Agent of any of the rights
hereunder shall not release any Grantor from any of its duties or obligations
under such contracts, agreements and other documents included in the Collateral,
and (iii) neither the Administrative Agent nor any other Secured Party
shall have any obligation or liability under any contracts, agreements
and other
documents included in the Collateral by reason of this Agreement, nor shall
the
Administrative Agent or any other Secured Party be obligated to perform
any of
the obligations or duties of any Grantor thereunder or to take any action
to
collect or enforce any such contract, agreement or other document included
in
the Collateral hereunder.
(c) Continuing
Security
Interest.
Each Grantor
agrees that this Agreement shall create a continuing security interest
in the
Collateral which shall remain in effect until terminated in accordance
with
Section 24.
SECTION
3
Perfection
Procedures.
Each Grantor
shall (if necessary) execute and deliver to the Administrative Agent
concurrently with the execution of this Agreement, and each Grantor hereby
authorizes the Administrative Agent to file (with or without such Grantor’s
signature) at any time and from time to time thereafter, all financing
statements, continuation statements, termination statements, security agreements
relating to the Intellectual Property Collateral, assignments, fixture
filings,
affidavits, reports, notices, and other documents and instruments, in form
satisfactory to the Administrative Agent, and take all other action, as
the
Administrative Agent or the Majority Lenders may request, to perfect and
continue perfected, maintain the priority of or provide notice of the
Administrative Agent’s security interest in the Collateral and to accomplish the
purposes of this Agreement. Without limiting the generality of the foregoing,
each Grantor (1) ratifies and authorizes the filing by the Administrative
Agent of any financing statements filed prior to the date hereof and
(2) shall from time to time take the following actions:
(a) Filing
of Financing
Statements.
On or prior to
the Effective Date each Grantor authorizes the Administrative Agent to
file completed UCC-1 financing statements in the offices described in
Schedule 4
(the “Filing
Offices”),
and after the
Effective Date the applicable Grantor authorizes the Administrative Agent
to
file completed UCC-1 financing statements in the appropriate filing office
or
offices in any state identified by a Grantor in a notice delivered to the
Administrative Agent pursuant to subsection 5(e).
(b) Delivery
of Pledged
Collateral.
Each Grantor
hereby agrees to deliver to or for the account of the Administrative Agent,
at
the address and to the Person to be designated by the Administrative Agent,
the
certificates, instruments and other writings representing any Pledged
Collateral, which shall be in suitable form for transfer by delivery, or
shall
be accompanied by duly executed instruments of transfer or assignment in
blank,
in form satisfactory to the Administrative Agent. If any Grantor shall
become
entitled to receive or shall receive any Pledged Collateral after the date
hereof, such Grantor shall accept the foregoing as the agent for the
Administrative Agent, shall hold it in trust for the Administrative Agent,
shall
segregate it from other property or funds of such Grantor, and shall immediately
deliver the same and all certificates, instruments and other writings
representing such Pledged Collateral forthwith to or for the account of
the
Administrative Agent, at the address and to the Person to be designated
by the
Administrative Agent, which shall be in suitable form for transfer by delivery,
or shall be accompanied by duly executed instruments of transfer or assignment
in blank in form satisfactory to the Administrative Agent. Anything to
the
contrary notwithstanding, so long as no Event of Default shall have occurred
and
be continuing, (i) each Grantor may retain for collection in the ordinary
course any Instruments received by such Grantor in the ordinary course
of
business, and the Administrative Agent shall, promptly upon request of
such
Grantor, make appropriate arrangements for making any other Instruments
and/or
Pledged Debt pledged by such Grantor available to the payor of any such
Instrument or Pledged Debt for purposes of presentation, collection or
renewal
(any such arrangement to be effected, to the extent required under applicable
law to continue perfected the Administrative Agent’s security interest hereunder
in such Instruments or Pledged Debt, against trust receipt or like document),
and (ii) each Grantor may retain any additional Pledged Collateral
consisting of Instruments with a face value of less than $1,000,000 individually
and $5,000,000 in the aggregate for all such Instruments or, in the case
of any
such additional Pledged Collateral with no face value, then such additional
Pledged Collateral with a fair market value of less than $1,000,000 individually
and $5,000,000 in the aggregate for all such Instruments, as determined
by such
Grantor in good faith.
(c) Transfer
of
Security Interest Other Than by Delivery.
If for any reason
Pledged Collateral cannot be delivered to or for the account of the
Administrative Agent as provided in subsection 3(b), each Grantor shall
promptly
take such other steps as may be necessary or as shall be reasonably requested
from time to time by the Administrative Agent to effect a transfer of a
perfected first
priority
security
interest in and pledge of the Pledged Collateral to the Administrative
Agent for
itself and on behalf of and for the ratable benefit of the other Secured
Parties
pursuant to the UCC. To the extent practicable, such Grantor shall thereafter
deliver the Pledged Collateral to or for the account of the Administrative
Agent
as provided in subsection 3(b).
(d) Deposit
Accounts.
Each Grantor
shall execute such notices, and shall take such other action, including
delivery
of Control Agreements, as the Administrative Agent may reasonably request,
to
perfect and continue perfected, maintain the priority of or provide notice
of
the Administrative Agent’s security interest in Collateral consisting of Deposit
Accounts (other than any Zero Balance Accounts, unless the Administrative
Agent
determines in its reasonable discretion that obtaining a Control Agreement
in
respect of one or more Zero Balance Accounts is necessary or desirable)
and to
accomplish the purposes of this Agreement.
(e) Intellectual
Property Collateral.
(i) Each
Grantor shall execute and deliver to the Administrative Agent, concurrently
with
the execution of this Agreement, such Intellectual Property Security Agreements
as the Administrative Agent and the Majority Lenders may reasonably request,
and
authorizes the Administrative Agent to record such Intellectual Property
Security Agreements with the U.S. Copyright Office or the U.S. Patent and
Trademark Office, as applicable, and take such other action as may be necessary,
or as the Administrative Agent or the Majority Lenders may reasonably request,
to perfect the Administrative Agent’s security interest in such Intellectual
Property Collateral. (ii) Immediately following the creation or other
acquisition of any Intellectual Property Collateral by any Grantor after
the
date hereof which is registered or becomes registered or the subject of
an
application for registration with the U.S. Copyright Office or the U.S.
Patent
and Trademark Office, as applicable, such Grantor shall modify this Agreement
by
amending Schedule 2
to include any
Intellectual Property Collateral which becomes part of the Collateral and
which
was not included on Schedule 2
as of the date
hereof and authorizes the Administrative Agent to record any Intellectual
Property Security Agreement related thereto with the U.S. Copyright Office
or
the U.S. Patent and Trademark Office, as applicable, and take such other
action
as may be necessary, or as the Administrative Agent or the Majority Lenders
may
reasonably request, to perfect the Administrative Agent’s security interest in
such Intellectual Property Collateral.
(f) Documents,
Etc. Each
Grantor shall
deliver to the Administrative Agent, or an agent designated by it, appropriately
endorsed or accompanied by appropriate instruments of transfer or assignment,
all Docu-ments and Chattel Paper, and all other Rights to Payment at any
time
evidenced by promissory notes, trade acceptances or other instruments,
not
already delivered hereunder pursuant to this Section 3; provided,
however,
that unless an
Event of Default shall have occurred and be continuing, such Grantor shall
not
be
required
to deliver
any Document, Chattel Paper, promissory note, trade acceptance or other
instrument having a face amount not in excess of $1,000,000 individually
and
$5,000,000 in the aggregate for all such items. Upon the request of the
Administrative Agent, Grantors shall xxxx all Documents and Chattel Paper
with
such legends as the Administrative Agent shall reasonably specify.
(g) Bailees.
At any time and
from time to time, the Administrative Agent may give notice to any Person
holding all or any portion of the Collateral that such Person is holding
the
Collateral as the agent and bailee of, and as pledge holder for, the
Administrative Agent, and obtain such Person’s written acknowledgment thereof.
Without limiting the generality of the foregoing, each Grantor, upon the
Administrative Agent’s reasonable request, will join with the Administrative
Agent in notifying any Person who has possession of any Collateral of the
Administrative Agent’s security interest therein and obtaining an acknowledgment
from such Person that it is holding the Collateral for the benefit of the
Administrative Agent.
(h) Control.
Without limiting
the foregoing provisions of this Section 3, each Grantor will cooperate
with the Administrative Agent in obtaining control (as defined in the
UCC) of Collateral consisting of any Deposit Accounts (other than any Zero
Balance Account, unless the Administrative Agent determines in its reasonable
discretion that obtaining a Control Agreement in respect of one or more
Zero
Balance Accounts is necessary or desirable), Electronic Chattel Paper,
Investment Property or Letter-of-Credit Rights.
(i)
Controlled
Foreign
Corporations. Notwithstanding anything herein to the contrary, in no event
shall
the Collateral include, and no Grantor shall be deemed to have granted
a
security interest in, any of such Grantor’s right, title or interest in any of
the outstanding capital stock or other ownership interests of a Controlled
Foreign Corporation (as defined below) in excess of 65% of the voting power
of
all classes of capital stock or other ownership interests of such Controlled
Foreign Corporation entitled to vote; provided that immediately upon the
amendment of the Code to allow the pledge of a greater percentage of the
voting
power of capital stock or other ownership interests in a Controlled Foreign
Corporation without adverse tax consequences, the Collateral shall include,
and
such Grantor shall be deemed to have granted a security interest in, such
greater percentage of capital stock or other ownership interests of each
Controlled Foreign Corporation. As used herein, “Controlled Foreign Corporation”
shall mean a “controlled foreign corporation” as defined in the
Code.
SECTION
4
Representations
and
Warranties.
In addition to
the representations and warranties of the Grantors set forth in the Credit
Agreement, which are incorporated herein by this reference, each Grantor
represents and warrants to each Lender and the Administrative Agent
that:
(a) Location
of Chief
Executive Office.
Each Grantor’s
chief executive office is set forth in Schedule 1.
(b) Locations
of
Books.
All locations where Books pertaining to the Rights to Payment are kept,
including all equipment necessary for accessing such Books and the names
and
addresses of all service bureaus, computer or data processing companies
and
other Persons keeping any Books or collecting Rights to Payment for any
Grantor,
are set forth in Schedule 1.
(c) Jurisdiction
of
Organization and Names.
Each Grantor’s
jurisdiction of organization is set forth in Schedule 1;
and each
Grantor’s exact legal name is as set forth in the first paragraph of this
Agreement. All trade names and trade styles under which each Grantor presently
conducts its business operations are set forth in Schedule 1,
and, except as
set forth in Schedule 1,
each Grantor has
not, at any time in the past five years: (i) been known as or used any
other corporate, trade or fictitious name; (ii) changed its name;
(iii) been the surviving or resulting corporation in a merger or
consolidation; or (iv) acquired through asset purchase or otherwise any
business of any Person.
(d) Collateral.
Each Grantor has
rights in or the power to transfer the Collateral, and each Grantor is,
and,
except as permitted by Section 5(i), will continue to be, the sole and
complete owner of the Collateral (or, in the case of after-acquired Collateral,
at the time any Grantor acquires rights in such Collateral, will be the
sole and
complete owner thereof), free from any Lien other than Permitted
Liens.
(e) Enforceability;
Priority of Security Interest.
(i) This
Agreement creates a security interest which is enforceable against the
Collateral in which each Grantor now has rights and will create a security
interest which is enforceable against the Collateral in which such Grantor
hereafter acquires rights at the time such Grantor acquires any such rights;
and
(ii) the Administrative Agent has a perfected and first priority security
interest in the Collateral in which such Grantor now has rights, and will
have a
perfected and first priority security interest in the Collateral in which
such
Grantor hereafter acquires rights at the time such Grantor acquires any
such
rights, in each case for the Administrative Agent’s own benefit and for the
ratable benefit of the other Secured Parties and subject to Permitted Liens,
securing the payment and performance of the Secured Obligations.
(f) Other
Financing
Statements.
Other than
(i) financing statements disclosed to the Administrative Agent and
(ii) financing statements in favor of the Administrative Agent in its
capacity as Administrative Agent for itself and the other Secured Parties
under
the Credit Agreement
and
any other Loan
Documents, no effective financing statement naming the Grantor as debtor,
assignor, grantor, mortgagor, pledgor or the like and covering all or any
part
of the Collateral is on file in any filing or recording office in any
jurisdiction, except in respect of Permitted Liens.
(g) Rights
to
Payment.
(i) The
Rights to
Payment represent valid, binding and enforceable obligations of the account
debtors or other Persons obligated thereon, representing undisputed, bona
fide
transactions completed in accordance with the terms and provisions contained
in
any documents related thereto, and are and will be genuine, free from Liens
(other than Permitted Liens), and not subject to any adverse claims,
counterclaims, setoffs, defaults, disputes, defenses, discounts, retainages,
holdbacks or conditions precedent of any kind of character, except to the
extent
reflected by the Grantors’ reserves for uncollectible Rights to Payment or to
the extent, if any, that such account debtors or other Persons may be entitled
to normal and ordinary course trade discounts, returns, adjustments and
allowances in accordance with Section 5(k), or as otherwise disclosed to
the Administrative Agent and the Lenders in writing or occurring in the
ordinary
course of business;
(ii) to
the best of each
Grantor’s knowledge, all account debtors and other obligors on the Rights to
Payment are solvent and generally paying their debts as they come due,
except to
the extent that such Grantor has established adequate reserves therefor
in
accordance with GAAP;
(iii) all
Rights to
Payment comply in all material respects with all applicable laws concerning
form, content and manner of preparation and execution, including where
applicable any federal or state consumer credit laws;
(iv) no
Grantor has
assigned any of its rights under the Rights to Payment except as provided
in
this Agreement or as set forth in the other Loan Documents;
(v) all
statements
made, all unpaid balances and all other information in the Books and other
documentation relating to the Rights to Payment in all material respects
are
true and correct and what they purport to be; and
(vi) no
Grantor has any
knowledge of any fact or circumstance which would materially impair the
validity
or collectibility of any of the Rights to Payment, except to the extent
that
such Grantor has established adequate reserves therefor in accordance with
GAAP;
(h) Inventory.
No Inventory is
stored with any bailee, warehouseman or similar Person, nor has any Inventory
been consigned to any Grantor or consigned by any Grantor to any
Person
or is held
by any Grantor for any Person under any “xxxx and hold” or other arrangement,
except at locations listed, and as specified, in Schedule 1.
(i) Intellectual
Property.
(i) Except
as set forth
in Schedule 2,
no Grantor
(directly or through any Subsidiary) owns, possesses or uses under any
licensing
arrangement any patents, copyrights, trademarks, service marks or trade
names,
nor is there currently pending before any Governmental Authority any application
for registration of any patent, copyright, trademark, service xxxx or trade
name
material to its business and operations;
(ii) all
of each
Grantor’s patents, copyrights, trademarks, service marks and trade names are
subsisting and have not been adjudged invalid or unenforceable in whole
or in
part;
(iii) all
maintenance
fees required to be paid by any Grantor on account of any of its patents
have
been timely paid for maintaining such patents in force, and, to the best
of such
Grantor’s knowledge, each of such patents is valid and enforceable;
(iv) to
the best of each
Grantor’s knowledge, no infringement or unauthorized use presently is being made
of any Intellectual Property Collateral by any Person that could reasonably
be
expected to have a Material Adverse Effect; and
(v) each
Grantor owns,
has material rights under, is a party to, or an assignee of a party to
all
material licenses, patents, patent applications, copyrights, service marks,
trademarks, trademark applications, trade names and all other Intellectual
Property Collateral necessary to continue to conduct its business as heretofore
conducted.
(j) Equipment.
As of the
Effective Date, none
of the
Equipment that is material to any Grantor is leased from any Person, except
as
set forth in UCC record searches delivered to the Administrative Agent
or as
otherwise disclosed to the Administrative Agent and the Lenders.
(k) Deposit
Accounts.
The names and
addresses of all financial institutions at which any Grantor maintains
its
Deposit Accounts, and the account numbers and account names of such Deposit
Accounts, are set forth in Schedule 1.
(l) Pledged
Debt and
Instrument Collateral.
(i) No
Grantor has previously assigned any interest in the Pledged Debt or any
Instrument Collateral (other than to the Administrative Agent and such
interests
as will be released on or before the date hereof), (ii) no Person other
than such Grantor owns an interest in the Pledged Debt or Instrument Collateral
(whether as joint holders, participants or otherwise), (iii) the entire
Pledged Debt and Instrument Collateral is
owing
only to such
Grantor, and (iv) no material default exists under or in respect of the
Pledged Debt or Instrument Collateral.
(m) Pledged
Shares,
Partnership and LLC Collateral and other Pledged Collateral.
(i) All the
Pledged Shares and Partnership and LLC Collateral have been, and upon issuance
any additional Pledged Collateral consisting of Pledged Shares, Partnership
and
LLC Collateral or any other securities, will be, duly and validly issued,
and
are and will be fully paid and non-assessable, subject in the case of
Partnership and LLC Collateral to future assessments required under applicable
law and any applicable partnership agreement, (ii) the applicable Grantor
is or, in the case of any such additional Pledged Collateral will be, the
legal
record and beneficial owner thereof, (iii) there are no restrictions on the
transferability of the Pledged Collateral or such additional Pledged Collateral
to the Administrative Agent or with respect to the foreclosure, transfer
or
disposition thereof by the Administrative Agent, except as provided under
applicable securities or “Blue Sky” laws, (iv) except as set forth in
Section 3(j), in Schedule 3
or in
Schedule 6.17 of the Credit Agreement, the Pledged Shares and Partnership
and LLC Collateral constitute 100% of the issued and outstanding shares
of
capital stock, membership interests and partnership interests of Holdings’
direct and indirect U.S. Subsidiaries (other than Subsidiaries which are
owned
by Non-Wholly-Owned Subsidiaries), and no securities convertible into or
exchangeable for any shares of capital stock, membership interests and
partnership interests of any such Subsidiary, or any options, warrants
or other
commitments entitling any Person to purchase or otherwise acquire any shares
of
capital stock, membership interests and partnership interests of any such
Subsidiary, are issued and outstanding, and (v) any and all shareholders
agreements, voting trusts, proxy agreements or other agreements or
understandings which affect or relate to the voting or giving of written
consents with respect to any of the Pledged Shares, and any and all partnership
agreements, operating agreements and other agreements relating to the
Partnership and LLC Collateral, have been disclosed in writing to the
Administrative Agent and the Lenders.
(n) Other
Investment
Property; Instruments; and Chattel Paper.
All securities
accounts of the Grantors and other Investment Property of the Grantors
are set
forth in Schedule 1,
and all
Instruments and Chattel Paper held by Grantors are also set forth in
Schedule 1.
(o) Control
Agreements.
No Control
Agreements exist with respect to any Collateral other than any Control
Agreements in favor of the Administrative Agent.
(p) Letter-of-Credit
Rights.
None of the
Grantors have any Letter-of-Credit Rights except as set forth in Schedule 1.
(q) Commercial
Tort
Claims.
None of the
Grantors have any Commercial Tort Claims except as set forth in Schedule 1.
SECTION
5
Covenants.
In addition to
the covenants of the Grantors set forth in the Credit Agreement, which
are
incorporated herein by this reference, so long as any of the Secured Obligations
remain unsatisfied or any Lender shall have any Commitment or any Letter
of
Credit shall be outstanding or any Specified Swap Contract shall be in
effect,
each Grantor agrees that:
(a) Defense
of
Collateral.
Each Grantor
shall appear in and defend any action, suit or proceeding which may affect
to a
material extent its title to, or right or interest in, or the Administrative
Agent’s right or interest in, the Collateral.
(b) Preservation
of
Collateral.
Each Grantor
shall do and perform all reasonable acts that may be necessary and appropriate
to maintain, preserve and protect the Collateral.
(c) Compliance
with
Laws, Etc. Each
Grantor shall
comply in all material respects with all laws, regulations and ordinances,
and
all policies of insurance, relating in a material way to the possession,
operation, maintenance and control of the Collateral.
(d) Location
of Books
and Chief Executive Office.
Each Grantor
shall: (i) keep all Books (other than copies) pertaining to the Rights to
Payment at the locations set forth in Schedule 1;
and
(ii) give prompt written notice to the Administrative Agent, but in any
event within 30 days, of (a) any changes in any such location where Books
pertaining to the Rights to Payment are kept, including any change of name
or
address of any service bureau, computer or data processing company or other
Person preparing or maintaining any Books or collecting Rights to Payment
for
such Grantor or (b) any changes in the location of such Grantor’s chief
executive office or principal place of business.
(e) Change
in Name,
Identity or Structure.
Each Grantor
shall give prompt written notice to the Administrative Agent, but in any
event
within 10 days, of (i) any change in name, (ii) any change in its
jurisdiction of organization, (iii) any change in its registration as an
organization (or any new such registration); and (iv) any changes in its
identity or structure in any manner which might make any financing statement
filed hereunder incorrect or misleading;
provided
that no Grantor
shall change its jurisdiction of organization to a jurisdiction outside
of the
United States.
(f) Maintenance
of
Records.
Each Grantor
shall keep accurate and complete Books with respect to the Collateral,
disclosing the Administrative Agent’s security interest hereunder.
(g) Invoicing
of
Sales.
The Grantor will invoice all of its sales upon forms customary in the industry
and maintain proof of delivery and customer acceptance of goods.
(h) Disposition
of
Collateral.
Each Grantor
shall not surrender or lose possession of (other than to the Administrative
Agent), sell, lease, rent, or otherwise dispose of or transfer any of the
Collateral or any right or interest therein, except to the extent permitted
by
the Loan Documents (including disposition permitted under Section 8.02 of
the Credit Agreement).
(i) Liens.
Each Grantor
shall keep the Collateral free of all Liens except Permitted Liens.
(j) Expenses.
The Grantor (or
purchaser of Inventory) will pay all expenses of protecting, storing,
warehousing, insuring, handling and shipping the Collateral.
(k) Leased
Premises.
At the
Administrative Agent’s request, any Grantor shall obtain from each Person from
whom such Grantor leases any premises at which any Collateral is at any
time
present such collateral access, subordination, waiver, consent and estoppel
agreements as the Administrative Agent may reasonably require, in form
and
substance satisfactory to the Administrative Agent.
(l) Rights
to
Payment.
Each Grantor
shall:
(i) with
such frequency
as the Administrative Agent or the Majority Lenders may require, furnish
to the
Administrative Agent such information relating to the Accounts as the
Administrative Agent or the Majority Lenders shall from time to time reasonably
request;
(ii) give
only normal
discounts, allowances and credits as to Accounts and other Rights to Payment,
in
the ordinary course of business, according to normal trade practices, and
enforce all Accounts and other Rights to Payment strictly in accordance
with
their terms, and during the existence of an Event of Default, take all
such
action to such end as may from time to time be reasonably requested by
the
Administrative Agent or the Majority Lenders, except that such Grantor
may at
any time grant any extension of the time for payment or enter into any
agreement
to make a rebate or otherwise to reduce the amount owing on or with respect
to,
or compromise or settle for less than the full amount thereof, any Account
or
other Right to Payment, in the ordinary course of business, according to
normal
trade practices;
(iii) if
any discount,
allowance, credit, extension of time for payment, agreement to make a rebate
or
otherwise to reduce the amount owing on, or compromise or settle, an Account
or
other Right to Payment exists or occurs, or if, to the knowledge of any
Grantor,
any dispute, setoff, claim, counterclaim or defense exists or has been
asserted
or threatened with respect to an Account or other Right to Payment, disclose
such fact to the Administrative Agent in the Books relating to such Account
or
other Right to Payment when such Books are requested for inspection by
the
Administrative Agent, and in connection with any invoice or report furnished
by
any Grantor to the Administrative Agent relating to such Account or other
Right
to Payment;
(iv) if
any Accounts
arise from contracts with the United States or any department, agency or
instrumentality thereof, promptly notify the Administrative Agent thereof
and
execute any documents and instruments and take any other steps reasonably
requested by the Administrative Agent in order that all monies due and
to become
due thereunder shall be assigned to the Administrative Agent and notice
thereof
given to the Federal authorities under the Federal Assignment of Claims
Act
(provided
that such
assignment and notice shall not be required if the applicable contract
prohibits
assignment);
(v) in
accordance with
its sound business judgment perform and comply in all material respects
with its
obligations in respect of the Accounts and other Rights to Payment;
(vi) upon
the request of
the Administrative Agent or the Majority Lenders (a) at any time, notify
all or any designated portion of the account debtors and other obligors
on the
Rights to Payment of the security interest hereunder, and (b) upon the
occurrence of an Event of Default) notify the account debtors and other
obligors on the Rights to Payment or any designated portion thereof that
payment
shall be made directly to the Administrative Agent or to such other Person
or
location as the Administrative Agent shall specify; and
(vii) upon
the occurrence
of any Event of Default, establish such lockbox or similar arrangements
for the
payment of the Accounts and other Rights to Payment as the Administrative
Agent
shall require.
(m) Deposit
Accounts
and Securities Accounts.
Each Grantor
shall give the Administrative Agent notice of the establishment of any
new
Deposit Account and any new securities account with respect to any Investment
Property in each Update Certificate delivered by Holdings to the Administrative
Agent pursuant to Section 7.02(h) of the Credit Agreement; provided,
however,
that upon the
occurrence of an Event of Default, each Grantor shall give the Administrative
Agent notice of any such Deposit Account or securities account at such
times and
with such frequency as the Administrative Agent or the Majority Lenders
shall
request.
(n) Inventory.
Each Grantor
shall:
(i) at
such times as
the Administrative Agent or the Majority Lenders shall request, prepare
and
deliver to the Administrative Agent a report of all Inventory, in form
and
substance satisfactory to the Administrative Agent and the Majority
Lenders;
(ii) upon
the request of
the Administrative Agent or the Majority Lenders, take a physical listing
of the
Inventory and promptly deliver a copy of such physical listing to the
Administrative Agent; and
(iii) not
store any
Inventory with a bailee, warehouseman or similar Person or on premises
leased to
any Grantor, nor dispose of any Inventory on a xxxx-and-hold, guaranteed
sale,
sale and return, sale on approval, consignment or similar basis, nor acquire
any
Inventory from any Person on any such basis, except in the ordinary course
of
business and in accordance with its normal practices.
(o) Equipment.
Each Grantor
shall, upon the Administrative Agent’s or the Majority Lenders’ request, deliver
to the Administrative Agent a report of each item of Equipment, in form
and
substance satisfactory to the Administrative Agent and the Majority
Lenders.
(p) Intellectual
Property Collateral.
Each Grantor
shall:
(i) not
allow or suffer
any Intellectual Property Collateral to become abandoned, nor any registration
thereof to be terminated, forfeited, expired or dedicated to the public,
except
for Intellectual Property Collateral having negligible commercial
value;
(ii) not
enter into any
agreements or transactions (including any license, sublicense or royalty
agreement) pertaining to any Intellectual Property Collateral outside of
the
ordinary course of business, or enter into any exclusive license or sublicense
of any Intellectual Property Collateral, except in a transaction permitted
under
the Loan Documents;
(iii) promptly
give the
Administrative Agent notice of any rights any Grantor may obtain to any
new
patentable inventions, copyrightable works or other new Intellectual Property
Collateral which such Grantor intends to register, prior to the filing
of any
application for registration thereof; and
(iv) diligently
prosecute all applications for patents, copyrights and trademarks, and
file and
prosecute any and all continuations, continuations-in-part, applications
for
reissue, applications for certificate of correction and like matters as
shall be
reasonable and appropriate in accordance with prudent business practice,
and
promptly and timely pay any and all maintenance, license, registration
and other
fees, taxes and expenses incurred in connection with any Intellectual Property
Collateral.
(q) Notices,
Reports
and Information.
Each Grantor
shall (i) notify the Administrative Agent of any material claim made or
asserted against the Collateral by any Person and of any change in the
composition of the Collateral or other event which could materially adversely
affect the value of the Collateral or the Administrative Agent’s Lien thereon;
(ii) furnish to the Administrative Agent such statements and schedules
further identifying and describing the Collateral and such other reports
and
other information in connection with the Collateral as the Administrative
Agent
or the Majority Lenders may reasonably request, all in reasonable detail;
and
(iii) upon reasonable request of the Administrative Agent or the Majority
Lenders make such demands and requests for information and reports as any
Grantor is entitled to make in respect of the Collateral.
(r) Commercial
Tort
Claims.
Each Grantor will
give the Administrative Agent prompt notice if such Grantor shall at any
time
hold or acquire any Commercial Tort Claim.
(s) Letter-of-Credit
Rights.
Each Grantor will
give the Administrative Agent immediate notice if such Grantor shall at
any time
hold or acquire any Letter-of-Credit Rights.
(t) Shareholder
Agreements and Other Agreements.
(i) Each Grantor
shall comply with all of its obligations under any shareholders agreement,
operating agreement, partnership agreement, voting trust, proxy agreement
or
other agreement or understanding (collectively, the “Pledged Collateral
Agreements”) to which it is a party and shall enforce all of its rights
thereunder.
(ii) No
Grantor shall vote
to enable or take any other action to amend or terminate, or waive
compliance with any of the terms of, any Pledged Collateral Agreement,
certificate or articles of incorporation, bylaws or other organizational
documents in any way that materially changes the rights of such Grantor
with
respect to any Pledged Collateral in a manner adverse to the Administrative
Agent or the Lenders or
that
adversely
affects the validity, perfection or priority of the Administrative Agent’s
security interest therein.
(u) Insurance
(i).
(i) Each
Grantor shall carry and maintain in full force and effect, at the expense
of the
Grantors and with financially sound and reputable insurance companies,
insurance
with respect to the Collateral in such amounts, with such deductibles and
covering such risks as shall be specified in the Credit Agreement. Upon
the
request of the Administrative Agent or the Majority Lenders, and in any
event
not less often than annually, each Grantor shall furnish the Administrative
Agent with full information as to the insurance carried by it and, if so
requested, copies of all such insurance policies. All insurance policies
required under this subsection (v) shall provide that they shall not be
terminated or cancelled nor shall any such policy be materially changed
without
at least 30 days’ prior written notice to the Grantor and the
Administrative Agent (or 10 days’ prior written notice if the Administrative
Agent consents to such shorter notice). Receipt of notice of termination
or
cancellation of any such insurance policies or reduction of coverages or
amounts
thereunder shall entitle the Administrative Agent to renew any such policies,
cause the coverages and amounts thereof to be maintained at levels required
pursuant to the first sentence of this subsection (v) or otherwise to
obtain similar insurance in place of such policies, in each case at the
expense
of the Grantors.
(ii) If
Collateral with
a value exceeding $5,000,000 of any Grantor shall be materially damaged
or
destroyed, in whole or in part, by fire or other casualty, such Grantor
shall
give prompt notice thereof to the Administrative Agent. No settlement on
account
of any loss on any such Collateral covered by insurance shall be made for
less
than insured value without the consent of the Majority Lenders. After the
occurrence and during the continuance of an Event of Default, or as otherwise
required under the Loan Documents, all sums payable to any Grantor by any
insurer with respect to a casualty relating to all or any part of the Collateral
shall be paid to the Administrative Agent. If any Grantor shall receive
any
insurance proceeds which are to be paid to the Administrative Agent pursuant
to
the previous sentence, such Grantor shall hold such proceeds in trust for
the
Administrative Agent, shall segregate such proceeds from other funds of
such
Grantor, and shall immediately forward such proceeds in the form received
to the
Administrative Agent (appropriately indorsed by such Grantor to the order
of the
Administrative Agent or in such other manner as shall be satisfactory to
the
Administrative Agent). All such insurance proceeds may be retained by the
Administrative Agent as part of Collateral hereunder and held in the Proceeds
Account, applied by the Administrative Agent toward payment of all or part
of
the Secured Obligations in such order as is provided herein, or released
to such
Grantor upon its request with the consent of the Majority Lenders.
(v) Zero
Balance
Accounts.
Each Grantor
shall take all steps necessary to ensure that (i) each Zero Balance Account
is
swept into a Primary Account no less frequently than every other
day,
and (ii) no
Zero Balance Account shall maintain a balance in excess of $5,000 for a
period
in excess of three consecutive Business Days.
SECTION
6
Administration
of
the Rights to Payment and Pledged Collateral.
(a) Collection
of
Rights to Payment.
Until the
Administrative Agent exercises its rights hereunder to collect Rights to
Payment, each Grantor shall endeavor in the first instance diligently to
collect
all amounts due or to become due on or with respect to the Rights to Payment.
At
the request of the Administrative Agent or the Majority Lenders, during
the
continuance of any Event of Default, all remittances received by any Grantor
shall be held in trust for the Administrative Agent and, in accordance
with the
Administrative Agent’s instructions, remitted to the Administrative Agent or
deposited to an account with the Administrative Agent in the form received
(with
any necessary endorsements or instruments of assignment or
transfer).
(b) Investment
Property
and Instruments.
Unless and until
an Event of Default shall have occurred, each Grantor shall be entitled
to
receive and retain for its own account any cash dividend on or other cash
distribution, if any, in respect of the Pledged Collateral, to the extent
consistent with the Credit Agreement; provided,
however,
that, except in
connection with transactions permitted under Section 8.02 or
Section 8.03 of the Credit Agreement, such Grantor shall not be entitled to
receive (i) cash paid, payable or otherwise distributed in redemption of,
or in exchange for or in substitution of, any Pledged Collateral, or
(ii) dividends and other distributions paid or payable in cash in respect
of any Pledged Collateral in connection with a partial or total liquidation
or
dissolution of such Grantor or in connection with a reduction of capital,
capital surplus or paid-in-surplus or any other type of recapitalization.
At the
request of the Administrative Agent or the Majority Lenders, during the
continuance of any Event of Default, the Administrative Agent shall be
entitled
to receive all distributions and payments of any nature with respect to
any
Investment Property or Instruments, and all such distributions or payments
received by any Grantor shall be held in trust for the Administrative Agent
and,
in accordance with the Administrative Agent’s instructions, remitted to the
Administrative Agent or deposited to an account with the Administrative
Agent in
the form received (with any necessary endorsements or instruments of assignment
or transfer). During the continuance of an Event of Default any such
distributions and payments with respect to any Investment Property held
in any
securities account shall be held and retained in such securities account,
in
each case as part of the Collateral hereunder. Additionally, the Administrative
Agent shall have the right, during the continuance of an Event of Default,
following prior written notice to any Grantor, to vote and to give consents,
ratifications and waivers with respect to any Investment Property, Pledged
Debt
and Instruments, and to exercise all rights of conversion, exchange,
subscription or any other rights, privileges or options pertaining thereto,
as
if the Administrative Agent were the absolute owner thereof; provided that
the
Administrative Agent shall have no duty to exercise any of the
foregoing
rights
afforded to it and shall not be responsible to any Grantor or any other
Person
for any failure to do so or delay in doing so.
(c) Voting
Prior to an
Event of Default.
Unless and until
an Event of Default shall have occurred and be continuing each Grantor
shall
have the right to vote the Pledged Collateral and to give consents,
ratifications and waivers in respect thereof, and shall retain the power
to
control the direction, management and policies of any Person comprising
the
Pledged Collateral to the same extent as such Grantor would if the Pledged
Collateral were not pledged to the Administrative Agent pursuant to this
Agreement; provided,
however,
that no vote
shall be cast or consent, waiver or ratification given or action taken
which
would have the effect of materially impairing the position or interest
of the
Administrative Agent and the Secured Parties in respect of the Pledged
Collateral or which would alter the voting rights with respect to the stock
or
other ownership interest in or of any such Person or be inconsistent with
or
violate any provision of this Agreement, the Credit Agreement, or any other
Loan
Documents. If applicable, such Grantor shall be deemed the beneficial owner
of
all Pledged Collateral for purposes of Sections 13 and 16 of the Exchange
Act and agrees to file all reports required to be filed by beneficial owners
of
securities thereunder. The Administrative Agent shall execute and deliver
(or
cause to be executed and delivered) to each Grantor all such proxies and
other instruments as such Grantor may reasonably request for the purpose
of
enabling such Grantor to exercise the voting and other rights which it
is
entitled to exercise pursuant to this subsection (c) and to receive
the distributions which it is authorized to receive and retain pursuant
to this
subsec-tion (c).
(d) General
Authority
upon an Event of Default.
During the
continuance of any Event of Default:
(i) the
Administrative
Agent shall be entitled to receive all distributions and payments of any
nature
with respect to the Pledged Collateral, to be held by the Administrative
Agent
as part of the Pledged Collateral; and
(ii) the
Administrative
Agent shall have the right following prior written notice to the Grantor
to vote
or consent to take any action with respect to the Pledged Collateral and
exercise all rights of conversion, exchange, subscription or any other
rights,
privileges or options pertaining to the Pledged Collateral, as if the
Administrative Agent were the absolute owner thereof.
(e) Distributions
to Be
Held for Administrative Agent.
Distributions and
other payments which are received by the Grantor but which it is not entitled
to
retain as a result of the operation of this Section 6 shall be held in
trust for the benefit of the Administrative Agent, be segregated from the
other
property or funds of such Grantor, and be forthwith paid over or delivered
to
the Administrative Agent in the same form as so received.
(f) Certain
Other
Administrative Matters.
The
Administrative Agent may cause any of the Pledged Collateral to be transferred
into its name or into the name of its nominee or nominees (subject to the
revocable rights specified in this Section 6) if, in the Administrative
Agent’s reasonable discretion, such action is necessary or desirable to protect
or exercise the Administrative Agent’s rights and interests hereunder. The
Administrative Agent shall at all times have the right to exchange
uncertificated Pledged Collateral for certificated Pledged Collateral,
and to
exchange certificated Pledged Collateral for certificates of larger or
smaller
denominations, for any purpose consistent with this Agreement.
SECTION
7
Authorization;
Administrative Agent Appointed Attorney-in-Fact.
The
Administrative Agent shall have the right to, in the name of any Grantor,
or in
the name of the Administrative Agent or otherwise, without notice to or
assent
by such Grantor, and each Grantor hereby constitutes and appoints the
Administrative Agent (and any of the Administrative Agent’s officers or
employees or agents designated by the Administrative Agent) as such Grantor’s
true and lawful attorney-in-fact, with full power and authority to:
(a) sign
and file any
of the financing statements which must be executed or filed to perfect
or
continue perfected, maintain the priority of or provide notice of the
Administrative Agent’s security interest in the Collateral and file any such
financing statements by electronic means with or without a signature as
authorized or required by applicable law or filing procedures;
(b) take
possession of
and endorse any notes, acceptances, checks, drafts, money orders or other
forms
of payment or security and collect any Proceeds of any Collateral;
(c) sign
and endorse
any invoice or xxxx of lading relating to any of the Collateral, warehouse
or
storage receipts, drafts against customers or other obligors, assignments,
notices of assignment, verifications and notices to customers or other
obligors;
(d) notify
the U.S.
Postal Service and other postal authorities to change the address for delivery
of mail addressed to any Grantor to such address as the Administrative
Agent may
designate (provided
that the
Administrative Agent agrees it will promptly deliver over to such Grantors
any
mail that does not relate to the Collateral); and, without limiting the
generality of the foregoing, establish with any Person lockbox or similar
arrangements for the payment of the Rights to Payment;
(e) receive,
open and
dispose of all mail addressed to any Grantor (provided
that the
Administrative Agent agrees it will promptly deliver over to such Grantors
any
mail that does not relate to the Collateral);
(f) send
requests for
verification of Rights to Payment to the customers or other obligors of
any
Grantor;
(g) contact,
or direct
any Grantor to contact, all account debtors and other obligors on the Rights
to
Payment and instruct such account debtors and other obligors to make all
payments directly to the Administrative Agent;
(h) assert,
adjust, xxx
for, compromise or release any claims under any policies of
insurance;
(i) exercise
dominion
and control over, and refuse to permit further withdrawals from, Deposit
Accounts maintained with Xxxxx Fargo or any other bank, financial institution
or
other Person;
(j) notify
each Person
maintaining lockbox or similar arrangements for the payment of the Rights
to
Payment to remit all amounts representing collections on the Rights to
Payment
directly to the Administrative Agent;
(k) ask,
demand,
collect, receive and give acquittances and receipts for any and all Rights
to
Payment, enforce payment or any other rights in respect of the Rights to
Payment
and other Collateral, grant consents, agree to any amendments, modifications
or
waivers of the agreements and documents governing the Rights to Payment
and
other Collateral, and otherwise file any claims, take any action or institute,
defend, settle or adjust any actions, suits or proceedings with respect
to the
Collateral, as the Administrative Agent or the Majority Lenders may deem
necessary or desirable to maintain, preserve and protect the Collateral,
to
collect the Collateral or to enforce the rights of the Administrative Agent
with
respect to the Collateral;
(l) execute
any and all
applications, documents, papers and instruments necessary for the Administrative
Agent to use the Intellectual Property Collateral and grant or issue any
exclusive or non-exclusive license or sublicense with respect to any
Intellectual Property Collateral;
(m) execute
any and all
endorsements, assignments or other documents and instruments necessary
to sell,
lease, assign, convey or otherwise transfer title in or dispose of the
Collateral;
(n) execute
and deliver
to any securities intermediary or other Person any entitlement order or
other
notice, document or instrument which the Administrative Agent may deem
necessary
or advisable (A) to realize upon the Collateral, and (B) to maintain,
protect and preserve the Deposit Accounts and Investment Property and the
Administrative Agent’s security interest therein; and
(o) execute
any and all
such other documents and instruments, and do any and all acts and things
for and
on behalf of any Grantor, which the Administrative Agent or the Majority
Lenders
may deem necessary or advisable (A) to realize upon the
Collateral,
and
(B) to maintain, protect and preserve the Collateral and the Administrative
Agent’s security interest therein and to accomplish the purposes of this
Agreement.
The
Administrative
Agent agrees that, except during the continuance of an Event of Default,
it
shall not exercise the power of attorney, or any rights granted to the
Administrative Agent, pursuant to clauses (b) through (m), (n)(A) and
(o)(A) above. The foregoing power of attorney is coupled with an interest
and
irrevocable so long as the Lenders have any Commitments or any Letter of
Credit
remains outstanding or any Specified Swap Contract shall be in effect or
the
Secured Obligations have not been paid and performed in full. Each Grantor
hereby ratifies, to the extent permitted by law, all that the Administrative
Agent shall lawfully and in good faith do or cause to be done by virtue
of and
in compliance with this Section 7.
SECTION
8
Administrative
Agent Performance of Company Obligations.
The
Administrative Agent may perform or pay any obligation which any Grantor
has
agreed to perform or pay under or in connection with this Agreement, and
which
such Grantor has failed to perform or pay as and when due, and such Grantor
shall reimburse the Administrative Agent on demand for any amounts paid
by the
Administrative Agent pursuant to this Section 8.
SECTION
9
Administrative
Agent’s Duties.
Notwithstanding
any provision contained in this Agreement, the Administrative Agent shall
have
no duty to exercise any of the rights, privileges or powers afforded to
it and
shall not be responsible to any Grantor or any other Person for any failure
to
do so or delay in doing so. Beyond the exercise of reasonable care to assure
the
safe custody of Collateral in the Administrative Agent’s possession and the
accounting for moneys actually received by the Administrative Agent hereunder,
the Administrative Agent shall have no duty or liability to exercise or
preserve
any rights, privileges or powers pertaining to the Collateral.
SECTION
10
Remedies.
(a) Remedies.
During the
continuance of any Event of Default, the Administrative Agent shall have,
in
addition to all other rights and remedies granted to it in this Agreement,
the
Credit Agreement or any other Loan Document, all rights and remedies of
a
secured party under the UCC and other applicable laws. Without limiting
the
generality of the foregoing, each Grantor agrees that:
(i) The
Administrative
Agent may peaceably and without notice enter any premises of any Grantor,
take
possession of any Collateral, remove or dispose of all or part of the Collateral
on any premises of any Grantor or elsewhere, or, in the case of
Equipment,
render
it nonfunctional, and otherwise collect, receive, appropriate and realize
upon
all or any part of the Collateral, and demand, give receipt for, settle,
renew,
extend, exchange, compromise, adjust, or xxx for all or any part of the
Collateral, as the Administrative Agent may determine.
(ii) The
Administrative
Agent may require any Grantor to assemble all or any part of the Collateral
and
make it available to the Administrative Agent, at any place and time designated
by the Administrative Agent.
(iii) The
Administrative
Agent may use or transfer any of any Grantor’s rights and interests in any
Intellectual Property Collateral, by license, by sublicense (to the extent
permitted by an applicable license) or otherwise, on such conditions and in
such manner as the Administrative Agent may determine.
(iv) The
Administrative
Agent may secure the appointment of a receiver of the Collateral or any
part
thereof (to the extent and in the manner provided by applicable
law).
(v) The
Administrative
Agent may withdraw (or cause to be withdrawn) any and all funds from any
Deposit
Accounts or securities accounts.
(vi) The
Administrative
Agent may sell, resell, lease, use, assign, transfer or otherwise dispose
of any
or all of the Collateral in its then condition or following any commercially
reasonable preparation or processing (utilizing in connection therewith
any of
any Grantor’s assets, without charge or liability to the Administrative Agent
therefor) at public or private sale, by one or more contracts, in one or
more
parcels, at the same or different times, for cash or credit or for future
delivery without assumption of any credit risk, all as the Administrative
Agent
deems advisable; provided,
however,
that such Grantor
shall be credited with the net proceeds of sale only when such proceeds
are
finally collected by the Administrative Agent. The Administrative Agent
and each
of the Lenders shall have the right upon any such public sale, and, to
the
extent permitted by law, upon any such private sale, to purchase the whole
or
any part of the Collateral so sold, free of any right or equity of redemption,
which right or equity of redemption each Grantor hereby releases, to the
extent
permitted by law. The Administrative Agent shall give each Grantor such
notice
of any public or private sale as may be required by the UCC or other applicable
law. Each Grantor recognizes that the Administrative Agent may be unable
to make
a public sale of any or all of the Pledged Collateral, by reason of prohibitions
contained in applicable securities laws or otherwise, and expressly agrees
that
a private sale to a restricted group of purchasers for investment and not
with a
view to any distribution thereof shall be considered a commercially reasonable
sale.
(b) Sale
of Collateral;
Administrative Agent’s Obligations.
Neither the
Administrative Agent nor any Lender shall have any obligation to clean
up or
otherwise prepare the Collateral for sale. The Administrative Agent has
no
obligation to attempt to satisfy the Secured Obligations by collecting
them from
any other Person liable for them and the Administrative Agent and the Lenders
may
release,
modify or
waive any Collateral provided by any other Person to secure any of the
Secured
Obligations, all without affecting the Administrative Agent’s or any Lender’s
rights against the Grantors. Each Grantor waives any right it may have
to
require the Administrative Agent or any Lender to pursue any third Person
for
any of the Secured Obligations. The Administrative Agent and the Lenders
may
comply with any applicable state or federal law requirements in connection
with
a disposition of the Collateral and compliance will not be considered adversely
to affect the commercial reasonableness of any sale of the Collateral.
The
Administrative Agent may sell the Collateral without giving any warranties
as to
the Collateral. The Administrative Agent may specifically disclaim any
warranties of title or the like. This procedure will not be considered
adversely
to affect the commercial reasonableness of any sale of the Collateral.
If the
Administrative Agent sells any of the Collateral upon credit, the Grantors
will
be credited only with payments actually made by the purchaser, received
by the
Administrative Agent and applied to the indebtedness of the purchaser.
In the
event the purchaser fails to pay for the Collateral, the Administrative
Agent
may resell the Collateral and the Grantors shall be credited with the proceeds
of the sale.
(c) License.
For the purpose
of enabling the Administrative Agent to exercise its rights and remedies
under
this Section 10 or otherwise in connection with this Agreement, each
Grantor hereby grants to the Administrative Agent an irrevocable, non-exclusive
and assignable license (exercisable without payment or royalty or other
compensation to any Grantor) to use, license or sublicense any Intellectual
Property Collateral.
(d) Proceeds
Account.
To the extent
that any of the Secured Obligations may be contingent, unmatured or unliquidated
at such time as there may exist an Event of Default(including with respect
to
undrawn amounts under any Letter of Credit or contingent amounts due under
any
Specified Swap Contract), the Administrative Agent may, at its election
(in
accordance with the direction of the Majority Lenders), (i) retain the
proceeds of any sale, collection, disposition or other realization upon
the
Collateral (or any portion thereof) in a special purpose
non-interest-bearing restricted deposit account (the “Proceeds Account”) created
and maintained by the Administrative Agent for such purpose (which shall
constitute a Deposit Account included within the Collateral hereunder)
until
such time as the Administrative Agent may elect to apply such proceeds
to the
Secured Obligations, and each Grantor agrees that such retention of such
proceeds by the Administrative Agent shall not be deemed strict foreclosure
with
respect thereto; (ii) in any manner elected by the Administrative Agent,
estimate the liquidated amount of any such contingent, unmatured or unliquidated
claims and apply the proceeds of the Collateral against such amount; or
(iii) otherwise proceed in any manner permitted by applicable law. Each
Grantor agrees that the Proceeds Account shall be a blocked account and
that
upon the irrevocable deposit of funds into the Proceeds Account, such Grantor
shall not have any right of withdrawal with respect to such funds. Accordingly,
each Grantor irrevocably waives until the termination of the security interests
granted under this Agreement in
accordance
with
Section 24 the right to make any withdrawal from the Proceeds Account and
the right to instruct the Administrative Agent to honor drafts against
the
Proceeds Account.
(e) Application
of
Proceeds.
Subject to
subsection (d), cash proceeds actually received from the sale or other
disposition or collection of Collateral, and any other amounts received
in
respect of the Collateral the application of which is not otherwise provided
for
herein, shall be applied in the order specified in Section 9.03 of the
Credit
Agreement. Any surplus thereof which exists after payment and performance
in
full of the Secured Obligations shall be promptly paid over to the Grantors
entitled thereto or otherwise disposed of in accordance with the UCC or
other
applicable law. Each Grantor shall remain liable to the Administrative
Agent and
other Secured Parties for any deficiency which exists after any sale or
other
disposition or collection of Collateral.
SECTION
11
Certain
Waivers.
Each Grantor
waives, to the fullest extent permitted by law, (i) any right of redemption
with respect to the Collateral, whether before or after sale hereunder,
and all
rights, if any, of marshalling of the Collateral or other collateral or
security
for the Secured Obligations; (ii) any right to require the Administrative
Agent or the Lenders (a) to proceed against any Person, (b) to exhaust
any other collateral or security for any of the Secured Obligations, (c) to
pursue any remedy in the Administrative Agent’s or any of the Lenders’ power, or
(d) to make or give any presentments, demands for performance, notices of
nonperformance, protests, notices of protests or notices of dishonor in
connection with any of the Collateral; and (iii) all claims, damages, and
demands against the Administrative Agent or the Lenders arising out of
the
repossession, retention, sale or application of the proceeds of any sale
of the
Collateral.
SECTION
12
Notices.
All notices or
other communications hereunder shall be given in the manner and to the
addresses
specified in, and shall be effective as provided in, the Credit
Agreement.
SECTION
13
No
Waiver;
Cumulative Remedies.
No failure on the
part of the Administrative Agent or any Lender to exercise, and no delay
in
exercising, any right, remedy, power or privilege hereunder shall operate
as a
waiver thereof, nor shall any single or partial exercise of any such right,
remedy, power or privilege preclude any other or further exercise thereof
or the
exercise of any other right, remedy, power or privilege. The rights and
remedies
under this Agreement are cumulative and not exclusive of any rights, remedies,
powers and privileges that may otherwise be available to the Administrative
Agent or any Lender.
(a) Costs
and
Expenses.
The Grantors
jointly and severally agree to pay on demand:
(i) the
reasonable
out-of-pocket costs and expenses of the Administrative Agent and any of
its
Affiliates, and the Administrative Agent’s reasonable Attorney Costs, in
connection with the negotiation, preparation, execution, delivery and
administration of this Agreement, and any amendments, modifications or
waivers
of the terms thereof, any releases of Collateral, and the custody of the
Collateral;
(ii) all
reasonable
title, appraisal (including the allocated costs of internal appraisal services),
survey, audit, consulting, search, recording, filing and similar fees,
costs and
expenses incurred or sustained by the Administrative Agent or any of its
Affiliates in connection with this Agreement or the Collateral; and
(iii) all
costs and
expenses of the Administrative Agent and its Affiliates, including all
Attorney
Costs, in connection with the enforcement or attempted enforcement of,
and
preservation of any rights or interests under, this Agreement, any out-of-court
workout or other refinancing or restructuring or in any bankruptcy case,
and the
protection, sale or collection of, or other realization upon, any of the
Collateral, including all expenses of taking, collecting, holding, sorting,
handling, preparing for sale, selling, or the like, and other such expenses
of
sales and collections of Collateral, and any and all losses, costs and
expenses
sustained by the Administrative Agent and any Lender as a result of any
failure
by any Grantor to perform or observe its obligations contained
herein.
(b) Indemnification.
The Grantors
jointly and severally hereby agree to indemnify, defend and hold the
Agent-Related Persons, and each Secured Party and their respective Affiliates,
directors, officers, employees, counsel, agents and attorneys-in-fact
(collectively the “Indemnitees”)
from and against
any and all liabilities, obligations, losses, damages, penalties, claims,
demands, actions, judgments, suits, costs, expenses and disbursements (including
Attorney Costs) of any kind or nature whatsoever which may at any time
be
imposed on, incurred by or asserted against any such Indemnitee in any
way
relating to or arising out of or in connection with (i) the execution,
delivery,
enforcement, performance or administration of this Agreement or other Loan
Document to which any Grantor is a party or any other agreement, letter
or
instrument delivered in connection with the transactions contemplated thereby
or
the consummation of the transactions contemplated thereby, or (ii) any
actual or
prospective claim, litigation, investigation or proceeding relating to
any of
the foregoing, whether based on contract, tort or any other theory (including
any investigation of, preparation for, or defense of any pending or threatened
claim, investigation, litigation or proceeding) and regardless of whether
any
Indemnitee is a party thereto (all the foregoing, collectively, the “Indemnified
Liabilities”), in all cases, whether or not caused by or arising, in whole or in
part, out of the negligence of the Indemnitee; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such
liabilities, obligations, losses,
damages,
penalties,
claims, demands, actions, judgments, suits, costs, expenses or disbursements
(x)
are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted to have resulted from the gross negligence or
willful
misconduct of such Indemnitee or (y) result from a claim brought by Holdings
or
any other Loan Party against an Indemnitee for breach in bad faith of such
Indemnitee’s obligations hereunder or under any other Loan Document, if Holdings
or such Loan Party has obtained a final and nonappealable judgment in its
favor
on such claim as determined by a court of competent jurisdiction. No Indemnitee
shall be liable for any damages arising from the use by others of any
information or other materials obtained through IntraLinks or other similar
information transmission systems in connection with this Agreement, except
to
the extent such damages 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, nor shall any Indemnitee have any
liability for any indirect or consequential damages relating to this Agreement
or any other Loan Document or arising out of its activities in connection
herewith or therewith (whether before or after the Effective Date).
(c) Other
Charges.
The Grantors
jointly and severally agree to indemnify the Administrative Agent and each
of
the other Secured Parties against and hold each of them harmless from any
and
all present and future stamp, transfer, documentary and other such taxes,
levies, fees, assessments and other charges made by any jurisdiction by
reason
of the execution, delivery, performance and enforcement of this
Agreement.
(d) Interest.
Any amounts
payable to the Administrative Agent or any Secured Party under this
Section 14 or otherwise under this Agreement if not paid upon demand shall
bear interest from the date of such demand until paid in full, at a fluctuating
interest rate per annum at all times equal to the default rate of interest
applicable to Base Rate Loans specified in Section 2.10(c) of the Credit
Agreement to the fullest extent permitted by applicable Law. Any such interest
shall be due and payable upon demand and shall be calculated on the basis
of a
year of 365 or 366 days, as the case may be, and the actual number of days
elapsed.
(e) Payment.
Any All amounts
due under this Section 14 shall be payable within ten Business Days after
demand
therefor.
(f) Survival.
The agreements in
this Section 14 shall survive the termination of the Commitments and repayment
of all Secured Obligations.
SECTION
15
Binding
Effect.
This Agreement
shall be binding upon, inure to the benefit of and be enforceable by any
Grantor, the Administrative Agent , each Secured Party, each Indemnified
Person
referred to in Section 14 and their respective successors and assigns and
shall bind any Person who becomes bound as a debtor to this
Agreement.
SECTION
16
Governing
Law.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW
OF THE STATE OF CALIFORNIA, EXCEPT AS REQUIRED BY MANDATORY PROVISIONS
OF LAW
AND TO THE EXTENT THE VALIDITY OR PERFECTION OF THE SECURITY INTERESTS
HEREUNDER, OR THE REMEDIES HEREUNDER, IN RESPECT OF ANY COLLATERAL ARE
GOVERNED
BY THE LAW OF A JURISDICTION OTHER THAN CALIFORNIA; PROVIDED THAT THE
ADMINISTRATIVE AGENT SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
SECTION
17
Forum
Selection and
Consent to Jurisdiction.
(a) SUBMISSION
TO
JURISDICTION. THE GRANTORS AND ADMINISTRATIVE AGENT EACH IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF CALIFORNIA SITTING IN XXX XXXXXXXXX
XXXXXX XXX XX XXX XXXXXX XXXXXX DISTRICT COURT FOR THE NORTHERN DISTRICT
OF
CALIFORNIA, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY DOCUMENT
RELATING
HERETO, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF
THE
PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN
RESPECT
OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH CALIFORNIA
STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE 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 THE ADMINISTRATIVE
AGENT,
ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO AGAINST
HOLDINGS OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.
(b) WAIVER
OF VENUE.
THE GRANTORS AND ADMINISTRATIVE AGENT EACH IRREVOCABLY AND UNCONDITIONALLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
OBJECTION
THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO
IN
ANY COURT REFERRED TO IN PARAGRAPH (A) OF THIS SECTION. EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION
OR
PROCEEDING IN ANY SUCH COURT.
(c) SERVICE
OF PROCESS.
EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER
PROVIDED FOR NOTICES IN SECTION 11.02 OF THE CREDIT AGREEMENT. NOTHING
IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN
ANY
OTHER MANNER PERMITTED BY APPLICABLE LAW.
SECTION
18
WAIVER
OF JURY
TRIAL.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
ANY OTHER
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER
BASED
ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PERSON 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 BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS
SECTION. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
SECTION
19
Entire
Agreement;
Amendment.
This Agreement,
together with the other Loan Documents, embodies the entire agreement and
understanding among the Grantors, the Lenders and the Administrative Agent,
and
supersedes all prior or contemporaneous agreements and understandings of
such
Persons, verbal or written, relating to the subject matter hereof and thereof
and shall not be amended except by the written agreement of the parties
as
provided in the Credit Agreement.
SECTION
20
Severability.
If any provision
of this Agreements or the other Loan Documents is held to be illegal, invalid
or
unenforceable, (a) the legality, validity and enforceability of the remaining
provisions of this Agreement and the other Loan Documents shall not be
affected
or impaired thereby and (b) the parties shall endeavor in good faith
negotiations to replace the illegal, invalid or unenforceable provisions
with
valid provisions the economic effect of which comes as close as possible
to that
of the illegal, invalid or unenforceable provisions. The invalidity of
a
provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION
21
Counterparts.
This Agreement
may be executed in one or more counterparts, each of which shall be deemed
an
original, but all of which together shall constitute one and the same
instrument.
SECTION
22
Incorporation
of
Provisions of the Credit Agreement.
To the extent the
Credit Agreement contains provisions of general applicability to the Loan
Documents, including any such provisions contained in Article XI thereof,
such provisions are incorporated herein by this reference.
SECTION
23
No
Inconsistent
Requirements.
Each Grantor
acknowledges that this Agreement and the other Loan Documents may contain
covenants and other terms and provisions variously stated regarding the
same or
similar matters, and agrees that all such covenants, terms and provisions
are
cumulative and all shall be performed and satisfied in accordance with
their
respective terms.
SECTION
24
Termination;
Releases. (i) (i) Upon
the
termination of the Commitments of the Lenders the surrender of any Letters
of
Credit issued for the account of any Grantor under the Credit Agreement,
termination of all Specified Swap Contracts and payment and performance
in full
of all Secured Obligations, the security interests granted under this Agreement
shall terminate and the Administrative Agent shall promptly execute and
deliver
to each Grantor such documents and instruments reasonably requested by
such
Grantor as shall be necessary to evidence termination of all security interests
given by any Grantor to the Administrative Agent hereunder;
(ii) Concurrently with any permitted disposition of Collateral under the
Loan Documents, the security interest hereunder shall automatically be
released
from the Collateral so disposed of; provided,
however,
that the security
interest shall continue in the Proceeds thereof. Upon satisfaction of all
conditions precedent to any permitted disposition set forth herein or in
the
other Loan Documents, the Administrative Agent shall execute and deliver
any
releases or other documents reasonably requested by the relevant Grantor
to
accomplish or confirm the release of
Collateral
provided
by this Section. Any such release shall specifically describe the portion
of the
Collateral to be released, shall be expressed to be unconditional and shall
be
without recourse or warranty (other than a warranty that the Administrative
Agent has not assigned its rights and interests to any other
Person).
SECTION
25
Accession.
Upon execution
and delivery to the Administrative Agent of an Additional Guarantor Accession
Agreement by a Subsidiary of Holdings as provided in Section 7.13 of the
Credit Agreement, effective as of the Additional Guarantor Accession Date
applicable thereto, such Guarantor shall be deemed a Grantor party hereto,
and
this Agreement shall be deemed amended to include any amendments to the
Schedules provided by such Subsidiary in connection therewith.
SECTION
26
Amendment
and
Restatement.
On and after the
Effective Date, this Agreement shall amend, restate and supersede in its
entirety and replace the Existing Security Agreement; provided, however,
that
the execution and delivery of this Agreement and the other Loan Documents
shall
not (a) operate as a waiver of any right, power or remedy of the Secured
Parties
under the Existing Security Agreement and the other related documents,
except to
the extent expressly waived in this Agreement and the other Loan Documents,
(b)
extinguish, impair or constitute a novation of any obligations of Holdings
or
any other Grantor under the Existing Security Agreement or the related
documents
except to the extent any such obligation is actually satisfied by Holdings
or
the relevant Grantor thereunder or (c) extinguish or impair any indemnification
or similar rights under the Existing Security Agreement which by their
terms
would survive the termination of the Existing Security Agreement.
[Remainder
of
page intentionally left blank]
IN
WITNESS WHEREOF, the
parties hereto
have caused this Agreement to be duly executed and delivered in San Francisco,
California, by their proper and duly authorized officers as of the day
and year
first above written.
GRANTORS:
BUILDING
MATERIALS
HOLDING CORPORATION
By:
_______________________________________
Name:
Title:
BMC
WEST
CORPORATION
By:________________________________________
Name:
Title:
BMC
WEST
CORPORATION SOUTHCENTRAL
By:________________________________________
Name:
Title:
BMCW
SOUTHCENTRAL,
L.P.
By:
BMC WEST
CORPORATION
SOUTHCENTRAL,
its
General Partner
By:________________________________________
Name:
Title:
BMCW,
LLC
By:
BMC WEST
CORPORATION, its Managing Member
By:________________________________________
Name:
Title:
SELECTBUILD
CONSTRUCTION, INC.
(formerly known as BMC Construction, Inc.)
(formerly known as BMC Construction, Inc.)
By:________________________________________
Name:
Title:
KBI
CONSTRUCTION,
LLC
By:
SELECTBUILD
CONSTRUCTION, INC.,
its Managing Member
its Managing Member
By:________________________________________
Name:
Title:
KB
INDUSTRIES LIMITED PARTNERSHIP
By:
BUILDING
MATERIALS HOLDING CORPORATION,
its General Partner
its General Partner
By:_________________________________________
Name:
Title:
XXXXXX
ROAD, L.L.C.
By:
SELECTBUILD
CONSTRUCTION, INC.,
its Sole Member
its Sole Member
By:________________________________________
Name:
Title:
C
CONSTRUCTION, INC.
(successor by merger to KBI Concrete, LLC
and Total Concrete, LLC)
(successor by merger to KBI Concrete, LLC
and Total Concrete, LLC)
By:________________________________________
Name:
Title:
KBI
CONSTRUCTION,
LLC
By:
SELECTBUILD
CONSTRUCTION, INC.,
its Sole Member
its Sole Member
By:________________________________________
Name:
Title:
RJ
NORCAL, LLC
By:
SELECTBUILD
CONSTRUCTION, INC.,
its Sole Member
its Sole Member
By:________________________________________
Name:
Title:
KBI
NORCAL GENERAL
PARTNERSHIP
By:________________________________________
Name:
Title:
KBI
NORCAL WINDOWS,
INC.
By:_________________________________________
Name:
Title:
KBI
STUCCO,
INC.
By:_________________________________________
Name:
Title:
TWF
CONSTRUCTION,
INC.
By:_________________________________________
Name:
Title:
KBI
WINDOWS,
INC.
By:_________________________________________
Name:
Title:
H.N.R.
FRAMING
SYSTEMS INC.
By:_________________________________________
Name:
Title:
FSC
CONSTRUCTION,
INC.
By_________________________________________
Name:
Title:
BMC
REALTY,
INC.
By:_________________________________________
Name:
Title:
SELECTBUILD
FLORIDA, LLC
By:_________________________________________
Name:
Title:
BBP
CONCRETE
CO.
By:_________________________________________
Name:
Title:
BBP
CONSTRUCTION
CO.
By:_________________________________________
Name:
Title:
BBP
COMMERCIAL
CO.
By:________________________________________
Name:
Title:
TBA
MATERIALS,
LLC
By:
SELECTBUILD
CONSTRUCTION, INC.,
its Sole Member
its Sole Member
By:________________________________________
Name:
Title:
SEVENTIETH
AND
NORTHERN AVENUE HOLDINGS, LLC
By:
SELECTBUILD
CONSTRUCTION, INC.,
its Sole Member
its Sole Member
By:________________________________________
Name:
Title:
SELECTBUILD
DISTRIBUTION, LLC
By:
SELECTBUILD
CONSTRUCTION, INC.,
its Sole Member
its Sole Member
By:_______________________________________
Name:
Title:
SELECTBUILD
ARIZONA, LLC
By:
SELECTBUILD
CONSTRUCTION, INC.,
its Sole Member
its Sole Member
By:_______________________________________
Name:
Title:
ADMINISTRATIVE
AGENT:
XXXXX
FARGO BANK,
NATIONAL ASSOCIATION
By:_______________________________________
Name:____________________________________
Title:_____________________________________
By:______________________________________
Name:___________________________________
Title:_____________________________________
SCHEDULE
1
to
the Security
Agreement
1.
|
Locations
of Chief Executive Office and other Locations, including of
Collateral
|
a.
|
Chief
Executive Office and Principal Place of
Business:
|
b.
|
Other
locations where any Grantor conducts business or Collateral is
kept:
|
2.
|
Locations
of Books Pertaining to Rights to
Payment
|
3.
|
Jurisdiction
of Organization
|
4.
|
Trade
Names and Trade Styles; Other Corporate, Trade or Fictitious
Names;
Etc.
|
5.
|
Deposit
Accounts
|
6.
|
Investment
Property
|
7.
|
Instruments
and Chattel Paper
|
8.
|
Leased
Equipment
|
9.
|
Commercial
Tort Claims
|
10.
|
Letter-of-Credit
Rights
|
SCHEDULE
2
to
the Security
Agreement
1.
|
Patents,
Trademarks, Copyrights,
Etc.
|
SCHEDULE 3
to
the Security
Agreement
1.
Pledged
LLC
Interests.
Interests in each
limited liability company that is a Subsidiary as follows:
Subsidiary
and
Percentage
Ownership Interest
|
Number
of Units
|
Date
of Issuance of Units
|
2.
Pledged
Partnership Interests.
Interests in each
general partnership, limited partnership, limited liability partnership
or other
partnership that is a Subsidiary as follows:
Subsidiary
and
Percentage
Ownership Interest
|
Type
of
Partnership
Interest (e.g.,
general, limited)
|
Date
of Issuance
or
Formation
|
Number
of Units or Other Ownership Interests
|
3.
Pledged
Shares.
Capital stock of
each Subsidiary being represented by stock certificates as follows:
Subsidiary
and
Percentage
Ownership Interest
|
Certificate
No.
|
Certificate
Date
|
No.
and Class
of
Shares
|
2. Pledged
Debt
SCHEDULE 4
to
the Security
Agreement
Filing
Offices
FORM
OF UPDATE
CERTIFICATE
for
the Reporting
Period ended __________________, 20__
TO:
Xxxxx Fargo
Bank, National Association, as Administrative Agent
Reference
is made
to the Second Amended and Restated Credit Agreement, dated as of November
__,
2006 (as extended, renewed, amended or restated from time to time, the
“Credit
Agreement”),
among Building
Materials Holding Corporation (“Holdings”),
BMC West
Corporation (the “Company”)
and certain
other affiliates of Holdings, as guarantors, JPMorgan Chase Bank, N.A.,
as
Documentation Agent, SunTrust Bank, as Joint Lead Arranger and Co-Syndication
Agent, BNP Paribas, as Joint Lead Arranger and Co-Syndication Agent, the
several
financial institutions from time to time party thereto (the “Lenders”)
and Xxxxx Fargo
Bank, National Association, as issuing bank of certain letters of credit
(in
such capacity, the “L/C
Issuer”),
as Swingline
Lender, as administrative agent (in such capacity, the “Administrative
Agent”),
as Joint Lead
Arranger and Joint Book Manager. Capitalized terms used and not defined
herein
shall have the meanings assigned to such terms in the Credit
Agreement.
This
Update
Certificate
is provided
pursuant to Section
7.02(h)
of the Credit
Agreement without limiting the ongoing reporting obligations of the Loan
Parties
under the Credit Agreement and the Security Agreement (as amended) with
respect
to the matters covered by this Update Certificate.
The
undersigned
hereby certifies to the Administrative Agent and the Lenders on behalf
of each
Loan Party that, during the fiscal quarter ended __________, 20_ (the “Reporting
Period”), there has not been (i) any change in its corporate name or in its
jurisdiction of organization, (ii) any change in the location of its chief
executive office or (iii) the creation or acquisition of any Wholly-Owned
Subsidiary by a Loan Party, except as follows:
1. Names.
(a) During
the
Reporting Period, a Loan Party changed its corporate name as
follows:
(b) During
the
Reporting Period, a Loan Party changed its jurisdiction of organization
as
follows:
2. Locations.
During
the
Reporting Period, a Loan Party changed the location of its chief executive
office as follows:
3. Subsidiaries.
During the
Reporting Period, a Loan Party created or acquired the following direct
or
indirect Wholly-Owned Subsidiaries:
The
undersigned
hereby certifies to the Administrative Agent and the Lenders on behalf
of each
Loan Party that, during the Reporting Period, no new Deposit Account
or
securities
account
with respect to any Investment Property (as such terms are defined in the
Security Agreement) has been established, except as follows:
Consistent
with the
provisions of revised Article 9 of the Uniform Commercial Code of the relevant
jurisdiction(s) (as and when adopted), the Loan Parties hereby authorize
the
Administrative Agent to file (with or without a Loan Party’s signature), at any
time and from time to time thereafter, all financing statements, assignments,
continuation financing statements, financing statement amendments, termination
statements and other documents and instruments, in form reasonably satisfactory
to the Administrative Agent, and take all other action, as the Administrative
Agent may deem reasonable, to perfect and continue perfected, maintain
the
priority of or provide notice of any security interest of the Administrative
Agent in the Collateral and to accomplish the purposes of the Credit
Agreement.
IN
WITNESS WHEREOF, the undersigned has executed this Update
Certificate
on behalf of
itself and each other Loan Party this ____________ day of
____________________.
BUILDING
MATERIALS
HOLDING CORPORATION
By:
____________________________
Name:
Title:
Exhibit
J
2
2