Exhibit 10
[EXECUTION COPY]
SENIOR SUBORDINATED BRIDGE B LOAN AGREEMENT
Dated as of April 6, 2004,
among
BCP CRYSTAL HOLDINGS LTD. 2,
and
BCP CAYLUX HOLDINGS LUXEMBOURG S.C.A.,
The LENDERS Party Hereto,
and
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Administrative Agent
--------------------------------------------
XXXXXX XXXXXXX SENIOR FUNDING, INC.
and
DEUTSCHE BANK SECURITIES INC.,
as Joint Lead Arrangers
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
DEUTSCHE BANK SECURITIES INC.
and
BANC OF AMERICA SECURITIES LLC,
as Joint Bookrunners
BANK OF AMERICA, N.A.,
as Documentation Agent
--------------------------------------------
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Global Coordinator
TABLE OF CONTENTS
PAGE
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ARTICLE 1
DEFINITIONS
Section 1.01. Defined Terms.................................................................... 3
Section 1.02. Terms Generally.................................................................. 53
Section 1.03. Currency Calculations............................................................ 53
Section 1.04. Effectuation Of Transaction...................................................... 53
ARTICLE 2
THE CREDITS
Section 2.01. Commitment....................................................................... 54
Section 2.02. Loans And Borrowings............................................................. 54
Section 2.03. Request for Borrowing............................................................ 55
Section 2.04. Funding Of Borrowings............................................................ 55
Section 2.05. Termination And Reduction Of Commitments......................................... 56
Section 2.06. Repayment of Loans; Evidence of Debt............................................. 56
Section 2.07. Prepayment Of Loans.............................................................. 58
Section 2.08. Fees............................................................................. 60
Section 2.09. Interest......................................................................... 60
Section 2.10. Alternate Rate Of Interest....................................................... 61
Section 2.11. Increased Costs.................................................................. 62
Section 2.12. Break Funding Payments........................................................... 63
Section 2.13. Taxes............................................................................ 64
Section 2.14. Payments Generally; Pro Rata Treatment; Sharing Of Set-offs...................... 65
Section 2.15. Mitigation Obligations; Replacement Of Lenders................................... 67
Section 2.16. Additional Reserve Costs......................................................... 68
Section 2.17. Illegality....................................................................... 69
ARTICLE 3
REPRESENTATIONS AND WARRANTIES.
Section 3.01. Organization; Powers............................................................. 69
Section 3.02. Authorization.................................................................... 69
Section 3.03. Enforceability................................................................... 70
Section 3.04. Governmental Approvals........................................................... 70
Section 3.05. Financial Statements............................................................. 70
Section 3.06. No Material Adverse Effect....................................................... 71
Section 3.07. Title To Properties; Possession Under Leases..................................... 71
Section 3.08. Subsidiaries..................................................................... 72
Section 3.09. Litigation; Compliance with Laws................................................. 72
Section 3.10. Federal Reserve Regulations...................................................... 73
Section 3.11. Investment Company Act; Public Utility Holding Company Act....................... 73
Section 3.12. Use Of Proceeds.................................................................. 73
Section 3.13. Tax Returns...................................................................... 73
Section 3.14. No Material Misstatements........................................................ 74
Section 3.15. Employee Benefit Plans........................................................... 75
Section 3.16. Environmental Matters............................................................ 76
Section 3.17. Security Documents............................................................... 76
Section 3.18. Solvency......................................................................... 77
Section 3.19. Labor Matters.................................................................... 77
Section 3.20. Insurance........................................................................ 78
ARTICLE 4
CONDITIONS OF LENDING
Section 4.01. Initial Loans.................................................................... 78
Section 4.02. Certain Funds Period............................................................. 81
ARTICLE 5
AFFIRMATIVE COVENANTS
Section 5.01. Existence; Business And Properties............................................... 81
Section 5.02. Insurance........................................................................ 82
Section 5.03. Taxes............................................................................ 82
Section 5.04. Financial Statements, Reports, Etc............................................... 82
Section 5.05. Litigation And Other Notices..................................................... 84
Section 5.06. Compliance With Laws............................................................. 85
Section 5.07. Maintaining Records; Access To Properties And Inspections........................ 85
Section 5.08. Use Of Proceeds.................................................................. 85
Section 5.09. Compliance With Environmental Laws............................................... 86
Section 5.10. Further Assurances............................................................... 86
Section 5.11. Fiscal Year; Accounting.......................................................... 86
Section 5.12. Post-Closing Matters............................................................. 87
Section 5.13. Delisting........................................................................ 87
Section 5.14. Permanent Securities............................................................. 87
Section 5.15. Use of Proceeds of the Permanent Securities...................................... 87
Section 5.16. Exchange Notes................................................................... 87
Section 5.17. Change of Control................................................................ 88
Section 5.18. Conduct Of Offer and Squeeze Out................................................. 89
Section 5.19. Guarantees By Certain Subsidiaries............................................... 90
Section 5.20. Closing Date Matters............................................................. 90
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ARTICLE 6
NEGATIVE COVENANTS
Section 6.01. Limitation on Asset Sales........................................................ 92
Section 6.02. Limitation On Restricted Payments................................................ 93
Section 6.03. Limitations On Incurrence Of Indebtedness And Issuance Of Disqualified Stock..... 97
Section 6.04. Liens............................................................................ 103
Section 6.05. Merger, Consolidation or Sale of Assets.......................................... 103
Section 6.06. Transactions With Affiliates..................................................... 105
Section 6.07. Dividend And Other Payment Restrictions Affecting Subsidiaries................... 108
Section 6.08. Amendments or Waivers of Certain Documents; Prepayments.......................... 110
Section 6.09. Changes In Business.............................................................. 111
Section 6.10. Limitation on Other Senior Subordinated Indebtedness............................. 111
Section 6.11. Limitation on Activities......................................................... 111
Section 6.12. Sale And Lease-Back Transactions................................................. 112
ARTICLE 7
EVENTS OF DEFAULT
Section 7.01. Events of Default................................................................ 112
Section 7.02. Clean-Up Period.................................................................. 117
ARTICLE 8
SUBORDINATION OF THE LOANS
Section 8.01. Agreement to Subordinate......................................................... 117
Section 8.02. Liquidation, Dissolution, Bankruptcy............................................. 118
Section 8.03. Default On Senior Indebtedness................................................... 118
Section 8.04. Acceleration of Payment of Loans................................................. 119
Section 8.05. When Distribution Must Be Paid Over.............................................. 119
Section 8.06. Subrogation...................................................................... 119
Section 8.07. Relative Rights.................................................................. 119
Section 8.08. Subordination May Not Be Impaired by the Borrower................................ 120
Section 8.09. Rights of Agents and Paying Agent................................................ 120
Section 8.10. Distribution or Notice to Representative......................................... 120
Section 8.11. Article 8 Not to Prevent Events of Default or Limit Right to Accelerate.......... 120
Section 8.12. Agent Entitled to Rely........................................................... 121
Section 8.13. Administrative Agent To Effectuate Subordination................................. 121
Section 8.14. Administrative Agent Not Fiduciary for Holders of Senior Indebtedness............ 121
Section 8.15. Reliance by Holders of Senior Indebtedness on Subordination Provisions........... 121
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Section 8.16. Terms of Senior Debt............................................................. 122
Section 8.17. Agents' Compensation Not Prejudiced.............................................. 122
Section 8.18. Payments Not Subordinated, Including Payments Pursuant To The Security Documents. 122
ARTICLE 9
THE AGENTS
Section 9.01. Appointment...................................................................... 123
Section 9.02. Nature of Duties................................................................. 124
Section 9.03. Resignation by the Agents........................................................ 125
Section 9.04. The Administrative Agent In Its Individual Capacity.............................. 125
Section 9.05. Indemnification.................................................................. 125
Section 9.06. Lack of Reliance on Agents....................................................... 126
ARTICLE 10
MISCELLANEOUS
Section 10.01. Notices......................................................................... 126
Section 10.02. Survival Of Agreement........................................................... 127
Section 10.03. Binding Effect.................................................................. 127
Section 10.04 . Successors and Assigns.......................................................... 128
Section 10.05. Expenses; Indemnity............................................................. 131
Section 10.06. Right of Set-off................................................................ 133
Section 10.07. Applicable Law.................................................................. 133
Section 10.08 . Waivers; Amendments............................................................. 134
Section 10.09. Interest Rate Limitation........................................................ 136
Section 10.10. Entire Agreement................................................................ 137
Section 10.11. WAIVER OF JURY TRIAL............................................................ 137
Section 10.12. Severability.................................................................... 137
Section 10.13. Counterparts.................................................................... 138
Section 10.14. Headings........................................................................ 138
Section 10.15. Jurisdiction; Consent To Service Of Process..................................... 138
Section 10.16. Confidentiality................................................................. 139
Section 10.17. Conversion Of Currencies........................................................ 140
Section 10.18. Acknowledgments................................................................. 141
Section 10.19. Patriot Act Notice.............................................................. 141
Section 10.20. Release Of Guarantor............................................................ 141
Section 10.21. Parallel Debt................................................................... 142
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SCHEDULES
Schedule 1.01(a) Excluded Subsidiaries
Schedule 2.01 Commitments of Lenders
Schedule 2.07(g) AHYDO Payments
Schedule 3.01 Organization
Schedule 3.04 Governmental Approvals
Schedule 3.08(a) Closing Date Structure
Schedule 3.08(b) Subsidiaries
Schedule 3.08(c) Subscriptions
Schedule 3.09 Litigation
Schedule 3.13 Taxes
Schedule 3.16 Environmental Matters
Schedule 3.19 Labor Matters
Schedule 3.20 Insurance
Schedule 4.01(c) Local U.S. and/or Foreign Counsel
Schedule 5.12 Post-Closing Matters
Schedule 6.02 Investments
Schedule 6.03 Indebtedness
EXHIBITS
Exhibit A Assignment and Acceptance
Exhibit B Form of Borrowing Request
Exhibit C-1 Form of Initial Note
Exhibit C-2 Form of Extended Note
Exhibit D Form of Guarantee Agreement
Exhibit E-1 Form of Pledge Agreement
Exhibit E-2 Form of Bidco Loan Pledge Agreement
Exhibit F Form of Description of Exchange Notes
Exhibit G Form of Exchange and Registration Rights Agreement
Exhibit H Form of Solvency Certificate
Exhibit I Reserve Costs for Mandatory Costs Rate
Exhibit J Form of Bidco Loan Agreement
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SENIOR SUBORDINATED BRIDGE B LOAN AGREEMENT dated as of April 6, 2004
(this "AGREEMENT"), among BCP CRYSTAL HOLDINGS LTD. 2, a company incorporated
with limited liability under the laws of the Cayman Islands ("HOLDINGS"), BCP
CAYLUX HOLDINGS LUXEMBOURG S.C.A., a corporate partnership limited by shares
(societe en commandite par actions) organized under the laws of Luxembourg
("PARENT"), the LENDERS party hereto from time to time, XXXXXX XXXXXXX SENIOR
FUNDING, INC., as administrative agent (in such capacity, the "ADMINISTRATIVE
AGENT") and as collateral agent (in such capacity, the "COLLATERAL AGENT") for
the Lenders, XXXXXX XXXXXXX SENIOR FUNDING, INC. and DEUTSCHE BANK SECURITIES
INC., as joint lead arrangers (in such capacity, the "JOINT LEAD ARRANGERS"),
XXXXXX XXXXXXX SENIOR FUNDING, INC., DEUTSCHE BANK SECURITIES INC. and BANC OF
AMERICA SECURITIES LLC, as joint bookrunners, and BANK OF AMERICA, N.A., as
documentation agent.
RECITALS:
WHEREAS, Blackstone Capital Partners (Cayman) IV L.P. and its
affiliates or any other investment vehicle controlled by any of them
(collectively "BLACKSTONE") have directly or indirectly formed (i) Holdings,
(ii) Parent, all of the Equity Interests (as hereinafter defined) of which are
owned directly or indirectly by Holdings, (iii) BCP Crystal US Holdings Corp.
("US HOLDCO"), a wholly-owned subsidiary of Parent organized under the laws of
Delaware, (iv) BCP Holdings GmbH ("LP GMBH"), a wholly-owned subsidiary of
Parent organized under the laws of Germany, (v) BCP Acquisition GmbH & Co. KG
("MIDCO"), a limited partnership organized under the laws of Germany, all of the
limited partnership interests of which are owned by LP GmbH, (vi) BCP Crystal
Acquisition GmbH & Co. KG ("BIDCO"), a limited partnership organized under the
laws of Germany, all of the limited partnership interests of which are owned by
Midco and (vii) BCP Management GmbH ("GP GMBH"), a wholly-owned subsidiary of
Parent organized under the laws of Germany and the general partner of Midco and
Bidco;
WHEREAS, Bidco has made an offer (the "OFFER") to acquire all of the
issued and outstanding capital stock of Celanese AG (the "COMPANY"), a stock
corporation organized under the laws of Germany, at a price per share of
(euro)32.50;
WHEREAS, in connection with the consummation of the Offer, Holdings
will (i) receive cash, in the form of a subscription for all of its common
shares or a capital contribution, in an amount not less than (euro)690 million
(less up to (euro)15 million in certain fees and expenses), directly or
indirectly from Blackstone and other Permitted Investors (as hereinafter
defined) in a manner and on terms and conditions substantially in accordance
with the letter from Blackstone to Holdings dated December 15, 2003 with respect
to Blackstone's commitment to purchase such equity (the "HOLDCO EQUITY
COMMITMENT LETTER," and such financing, the
"HOLDCO EQUITY FINANCING") and (ii) forthwith upon such receipt, contribute,
directly or indirectly through the Intermediate Holdcos (as hereinafter
defined), if any, as an equity contribution (made in the form of common equity
for approximately 1% of such capital contribution and in the form of Parent
CPECs (as hereinafter defined) for the remainder of such capital contribution)
to Parent, the proceeds of the Holdco Equity Financing less certain fees and
expenses to be paid directly by Holdings;
WHEREAS, in connection with the consummation of the Offer:
(A) Parent will borrow senior subordinated loans under the
Senior Subordinated Bridge C Loan Agreement (as hereinafter defined) in
an amount equal to the C Debt Amount (as hereinafter defined); and
(B) Parent will borrow up to $814,082,577 in senior
subordinated loans under this Agreement;
WHEREAS, Parent will enter into the Credit Agreement (as hereinafter
defined) which, inter alia, will permit Parent to borrow the Dollar Equivalent
of up to (euro)500 million (or such greater amount as may be permitted
thereunder) under the Term Loan Facility (as hereinafter defined) as provided
for therein;
WHEREAS, with the proceeds of the financings described in the previous
recitals and concurrently with their receipt thereof, Parent will: (i) on-lend a
portion to Celanese Americas Corporation ("CAC") by way of an intercompany loan,
(ii) on-lend a further portion not less than the aggregate principal amount of
the borrowings hereunder to Bidco by way of the Bidco Loan (as hereinafter
defined), (iii) on-lend a further portion to Midco by way of an intercompany
loan, (iv) on-lend a further portion to LP GmbH by way of an intercompany loan,
(v) contribute a further portion of such proceeds to LP GmbH as an equity
contribution and (vi) retain the remainder of such proceeds pending application
in accordance with Section 3.12 of the Senior Subordinated Bridge C Loan
Agreement; LP GmbH will contribute to Midco's common equity the proceeds so
received by it (less any amount retained by it to service interest payments for
one year); and Midco will contribute to Bidco's common equity the proceeds so
received by it from Parent (less any amount retained by it to service interest
payments for one year) and LP GmbH;
WHEREAS, the obligations under the Credit Agreement will initially be
supported by (i) a guarantee from Holdings and a first-ranking pledge of all of
the issued Equity Interests of Parent and (ii) a first-ranking pledge by Parent
of the intercompany loan to CAC; and
WHEREAS, the obligations under this Agreement will be supported by a
pledge by Bidco of all of the shares in the Company acquired by it pursuant to
the
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Offer and a pledge by the Borrower of the Bidco Loan, which pledges may, after
the Closing Date on and subject to the terms and conditions more fully described
herein, be (x) extended to the obligations under the Senior Subordinated Bridge
C Loan Agreement and/or (y) replaced by a subordinated unsecured guarantee from
certain Restricted Subsidiaries.
NOW, THEREFORE, the Lenders are willing to extend senior subordinated
loans to the Borrower on the terms and subject to the conditions set forth
herein. Accordingly, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
Section 1.01. Defined Terms.
"ACQUIRED INDEBTEDNESS" shall mean, with respect to any specified
Person, (i) Indebtedness of any other Person existing at the time such other
Person is merged with or into or became a Restricted Subsidiary of such
specified Person, including Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Restricted Subsidiary of such specified Person, and (ii) Indebtedness secured by
an existing Lien encumbering any asset acquired by such specified Person.
"ADJUSTED LIBO RATE" shall mean, with respect to any Borrowing for any
Interest Period, an interest rate per annum (rounded upwards, if necessary, to
the next 1/16 of 1%) equal to the product of (a) the LIBO Rate in effect for
such Interest Period and (b) the Statutory Reserves Adjustment applicable to
such Borrowing, if any.
"ADMINISTRATIVE AGENT" shall have the meaning assigned to such term in
the introductory paragraph of this Agreement.
"AFFILIATE" of any specified Person shall mean any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"CONTROL" (including, with correlative meanings, the terms "CONTROLLING,"
"CONTROLLED BY" and "UNDER COMMON CONTROL WITH"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise.
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"AFFILIATE TRANSACTION" shall have the meaning assigned to such term in
Section 6.06(a).
"AGENTS" shall mean the Administrative Agent and the Collateral Agent.
"AGREEMENT" shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.
"AGREEMENT CURRENCY" shall have the meaning assigned to such term in
Section 10.17.
"APPLICABLE CREDITOR" shall have the meaning assigned to such term in
Section 10.17.
"APPLICABLE MARGIN" shall mean:
(i) during the period beginning on the Closing Date
through the day that is 89 days after the Closing Date, 8.00%,
(ii) during the period beginning on the 90th day after the
Closing Date through the day that is 179 days after the Closing Date,
8.50%,
(iii) during the period beginning on the 180th day after
the Closing Date through the day that is 269 days after the Closing
Date, 9.00%, and
(iv) during the period beginning on the 270th day after
the Closing Date through the Extension Date, 9.50%.
"APPROVED FUND" shall mean any Person (other than a natural person)
that is engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course of its business and that is
administered or managed by a Lender, an Affiliate of a Lender or an entity or an
Affiliate of an entity that administers or manages a Lender.
"ASSET SALE" shall mean a sale, lease, sale and leaseback, assignment,
conveyance, transfer or other disposition, other than an operating lease, to, or
any exchange of property with, any Person (other than the Borrower or any of its
Restricted Subsidiaries), in one transaction or a series of transactions
(including by means of a merger, consolidation or similar transaction), of all
or any part of the Borrower's or any of its Restricted Subsidiaries' businesses,
assets or properties of any kind, whether real, personal, or mixed and whether
tangible or intangible, whether now owned or hereafter acquired, including,
without limitation, any sale or issuance of any Equity Interests of the Borrower
or any of its Restricted Subsidiaries, other than (i) the disposition of
inventory (or other
4
assets) held for sale in the ordinary course of business; (ii) sales of other
assets for aggregate consideration of less than $5,000,000 in any transaction or
series of related transactions; (iii) the disposition of all or substantially
all of the assets of the Borrower in a manner permitted pursuant to Section 6.05
or any disposition that constitutes a Change of Control; (iv) the making of any
Restricted Payment or Permitted Investment, in each case that is permitted to be
made, and is made, under Section 6.02; (v) any disposition of property or assets
or issuance of securities by a Restricted Subsidiary to the Borrower or by the
Borrower or a Restricted Subsidiary to a Restricted Subsidiary; (vi) the lease,
assignment or sublease of any real or personal property in the ordinary course
of business; (vii) foreclosures on assets pursuant to the enforcement of a Lien
permitted under Section 6.04; (viii) dispositions of accounts receivable and
related assets, or participations therein, in connection with any Receivables
Facility; (ix) any exchange of assets for assets related to a Similar Business
of comparable market value, as determined in good faith by the Borrower, which
determination in the event of an exchange of assets in one transaction or a
series of related transactions with an aggregate fair market value in excess of
(1) $20,000,000 shall be evidenced by a certificate of a Responsible Officer of
the Borrower, and (2) $40,000,000 shall be set forth in a resolution approved in
good faith by at least a majority of the Board of Directors of the Borrower; (x)
the transfer of up to $35,000,000 of existing properties of the Borrower and the
Restricted Subsidiaries in connection with the Designated Acquisition as
contemplated by the definition thereof; and (xi) the disposition of Cash
Equivalents or obsolete or worn out property or equipment in the ordinary course
of business.
"ASSET SALE PREPAYMENT EVENT" shall mean the consummation of any Asset
Sale (other than the CAMI Sale) on or before the date that is 18 months after
the Closing Date.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent and the Borrower (if required by such assignment and acceptance),
substantially in the form of Exhibit A or such other form as shall be approved
by the Administrative Agent.
"BAFIN" shall mean the German Federal Financial Supervisory Authority.
"BIDCO" shall have the meaning assigned to such term in the recitals of
this Agreement.
"BIDCO LOAN" shall mean the loan made by Parent to Bidco pursuant to
the Bidco Loan Agreement with all the proceeds of the borrowings hereunder, such
loan to be made concurrently with Parent's receipt of the proceeds of such
borrowings.
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"BIDCO LOAN AGREEMENT" shall mean the Intercompany Loan Agreement dated
on or about the date hereof between Parent and Bidco and substantially in the
form of Exhibit J.
"BIDCO LOAN PLEDGE AGREEMENT" shall mean the Loan Claims Pledge
Agreement substantially in the form of Exhibit E-2 executed by the Borrower and
the Collateral Agent pursuant to which the Borrower has granted a security
interest on the Bidco Loan to secure the Bridge Obligations and, following the
Delisting, the "Bridge Obligations" as defined in the Senior Subordinated Bridge
C Loan Agreement (as in effect on the date hereof), as the same may be amended,
supplemented or otherwise modified from time to time, with such Bidco Loan
Pledge Agreement to terminate on the Restructuring Date.
"BLACKSTONE" shall have the meaning assigned to such term in the
recitals of this Agreement.
"BOARD" shall mean the Board of Governors of the Federal Reserve System
of the United States of America.
"BOARD OF DIRECTORS" shall mean (i) with respect to a corporation, the
board of directors of such corporation or any committee thereof duly authorized
to act on its behalf, (ii) with respect to a partnership (including a societe en
commandite par actions), the Board of Directors or comparable governing body of
the general partner or manager of the partnership or any committee thereof duly
authorized to act on its behalf and (iii) with respect to any other Person, the
board of directors or comparable governing body of such Person or any committee
thereof duly authorized to act on its behalf.
"BORROWER" shall mean (i) prior to the Restructuring Date, Parent and
(ii) on and after the Restructuring Date, US Holdco.
"BORROWING" shall mean a group of Loans as to which a single Interest
Period is in effect.
"BORROWING REQUEST" shall mean a request by the Borrower in accordance
with the terms of Section 2.03 and substantially in the form of Exhibit B.
"BRIDGE OBLIGATIONS" shall mean the Obligations of the Borrower under
or in connection with this Agreement and the other Loan Documents.
"BUSINESS DAY" shall mean any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; provided that with respect to notices and
determinations in connection with, and payments of principal and interest on,
the
6
Loans, the term "BUSINESS DAY" shall also exclude any day on which banks are not
open for dealings in deposits in Dollars in the London interbank market.
"C DEBT AMOUNT" shall mean, with respect to borrowings under the Senior
Subordinated Bridge C Loan Agreement, in the case of borrowings denominated in
Dollars, $200,634,473 and, in the case of borrowings denominated in Euros,
(euro)450,000,000.
"CAC" shall have the meaning assigned to such term in the recitals of
this Agreement.
"CAMI" shall mean Celanese Advanced Materials, Inc.
"CAMI SALE" shall mean the sale of all or substantially all of the
Equity Interests of, or assets of, CAMI for gross cash consideration of at least
$13 million.
"CAPITAL STOCK" shall mean any and all shares, interests,
participations or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other than
a corporation), including, without limitation, any preferred stock, convertible
preferred equity certificates (whether or not equity under local law),
partnership interests and membership interests.
"CAPITALIZED LEASE OBLIGATIONS" shall mean, at the time any
determination thereof is to be made, the amount of the liability in respect of a
capital lease that would at such time be required to be capitalized and
reflected as a liability on a balance sheet (excluding the footnotes thereto) in
accordance with GAAP.
"CAPTIVE INSURANCE SUBSIDIARIES" shall mean Celwood Insurance Company
and Xxxxxx Insurance Limited, and any successor to either thereof to the extent
such successor constitutes a Subsidiary.
"CASH EQUIVALENTS" shall mean:
(1) U.S. dollars, pounds sterling and Euros or, in the
case of any Foreign Subsidiary, such local currencies held by it from
time to time in the ordinary course of business;
(2) direct obligations of the United States of America or
any member of the European Union or any agency thereof or obligations
guaranteed by the United States of America or any member of the
European Union or any agency thereof, in each case with maturities not
exceeding two years;
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(3) certificates of deposit, time deposits, money market
deposits and eurodollar time deposits with maturities of 12 months or
less from the date of acquisition, bankers' acceptances with maturities
not exceeding 12 months and overnight bank deposits, in each case, with
any lender party to the Senior Secured Facilities or any domestic
commercial bank having capital and surplus in excess of $500,000,000;
(4) repurchase obligations for underlying securities of
the types described in clauses (2) and (3) above entered into with any
financial institution meeting the qualifications specified in clause
(3) above;
(5) commercial paper maturing within 12 months after the
date of acquisition and having a rating of at least P-1 from Xxxxx'x or
A-1 from S&P;
(6) securities with maturities of two years or less from
the date of acquisition issued or fully guaranteed by any State,
commonwealth or territory of the United States of America, or by any
political subdivision or taxing authority thereof, and rated at least A
by S&P or A-2 by Xxxxx'x;
(7) investment funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (1)
through (6) of this definition;
(8) money market funds that (i) comply with the criteria
set forth in Rule 2a-7 under the Investment Company Act of 1940, (ii)
are rated AAA by S&P and Aaa by Xxxxx'x and (iii) have portfolio assets
of at least $5,000,000,000; and
(9) time deposit accounts, certificates of deposit and
money market deposits in an aggregate face amount not in excess of 1/2
of 1% of the total assets of the Borrower and its Restricted
Subsidiaries, on a consolidated basis, as of the end of the Borrower's
most recently completed fiscal year.
"CERTAIN FUNDS PERIOD" shall mean the period beginning on the
Publication Date and ending on the earliest of (i) 10 Business Days following
the date of the expiry of the Offer period including any extension of the Offer
permitted under applicable law and the subsequent offer period (weitere
Annahmefrist) pursuant to Sec. 16 para. 2 of the German Takeover Act, (ii) the
date of any cancellation of this Agreement or the Commitments provided hereunder
and (iii) the date which is 180 days after the Publication Date.
"CHANGE IN LAW" shall mean (a) the adoption of any law, rule or
regulation after the Closing Date, (b) any change in law, rule or regulation or
in
8
the official interpretation or application thereof by any Governmental Authority
after the Closing Date or (c) compliance by any Lender (or, for purposes of
Section 2.11(b), by any lending office of such Lender or by such Lender's
holding company, if any) with any written request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the Closing Date.
"CHANGE OF CONTROL" shall mean the occurrence of any of the following:
(i) the sale, lease, transfer or other conveyance, in one
or a series of related transactions, of all or substantially all of the
assets of Holdings and its Subsidiaries, taken as a whole, to any
Person other than a Permitted Holder;
(ii) either Holdings or the Borrower becomes aware of (by
way of a report or any other filing pursuant to Section 13(d) of the
Exchange Act, proxy, vote, written notice or otherwise) the acquisition
by any Person or group (within the meaning of Section 13(d)(3) or
Section 14(d)(2) of the Exchange Act, or any successor provision),
including any group acting for the purpose of acquiring, holding or
disposing of securities (within the meaning of Rule 13d-5(b)(1) under
the Exchange Act), other than the Permitted Holders, in a single
transaction or in a related series of transactions, by way of merger,
consolidation or other business combination or purchase of beneficial
ownership (within the meaning of Rule 13d-3 under the Exchange Act, or
any successor provision), of 50% or more of the total voting power of
the Voting Stock of the Borrower or any of its direct or indirect
parent corporations;
(iii) the first day on which the Board of Directors of
Holdings shall cease to consist of a majority of directors who (A) were
members of the Board of Directors of Holdings on the Closing Date or
(B) were either (1) nominated for election by the Board of Directors of
Holdings, a majority of whom were directors on the Closing Date or
whose election or nomination for election was previously approved by a
majority of such directors or (2) designated or appointed by a
Permitted Holder; or
(iv) at any time, (A) Holdings shall fail to own, directly
or indirectly, beneficially and of record, 100% of the issued and
outstanding Voting Stock of the Borrower (except to the extent an
initial public offering of Equity Interests of US Holdco or New US
Holdco is effected) or (B) prior to the Restructuring Date, (1) the
Borrower shall fail to own directly, beneficially and of record, 100%
of the issued and outstanding Voting Stock of LP GmbH, (2) LP GmbH
shall fail to own directly, beneficially and of record, 100% of the
issued and outstanding Voting Stock of Midco, (3) Midco shall fail to
own directly, beneficially and of
9
record, 100% of the issued and outstanding Voting Stock of Bidco or (4)
Bidco shall fail to own directly, beneficially and of record (x) after
the consummation of the Offer and prior to any Squeeze Out, 75% and (y)
after any Squeeze Out, 100% of the issued and outstanding Equity
Interests of the Company, excluding (I) treasury shares held by the
Company, (II) rights to purchase, warrants and options outstanding on
the Closing Date or granted prior to the date of the Domination
Agreement to the extent such rights, warrants and options are
exercisable, in the aggregate, for not more than 1.5 million ordinary
shares of the Company and (III) in the case of clause (y), any ordinary
shares of the Company issued upon the exercise of any securities
described in clause (II).
"CHARGES" shall have the meaning assigned to such term in Section
10.09.
"CLEAN-UP PERIOD" shall mean the 60 day period following the Closing
Date.
"CLOSING DATE" shall mean the date following the Consummation of the
Offer on which Bidco is first required to pay the purchase price under the Offer
Document for the Company Shares acquired by it pursuant to the Offer.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"COLLATERAL" shall mean all the "Collateral" as defined in any Security
Document.
"COLLATERAL AGENT" shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.
"COLLATERAL AND GUARANTEE REQUIREMENTS" shall mean the requirements
that:
(i) as of the Closing Date, the Pledge Agreement shall
have been executed and delivered by the parties thereto and all Liens
created by the pledging of securities thereunder shall have been
perfected (by the pledging of such securities or otherwise);
(ii) as of the Closing Date, the Bidco Loan Pledge
Agreement shall have been executed and delivered by the parties thereto
and all Liens created thereunder shall have been perfected;
(iii) all documents and instruments, including Uniform
Commercial Code financing statements, required by law or reasonably
requested by the Collateral Agent to be filed, registered or recorded
to create the Liens intended to be created by the Security Documents
and
10
perfect such Liens to the extent required by, and with the priority
required by, the Security Documents, shall have been filed, registered
or recorded or delivered to the Collateral Agent for filing,
registration or the recording concurrently with, or promptly following,
the execution and delivery of each such Security Document;
(iv) as of the Restructuring Date, the Guarantee Agreement
shall have been executed and delivered by each Restricted Subsidiary
that is required pursuant to the terms of Section 5.19 to enter into
the Guarantee Agreement on the Restructuring Date; and
(v) each Loan Party shall have obtained all material
consents and approvals required to be obtained by it in connection with
(A) the execution, delivery and performance of all Loan Documents (or
supplements thereto) to which it is a party and (B) the granting by it
of the Liens under each Security Document to which it is a party.
"COMMITMENTS" shall mean as to any Lender, its obligation to make an
Initial Loan to the Borrower pursuant to Section 2.01(a) and to convert into
Extended Loans as provided in Section 2.01(b) in an aggregate amount not to
exceed the amount set forth under such Lender's name in Schedule 2.01 opposite
the caption "COMMITMENT AMOUNT" or in the Assignment and Acceptance pursuant to
which a Lender acquires its Commitment, as the same may be adjusted pursuant to
Section 2.05 and 10.04. The aggregate Commitments on the Closing Date shall not
exceed $814,082,577.
"COMMITMENT PAPERS" shall mean (a) the Senior Subordinated Bridge B
Facility Commitment Letter dated as of December 15, 2003, among the Borrower and
the Joint Lead Arrangers and (b) the Senior Subordinated Bridge B Facility Fee
Letter dated as of December 15, 2003, among the Borrower and the Joint Lead
Arrangers.
"COMPANY" shall have the meaning assigned to such term in the recitals
of this Agreement.
"COMPANY SHARES" shall mean the outstanding ordinary shares of the
Company purchased or proposed to be purchased pursuant to the Offer.
"CONSOLIDATED DEPRECIATION AND AMORTIZATION EXPENSE" shall mean with
respect to any Person for any period, the total amount of depreciation and
amortization expense, including the amortization of deferred financing fees, of
such Person and its Restricted Subsidiaries for such period on a consolidated
basis and otherwise determined in accordance with GAAP.
11
"CONSOLIDATED INTEREST EXPENSE" shall mean, with respect to any Person
for any period, (A) the sum, without duplication, of: (a) consolidated interest
expense of such Person and its Restricted Subsidiaries for such period
(including amortization of original issue discount, the interest component of
Capitalized Lease Obligations and net payments (if any) pursuant to interest
rate Hedging Obligations, but excluding amortization of deferred financing fees,
expensing of any bridge or other financing fees and expenses and any interest
expense on Indebtedness of a third party that is not an Affiliate of such Person
and that is attributable to any supply or lease arrangement as a result of
consolidation under FIN 46R or attributable to any take-or-pay contract
accounted for in a manner similar to a capital lease under EITF 01-8, in either
case so long as the underlying obligations under such supply or lease
arrangement or under such take-or-pay contract are not treated as Indebtedness
of such Person as provided in clause (II) of the proviso to the definition of
Indebtedness), (b) consolidated capitalized interest of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued (including,
without limitation, Receivables Fees) and (c) "guaranteed dividends"
(Ausgleichszahlung) paid or payable to CAG minority shareholders pursuant to the
Domination Agreement for such period, less (B) interest income of such Person
and its Restricted Subsidiaries (other than cash interest income of the Captive
Insurance Subsidiaries) for such period.
"CONSOLIDATED NET INCOME" shall mean, with respect to any Person for
any period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, and otherwise determined
in accordance with GAAP; provided, however, that (i) any net after-tax
extraordinary, unusual or nonrecurring gains or losses (less all fees and
expenses relating thereto) or income or expense or charge (including, without
limitation, severance, relocation or other restructuring costs) including,
without limitation, any severance expense, and fees, expenses or charges related
to any offering of Equity Interests of such Person, any Investment, acquisition
or Indebtedness permitted to be incurred hereunder (in each case, whether or not
successful), including all fees, expenses, charges and change in control
payments related to the Transaction, in each case shall be excluded, (ii) the
Net Income for such period shall not include the cumulative effect of a change
in accounting principles during such period, (iii) any net after-tax income or
loss from discontinued operations and any net after-tax gain or loss on disposal
of discontinued operations shall be excluded, (iv) any net after-tax gains or
losses (less all fees and expenses or charges relating thereto) attributable to
business dispositions or asset dispositions other than in the ordinary course of
business (as determined in good faith by the Board of Directors of the Borrower)
shall be excluded, (v) any net after-tax income or loss (less all fees and
expenses or charges relating thereto) attributable to the early extinguishment
of indebtedness shall be excluded, (vi) an amount equal to the amount of Tax
Distributions actually made to the holders of capital stock of Holdings in
respect of the net taxable income allocated by such Person to
12
such holders for such period to the extent funded by the Borrower shall be
included as though such amounts had been paid as income taxes directly by such
Person, (vii) (A) the Net Income for such period of any Person that is not a
Subsidiary, or that is an Unrestricted Subsidiary, or that is accounted for by
the equity method of accounting, shall be included only to the extent of the
amount of dividends or distributions or other payments in respect of equity that
are actually paid in cash (or to the extent converted into cash) by the referent
Person to the Borrower or a Restricted Subsidiary thereof in respect of such
period, but excluding any such dividend, distribution or payment that funds a JV
Reinvestment and (B) the Net Income for such period shall include any dividend,
distribution or other payments in respect of equity paid in cash by such Person
to the Borrower or a Restricted Subsidiary thereof in excess of the amounts
included in clause (A), but excluding any such dividend, distribution or payment
that funds a JV Reinvestment, (viii) any increase in amortization or
depreciation or any one-time non-cash charges (such as purchased in-process
research and development or capitalized manufacturing profit in inventory)
resulting from purchase accounting in connection with the Transaction or any
acquisition that is consummated prior to or after the Closing Date shall be
excluded, (ix) accruals and reserves that are established within twelve months
after the Closing Date and that are so required to be established as a result of
the Transaction in accordance with GAAP shall be excluded, (x) any non-cash
impairment charges resulting from the application of Statements of Financial
Accounting Standards No. 142 and No. 144 and the amortization of intangibles
pursuant to Statement of Financial Accounting Standards No. 141, shall be
excluded, (xi) any non-cash compensation expense realized from grants of stock
appreciation or similar rights, stock options or other rights to officers,
directors and employees of such Person or any of its Restricted Subsidiaries
shall be excluded, (xii) the Net Income for such period of any Restricted
Subsidiary (other than any Guarantor) shall be excluded if the declaration or
payment of dividends or similar distributions by that Restricted Subsidiary of
its Net Income is not at the date of determination wholly permitted without any
prior governmental approval (which has not been obtained) or, directly or
indirectly, by the operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule, or governmental regulation
applicable to that Restricted Subsidiary or its stockholders, unless such
restriction with respect to the payment of dividends or in similar distributions
has been legally waived; provided that Consolidated Net Income of such Person
shall be increased by the amount of dividends or other distributions or other
payments actually paid in cash (or to the extent converted into cash) by such
Person to the Borrower or a Restricted Subsidiary in respect of such period to
the extent not already included therein, and (xiii) costs of sales will be
reflected on a FIFO basis.
"CONSOLIDATED TOTAL ASSETS" shall mean, as of any date, the total
assets of Holdings and the consolidated Subsidiaries, determined in accordance
with GAAP, as set forth on the consolidated balance sheet of Holdings as of such
date.
13
"CONSUMMATION OF THE OFFER" shall mean that the obligations of Bidco to
purchase shares of the Company pursuant to the Offer have become unconditional
within the Acceptance Period (as defined in the Offer Document), without any
amendment or waiver to the Offer Document not permitted by Section 6.08(b).
"CONTINGENT OBLIGATIONS" shall mean, with respect to any Person, any
obligation of such Person guaranteeing any leases, dividends or other
obligations that do not constitute Indebtedness ("PRIMARY OBLIGATIONS") of any
other Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or
supply funds (A) for the purchase or payment of any such primary obligation or
(B) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, or (iii)
to purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the primary
obligor to make payment of such primary obligation against loss in respect
thereof.
"CONTRIBUTION INDEBTEDNESS" shall mean Indebtedness of the Borrower or
any Guarantor in an aggregate principal amount not greater than twice the
aggregate amount of cash contributions (other than Excluded Contributions and
contributions comprising proceeds of the Holdco Equity Financing or Permitted
Cure Securities) made to the capital of the Borrower or such Guarantor, without
double counting, after the Closing Date, provided that:
(1) such Indebtedness (x) is incurred within 180 days
after the making of such cash contributions and (y) is designated as
Contribution Indebtedness pursuant to a certificate of a Responsible
Officer of the Borrower delivered to the Administrative Agent on the
date of incurrence thereof;
(2) the proceeds of such Indebtedness and such cash
contribution are applied within 30 days of the receipt of the proceeds
of such Indebtedness solely to make a Permitted Investment of the type
described in clause (iii) of the definition thereof; and
(3) if the aggregate principal amount of such
Indebtedness is greater than one times the amount of such cash
contribution to the capital of the Borrower or such Guarantor, as
applicable, the amount in excess shall be (x) Indebtedness with a
stated maturity later than the Final Maturity Date of the Loans and (y)
Indebtedness that is either pari passu with, or expressly subordinated
to the prior payment in full in cash of all obligations of the Borrower
or the relevant Guarantor with respect to, the Loans or the Guarantee
thereof, as applicable.
14
"CREDIT AGREEMENT" shall mean that certain Credit Agreement, dated on
or about the date hereof, by and among BCP Crystal Holdings Ltd. 2, BCP Caylux
Holdings Luxembourg S.C.A., the other Borrowers party thereto, the lenders party
thereto, Xxxxxx Xxxxxxx Senior Funding, Inc., as Global Coordinator, and DBNY,
as Administrative Agent.
"DBNY" shall mean Deutsche Bank AG, New York Branch.
"DEBT INCURRENCE PREPAYMENT EVENT" shall mean any issuance or
incurrence by Holdings or any subsidiary thereof (other than any Unrestricted
Subsidiary) of any Indebtedness after the Closing Date and prior to the Initial
Maturity Date (excluding any Indebtedness permitted to be incurred pursuant to
Section 6.03(b)).
"DEFAULT" shall mean any event or condition that upon notice, lapse of
time or both would constitute an Event of Default.
"DEFAULTING LENDER" shall mean any Lender with respect to which a
Lender Default is in effect.
"DELISTING" shall mean the delisting of the shares of the Company from
the New York Stock Exchange.
"DESCRIPTION OF EXCHANGE NOTES" shall mean the description of the terms
and conditions of the proposed Senior Subordinated Notes due 2014 of the
Borrower, substantially in the form of Exhibit F, which notes are intended to
refinance the Loans.
"DESIGNATED ACQUISITION" shall mean the acquisition of all or
substantially all of the Equity Interests or all or substantially all of the
assets of a certain Person (or of a division or line of business of a Person),
with such Person (or division or line of business) identified to, and found
acceptable by, the Joint Lead Arrangers prior to the Closing Date, for cash
and/or the transfer of not in excess of $35,000,000 of existing properties (as
valued for the purposes of the Designated Acquisition) of the Borrower and the
Subsidiaries, where (a) the business acquired is of the same nature as that
engaged in by the Borrower and its Subsidiaries at such time or a reasonable
extension thereof or of practical use in the conduct of their then-existing
business and (b) an amount not less than 25% of the total purchase price
(including any portion thereof satisfied by the transfer of assets) will be
funded, directly or indirectly, by way of an equity contribution by the
Permitted Investors to Holdings (followed by a corresponding equity contribution
to the Borrower).
"DESIGNATED NON-CASH CONSIDERATION" shall mean the fair market value of
non-cash consideration received by the Borrower or a Restricted Subsidiary in
15
connection with an Asset Sale that is so designated as Designated Non-Cash
Consideration pursuant to a certificate from a Responsible Officer of the
Borrower setting forth the basis of such valuation, less the amount of cash or
Cash Equivalents received in connection with a subsequent sale of such
Designated Non-Cash Consideration.
"DESIGNATED SENIOR INDEBTEDNESS" shall mean (i) Indebtedness under the
Senior Secured Facilities and (ii) any other Senior Indebtedness permitted under
this Agreement, the principal amount of which is $25.0 million or more and that
has been specifically designated in the instrument evidencing such Senior
Indebtedness by the Borrower as Designated Senior Indebtedness.
"DISQUALIFIED STOCK" shall mean, with respect to any Person, any
Capital Stock of such Person which, by its terms (or by the terms of any
security into which it is convertible or for which it is putable or
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable (other than as a result of a change of control or asset sale),
pursuant to a sinking fund obligation or otherwise, or is redeemable at the
option of the holder thereof (other than as a result of a change of control or
asset sale), in whole or in part, in each case prior to the date 91 days after
the earlier of the Final Maturity Date of the Loans or the date the Loans are no
longer outstanding; provided, however, that if such Capital Stock is issued to
any plan for the benefit of employees of Holdings or its Subsidiaries or by any
such plan to such employees, such Capital Stock shall not constitute
Disqualified Stock solely because it may be required to be repurchased by
Holdings or its Subsidiaries in order to satisfy applicable statutory or
regulatory obligations.
"DOLLAR" or "$" shall mean lawful money of the United States of
America.
"DOLLAR EQUIVALENT" shall mean, on any date of determination (a) with
respect to any amount in Dollars, such amount, and (b) with respect to any
amount in Euros, the equivalent in Dollars of such amount, determined by the
Administrative Agent using the Exchange Rate with respect to Euros at the time
in effect.
"DOMESTIC SUBSIDIARY" of any Person shall mean a subsidiary of such
Person that is not (a) a Foreign Subsidiary, (b) after the Restructuring Date, a
subsidiary of a Foreign Subsidiary or (c) listed on Schedule 1.01(a).
"DOMINATION AGREEMENT" shall have the meaning assigned to such term in
Section 7.01(l)
"EARLY TERMINATION DATE" shall mean the first date after the date on
which the Offer Document has been submitted to BAFin on which (i) the Offer
16
lapses pursuant to its terms without having been consummated or (ii) the date
the Certain Funds Period ends, if the Offer has not theretofore become
unconditional.
"EBITDA" shall mean, with respect to any Person for any period, the
Consolidated Net Income of such Person for such period, plus (A) without
duplication, and in each case to the extent deducted in calculating Consolidated
Net Income for such period, (a) provision for taxes based on income, profits or
capital of such Person for such period, including, without limitation, state,
franchise and similar taxes (such as the Texas franchise tax and Michigan single
business tax) (including any Tax Distribution taken into account in calculating
Consolidated Net Income), plus (b) Consolidated Interest Expense of such Person
for such period, plus (c) Consolidated Depreciation and Amortization Expense of
such Person for such period, plus (d) any reasonable expenses or charges related
to any Equity Offering, Permitted Investment, acquisition, recapitalization or
Indebtedness permitted to be incurred under this Agreement or the Transaction,
plus (e) the amount of any restructuring charges (which, for the avoidance of
doubt, shall include retention, severance, systems establishment cost or excess
pension charges), plus (f) the minority interest expense consisting of
subsidiary income attributable to minority equity interests of third parties in
any non-Wholly Owned Subsidiary in such period or any prior period, except to
the extent of dividends declared or paid on Equity Interests held by third
parties, plus (g) the non-cash portion of "straight-line" rent expense, plus (h)
the amount of any expense to the extent a corresponding amount is received in
cash by the Borrower and its Restricted Subsidiaries from a Person other than
the Borrower or any Subsidiary of the Borrower under any agreement providing for
reimbursement of any such expense, provided such reimbursement payment has not
been included in determining Consolidated Net Income or EBITDA (it being
understood that if the amounts received in cash under any such agreement in any
period exceed the amount of expense in respect of such period, such excess
amounts received may be carried forward and applied against expense in future
periods), plus (i) the amount of management, consulting, monitoring and advisory
fees and related expenses paid to Blackstone or any other Permitted Holder (or
any accruals related to such fees and related expenses) during such period;
provided that such amount shall not exceed in any four quarter period the
greater of (x) $5.0 million and (y) 2% of EBITDA of the Borrower and its
Restricted Subsidiaries for each period (assuming for purposes of this clause
(y) that the amount to be added to Consolidated Net Income under this clause (i)
is $5.0 million), plus (j) without duplication, any other non-cash charges
(including any impairment charges and the impact of purchase accounting,
including, but not limited to, the amortization of inventory step-up) (excluding
any such charge that represents an accrual or reserve for a cash expenditure for
a future period), plus (k) any net losses resulting from Hedging Obligations
entered into in the ordinary course of business relating to intercompany loans,
to the extent that the notional amount of the related Hedging Obligation does
not exceed the principal amount of the
17
related intercompany loan less (B) the sum, without duplication, of (a) non-cash
items increasing Consolidated Net Income of such Person for such period
(excluding any items which represent the reversal of any accrual of, or cash
reserve for, anticipated cash charges or asset valuation adjustments made in any
prior period), plus (b) the minority interest income consisting of subsidiary
losses attributable to the minority equity interests of third parties in any
non-Wholly Owned Subsidiary, plus (c) the cash portion of "straight-line" rent
expense which exceeds the amount expensed in respect of such rent expense and
(d) any net gains resulting from Hedging Obligations entered into in the
ordinary course of business relating to intercompany loans, to the extent that
the notional amount of the related Hedging Obligation does not exceed the
principal amount of the related intercompany loan.
"EMU LEGISLATION" shall mean the legislative measures of the European
Union for the introduction of, changeover to or operation of the Euro in one or
more member states of the European Union.
"ENVIRONMENT" shall mean ambient and indoor air, surface water and
groundwater (including potable water, navigable water and wetlands), the land
surface or subsurface strata, natural resources such as flora and fauna, the
workplace or as otherwise defined in any Environmental Law.
"ENVIRONMENTAL LAWS" shall mean all applicable laws (including common
law), rules, regulations, codes, ordinances, orders, decrees, judgments,
injunctions or binding agreements issued, promulgated or entered into by any
Governmental Authority, relating in any way to the protection of the
Environment, preservation or reclamation of natural resources, the generation,
management, Release or threatened Release of, or exposure to, any Hazardous
Material or to health and safety matters (to the extent relating to the
Environment or exposure to Hazardous Materials).
"EQUITY INTERESTS" shall mean Capital Stock and all warrants, options
or other rights to acquire Capital Stock (but excluding any debt security that
is convertible into, or exchangeable for, Capital Stock).
"EQUITY ISSUANCE PREPAYMENT EVENT" shall mean the issuance or sale by
Holdings, New US Holdco or the Borrower of any common Equity Interests (other
than Excluded Equity Issuances) prior to the date that is 18 months after the
Closing Date.
"EQUITY OFFERING" shall mean any public or private sale of common stock
or Preferred Stock of the Borrower or any of its direct or indirect parent
corporations (excluding Disqualified Stock), other than (x) public offerings
with respect to common stock registered on Form S-8 and (y) any such public or
private sale that constitutes an Excluded Contribution.
18
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA AFFILIATE" shall mean any trade or business (whether or not
incorporated) that, together with Holdings, the Borrower or a Subsidiary, is
treated as a single employer under Section 414(b) or (c) of the Code, or, solely
for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as
a single employer under Section 414 of the Code.
"ERISA EVENT" shall mean (a) any Reportable Event; (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan, the failure to make by its due date a required installment under Section
412(m) of the Code with respect to any Plan or the failure to make any required
contribution to a Multiemployer Plan; (d) the incurrence by Holdings, the
Borrower, a Subsidiary or any ERISA Affiliate of any liability under Title IV of
ERISA with respect to the termination of any Plan; (e) the receipt by Holdings,
the Borrower, a Subsidiary or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or to
appoint a trustee to administer any Plan under Section 4042 of ERISA; (f) the
incurrence by Holdings, the Borrower, a Subsidiary or any ERISA Affiliate of any
liability with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by Holdings, the Borrower, a Subsidiary
or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan
from Holdings, the Borrower, a Subsidiary or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"EURO" or "(euro)" shall mean the single currency of the European Union
as constituted by the treaty establishing the European Community being the
Treaty of Rome, as amended from time to time and as referred to in the EMU
Legislation.
"EURO EQUIVALENT" shall mean, on any date of determination, (a) with
respect to any amount in Euros, such amount and (b) with respect to any amount
in Dollars, the equivalent in Euros of such amount as determined by the
Administrative Agent using the Exchange Rate with respect to Dollars at the time
in effect.
"EVENT OF DEFAULT" shall have the meaning assigned to such term in
Article 7.
19
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"EXCHANGE DOCUMENTS" shall mean the Exchange Note Indenture and the
Exchange Notes.
"EXCHANGE NOTE HOLDERS" shall mean registered holders of the Exchange
Notes.
"EXCHANGE NOTE INDENTURE" shall mean the indenture to be entered into
relating to the Exchange Notes, having terms and conditions substantially as set
forth in the Description of Exchange Notes (with such changes to cure any
ambiguity, omission, defect or inconsistency as the Joint Lead Arrangers and the
Borrower shall approve), as the same may be amended, modified or supplemented.
"EXCHANGE NOTE TRUSTEE" shall mean the trustee under the Exchange Note
Indenture.
"EXCHANGE NOTES" shall mean the securities issued under the Exchange
Note Indenture.
EXCHANGE RATE" shall mean on any day, for purposes of determining the
Dollar Equivalent or Euro Equivalent of any other currency, the arithmetic
average (determined to five decimal places) of the midpoint rates at which such
other currency may be exchanged into Dollars or Euros (as applicable), as set
forth for (i) 4:00 p.m., London time (the "WM RATE TIME"), as set forth at or
about such time on Reuters page WMRSPOT05 (the "WM RATE") and (ii) 10:00 a.m.,
New York City time (the "FED RATE TIME"), as set forth at or about such time on
Reuters page 1FED (the "FED RATE"); provided that if either the WM Rate or the
Fed Rate is not published on the relevant page within one hour after the WM Rate
Time or Fed Rate Time, as applicable, then the Exchange Rate shall be the
remaining such rate that is so published within such hour. If neither the WM
Rate nor the Fed Rate appears on the relevant page within one hour after the WM
Rate Time or Fed Rate Time, as applicable, the Exchange Rate shall instead be
the arithmetic average of (x) the arithmetic average of the spot rates of
exchange of the Administrative Agent in the market where its foreign currency
exchange operations in respect of such currency are then being conducted (for
any time, the "AVERAGE SPOT RATE"), at or about the WM Rate Time on such day and
(y) the Average Spot Rate at or about the Fed Rate Time on such day, for the
purchase of Dollars or Euros (as applicable) for delivery two Business Days
later; provided that if at the time of any such determination, for any reason,
no such spot rate is being quoted, the Administrative Agent may, in consultation
with the Borrower, use any reasonable method it deems appropriate to determine
such rate, and such determination shall be prima facie evidence thereof.
20
"EXCHANGE REQUEST" shall have the meaning assigned to such term in
Section 5.16(b).
"EXCLUDED BRIDGE PAYMENTS" shall mean (i) any payment by the Borrower
under any Security Document to which it is a party in respect of Collateral
thereunder, (ii) any collections (including in respect of any realization) or
other payments pursuant to any Security Document to which the Borrower is a
party in respect of Collateral thereunder, (iii) any payment by any Loan Party
(other than the Borrower) under any Security Document to which such Loan Party
is a party in respect of Collateral thereunder (including, without limitation,
any payment by Bidco pursuant to the Pledge Agreement in respect of Collateral
thereunder), and (iv) any collections (including in respect of any realization)
or other payments pursuant to any Security Document to which any Loan Party
(other than the Borrower) is a party in respect of Collateral thereunder
(including, without limitation, any collections (including in respect of any
realization) or other payments pursuant to the Pledge Agreement in respect of
Collateral thereunder).
"EXCLUDED CONTRIBUTION" shall mean net cash proceeds, marketable
securities or Qualified Proceeds, in each case received by the Borrower (other
than in respect of the Holdco Equity Financing) from:
(a) contributions to its common equity capital; and
(b) the sale (other than to a Subsidiary or to any management
equity plan or stock option plan or any other management or employee benefit
plan or agreement of Holdings, the Borrower or any Subsidiary) of Capital Stock
(other than Disqualified Stock),
in each case designated as Excluded Contributions pursuant to a certificate of a
Responsible Officer of the Borrower on the date such capital contributions are
made or the date such Equity Interests are sold, as the case may be.
"EXCLUDED EQUITY ISSUANCES" shall mean (i) the issuance of Equity
Interests by Holdings, New US Holdco or the Borrower to Blackstone or any other
Permitted Investor, (ii) the issuance of Equity Interests by Holdings, New US
Holdco or the Borrower the proceeds of which are used to fund Investments
permitted by Section 6.02, including "Permitted Investments", (iii) Equity
Interests issued by Holdings, New US Holdco or the Borrower (x) as compensation
to employees of Holdings or any of its Subsidiaries or (y) to members of
management of Holdings or any Subsidiary within one year of the Closing Date, in
each case in the ordinary course of business and (iv) Permitted Cure Securities.
21
"EXCLUDED TAXES" shall mean, with respect to the Administrative Agent,
any Lender or any other recipient of any payment to be made by or on account of
any obligation of the Borrower hereunder, (a) income or franchise taxes imposed
on (or measured by) its net income by the jurisdiction under the laws of which
such recipient is organized or in which its principal office is located or, in
the case of any Lender, in which its applicable lending office is located, (b)
any branch profits tax or any similar tax that is imposed by any jurisdiction
described in clause (a) above and (c) in the case of a Lender (other than an
assignee pursuant to a request by the Borrower under Section 2.15(b)), any
withholding tax imposed by the United States that is in effect and would apply
to amounts payable hereunder to such Lender at the time such Lender becomes a
party to this Agreement (or designates a new lending office) or is attributable
to such Lender's failure to comply with Section 2.13(e) with respect to such
Loans except to the extent that such 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 the Borrower with respect to any withholding tax
pursuant to Section 2.13(a).
"EXISTING INDEBTEDNESS" shall mean Indebtedness (including Indebtedness
under letters of credit existing on the Closing Date) of the Borrower or the
Restricted Subsidiaries in existence on the Closing Date and as set forth on
Schedule 6.03 hereto.
"EXTENDED LOANS" shall have the meaning assigned to such term in
Section 2.01(b).
"EXTENDED NOTES" shall have the meaning assigned to such term in
Section 2.06(f).
"EXTENSION DATE" shall mean the date the Initial Loans are converted
into Extended Loans pursuant to Section 2.01(b).
"FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any day, the weighted
average (rounded upward, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average (rounded upward, if
necessary, to the next 1/100 of 1%) of the quotations for the day of such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"FEE LETTER" shall mean the fee letter referred to in clause (b) of the
definition of "Commitment Papers".
22
"FEES" shall mean all amounts payable pursuant to, or referred to in,
Section 2.08.
"FINAL MATURITY DATE" shall mean the tenth anniversary of the Closing
Date or, if such date is not a Business Day, the Business Day next preceding
such tenth anniversary.
"FINANCIAL OFFICER" of any Person shall mean the Chief Financial
Officer, principal accounting officer, Treasurer, Assistant Treasurer or
Controller of such Person.
"FIXED CHARGE COVERAGE RATIO" shall mean, with respect to any Person
for any period consisting of such Person and its Restricted Subsidiaries' most
recently ended four fiscal quarters for which internal financial statements are
available, the ratio of EBITDA of such Person for such period to the Fixed
Charges of such Person for such period. In the event that the Borrower or any
Restricted Subsidiary incurs, assumes, guarantees or repays any Indebtedness or
issues or redeems Disqualified Stock or Preferred Stock subsequent to the
commencement of the period for which the Fixed Charge Coverage Ratio is being
calculated but prior to the event for which the calculation of the Fixed Charge
Coverage Ratio is made (the "CALCULATION DATE"), then the Fixed Charge Coverage
Ratio shall be calculated giving pro forma effect to such incurrence,
assumption, guarantee or repayment of Indebtedness, or such issuance or
redemption of Disqualified Stock or Preferred Stock, as if the same had occurred
at the beginning of the applicable four-quarter period. For purposes of making
the computation referred to above, Investments, acquisitions, dispositions and
mergers and consolidations (as determined in accordance with GAAP) that have
been made by the Borrower or any Restricted Subsidiary during the four-quarter
reference period or subsequent to such reference period and on or prior to or
simultaneously with the Calculation Date shall be calculated on a pro forma
basis assuming that all such Investments, acquisitions, dispositions and mergers
and consolidations (and the change in any associated fixed charge obligations
and the change in EBITDA resulting therefrom) had occurred on the first day of
the four-quarter reference period. If since the beginning of such period any
Person (that subsequently became a Restricted Subsidiary or was merged with or
into the Borrower or any Restricted Subsidiary since the beginning of such
period) shall have made any Investment, acquisition (including the Transaction),
disposition or merger or consolidation that would have required adjustment
pursuant to this definition, then the Fixed Charge Coverage Ratio shall be
calculated giving pro forma effect thereto for such period as if such
Investment, acquisition (including the Transaction), disposition or merger or
consolidation had occurred at the beginning of the applicable four-quarter
period. For purposes of this definition, whenever pro forma effect is to be
given to an acquisition (including the Transaction) or other Investment and the
amount of income or earnings relating thereto, the pro forma calculations shall
be determined in good faith by a
23
responsible financial or accounting officer of the Borrower and shall comply
with the requirements of Rule 11-02 of Regulation S-X promulgated by the SEC,
except that such pro forma calculations may include operating expense reductions
for such period resulting from the acquisition (including the Transaction) which
is being given pro forma effect that have been realized or for which the steps
necessary for realization have been taken or are reasonably expected to be taken
within six months following any such acquisition, including, but not limited to,
the execution or termination of any contracts, the termination of any personnel
or the closing (or approval by the Board of Directors of the Borrower of any
closing) of any facility, as applicable, provided that, in either case, such
adjustments are set forth in a certificate of a Responsible Officer of the
Borrower and another officer which states (i) the amount of such adjustment or
adjustments, (ii) that such adjustment or adjustments are based on the
reasonable good faith beliefs of the officers executing such certificate at the
time of such execution and (iii) that any related incurrence of Indebtedness is
permitted pursuant to this Agreement. If any Indebtedness bears a floating rate
of interest and is being given pro forma effect, the interest on such
Indebtedness shall be calculated as if the rate in effect on the Calculation
Date had been the applicable rate for the entire period (taking into account any
Hedging Obligations applicable to such Indebtedness). Interest on a Capitalized
Lease Obligation shall be deemed to accrue at an interest rate reasonably
determined by a responsible financial or accounting officer of the Borrower to
be the rate of interest implicit in such Capitalized Lease Obligation in
accordance with GAAP. For purposes of making the computation referred to above,
interest on any Indebtedness under a revolving credit facility computed on a pro
forma basis shall be computed based upon the average daily balance of such
Indebtedness during the applicable period. Interest on Indebtedness that may
optionally be determined at an interest rate based upon a factor of a prime or
similar rate, a eurocurrency interbank offered rate, or other rate, shall be
deemed to have been based upon the rate actually chosen, or, if none, then based
upon such optional rate chosen as the Borrower may designate.
"FIXED CHARGES" shall mean, with respect to any Person for any period,
the sum of, without duplication, (a) Consolidated Interest Expense of such
Person for such period, (b) all cash dividends paid, accrued and/or scheduled to
be paid or accrued during such period (excluding items eliminated in
consolidation) on any series of Preferred Stock of such Person and (c) all cash
dividends paid, accrued and/or scheduled to be paid or accrued during such
period (excluding items eliminated in consolidation) on any series of
Disqualified Stock.
"FIXED RATE NOTES" will be defined in the Exchange Notes Indenture.
"FLOATING RATE NOTES" will be defined in the Exchange Notes Indenture.
"FLOW THROUGH ENTITY" shall mean an entity that is treated as a
partnership not taxable as a corporation, a grantor trust or a disregarded
entity for
24
United States federal income tax purposes or subject to treatment on a
comparable basis for purposes of state, local or foreign tax law.
"FOREIGN LENDER" shall mean any Lender that is organized under the laws
of a jurisdiction other than the United States of America. For purposes of this
definition, the United States of America, each State thereof and the District of
Columbia shall be deemed to constitute a single jurisdiction.
"FOREIGN SUBSIDIARY" shall mean any Subsidiary that is incorporated or
organized under the laws of any jurisdiction other than the United States of
America, any State thereof or the District of Columbia.
"GAAP" shall mean generally accepted accounting principles in the
United States in effect on the Closing Date. For the purposes of this Agreement,
the term "CONSOLIDATED" with respect to any Person shall mean such Person
consolidated with its Restricted Subsidiaries and shall not include any
Unrestricted Subsidiary.
"GLOBAL COORDINATOR" shall mean MSSF, in its capacity as global
coordinator under this Agreement.
"GOVERNMENTAL AUTHORITY" shall mean any federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
or legislative body.
"GP GMBH" shall have the meaning assigned to such term in the recitals
of this Agreement.
"GUARANTEE" of or by any Person (the "GUARANTOR") shall mean (a) any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation (whether arising by virtue of
partnership arrangements, by agreement to keep well, to purchase assets, goods,
securities or services, to take-or-pay or otherwise) or to purchase (or to
advance or supply funds for the purchase of) any security for the payment of
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the owner of such
Indebtedness or other obligation of the payment thereof, (iii) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation, (iv) entered into for the purpose of assuring
in any other manner the holders of such Indebtedness or other obligation of the
payment thereof or to protect such holders against loss in respect thereof (in
25
whole or in part) or (v) as an account party in respect of any letter of credit
or letter of guaranty issued to support such Indebtedness or other obligation,
or (b) any Lien on any assets of the guarantor securing any Indebtedness (or any
existing right, contingent or otherwise, of the holder of Indebtedness to be
secured by such a Lien) of any other Person, whether or not such Indebtedness or
other obligation is assumed by the guarantor; provided, however, that the term
"Guarantee" shall not include endorsements for collection or deposit, in either
case in the ordinary course of business, or customary and reasonable indemnity
obligations.
"GUARANTEE AGREEMENT" shall mean the Guarantee Agreement substantially
in the form of Exhibit D, including any Guarantee Supplement, pursuant to which
any Guarantor guarantees the obligations of the Borrower under this Agreement.
"GUARANTEE SUPPLEMENT" shall mean a Guarantee Supplement, substantially
in the form of Annex A to the Guarantee Agreement, entered into pursuant to the
terms hereof and thereof.
"GUARANTOR" shall mean any Person that guarantees the obligations of
the Borrower under this Agreement and the Loans in accordance with the
provisions of this Agreement and pursuant to the Guarantee Agreement or a
Guarantee Supplement; provided that upon the release and discharge of such
Person from such guarantee in accordance with this Agreement, such Person shall
cease to be a Guarantor.
"HAZARDOUS MATERIALS" shall mean all pollutants, contaminants, wastes,
chemicals, materials, substances and constituents, including, without
limitation, explosive or radioactive substances or petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated
biphenyls or radon gas, of any nature subject to regulation or which could
reasonably be expected to give rise to liability under any Environmental Law.
"HC ACTIVITIES" shall mean such activities to be undertaken by (i)
Bidco, Midco or LP GmbH as reasonably determined by Holdings to be required to
enable Bidco, Midco or LP GmbH, as the case may be, to obtain and continue
holding company status under German tax law and (ii) Bidco as reasonably
determined by Holdings to be required to enable Bidco to satisfy the
requirements of German tax law regarding the head of a fiscal unity.
"HC CORPORATION" shall mean, with respect to Bidco, a subsidiary
thereof acquired through HC Investments.
"HC INVESTMENTS" shall mean Investments (including through transfer
from another Subsidiary) made by (i) Bidco, Midco or LP GmbH in acquiring two
26
corporate subsidiaries (or in the case of Bidco a second corporate subsidiary)
and (ii) Bidco in a "trade business", provided that such Investments shall be at
the minimum amount reasonably determined by Holdings to permit (x) Bidco, Midco
or LP GmbH, as the case may be, to obtain and continue holding company status
under German tax law or (y) Bidco to satisfy the requirements of German tax law
fiscal unity requirements.
"HEDGING OBLIGATIONS" shall mean, with respect to any Person, the
obligations of such Person under (a) currency exchange, interest rate or
commodity swap agreements, currency exchange, interest rate or commodity cap
agreements and currency exchange, interest rate or commodity collar agreements
and (b) other agreements or arrangements designed to protect such Person against
fluctuations in currency exchange, interest rates or commodity prices.
"HOLDCO EQUITY COMMITMENT LETTER" shall have the meaning assigned to
such term in the recitals of this Agreement.
"HOLDCO EQUITY FINANCING" shall have the meaning assigned to such term
in the recitals of this Agreement.
"HOLDERS" shall mean the Lenders and the Exchange Note Holders.
"HOLDINGS" shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.
"INDEBTEDNESS" shall mean, with respect to any Person, (a) any
indebtedness (including principal and premium) of such Person, whether or not
contingent, (i) in respect of borrowed money, (ii) evidenced by bonds, notes,
debentures or similar instruments or letters of credit (or, without double
counting, reimbursement agreements in respect thereof), other than reimbursement
obligations in respect of trade letters of credit obtained in the ordinary
course of business with expiration dates not in excess of 365 days from the date
of issuance (x) to the extent undrawn or (y) if drawn, to the extent repaid in
full within 10 Business Days of any such drawing, (iii) representing the balance
deferred and unpaid of the purchase price of any property (including Capitalized
Lease Obligations), except any such balance that constitutes a trade payable or
similar obligation to a trade creditor, in each case accrued in the ordinary
course of business or (iv) representing any Hedging Obligations, if and to the
extent that any of the foregoing Indebtedness (other than letters of credit and
Hedging Obligations) would appear as a liability upon a balance sheet (excluding
the footnotes thereto) of such Person prepared in accordance with GAAP, (b)
Disqualified Stock of such Person, (c) to the extent not otherwise included, any
obligation by such Person to be liable for, or to pay, as obligor, guarantor or
otherwise, on the Indebtedness of another Person (other than by endorsement of
negotiable instruments for collection in the ordinary course of business) and
(d) to
27
the extent not otherwise included, Indebtedness of another Person secured by a
Lien on any asset owned by such Person (whether or not such Indebtedness is
assumed by such Person); provided, however, that (I) Contingent Obligations
incurred in the ordinary course of business and not in respect of borrowed money
and (II) indebtedness of a third party that is not an Affiliate of such Person
and that is attributable to any supply or lease arrangement as a result of
consolidation under FIN 46R or attributable to any take-or-pay contract
accounted for in a manner similar to a capital lease under EITF 01-8, in either
case so long as (i) such supply or lease arrangement or such take-or-pay
contract is entered into in the ordinary course of business, (ii) the Board of
Directors of Holdings has approved such supply or lease arrangement or such
take-or-pay contract and (iii) notwithstanding anything to the contrary
contained in the definition of EBITDA, the related expense under such supply or
lease arrangement or under such take-or-pay contract is treated as an operating
expense that reduces EBITDA, shall be deemed not to constitute Indebtedness of
such Person.
"INDEMNIFIED TAXES" shall mean all Taxes other than Excluded Taxes.
"INDEMNITEE" shall have the meaning assigned to such term in Section
10.05(b).
"INDEPENDENT FINANCIAL ADVISOR" shall mean an accounting, appraisal or
investment banking firm or consultant to Persons engaged in a Similar Business
of nationally recognized standing that is, in the good faith judgment of the
Borrower, qualified to perform the task for which it has been engaged.
"INFORMATION MEMORANDUM" shall mean the Confidential Information
Memorandum to be provided to prospective Lenders, as modified or supplemented.
"INITIAL INTERCOMPANY LOANS" shall mean the Bidco Loan, the other
intercompany loans referred to in the recitals to this Agreement and any
additional intercompany loans made to Midco and LP GmbH with the proceeds of the
Senior Subordinated Bridge C Facility.
"INITIAL LOAN" shall have the meaning assigned to such term in Section
2.01.
"INITIAL MATURITY DATE" shall mean the first anniversary of the Closing
Date or, if such date is not a Business Day, the Business Day next preceding
such first anniversary.
"INITIAL NOTES" shall have the meaning assigned to such term in Section
2.06(f).
28
"INTEREST PAYMENT DATE" shall have the meaning assigned to such term in
Section 2.09(d).
"INTEREST PERIOD" shall mean, as to any Borrowing, the period
commencing on the date of such Borrowing or on the last day of the immediately
preceding Interest Period applicable to such Borrowing, as applicable, and
ending on the numerically corresponding day in the calendar month that is three
months thereafter (provided that an Interest Period may be for a period of less
than three months if reasonably requested by the Administrative Agent); provided
that:
(i) if any Interest Period relating to a Borrowing begins
on the last Business Day of a calendar month or begins on a day for
which there is no numerically corresponding day in the calendar month
at the end of such Interest Period, such Interest Period shall end on
the last Business Day of the calendar month at the end of such Interest
Period;
(ii) if any Interest Period would end on a day other than
a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless such next succeeding Business Day would
fall in the next calendar month, in which case such Interest Period
shall end on the next preceding Business Day;
(iii) the last Interest Period applicable to Initial Loans
shall end on the Initial Maturity Date (or, if later, the Extension
Date); and
(iv) the Interest Period for any Exchange Note shall be as
set forth in the Description of Exchange Notes.
Interest shall accrue from and including the first day of an Interest Period to
but excluding the last day of such Interest Period.
"INTERMEDIATE HOLDCO" shall mean each entity, all of the Equity
Interests of which are owned by Holdings, which owns Equity Interests in Parent;
provided the aggregate Equity Interests of Parent owned by all Intermediate
Holdcos shall not exceed 0.50% of the outstanding Equity Interests of Parent.
"INVESTMENTS" shall mean, with respect to any Person, all investments
by such Person in other Persons (including Affiliates) in the form of loans
(including guarantees), advances or capital contributions (excluding accounts
receivable, trade credit, advances to customers, commission, travel and similar
advances to officers and employees, in each case made in the ordinary course of
business), purchases or other acquisitions for consideration of Indebtedness,
Equity Interests or other securities issued by any other Person and investments
that are required by GAAP to be classified on the balance sheet (excluding the
footnotes) of such
29
Person in the same manner as the other investments included in this definition
to the extent such transactions involve the transfer of cash or other property.
For purposes of the definition of "UNRESTRICTED SUBSIDIARY" and Section
6.02, (i) "INVESTMENTS" shall include the portion (proportionate to the
Borrower's equity interest in such Subsidiary) of the fair market value of the
net assets of a Subsidiary of the Borrower at the time that such Subsidiary is
designated an Unrestricted Subsidiary; provided, however, that upon a
redesignation of such Subsidiary as a Restricted Subsidiary, the Borrower shall
be deemed to continue to have a permanent Investment in an Unrestricted
Subsidiary in an amount (if positive) equal to (x) the Borrower's Investment in
such Subsidiary at the time of such redesignation less (y) the portion
(proportionate to the Borrower's equity interest in such Subsidiary) of the fair
market value of the net assets of such Subsidiary at the time of such
redesignation; (ii) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its fair market value at the time of such
transfer, in each case as determined in good faith by the Borrower; and (iii)
any transfer of Capital Stock that results in an entity, which became a
Restricted Subsidiary after the Closing Date and not in connection with the
Transaction, ceasing to be a Restricted Subsidiary shall be deemed to be an
Investment in an amount equal to the fair market value (as determined by the
Board of Directors of the Borrower in good faith as of the date of initial
acquisition) of the Capital Stock of such entity owned by the Borrower and the
Restricted Subsidiaries immediately after such transfer.
"JOINT LEAD ARRANGERS" shall have the meaning assigned to such term in
the introductory paragraph of this Agreement.
"JUDGMENT CURRENCY" shall have the meaning assigned to such term in
Section 10.17.
"JV REINVESTMENT" shall mean any investment by the Borrower or any
Restricted Subsidiary in a joint venture to the extent funded with the proceeds
of a reasonably concurrent dividend or other distribution made by such joint
venture to the Borrower or such Restricted Subsidiary.
"LENDER DEFAULT" shall mean (i) the refusal (which has not been
retracted) of a Lender to make available its portion of any Borrowing, or (ii) a
Lender having notified in writing the Borrower and/or the Administrative Agent
that it does not intend to comply with its obligations under Section 2.04.
"LENDERS" shall mean (a) the financial institutions listed on the
signature pages of this Agreement (other than any such financial institution
that has ceased to be a party hereto pursuant to an Assignment and Acceptance)
and (b) any financial institution that has become a party hereto pursuant to an
Assignment and Acceptance.
30
"LETTER OF CREDIT OBLIGATIONS" shall mean all Obligations in respect of
Indebtedness of the Borrower and any of its Restricted Subsidiaries with respect
to letters of credit issued pursuant to the Senior Secured Facilities which
Indebtedness shall be deemed to consist of (a) the aggregate maximum amount
available to be drawn under all such letters of credit (the determination of
such aggregate maximum amount to assume compliance with all conditions for
drawing) and (b) the aggregate amount that has been paid by, and not reimbursed
to, the fronting bank and the lenders under such letters of credit.
"LIBO RATE" shall mean, with respect to any Borrowing for any Interest
Period, the rate per annum determined by the Administrative Agent at
approximately 11:00 a.m., London time, on the Quotation Day for such Interest
Period by reference to the British Bankers' Association Interest Settlement
Rates for deposits in the currency of such Borrowing (as reflected on the
applicable Telerate screen page), for a period equal to such Interest Period;
provided that, to the extent that an interest rate is not ascertainable pursuant
to the foregoing provisions of this definition, the "LIBO RATE" shall be the
average (rounded upward, if necessary, to the next 1/100 of 1%) of the
respective interest rates per annum at which deposits in the currency of such
Borrowing are offered for such Interest Period to major banks in the London
interbank market by the Administrative Agent at approximately 11:00 a.m., London
time, on the Quotation Day for such Interest Period.
"LIEN" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, hypothecation, pledge, encumbrance, charge or security interest in
or on such asset, (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset and (c) in the case of securities (other than securities
representing an interest in a joint venture that is not a Subsidiary), any
purchase option, call or similar right of a third party with respect to such
securities.
"LOAN DOCUMENTS" shall mean this Agreement, the Guarantee Agreement
together with any Guarantee Supplement, the Bidco Loan Agreement, the Security
Documents, any promissory notes issued hereunder, the Exchange Documents, the
Commitment Papers and solely for the purposes of Section 7.01(b) hereof, any fee
letter or other instrument entered into to evidence the payment of the fees
referred to in Section 2.08.
"LOAN NOTES" shall mean the Initial Notes and the Extended Notes.
"LOAN PARTIES" shall mean Holdings, the Borrower, each Guarantor and,
prior to the Restructuring Date (except for purposes of Section 2.13), Bidco.
"LOANS" shall mean the Initial Loans and the Extended Loans.
31
"LP GMBH" shall have the meaning assigned to such term in the recitals
of this Agreement.
"MAJOR DEFAULT" shall mean and include (i) a Default or Event of
Default under Section 7.01(a) or 7.01(b); (ii) a Default or Event of Default
under Section 7.01(e) or 7.01(f) in respect of Holdings, the Borrower or Bidco;
(iii) the invalidity, unlawfulness or repudiation of any Loan Document; or (iv)
a breach by Holdings, the Borrower or Bidco of Section 6.03, 6.04 or 6.08(b).
"MANAGEMENT GROUP" shall mean the group consisting of the directors,
executive officers and other management personnel of the Borrower and Holdings,
as the case may be, on the Closing Date together with (1) any new directors
whose election by such boards of directors or whose nomination for election by
the shareholders of the Borrower or Holdings, as the case may be, was approved
by a vote of a majority of the directors of the Borrower or Holdings, as the
case may be, then still in office who were either directors on the Closing Date
or whose election or nomination was previously so approved and (2) executive
officers and other management personnel of the Borrower or Holdings, as the case
may be, hired at a time when the directors on the Closing Date together with the
directors so approved constituted a majority of the directors of the Borrower or
Holdings, as the case may be.
"MARGIN STOCK" shall have the meaning assigned to such term in
Regulation U.
"MATERIAL ADVERSE EFFECT" shall mean the existence of events,
conditions and/or contingencies that have had or are reasonably likely to have
(a) a materially adverse effect on the business, operations, properties, assets
or financial condition of Holdings and the Subsidiaries, taken as a whole, or
(b) a material impairment of the validity or enforceability of, or a material
impairment of the material rights, remedies or benefits available to the
Lenders, the Administrative Agent or the Collateral Agent under, any Loan
Document.
"MATERIAL SUBSIDIARY" shall mean, at any date of determination, any
Subsidiary (a) whose total assets at the last day of the Test Period ending on
the last day of the most recent fiscal period for which financial statements
have been delivered pursuant to Section 5.04(a) or 5.04(b) were equal to or
greater than 2% of the consolidated total assets of Holdings and its
consolidated subsidiaries at such date or (b) whose gross revenues for such Test
Period were equal to or greater than 2% of the consolidated gross revenues of
Holdings and its consolidated subsidiaries for such period, in each case
determined in accordance with GAAP or (c) that is a Loan Party.
"MAXIMUM LOAN VALUE" shall mean, with respect to the making of any Loan
or Loans hereunder or the acquisition of any Company Shares, the
32
"maximum loan value" (as defined in Regulation U) of such Company Shares the
acquisition of which (in the case of any Loan or Loans) is funded in part with
the proceeds of such Loan or Loans.
"MIDCO" shall have the meaning assigned to such term in the recitals of
this Agreement.
"MOODY'S" shall mean Xxxxx'x Investors Service, Inc.
"MSSF" shall mean Xxxxxx Xxxxxxx Senior Funding, Inc.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA to which Holdings, the Borrower, the Company, CAC or
any ERISA Affiliate (other than one considered an ERISA Affiliate only pursuant
to subsection (m) or (o) of Code Section 414) is making or accruing an
obligation to make contributions, or has within any of the preceding six plan
years made or accrued an obligation to make contributions.
"NET INCOME" shall mean, with respect to any Person, the net income
(loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of Preferred Stock dividends or accretion of any Preferred
Stock.
"NET PROCEEDS" shall mean the total cash consideration received by
Holdings or New US Holdco (in the case of clauses (b), (c) or (d) below), the
Borrower or any Restricted Subsidiary in respect of (a) any Asset Sale
(including, without limitation, the amount of any debt owed to the Borrower or
any Restricted Subsidiary by any of the Borrower or any Restricted Subsidiary
disposed of which is repaid in connection with that disposal), (b) the issuance
of the Permanent Securities, (c) any Debt Incurrence Prepayment Event or (d) any
Equity Issuance Prepayment Event; but (i) in the case of any Prepayment Event,
net of (A) the amount of any Taxes or Tax Distribution required to be paid as a
result of such Prepayment Event, (B) all other reasonable costs and expenses
properly incurred by Holdings, New US Holdco, the Borrower or any Restricted
Subsidiary in connection with such Prepayment Event (including, without
limitation, legal, accounting and investment banking fees and brokerage and
sales commissions), (C) any amount contractually required to be paid to the
employees of any disposed business, in the case of an Asset Sale, (D) the amount
of any reasonable reserve established in accordance with GAAP with respect to
such Prepayment Event against any liabilities (other than any taxes deducted
pursuant to clause (A) above) (1) associated with the assets that are the
subject of such Prepayment Event and (2) retained by the Borrower or any
Restricted Subsidiary, provided that the amount of any subsequent reduction of
such reserve (other than in connection with a payment in respect of any such
liability) shall be deemed to be Net Proceeds of such a Prepayment Event
occurring on the date of such reduction
33
and (E) the amount of any Indebtedness (other than under the Loan Documents)
secured by a Lien on the assets that are the subject of such Prepayment Event to
the extent that the instrument creating or evidencing such Indebtedness requires
that such Indebtedness be repaid or prepaid or upon consummation of such
Prepayment Event and (ii) in the case of an Asset Sale only, net of the amount
of any proceeds of such Asset Sale not to exceed the amount that the Borrower or
any Restricted Subsidiary is permitted to reinvest in the business of the
Borrower or any Restricted Subsidiary under the Senior Secured Facilities and
has reinvested within twelve months of the date of such Asset Sale (or has
within such twelve month period entered into a contractual commitment with a
Person (other than an Affiliate thereof) to so reinvest and has actually so
reinvested within eighteen months of the date of such Asset Sale), provided that
any portion of such proceeds that has not been so reinvested within such twelve
or eighteen month period, as applicable, shall (x) be deemed to be Net Proceeds
of an Asset Sale occurring on the last day of such period and (y) be applied to
the repayment of Loans in accordance with Section 2.07(b).
"NEW US HOLDCO" shall mean a company incorporated under the laws of a
state of the United States (A)(i) that owns all of the Equity Interests of US
Holdco or (ii) all of the Equity Interests in which are owned by US Holdco, with
US Holdco contributing or otherwise transferring all of its assets to New US
Holdco and (B) has been formed to effect an initial public offering.
"NONPAYMENT DEFAULT" shall have the meaning assigned to such term in
Section 8.03.
"NOTES" shall mean the Loan Notes and the Exchange Notes as originally
executed or as they may from time to time be amended pursuant to the applicable
provisions hereof.
"OBLIGATIONS" shall mean any principal, interest, penalties, fees,
indemnifications, reimbursements (including, without limitation, reimbursement
obligations with respect to letters of credit), damages and other liabilities,
and guarantees of payment of such principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities, payable under
the documentation governing any Indebtedness.
"OFFER" shall have the meaning assigned to such term in the recitals of
this Agreement.
"OFFER DOCUMENT" shall mean the Offer Document entitled "Voluntary
Public Takeover Offer (Cash Offer) for All Outstanding Registered Ordinary
Shares with no Par Value of Celanese AG" approved by BAFin and published on
February 2, 2004, as amended or modified from time to time in accordance with
Section 6.08(b).
34
"OPINION OF COUNSEL" shall mean a written opinion from legal counsel
who is reasonably acceptable to the Administrative Agent. The counsel may be an
employee of or counsel to the Borrower.
"ORIGINAL EXTENDED NOTES" shall have the meaning assigned to such term
in Section 2.06(f).
"ORIGINAL INITIAL NOTES" shall have the meaning assigned to such term
in Section 2.06(f).
"OTHER TAXES" shall mean any and 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 from the execution, delivery
or enforcement of, or otherwise with respect to, the Loan Documents, and any and
all interest and penalties related thereto.
"PARENT" shall have the meaning assigned to such term in the
introductory paragraph of this Agreement, with all references to Parent after
the consummation of the Parent Merger to automatically become references to US
Holdco.
"PARENT CPEC" shall mean convertible preferred equity certificates
issued by Parent having no mandatory redemption, repurchase or similar
requirements prior to 91 days after the Final Maturity Date; provided that cash
distributions and/or payments may be made thereon only to the extent permitted
by Section 6.02(b)(iv) or 6.02(b)(viii)(A).
"PARENT MERGER" shall mean (i) the merger of Parent with US Holdco,
with US Holdco being the surviving entity, (ii) the contribution by Parent to US
Holdco of all of the Parent's assets and liabilities or (iii) the contribution
by Holdings to US Holdco (in exchange for stock of US Holdco) of all of the
Equity Interests of the Parent; provided that, in the case of clauses (ii) or
(iii) above (x) US Holdco expressly assumes all the obligations of Parent under
this Agreement and the other Loan Documents pursuant to an agreement or other
instrument in form and substance reasonably satisfactory to the Administrative
Agent (and, upon such assumption, Parent shall be released as a Borrower
hereunder) and (y) Holdings, at its discretion, may subsequently cause the
liquidation of the Parent.
"PARTICIPANT" shall have the meaning assigned to such term in Section
10.04(c).
"PARTICIPATING MEMBER STATE" shall mean any member state that has
adopted the Euro as the single currency pursuant to the Treaty on European
Union.
"PAYING AGENT" shall mean the Person acting as paying agent in respect
of the Exchange Notes, as described in the Description of Exchange Notes.
35
"PAYMENT BLOCKAGE NOTICE" shall have the meaning assigned to such term
in Section 8.03.
"PAYMENT BLOCKAGE PERIOD" shall have the meaning assigned to such term
in Section 8.03.
"PAYMENT DEFAULT" shall have the meaning assigned to such term in
Section 8.03.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
"PERMANENT SECURITIES" shall mean any debt securities issued by
Holdings, New US Holdco, the Borrower or any of its Subsidiaries (other than any
Unrestricted Subsidiary) as permanent financing to refinance the Loans or
Exchange Notes.
"PERMANENT SECURITIES PREPAYMENT EVENT" shall mean the issuance of any
Permanent Securities on or before the first anniversary of the Closing Date.
"PERMITTED CURE SECURITY" shall mean (i) any common equity security of
Holdings and/or (ii) any equity security of Holdings having no mandatory
redemption, repurchase or similar requirements prior to 91 days after the Final
Maturity Date, and in the case of clauses (i) and (ii) upon which all dividends
or distributions (if any) shall be payable solely in additional shares of such
equity security; provided that such securities are issued by Holdings in
connection with the exercise by Holdings of a Cure Right (as defined in the
Credit Agreement) as contemplated by the terms of the Credit Agreement.
"PERMITTED HOLDER" shall mean each of (i) Blackstone, (ii) any other
Permitted Investor and (iii) the Management Group, with respect to not more than
15% of the total voting power of the Equity Interests of Holdings or, after an
initial public offering of its stock, US Holdco or New US Holdco, as the case
may be.
"PERMITTED INVESTMENTS" shall mean:
(i) any Investment by the Borrower in any Restricted Subsidiary or
by a Restricted Subsidiary in another Restricted Subsidiary (and any purchase by
the Borrower or any Restricted Subsidiary of any debt securities of the Borrower
in the open market);
(ii) any Investment in cash and Cash Equivalents;
(iii) any Investment by the Borrower or any Restricted Subsidiary in
a Person that is engaged in a Similar Business if as a result of such Investment
36
(A) such Person becomes a Restricted Subsidiary or (B) such Person, in one
transaction or a series of related transactions, is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Borrower or a Restricted Subsidiary;
(iv) any Investment in securities or other assets not constituting
cash or Cash Equivalents and received in connection with an Asset Sale made
pursuant to Section 6.01 or any other disposition of assets not constituting an
Asset Sale;
(v) any Investment existing on the Closing Date and Investments
made pursuant to binding commitments in effect on the Closing Date, in each case
to the extent set forth in Schedule 6.02;
(vi) (A) loans and advances to officers, directors and employees
and any guarantees not in excess of $10.0 million in the aggregate outstanding
at any one time and (B) advances of payroll payments and expenses to officers,
directors and employees, in each case incurred in the ordinary course of
business;
(vii) any Investment acquired by the Borrower or any Restricted
Subsidiary (A) in exchange for any other Investment or accounts receivable held
by the Borrower or any such Restricted Subsidiary in connection with or as a
result of a bankruptcy, workout, reorganization or recapitalization of the
issuer of such other Investment or accounts receivable or (B) as a result of a
foreclosure by the Borrower or any Restricted Subsidiary with respect to any
secured Investment or other transfer of title with respect to any secured
Investment in default;
(viii) Hedging Obligations permitted under Section 6.03(b)(xii);
(ix) any Investment in a Person engaged in a Similar Business
having an aggregate fair market value, taken together with all other Investments
made pursuant to this clause (ix) that are at the time outstanding (without
giving effect to the sale of an Unrestricted Subsidiary to the extent the
proceeds of such sale do not consist of cash and/or marketable securities), not
to exceed $125.0 million (with the fair market value of each Investment being
determined by the Borrower in good faith at the time made and without giving
effect to subsequent changes in value); provided, that this clause (ix) shall
not be used for Investments in Unrestricted Subsidiaries;
(x) Investments the payment for which consists of Equity Interests
of the Borrower or any of its direct or indirect parent corporations (exclusive
of Disqualified Stock);
(xi) guarantees (including Guarantees) of Indebtedness permitted
under Section 6.03 and performance guarantees consistent with past practice;
37
(xii) any transaction to the extent it constitutes an Investment
that is permitted and made in accordance with Section 6.06(b) (except
transactions described in Section 6.06(b)(ii), 6.06(b)(vi), 6.06(b)(vii) and
6.06(b)(xii));
(xiii) Investments consisting of licensing or contribution of
intellectual property pursuant to joint marketing arrangements with other
Persons;
(xiv) Guarantees by the Borrower or any Restricted Subsidiary of
operating leases (other than Capitalized Lease Obligations) or of other
obligations that do not constitute Indebtedness, in each case entered into by
the Borrower or any Subsidiary in the ordinary course of business;
(xv) any Investment in a Receivables Subsidiary or any Investment
by a Receivables Subsidiary in any other Person in connection with a Receivables
Facility, including Investments of funds held in accounts permitted or required
by the arrangements governing such Receivables Facility or any related
Indebtedness; provided that any Investment in a Receivables Facility is in the
form of a Purchase Money Note, contribution of additional receivables or an
Equity Interest;
(xvi) Investments of a Restricted Subsidiary, which Restricted
Subsidiary was acquired after the Closing Date or of a corporation merged into
the Borrower or merged into or consolidated with a Restricted Subsidiary in
accordance with Section 6.05 after the Closing Date to the extent that such
Investments were not made in contemplation of or in connection with such
acquisition, merger or consolidation and were in existence on the date of such
acquisition, merger or consolidation;
(xvii) Investments resulting from pledges and deposits referred to in
clauses (i) and (xvii) of the definition of "Permitted Liens";
(xviii) Investments representing Guarantees of Indebtedness of joint
ventures to the extent permitted under Section 6.03(b)(xxi);
(xix) Investments (including by the transfer of assets) in joint
ventures existing on the Closing Date of the Borrower or any of its Restricted
Subsidiaries in an aggregate amount (with assets transferred valued at the fair
market value thereof) for all such Investments made after the Closing Date not
to exceed $25.0 million;
(xx) JV Reinvestments;
(xxi) HC Investments by Bidco, Midco and LP GmbH;
(xxii) in the case of any Captive Insurance Subsidiary, any other
investments customarily held by such Captive Insurance Subsidiary in the
38
ordinary course of its business and consistent with past practices and with
applicable insurance industry standards; and
(xxiii) the Transaction and the Restructuring.
"PERMITTED INVESTORS" shall mean (x) Blackstone and (y) other investors
that provide a portion of the Holdco Equity Financing; provided that (i) all
such other investors shall be reasonably satisfactory to the Joint Lead
Arrangers and (ii) the majority of the Holdco Equity Financing shall be provided
by Blackstone.
"PERMITTED JUNIOR SECURITIES" shall mean unsecured debt of the Borrower
or any Guarantor or any successor corporation or equity securities of Holdings
or any successor corporation, in each case issued pursuant to a plan of
reorganization or readjustment of the Borrower or any Guarantor, as applicable,
that, in the case of any such debt, is subordinated to the payment of all then
outstanding Senior Indebtedness (which term shall for purposes of this
definition, in the case of any Guarantor, have the meaning assigned thereto in
the Guarantee Agreement) of the Borrower or any Guarantor, as applicable, at
least to the same extent that the Loans and obligations under the Guarantee
Agreement are subordinated to the payment of all Senior Indebtedness of the
Borrower or any Guarantor, as applicable, on the date hereof; provided that if
any Senior Indebtedness of the Borrower or any Guarantor, as applicable,
outstanding on the date of consummation of any such plan of reorganization or
readjustment is not paid in full in cash on such date, the holders of any such
Senior Indebtedness not so paid in full in cash have consented to the terms of
such plan of reorganization or readjustment.
"PERMITTED LIENS" shall mean, with respect to any Person:
(i) deposits of cash or governmental bonds made in the ordinary
course of business to secure surety or appeal bonds to which such Person is a
party;
(ii) Liens in favor of issuers of performance and surety bonds or
bid bonds or with respect to other regulatory requirements or letters of credit
issued pursuant to the request of and for the account of such Person in the
ordinary course of its business;
(iii) Liens securing Capitalized Lease Obligations permitted to be
incurred pursuant to Section 6.03 and Indebtedness permitted to be incurred
pursuant to Section 6.03(b)(vii); provided, however, that such Liens securing
Capitalized Lease Obligations or Indebtedness incurred under Section
6.03(b)(vii) may not extend to any property owned by the Borrower or any
Restricted Subsidiary other than the property being leased or acquired pursuant
to such Section 6.03(b)(vii);
39
(iv) Liens existing on the Closing Date;
(v) Liens on property or shares of stock of a Person at the time
such Person becomes a Subsidiary; provided, however, such Liens are not created
or incurred in connection with, or in contemplation of, such other Person
becoming such a Subsidiary; provided, further, however, that such Liens may not
extend to any other property owned by the Borrower or any Restricted Subsidiary;
(vi) Liens on property at the time the Borrower or a Restricted
Subsidiary acquired the property, including any acquisition by means of a merger
or consolidation with or into the Borrower or any Restricted Subsidiary;
provided, however, such Liens are not created or incurred in connection with, or
in contemplation of, such acquisition; provided, further, however, that such
Liens may not extend to any other property owned by the Borrower or any
Restricted Subsidiary;
(vii) Liens securing Indebtedness or other obligations of a
Restricted Subsidiary owing to the Borrower or another Restricted Subsidiary
permitted to be incurred in accordance with Section 6.03;
(viii) Liens securing Hedging Obligations so long as the related
Indebtedness is permitted to be incurred under this Agreement and is secured by
a Lien on the same property securing such Hedging Obligation;
(ix) Liens on specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect of bankers'
acceptances issued or created for the account of such Person to facilitate the
purchase, shipment or storage of such inventory or other goods;
(x) Liens in favor of the Borrower or any Restricted Subsidiary;
(xi) Liens to secure any refinancing, refunding, extension, renewal
or replacement (or successive refinancings, refundings, extensions, renewals or
replacements) as a whole, or in part, of any Indebtedness secured by any Liens
referred to in the foregoing clauses (iii), (iv), (v) and (vi); provided,
however, that (A) such new Lien shall be limited to all or part of the same
property that secured the original Liens (plus improvements on such property),
and (B) the Indebtedness secured by such Lien at such time is not increased to
any amount greater than the sum of (1) the outstanding principal amount or, if
greater, committed amount of the Indebtedness described under clauses (iii),
(iv), (v) and (vi) above at the time the original Lien became a Permitted Lien
under this Agreement and (2) an amount necessary to pay any fees and expenses,
including premiums, related to such refinancing, refunding, extension, renewal
or replacement;
40
(xii) Liens on accounts receivable and related assets incurred in
connection with a Receivables Facility;
(xiii) Liens for taxes, assessments or other governmental charges or
levies not yet delinquent, or which are being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted or for
property taxes on property that the Borrower or one of its Subsidiaries has
determined to abandon if the sole recourse for such tax, assessment, charge,
levy or claim is to such property;
(xiv) Liens securing judgments for the payment of money in an
aggregate amount not in excess of $15.0 million (except to the extent covered by
insurance and the Administrative Agent shall be reasonably satisfied with the
credit of such insurer), unless such judgments shall remain undischarged for a
period of more than 30 consecutive days during which execution shall not be
effectively stayed;
(xv) Liens created under the Security Documents;
(xvi) landlord's, carriers', warehousemen's, mechanics',
materialmen's, repairmen's, construction or other like Liens arising in the
ordinary course of business and securing obligations that are not overdue by
more than 30 days or that are being contested in good faith by appropriate
proceedings and in respect of which, if applicable, the Borrower or any
Restricted Subsidiary shall have set aside on its books reserves in accordance
with GAAP;
(xvii) (A) pledges and deposits made in the ordinary course of
business in compliance with the Federal Employers Liability Act or any other
workers' compensation, unemployment insurance and other social security laws or
regulations and deposits securing liability to insurance carriers under
insurance or self-insurance arrangements in respect of such obligations and (B)
pledges and deposits securing liability for reimbursement or indemnification
obligations of (including obligations in respect of letters of credit or bank
guarantees for the benefit of) insurance carriers providing property, casualty
or liability insurance to Holdings, the Borrower or any Restricted Subsidiary;
(xviii) zoning restrictions, easements, trackage rights, leases (other
than Capitalized Lease Obligations), licenses, special assessments,
rights-of-way, restrictions on use of real property and other similar
encumbrances incurred in the ordinary course of business that, in the aggregate,
do not interfere in any material respect with the ordinary conduct of the
business of the Borrower or any Restricted Subsidiary;
41
(xix) any interest or title of a lessor under any lease or sublease
entered into by the Borrower or any Restricted Subsidiary in the ordinary course
of business;
(xx) Liens that are contractual rights of set-off (A) relating to
the establishment of depository relations with banks not given in connection
with the issuance of Indebtedness, (B) relating to pooled deposit or sweep
accounts of the Borrower or any Restricted Subsidiary to permit satisfaction of
overdraft or similar obligations incurred in the ordinary course of business of
the Borrower and the Restricted Subsidiaries or (C) relating to purchase orders
and other agreements entered into with customers of the Borrower or any
Restricted Subsidiary in the ordinary course of business;
(xxi) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights;
(xxii) Liens securing obligations in respect of trade-related letters
of credit permitted under Section 6.03 and covering the goods (or the documents
of title in respect of such goods) financed by such letters of credit and the
proceeds and products thereof;
(xxiii) licenses of intellectual property granted in a manner
consistent with past practice;
(xxiv) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(xxv) Liens on the assets of a Foreign Subsidiary that do not
constitute Collateral and which secure Indebtedness of such Foreign Subsidiary
or any other Foreign Subsidiary that is not otherwise secured by a Lien on the
Collateral under the Loan Documents and that is permitted to be incurred under
Section 6.03(b)(v) or 6.03(b)(xiv);
(xxvi) Liens solely on any xxxx xxxxxxx money deposits made by the
Borrower or any of the Restricted Subsidiaries in connection with any letter of
intent or purchase agreement permitted hereunder; and
(xxvii) other Liens with respect to property or assets of the Borrower
or any Restricted Subsidiary not constituting Collateral for the Bridge
Obligations with an aggregate fair market value (valued at the time of creation
thereof) of not more than $10.0 million at any time.
"PERSON" shall mean any natural person, corporation, business trust,
joint venture, association, company, partnership, limited liability company or
42
government, individual or family trusts, or any agency or political subdivision
thereof.
"PIK INTEREST AMOUNT" shall mean, for any period, the aggregate amount
equal to the amount of interest borne by a Loan (or a Loan Note) for such period
in excess of 12.00% per annum.
"PLAN" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code and in respect of which Holdings, the Borrower, any Subsidiary
(including the Company) or any ERISA Affiliate is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"PLEDGE AGREEMENT" shall mean the Share Pledge Agreement substantially
in the form of Exhibit E-1 executed by Bidco and the Collateral Agent pursuant
to which Bidco has granted a security interest on all shares of capital stock of
the Company owned by Bidco to secure the Bridge Obligations and, following the
Delisting, the "Bridge Obligations" as defined in the Senior Subordinated Bridge
C Loan Agreement (as in effect on the date hereof), as the same may be amended,
supplemented or otherwise modified from time to time, with such Pledge Agreement
to terminate on the Restructuring Date.
"PLEDGEES" shall mean the "Pledgees" as defined in the Pledge Agreement
and the Bidco Loan Pledge Agreement.
"PROCESS AGENT" shall have the meaning assigned to such term in Section
10.15(c).
"PREFERRED STOCK" shall mean any Equity Interest with preferential
rights of payment of dividends or upon liquidation, dissolution or winding up.
"PREPAYMENT EVENT" shall mean any Debt Incurrence Prepayment Event, any
Equity Issuance Prepayment Event, any Permanent Securities Prepayment Event or
any Asset Sale Prepayment Event.
"PRESUMED TAX RATE" shall mean the highest effective marginal statutory
combined U.S. federal, state and local income tax rate prescribed for an
individual residing in New York City (taking into account (i) the deductibility
of state and local income taxes for U.S. federal income tax purposes, assuming
the limitation of Section 68(a)(2) of the Code applies and taking into account
any impact of the Code, and (ii) the character (long-term or short-term capital
gain, dividend income or other ordinary income) of the applicable income).
"PRINCIPAL AMOUNT" shall mean, when used with respect to any particular
Note, the principal amount of such Note at its Stated Maturity including any
43
indebtedness evidenced by a Subsequent Initial Note, a Subsequent Additional
Note or a Subsequent Extended Note.
"PROJECTIONS" shall mean the projections of Holdings and the
Subsidiaries included in the Information Memorandum and any other projections
and any forward-looking statements (including statements with respect to booked
business) of such entities furnished to the Lenders or the Administrative Agent
by or on behalf of Holdings, the Borrower or any of the Subsidiaries prior to
the Closing Date.
"PRO RATA SHARE" shall mean, for any Lender at any time, the amount of
such Lender's Commitment divided by the Commitments of all Lenders (or, if the
Commitments have been terminated, the aggregate outstanding principal amount of
such Lender's Initial Loans divided by the aggregate outstanding principal
amount of all Initial Loans), all determined at such time.
"PUBLICATION DATE" shall mean the date on which the Offer was published
in accordance with the Takeover Act (as defined in Section 5.18).
"PURCHASE MONEY NOTE" shall mean a promissory note of a Receivables
Subsidiary evidencing a line of credit, which may be irrevocable, from the
Borrower or any of its Subsidiaries to a Receivables Subsidiary, which note
shall be repaid from cash available to the Receivables Subsidiary other than
amounts required to be established as reserves, amounts paid to investors in
respect of interest and principal and other obligations and amounts paid in
connection with the purchase of newly generated receivables.
"QUALIFIED PROCEEDS" shall mean assets that are used or useful in, or
Capital Stock of any Person engaged in, a Similar Business; provided that the
fair market value of any such assets or Capital Stock shall be determined by the
Board of Directors in good faith, except that in the event the value of any such
assets or Capital Stock may exceed $25.0 million or more, the fair value shall
be determined in writing by an independent investment banking firm of nationally
recognized standing.
"QUOTATION DAY" shall mean, with respect to any Borrowing and any
Interest Period, the day on which it is market practice in the relevant
interbank market for prime banks to give quotations for deposits in the currency
of such Borrowing for delivery on the first day of such Interest Period. If such
quotations would normally be given by prime banks on more than one day, the
Quotation Day will be the last of such days.
"RECEIVABLES FACILITY" shall mean one or more receivables financing
facilities, as amended from time to time, the Indebtedness of which is
non-recourse (except for standard representations, warranties, covenants,
servicing and
44
indemnities made in connection with such facilities) to the Borrower and all
Restricted Subsidiaries (other than any Receivables Subsidiary) pursuant to
which the Borrower and/or any of the Restricted Subsidiaries sells its accounts
receivable and related assets customarily transferred with such accounts
receivable in similar receivables facilities to a Receivables Subsidiary;
provided that the aggregate outstanding principal amount of investments by
third-party investors or Indebtedness owed to third party lenders at any time
with respect to such Receivables Facility shall not exceed $200.0 million.
"RECEIVABLES FEES" shall mean reasonable distributions or payments made
directly or by means of discounts with respect to any participation interest
issued or sold in connection with, and other fees paid to a Person that is not a
Restricted Subsidiary in connection with, any Receivables Facility.
"RECEIVABLES SUBSIDIARY" shall mean a Wholly Owned Subsidiary of the
Borrower (or another Person formed for the purposes of engaging in a Receivables
Facility in which the Borrower or any Subsidiary of the Borrower makes an
Investment and to which the Borrower or any Subsidiary of the Borrower transfers
accounts receivable and related assets customarily transferred with such
accounts receivable in similar receivables facilities) that acts as a purchaser
of accounts receivable and related assets customarily transferred with such
accounts receivable under a Receivables Facility.
"REFERENCE BANK" shall mean the Administrative Agent.
"REFINANCING INDEBTEDNESS" shall have the meaning assigned to such term
in Section 6.03(b)(xvi).
"REFUNDING CAPITAL STOCK" shall have the meaning assigned to such term
in Section 6.02(b)(ii).
"REGISTER" shall have the meaning assigned to such term in Section
10.04(b)(iv).
"REGISTRAR" shall mean the Person acting as Registrar in respect of the
Exchange Notes, as described in the Description of Exchange Notes.
"REGULATION U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"REGULATION X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"RELATED PARTIES" shall mean, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
45
"RELEASE" shall mean any spilling, leaking, seepage, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping,
disposing, depositing, emanating or migrating in, into, onto or through the
Environment.
"REMAINING PRESENT VALUE" shall mean, as of any date with respect to
any lease, the present value as of such date of the scheduled future lease
payments with respect to such lease, determined with a discount rate equal to a
market rate of interest for such lease reasonably determined at the time such
lease was entered into.
"REPORTABLE EVENT" shall mean any reportable event as defined in
Section 4043(c) of ERISA or the regulations issued thereunder, other than those
events as to which the 30-day notice period referred to in Section 4043(c) of
ERISA has been waived, with respect to a Plan (other than a Plan maintained by
an ERISA Affiliate that is considered an ERISA Affiliate only pursuant to
subsection (m) or (o) of Section 414 of the Code).
"REPRESENTATIVE" shall have the meaning assigned to such term in
Section 8.03.
"REQUIRED LENDERS" shall mean, at any date, Holders having or holding
Loans, Commitments and Exchange Notes representing more than 50% of the sum of
Loans, Commitments and Exchange Notes outstanding at such date; provided that if
any single Holder would otherwise by itself constitute the Required Lenders,
then "Required Lenders" shall mean such Holder and any other Holder.
"RESPONSIBLE OFFICER" of any Person shall mean any executive officer or
Financial Officer of such Person and any other officer or similar official
thereof responsible for the administration of the obligations of such Person in
respect of this Agreement.
"RESTRICTED INVESTMENT" shall mean any Investment other than a
Permitted Investment.
"RESTRICTED PAYMENT" shall have the meaning assigned to such term in
Section 6.02(a).
"RESTRICTED SUBSIDIARY" shall mean, at any time, any direct or indirect
Subsidiary of the Borrower (including any Foreign Subsidiary) that is not then
an Unrestricted Subsidiary; provided, however, that if a Subsidiary that was
previously designated an Unrestricted Subsidiary at any time fails to meet the
applicable qualifications set forth in the definition of "Unrestricted
Subsidiary", such Subsidiary will be deemed to become a Restricted Subsidiary at
such time.
46
"RESTRUCTURING" shall mean (i) the distribution or sale (in return for
an unsecured promissory note of the Company reasonably satisfactory to the Joint
Lead Arrangers) to the Company of all the capital stock of CAC, (ii) the sale to
Bidco by the Company of all such capital stock in return for an unsecured
promissory note of Bidco (which note shall be reasonably satisfactory to the
Joint Lead Arrangers), (iii) the sale by Bidco of all or a portion of such
capital stock to Parent in return for the cancellation of a portion of the Bidco
Loan, (iv) the distribution of any remaining portion of such capital stock by
Bidco to Midco, (v) the sale in return for the cancellation of a portion of the
intercompany debt owed by Midco to Parent referred to in the recitals to this
Agreement, or distribution by Midco to Parent of all such capital stock of CAC
that it has acquired, (vi) the Parent Merger and CAC becoming a subsidiary of US
Holdco, (vii) the consummation of the other events referred to in the definition
of "Restructuring" in the Credit Agreement (as in effect on the date hereof) and
(viii) the satisfaction of clause (iv) of the definition of Collateral and
Guarantee Requirements.
"RESTRUCTURING DATE" shall mean the date after the Domination Agreement
has been registered and become effective on which all of the Restructuring has
been completed.
"RETIRED CAPITAL STOCK" shall have the meaning assigned to such term in
Section 6.02(b)(ii).
"S&P" shall mean Standard & Poor's Ratings Group, Inc.
"SALE AND LEASE-BACK TRANSACTION" shall have the meaning assigned to
such term in Section 6.12.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"SECURITIES" shall mean any stock, shares, partnership interests,
voting trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as
"SECURITIES" or any certificates of interest, shares or participations in
temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended from
time to time.
"SECURITY DOCUMENTS" shall mean the Pledge Agreement and the Bidco Loan
Pledge Agreement, and each of the other instruments and documents
47
executed and delivered pursuant to any of the foregoing or pursuant to Section
5.10.
"SENIOR INDEBTEDNESS" shall mean the principal of, premium, if any, and
interest (including any interest accruing subsequent to the filing of a petition
of bankruptcy at the rate provided for in the documentation with respect
thereto, whether or not such interest is an allowed claim under applicable law)
on any Indebtedness of the Borrower, whether outstanding on the Closing Date or
thereafter created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall
not be senior in right of payment to the Loans. Without limiting the generality
of the foregoing, "SENIOR INDEBTEDNESS" shall also include the principal of,
premium, if any, interest (including any interest accruing subsequent to the
filing of a petition of bankruptcy at the rate provided for in the documentation
with respect thereto, whether or not such interest is an allowed claim under
applicable law) on, and all other amounts owing in respect of (including
guarantees of the foregoing obligations):
(i) all monetary obligations of every nature of the
Borrower under, or with respect to, the Senior Secured Facilities,
including, without limitation, obligations to pay principal, premium
and interest, reimbursement obligations under letters of credit, fees,
expenses and indemnities (and guarantees thereof); and
(ii) all Hedging Obligations (and guarantees thereof);
in each case whether outstanding on the Closing Date or thereafter incurred.
Notwithstanding the foregoing, "SENIOR INDEBTEDNESS" shall not include:
(i) any Indebtedness of the Borrower (including in
respect of Parent CPECs) to Holdings or to a Subsidiary of Holdings;
(ii) Indebtedness to, or guaranteed on behalf of, any
shareholder, director, officer or employee of Holdings or any
Subsidiary of Holdings (including, without limitation, amounts owed for
compensation);
(iii) Indebtedness to trade creditors and other amounts
incurred in connection with obtaining goods, materials or services
(including guarantees thereof or instruments evidencing such
liabilities);
(iv) Indebtedness represented by Capital Stock;
48
(v) any liability for federal, state, local or other
taxes owed or owing by the Borrower;
(vi) that portion of any Indebtedness incurred in
violation of Section 6.03;
(vii) Indebtedness which, when incurred and without respect
to any election under Section 1111(b) of Xxxxx 00, Xxxxxx Xxxxxx Code,
is without recourse to the Borrower; and
(viii) any Indebtedness which is, by its express terms,
subordinated in right of payment to any other Indebtedness of the
Borrower (including, without limitation, the Exchange Notes, loans
under the Senior Subordinated Bridge C Loan Agreement and the Exchange
Notes referred to therein).
"SENIOR SECURED FACILITIES" shall mean the senior secured credit
facilities provided pursuant to the Credit Agreement, including any related
notes, guarantees, collateral documents, instruments and agreements executed in
connection therewith, in each case as amended, restated, supplemented, modified,
renewed, replaced or refinanced from time to time in one or more agreements (in
each case with the same or new lenders), including any agreement extending the
maturity thereof or otherwise restructuring all or any portion of the
Indebtedness thereunder or increasing the amount loaned thereunder or altering
the maturity thereof.
"SENIOR SUBORDINATED BRIDGE C LOAN AGREEMENT" shall mean the Senior
Subordinated Bridge C Loan Agreement dated as of the date hereof, among
Holdings, the Borrower, the lenders party thereto, and Xxxxxx Xxxxxxx Senior
Funding, Inc., as Administrative Agent.
"SENIOR SUBORDINATED INDEBTEDNESS" shall mean (a) with respect to the
Borrower, Indebtedness that ranks pari passu in right of payment to the Loans
and the Exchange Notes and (b) with respect to any Guarantor, Indebtedness that
ranks pari passu in right of payment to its Guarantee of the Loans and the
Exchange Notes.
"SIGNIFICANT SUBSIDIARY" shall mean any Restricted Subsidiary that
would be a "SIGNIFICANT SUBSIDIARY" as defined in Article 1, Rule 1-02 of
Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation
is in effect on the date hereof.
"SIMILAR BUSINESS" shall mean the industrial chemicals business and any
services, activities or businesses incidental or directly related or similar
thereto, or
49
any line of businesses engaged in by the Company, or any business activity that
is a reasonable extension, development or expansion thereof or ancillary
thereto.
"SQUEEZE OUT" shall mean the procedures set out in sections 327a et
seq. of the German Stock Corporation Act (Aktiengesetz) in respect of the
acquisition of shares of the Company by Bidco.
"STATED MATURITY" shall mean, with respect to any Note, the Final
Maturity Date (unless the Loans are not converted pursuant to Section 2.01(b),
in which case all references shall mean the Initial Maturity Date).
"STATUTORY RESERVES ADJUSTMENT" shall mean, with respect to any
currency, a fraction (expressed as a decimal), the numerator of which is one and
the denominator of which is one minus any reserve, liquid asset or similar
requirement established by any Governmental Authority of the United States of
America or of the jurisdiction of such currency or any jurisdiction in which
Loans in such currency are made to which banks in such jurisdiction are subject
for any category of deposits or liabilities customarily used to fund loans in
such currency or by reference to which interest rates applicable to Loans in
such currency are determined.
"SUBORDINATED BRIDGE PAYMENT" shall mean any payment, other than any
Excluded Bridge Payment, by the Borrower in respect of Obligations of the
Borrower under or in connection with this Agreement and the other Loan
Documents.
"SUBORDINATED INDEBTEDNESS" shall mean (a) with respect to the
Borrower, any Indebtedness of the Borrower that is by its terms subordinated in
right of payment to the Loans and the Exchange Notes and (b) with respect to any
Guarantor, any Indebtedness of such Guarantor that is by its terms subordinated
in right of payment to its Guarantee thereof.
"SUBSEQUENT EXTENDED NOTE" shall have the meaning assigned to such term
in Section 2.06(f).
"SUBSEQUENT INITIAL NOTE" shall have the meaning assigned to such term
in Section 2.06(f).
"SUBSIDIARY" shall mean, with respect to any Person (herein referred to
as the "PARENT"), any corporation, partnership, association or other business
entity of which securities or other ownership interests representing more than
50% of the equity or more than 50% of the ordinary voting power or more than 50%
of the general partnership interests are, at the time any determination is being
made, directly or indirectly, owned, controlled or held (or that is, at the time
any determination is made, otherwise controlled) by the parent or one or more
50
subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent; provided that Estech GmbH & Co. KG and Estech Managing GmbH shall not
constitute subsidiaries.
"SUBSIDIARY" shall mean, unless the context otherwise requires, a
subsidiary of the Borrower.
"SUCCESSOR COMPANY" shall have the meaning assigned to such term in
Section 6.05(a).
"SUCCESSOR GUARANTOR" shall have the meaning assigned to such term in
Section 6.05(b).
"TAX DISTRIBUTION" shall mean any distribution permitted to be paid
pursuant to Section 6.02(b)(viii)(B).
"TAXES" shall mean any and all present or future taxes, levies,
imposts, duties (including stamp duties), deductions, charges (including ad
valorem charges) or withholdings imposed by any Governmental Authority and any
and all interest and penalties related thereto.
"TERM LOAN FACILITY" shall mean the term loan facility provided
pursuant to the Senior Secured Facilities.
"TEST PERIOD" shall mean, on any date of determination, the period of
four consecutive fiscal quarters of Holdings then most recently ended (taken as
one accounting period).
"TRANSACTION" shall mean, collectively, (i) the transactions to occur
on or prior to the Closing Date pursuant to the Transaction Documents, including
(a) the Consummation of the Offer (and the purchase of shares of the Company by
Bidco on the Closing Date pursuant to the Offer); (b) the execution and delivery
of the Loan Documents and the borrowings hereunder; (c) the Holdco Equity
Financing; (d) the incurrence of loans under the Term Loan Facility and the
Senior Subordinated Bridge C Loan Agreement; and (e) the payment of all fees and
expenses to be paid on or prior to the Closing Date and owing in connection with
the foregoing and (ii) the purchase of shares of the Company by Bidco subsequent
to the Closing Date pursuant to the Offer during the subsequent offer period,
pursuant to a Squeeze Out or otherwise.
"TRANSACTION DOCUMENTS" shall mean the Offer Document, the Senior
Secured Facilities, the Senior Subordinated Bridge C Loan Agreement, the Holdco
Equity Commitment Letter and the Loan Documents.
"UNITED STATES" shall mean the United States of America.
51
"UNRESTRICTED SUBSIDIARY" shall mean (i) any Subsidiary of the Borrower
which at the time of determination is an Unrestricted Subsidiary (as designated
by the Board of Directors of the Borrower, as provided below) and (ii) any
Subsidiary of an Unrestricted Subsidiary, provided that no Loan Party shall be
an Unrestricted Subsidiary. The Board of Directors of the Borrower may designate
any Subsidiary of the Borrower (including any existing Subsidiary and any newly
acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless
such Subsidiary or any of its Subsidiaries owns any Equity Interests or
Indebtedness of, or owns or holds any Lien on any property of, the Borrower or
any Subsidiary of the Borrower (other than any Subsidiary of the Subsidiary to
be so designated), provided that (a) any Unrestricted Subsidiary must be an
entity of which shares of the Capital Stock or other equity interests (including
partnership interests) entitled to cast at least a majority of the votes that
may be cast by all shares or equity interests having ordinary voting power for
the election of directors or other governing body are owned, directly or
indirectly, by the Borrower, (b) such designation complies with the covenants
described in Section 6.02, (c) each of (I) the Subsidiary to be so designated
and (II) its Subsidiaries has not at the time of designation, and does not
thereafter, create, incur, issue, assume, guarantee or otherwise become directly
or indirectly liable with respect to any Indebtedness pursuant to which the
lender has recourse to any of the assets of the Borrower or any Restricted
Subsidiary, and (d) such designation would not cause a Default or Event of
Default. The Board of Directors may designate any Unrestricted Subsidiary to be
a Restricted Subsidiary; provided that immediately after giving effect to such
designation no Default or Event of Default shall have occurred and be continuing
and either (A) the Fixed Charge Coverage Ratio would be at least 2.00 to 1.00 or
(B) the Fixed Charge Coverage Ratio would be greater than immediately prior to
such designation, in each case on a pro forma basis taking into account such
designation. Any such designation by the Board of Directors shall be notified by
the Borrower to the Administrative Agent by promptly filing with the
Administrative Agent a copy of the board resolution giving effect to such
designation and a certificate of a Responsible Officer certifying that such
designation complied with the foregoing provisions.
"US HOLDCO" shall have the meaning assigned to such term in the
recitals of this Agreement.
"VOTING STOCK" of any Person as of any date shall mean the Capital
Stock of such Person that is at the time entitled to vote in the election of the
Board of Directors of such Person.
"WEIGHTED AVERAGE LIFE TO MATURITY" shall mean, when applied to any
Indebtedness at any date, the quotient obtained by dividing (i) the sum of the
products of the number of years from the date of determination to the date of
each successive scheduled principal payment or redemption or similar payment
with
52
respect to such Indebtedness multiplied by the amount of such payment, by (ii)
the sum of all such payments.
"WHOLLY OWNED RESTRICTED SUBSIDIARY" shall mean any Wholly Owned
Subsidiary that is a Restricted Subsidiary.
"WHOLLY OWNED SUBSIDIARY" of any Person shall mean a subsidiary of such
Person, all of the Equity Interests of which (other than directors' qualifying
shares or nominee or other similar shares required pursuant to applicable law)
are owned by such Person or another Wholly Owned Subsidiary of such Person;
provided that so long as the Borrower owns, directly or indirectly, at least 75%
of the issued and outstanding Equity Interests of the Company, the Company and
its Wholly Owned Subsidiaries shall be deemed to constitute Wholly Owned
Subsidiaries of the Borrower.
"WITHDRAWAL LIABILITY" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.02. Terms Generally. The definitions set forth or referred to
in Section 1.01 shall apply equally to both the singular and plural forms of the
terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include,"
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation." All references herein to Articles, Sections, Exhibits and Schedules
shall be deemed references to Articles and Sections of, and Exhibits and
Schedules to, this Agreement unless the context shall otherwise require. Except
as otherwise expressly provided herein, any reference in this Agreement to any
Loan Document or any other agreement, instrument or document shall mean such
document, agreement or instrument as amended, restated, supplemented or
otherwise modified from time to time (subject to any restrictions on such
amendments, restatements, supplements or modifications set forth herein).
Section 1.03. Currency Calculations. For the purposes of determining
compliance with Article 6 with respect to any amount in a currency other than
Dollars, amounts shall be deemed to equal the Dollar Equivalent thereof
determined using the Exchange Rate calculated as of the Business Day on which
such amounts were incurred or expended, as applicable.
Section 1.04. Effectuation Of Transaction. Each of the representations
and warranties of Holdings and the Borrower contained in this Agreement (and all
corresponding definitions) are made after giving effect to the Transaction,
unless the context otherwise requires.
53
ARTICLE 2
THE CREDITS
Section 2.01. Commitment. (a) Subject to the terms and conditions set
forth herein, each Lender agrees to make a loan (individually, an "INITIAL LOAN"
and collectively, the "INITIAL LOANS") to the Borrower on the Closing Date in a
principal amount not to exceed its Commitment; provided that in no event shall
the aggregate principal amount of any Lender's Initial Loans exceed its Pro Rata
Share of the Maximum Loan Value on the Closing Date, determined after giving
effect to the acquisition on such date of Company Shares. Amounts repaid in
respect of Initial Loans may not be reborrowed.
(b) Each Lender agrees, if the Initial Loans have not been repaid prior
to the Initial Maturity Date, that the then outstanding principal amount of each
of its Initial Loans shall automatically be converted into a loan (individually,
an "EXTENDED LOAN" and collectively, the "EXTENDED LOANS") to the Borrower on
the Initial Maturity Date in an aggregate principal amount equal to the then
outstanding principal amount of such Initial Loan or Loans (including any
accrued interest not required to be paid in cash); provided that if, on the
Initial Maturity Date, a Default described in Section 7.01(f) (with respect to
Holdings or the Borrower only) shall have occurred and be continuing but such
Default is cured before the expiration of the grace period specified in such
subsection, such conversion shall take place on the date that such Default is
cured; provided, further, that the Initial Loans shall not be so converted and
(i) if an Event of Default described in Section 7.01(e) or 7.01(f) (in each
case, with respect to Holdings or the Borrower only) shall have occurred and be
continuing on the Initial Maturity Date, shall be due and payable on the Initial
Maturity Date or (ii) if a Default described in Section 7.01(f) (with respect to
Holdings or the Borrower only) shall have occurred and be continuing on the
Initial Maturity Date and such Default is not cured prior to the end of the
grace period specified in such subsection, shall be due and payable on the last
day of such grace period. Upon the conversion of the Initial Loans into Extended
Loans, each Lender shall cancel on its records a principal amount of the Initial
Loans held by such Lender corresponding to the principal amount of the Extended
Loans issued by such Lender, which corresponding principal amount of the Initial
Loans shall be satisfied by the conversion of such Initial Loans into Extended
Loans in accordance with this Section 2.01(b). Amounts repaid in respect of
Extended Loans may not be reborrowed.
Section 2.02. Loans And Borrowings. (a) Each Initial Loan shall be made
by the Lenders ratably in accordance with their respective Commitments. The
failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the
Commitments of the Lenders are several and no Lender shall be responsible for
any other Lender's failure to make Loans as required.
54
(b) Each Lender at its option may make any Loan by causing any
domestic or foreign branch or Affiliate of such Lender to make such Loan;
provided that any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan in accordance with the terms of this Agreement and
such Lender shall not be entitled to any amounts payable under Section 2.11,
2.13 or 2.16 solely in respect of increased costs resulting from such exercise
and existing at the time of such exercise.
Section 2.03. Request for Borrowing. To request the Borrowing of the
Initial Loans, the Borrower shall notify the Administrative Agent of such
request by telephone not later than 11:00 a.m., New York City time, two Business
Days before the date of the proposed Borrowing. Such telephonic request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request signed by the Borrower. Each
such telephonic and written Borrowing Request shall specify the following
information:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day; and
(iii) the location and number of the Borrower's account to
which funds are to be disbursed.
Promptly following receipt of the Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
Section 2.04. Funding Of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds in Dollars by 12:00 noon, New York City time, to the
account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts so received, in like
funds, to an account of the Borrower maintained with the Administrative Agent in
New York City and designated by the Borrower in the applicable Borrowing
Request.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with Section 2.04(a) and may, in
55
reliance upon such assumption, make available to the Borrower a corresponding
amount. In such event, if a Lender has not in fact made its share of the
applicable Borrowing available to the Administrative Agent, then the applicable
Lender and the Borrower severally agree to pay to the Administrative Agent
forthwith on demand (without duplication) such corresponding amount (with demand
to be first made on such Lender if legally possible) with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower,
the interest rate applicable to the Loans calculated in accordance with Section
2.09. If such Lender pays such amount to the Administrative Agent, then such
amount shall constitute such Lender's Loan included in such Borrowing.
Section 2.05. Termination And Reduction Of Commitments. (a) The
Commitments will terminate at 5 p.m. New York City time on the Closing Date or,
if earlier, on the Early Termination Date should such date occur.
(b) The Borrower may at any time prior to the Closing Date,
without premium or penalty, terminate, or from time to time reduce, the
Commitments; provided that each reduction of the Commitments shall be in an
amount that is an integral multiple of $1.0 million and not less than $1.0
million (or, if less, the remaining amount of the Commitments).
(c) The Borrower shall notify the Administrative Agent of any
election (which notice may be given telephonically if promptly confirmed in
writing) to terminate or reduce the Commitments under Section 2.05(b) at least
three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
applicable Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable. Any termination or
reduction of the Commitments shall be permanent. Each reduction of the
Commitments shall be made ratably among the Lenders in accordance with their
respective Commitments.
Section 2.06. Repayment of Loans; Evidence of Debt. (a) Subject to
Section 2.01(b), the Initial Loans will mature on the Initial Maturity Date and,
to the extent then unpaid, will automatically be converted into Extended Loans
or become due and payable pursuant to Section 2.01(b).
(b) The Extended Loans will mature on the Final Maturity Date.
Each Extended Loan shall bear interest as described in Section 2.09 from the
Extension
56
Date until such Loan shall be paid in full or exchanged for an Exchange Note
pursuant to Section 5.16 hereof.
(c) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(d) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder (ii) the amount of any
principal or interest due and payable or to become due and payable (including,
without limitation, any PIK Interest Amount and any interest payable thereon)
from the Borrower to each Lender hereunder and (iii) any amount received by the
Administrative Agent hereunder for the account of the Lenders and each Lender's
share thereof.
(e) The entries made in the accounts maintained pursuant to
Section 2.06(c) and 2.06(d) shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
(f) To the extent requested by any Lender, the Borrower shall
execute and deliver to such Lender an Initial Note dated the Closing Date
substantially in the form of Exhibit C-1 hereto to evidence the portion of the
Initial Loan made by such Lender and with appropriate insertions ("ORIGINAL
INITIAL NOTES"). On each Interest Payment Date prior to the Initial Maturity
Date on which the Borrower shall have elected to pay any interest through the
issuance of additional Notes pursuant to Section 2.09(e), to the extent
requested by any Lender, the Borrower shall execute and deliver to such Lender
on such Interest Payment Date a note dated such Interest Payment Date
substantially in the form of Exhibit C-1 hereto in a principal amount equal to
such Lender's pro rata portion of any PIK Interest Amount and with other
appropriate insertions (each a "SUBSEQUENT INITIAL NOTE" and, together with the
Original Initial Notes, the "INITIAL NOTES"). A Subsequent Initial Note shall
bear interest from the date of its issuance at the same rate borne by all
Initial Notes at the date of issuance and from time to time thereafter. Unless
converted to an Exchange Note and to the extent requested by any Lender, the
Borrower shall execute and deliver to such Lender an Extended Note dated the
Initial Maturity Date substantially in the form of Exhibit C-2 hereto to
evidence the Extended Loan made on such date, in the principal amount of the
Initial Notes held by such Lender on such date and with other appropriate
insertions (collectively, the "ORIGINAL EXTENDED NOTES"). On or after the
Initial Maturity Date, on each Interest Payment Date prior to the Final Maturity
Date on which the
57
Borrower shall have elected to pay any interest through the issuance of
additional Notes pursuant to Section 2.09(e), to the extent requested by any
Lender, the Borrower shall execute and deliver to such Lender on such Interest
Payment Date an Extended Note dated such Interest Payment Date substantially in
the form of Exhibit C-2 hereto in a principal amount equal to such Lender's pro
rata portion of any PIK Interest Amount and with other appropriate insertions
(each a "SUBSEQUENT EXTENDED NOTE" and, together with the Original Extended
Notes, the "EXTENDED NOTES"). A Subsequent Extended Note shall bear interest
from the date of its issuance at the same rate borne by all Extended Notes at
the date of issuance and from time to time thereafter.
(g) Each Lender will have the option at any time or from time to
time after the Initial Maturity Date to receive Exchange Notes in exchange for
the Extended Loans of such Lender then outstanding pursuant to Section 5.16 of
this Agreement. The principal amount of the Exchange Notes will equal 100% of
the aggregate principal amount (including any accrued PIK Interest Amount) of
the Extended Loans for which they are exchanged. If a Default shall have
occurred and be continuing on the date of such exchange, any notices given or
cure periods commenced while the Initial Loans or Extended Loans were
outstanding shall be deemed given or commenced (as of the actual dates thereof)
for all purposes with respect to the Exchange Notes (with the same effect as if
the Exchange Notes had been outstanding as of the actual dates thereof).
Section 2.07. Prepayment Of Loans. (a) Voluntary Prepayments. Subject
to any limitations imposed by the Senior Secured Facilities, the Borrower shall
have the right at any time and from time to time to prepay any Borrowing in
whole or in part, without premium or penalty (but subject to Section 2.12), in
an aggregate principal amount that is an integral multiple of $1.0 million and
not less than $1.0 million or, if less, the amount outstanding, subject to prior
notice in accordance with Section 2.07(c). Whenever the Borrower makes a
voluntary prepayment of the Loans under this Section 2.07(a), it shall make a
ratable redemption of the Floating Rate Notes.
(b) Mandatory Prepayments. On each occasion that a Prepayment
Event occurs (but subject to Section 2.07(e) and 2.07(f)), the Borrower shall,
within 10 Business Days after the occurrence of such Prepayment Event, prepay
the Loans in an aggregate amount equal to (1) in the case of a Permanent
Securities Prepayment Event, 100% of the Net Proceeds therefrom, (2) in the case
of a Debt Incurrence Prepayment Event, 100% of the Net Proceeds therefrom, (3)
in the case of an Equity Issuance Prepayment Event, 50% of the Net Proceeds
therefrom and (4) in the case of an Asset Sale Prepayment Event, 100% of the Net
Proceeds therefrom less the sum of (x) in the case of clause (4), ratable
amounts payable to the Holders of Floating Rate Notes and Fixed Rate Notes which
have accepted an Asset Sale Offer pursuant to the Exchange Note Indenture (as
described in the Description of Exchange Notes) and (y) ratable amounts payable
58
(and paid) pursuant to Section 2.07(b) of the Senior Subordinated Bridge C Loan
Agreement (as in effect on the date hereof) as a result of such Prepayment
Event. Whenever the Borrower makes a mandatory prepayment of the Loans under
clause (4) of this paragraph, it shall make a ratable payment with respect to
the Exchange Notes to the extent that the Borrower is required to offer to
purchase any of the Exchange Notes pursuant to the terms of the Exchange Note
Indenture (as described in the Description of Exchange Notes) and such offer is
accepted by any applicable Holders.
(c) Notice of Prepayments. The Borrower shall notify the
Administrative Agent by telephone (confirmed by telecopy) of any prepayment of
any Borrowing hereunder (other than a scheduled mandatory prepayment made
pursuant to Section 2.07(g)) not later than 11:00 a.m., New York City time,
three Business Days before the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date and the principal amount of
each Borrowing or portion thereof to be prepaid. Promptly after it receives any
such notice, the Administrative Agent shall advise the Lenders of the contents
thereof.
(d) Application to Loans. (i) Upon receipt of any amount payable
to the Lenders pursuant to Section 2.07(a), 2.07(b) or 5.17, the Administrative
Agent shall distribute such amount in the following order: First, to the payment
of all expenses due and payable to the Agents under Section 10.05; Second, to
the payment of all expenses due and payable to the Lenders under Section 10.05,
ratably among the Lenders in accordance with the aggregate amount of such
payments owed to each such Lender; Third, to the payment of interest (other than
any PIK Interest Amount) then due and payable on the Loans, ratably among the
Lenders in accordance with the aggregate amount of interest owed to each such
Lender; and Fourth, to the payment of the principal amount of the Loans
(including all amounts paid as a PIK Interest Amount) that is then due and
payable, ratably among such Lenders in accordance with the aggregate principal
amount owed to each such Lender.
(ii) Repayments of Borrowings shall be accompanied by
accrued interest on the amount repaid.
(e) Application to Other Indebtedness. Notwithstanding anything to
the contrary in this Agreement, the Borrower is not obligated to apply Net
Proceeds to the prepayment of the Loans and purchase of Exchange Notes (other
than the Net Proceeds of the issuance of the Permanent Securities) to the extent
that such Net Proceeds are required to be and are applied pursuant to the Senior
Secured Facilities in satisfaction of obligations under the Senior Secured
Facilities.
(f) Temporary Investment. Pending the final application of any Net
Proceeds pursuant to this Section 2.07, Holdings, the Borrower or the applicable
59
Restricted Subsidiary may apply such Net Proceeds temporarily to reduce
Indebtedness outstanding under a revolving credit facility or otherwise invest
such Net Proceeds in Cash Equivalents.
(g) AHYDO Payments. (i) The Borrower shall make cash payments of
interest and (to the extent set forth in Section 2.07(g)(ii)) principal
repayments with respect to the Loans on each Interest Payment Date set forth in
Schedule 2.07(g) in the aggregate amount set forth opposite such Interest
Payment Date on such Schedule.
(ii) Upon receipt of any amount payable to the Lenders
pursuant to Section 2.07(g)(i), the Administrative Agent shall
distribute such amount in the following order: First, to the payment of
any interest then due and payable on the Loans up to the PIK Interest
Amount, ratably among the Lenders in accordance with the aggregate
amount of interest owed to each such Lender; and Second, to the payment
of the principal amount of the Loans, ratably among such Lenders in
accordance with the aggregate principal amount owed to each such
Lender.
Section 2.08. Fees. The Borrower agrees to pay to the Administrative
Agent, for the account of the Administrative Agent, the fees set forth in the
Fee Letter dated on or about the date hereof, as amended, restated, supplemented
or otherwise modified from time to time, at the times specified therein (the
"FEES"). All Fees shall be paid on the dates due in immediately available funds
and, once paid, shall not be refundable under any circumstances.
Section 2.09. Interest. (a) The unpaid principal amount of each
Initial Loan shall bear interest from the date of the Borrowing thereof until
maturity (whether by acceleration or otherwise) at a rate per annum equal to the
Applicable Margin plus the Adjusted LIBO Rate in effect from time to time.
(b) The unpaid principal amount of each Extended Loan shall bear
interest for the period from and including the Extension Date to, but excluding,
the earlier of (i) maturity thereof (whether by acceleration or otherwise) and
(ii) the date of exchange for an Exchange Note, at a rate equal to the greater
of (A) 11% and (B) for the three-month period commencing on the Extension Date,
the interest rate determined in accordance with Section 2.09(a) in effect on the
day immediately preceding the Extension Date plus 50 basis points, which amount
in this clause (B) shall increase by an additional 50 basis points each
three-month period thereafter.
(c) Notwithstanding the foregoing, if any principal of or interest
on any Loan or any Fees or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per
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annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, to the extent permitted
by applicable law, the rate set forth in clause (i) of this sentence; provided
that this Section 2.09(c) shall not apply to any payment default that has been
waived by the Lenders pursuant to Section 10.08.
(d) Accrued interest on each Loan shall be payable (i) in respect
of each Initial Loan, quarterly in arrears on the last day of each Interest
Period applicable thereto (or, if any Interest Period shall be for a period of
less than three months, on the next date that is three months after the previous
Interest Payment Date) and on the Initial Maturity Date (and, if later, the
Extension Date), (ii) in respect of each Extended Loan, in arrears on the last
day of each three-month period referred to in Section 2.09(b), on the date on
which such Extended Loan is exchanged for an Exchange Note as contemplated
hereby and on the Final Maturity Date, (iii) on the date of any prepayment (on
the amount prepaid), (iv) at maturity (whether by acceleration or otherwise),
and (v) after maturity, on demand (each such date referred to in clauses (i),
(ii), (iii), (iv) and (v) being an "INTEREST PAYMENT DATE"); provided that
interest accrued pursuant to Section 2.09(c) shall be payable on demand.
(e) Notwithstanding the foregoing clauses but without giving
effect to any increase in the interest rates pursuant to Section 2.09(c), the
interest rate borne by the Loans shall not exceed 14.00% per annum. To the
extent the interest on any Loan exceeds a rate of 12.00% per annum, the Borrower
may elect (i) to pay such interest in excess of 12.00% in cash, (ii) to pay such
interest in excess of 12.00% through the issuance of Subsequent Initial Notes or
Subsequent Extended Notes, as the case may be, in an aggregate principal amount
equal to all or a portion of such PIK Interest Amount to be paid or (iii) to add
such PIK Interest Amount to the principal amount of such Loan.
(f) All interest hereunder shall be computed on the basis of a
year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). The applicable Adjusted
LIBO Rate and LIBO Rate shall be determined by the Administrative Agent, and
such determination shall be prima facie evidence thereof.
(g) The Borrower agrees, on each anniversary of the Closing Date
(or at such other times as the Administrative Agent may reasonably request), to
confirm in writing to the Administrative Agent that it consents to the
capitalization of interest accrued since the Closing Date or since the date of
its last confirmation and payable in respect of the Loans to the extent
contemplated hereby.
Section 2.10. Alternate Rate Of Interest. If prior to the commencement
of any Interest Period:
61
(a) the Administrative Agent determines (which determination shall
be conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable,
for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders
that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest
Period will not adequately and fairly reflect the cost to such Lenders of making
or maintaining their Loans for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, such Borrowing shall
bear interest at such rate as the Required Lenders and the Borrower shall agree
adequately reflects the costs to the Lenders of making or maintaining their
Loans (or, if at the expiration of 20 days from the giving of such notice by the
Administrative Agent, the Required Lenders and the Borrower shall not have
reached an agreement, such Loans will bear interest at a rate per annum
specified by each affected Lender to represent its cost of funds therefor plus
the Applicable Margin (or the margin then in effect)).
Section 2.11. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets of, deposits with
or for the account of, or credit extended by, any Lender (except any
such reserve requirement reflected in the Adjusted LIBO Rate or those
for which payment has been requested pursuant to Section 2.16); or
(ii) impose on any Lender or the London interbank market
or any other relevant market any other condition affecting this
Agreement or the Loans made by such Lender (except those for which
payment has been requested pursuant to Section 2.16);
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Loan (or of maintaining its obligation to
make any Loan) or to reduce the amount of any sum received or receivable by such
Lender hereunder (whether of principal, interest or otherwise), in each case in
an amount determined to be material by such Lender, then the Borrower will pay
to such Lender such additional amount or amounts as will compensate such Lender
for such additional costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of return
on such
62
Lender's capital or on the capital of such Lender's holding company, if any, as
a consequence of this Agreement or the Loans made by such Lender, to a level
below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy) and in an amount determined to be material by such Lender,
then from time to time the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender or such Lender's holding
company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as applicable, as
specified in Section 2.11(a) or 2.11(b) (as well as reasonably detailed
calculations thereof) shall be delivered to the Borrower and shall be prima
facie evidence of the amounts thereof. The Borrower shall pay such Lender the
amount shown as due on any such certificate within 10 days after receipt
thereof.
(d) Promptly after any Lender has determined that it will make a
request for increased compensation pursuant to this Section 2.11, such Lender
shall notify the Borrower thereof. Failure or delay on the part of any Lender to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's right to demand such compensation; provided that the Borrower
shall not be required to compensate a Lender pursuant to this Section for any
increased costs or reductions incurred more than 180 days prior to the date that
such Lender notifies such Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender's intention to claim
compensation therefor; provided, further, that, if the Change in Law giving rise
to such increased costs or reductions is retroactive, then the 180-day period
referred to above shall be extended to include the period of retroactive effect
thereof.
Section 2.12. Break Funding Payments. In the event of (a) the payment
of any principal of any Loan other than on the last day of an Interest Period
applicable thereto (including as a result of an Event of Default), (b) the
failure to borrow or prepay any Loan on the date specified in any notice
delivered pursuant hereto or (c) the assignment of any Loan other than on the
last day of the Interest Period applicable thereto as a result of a request by a
Borrower pursuant to Section 2.15, then, in any such event, the Borrower shall
compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Loan, such loss, cost or expense to any Lender shall be
deemed to be the amount reasonably determined by such Lender to be the excess,
if any, of (i) the amount of interest which would have accrued on the principal
amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that
would have been applicable to such Loan, for the period from the date of such
event to the last day of the then current Interest Period therefor (or, in the
case of a failure to borrow, for the period that would have been the Interest
Period for such Loan), over (ii)
63
the amount of interest which would accrue on such principal amount for such
period at the interest rate which such Lender would bid were it to bid, at the
commencement of such period, for deposits in Dollars of a comparable amount and
period from other banks in the Eurodollar or other relevant market. A
certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section shall be delivered to the
Borrower and shall be prima facie evidence of the amounts thereof. The Borrower
shall pay such Lender the amount shown as due on any such certificate within 10
days after receipt thereof.
Section 2.13. Taxes. (a) Any and all payments by or on account of any
obligation of any Loan Party hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if a
Loan Party shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) any Agent or Lender, as applicable,
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Loan Party shall make such deductions and (iii)
such Loan Party shall timely pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Loan Parties shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Each Loan Party shall indemnify the Agents and each Lender,
within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by such Agent or Lender, as applicable, on
or with respect to any payment by or on account of any obligation of such Loan
Party hereunder (including Indemnified Taxes or Other Taxes imposed or asserted
on or attributable to amounts payable under this Section) and any reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to such Loan Party by a Lender, or by the
Administrative Agent on its own behalf, on behalf of another Agent or on behalf
of a Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes
or Other Taxes by a Loan Party to a Governmental Authority, such Loan Party
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
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(e) Any Lender that is entitled to an exemption from or reduction
of withholding Tax under the law of the jurisdiction in which the Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Borrower (with a copy to the
Administrative Agent), to the extent such Lender is legally entitled to do so,
at the time or times prescribed by applicable law, such properly completed and
executed documentation prescribed by applicable law as may reasonably be
requested by the Borrower to permit such payments to be made without such
withholding tax or at a reduced rate; provided that no Lender shall have any
obligation under this paragraph (e) with respect to any withholding Tax imposed
by any jurisdiction other than the United States if in the reasonable judgment
of such Lender such compliance would subject such Lender to any material
unreimbursed cost or expense or would otherwise be disadvantageous to such
Lender in any material respect.
(f) If an Agent or a Lender determines, in good faith and in its
sole discretion, that it has received a refund of any Indemnified Taxes or Other
Taxes as to which it has been indemnified by a Loan Party or with respect to
which such Loan Party has paid additional amounts pursuant to this Section 2.13,
it shall pay over such refund to such Loan Party (but only to the extent of
indemnity payments made, or additional amounts paid, by such Loan Party under
this Section 2.13 with respect to the Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of such Agent or such Lender
(including any Taxes imposed with respect to such refund) as is determined by
the Agent or Lender in good faith and in its sole discretion and without
interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund); provided that such Loan Party, upon the request of
such Agent or such Lender, agrees to repay as soon as reasonably practicable the
amount paid over to such Loan Party (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) to such Agent or such
Lender in the event such Agent or such Lender is required to repay such refund
to such Governmental Authority. This Section shall not be construed to require
any Agent or any Lender to make available its Tax returns (or any other
information relating to its Taxes which it deems confidential) to the Loan
Parties or any other Person.
Section 2.14. Payments Generally; Pro Rata Treatment; Sharing Of
Set-offs. (a) Unless otherwise specified, the Borrower shall make each payment
required to be made by it under the Loan Documents (whether of principal,
interest, fees or of amounts payable under Section 2.11, 2.12, 2.13 or 2.16, or
otherwise) prior to 2:00 p.m., New York City time, on the date when due, in
immediately available funds, without condition or deduction for any defense,
recoupment, set-off or counterclaim. Any amounts received after such time on any
date may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made to the Administrative Agent to
65
the applicable account designated to the Borrower by the Administrative Agent,
except that payments pursuant to Section 2.11, 2.12, 2.13, 2.16 and 10.05 shall
be made directly to the Persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for the account of any other Person
to the appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be payable for the period of
such extension. All payments hereunder of principal or interest in respect of
any Loan or any other amount due hereunder or under another Loan Document shall
be made in Dollars. Any payment required to be made by the Administrative Agent
hereunder shall be deemed to have been made by the time required if the
Administrative Agent shall, at or before such time, have taken the necessary
steps to make such payment in accordance with the regulations or operating
procedures of the clearing or settlement system used by the Administrative Agent
to make such payment.
(b) Except as otherwise provided in Section 2.07(d)(i) or
2.07(g)(ii), if at any time insufficient funds are received by and available to
the Administrative Agent from the Borrower to pay fully all amounts of
principal, interest and fees then due from the Borrower hereunder, such funds
shall be applied (i) first, towards payment of interest (other than any PIK
Interest Amount) and fees then due from the Borrower hereunder, ratably among
the parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, towards payment of principal
(including all amounts paid as a PIK Interest Amount) then due from the Borrower
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Loans of other Lenders to the extent necessary so that the
benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Loans; provided that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this Section 2.14(c) shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of
66
its Loans to any assignee or participant, other than to the Borrower or any
Subsidiary or Affiliate thereof (as to which the provisions of this Section
2.14(c) shall apply).
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders hereunder that the Borrower
will not make such payment, the Administrative Agent may assume that the
Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders the amount due. In such
event, if the Borrower has not in fact made such payment, then each of the
Lenders severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender with interest thereon, for each
day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be
made by it pursuant to Section 2.04(b), 2.14(d) or 9.05, the Administrative
Agent may, in its discretion (notwithstanding any contrary provision hereof),
apply any amounts thereafter received by the Administrative Agent for the
account of such Lender to satisfy such Lender's obligations under such Sections
until all such unsatisfied obligations are fully paid.
Section 2.15. Mitigation Obligations; Replacement Of Lenders. (a) If
any Lender requests compensation under Section 2.11 or 2.16, or if the Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.13, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or Affiliates, if, in the
reasonable judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.11, 2.13 or 2.16, as
applicable, in the future and (ii) would not subject such Lender to any material
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender in any material respect. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) If any Lender requests compensation under Section 2.11 or
2.16, or if the Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section
2.13, or is a Defaulting Lender, then the Borrower may, at its sole expense and
effort, upon notice to such Lender and the Administrative Agent, require such
Lender to
67
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 10.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts) and (ii) in the case of
any such assignment resulting from a claim for compensation under Section 2.11
or 2.16 or payments required to be made pursuant to Section 2.13, such
assignment will result in a reduction in such compensation or payments. Nothing
in this Section 2.15 shall be deemed to prejudice any rights that any Borrower
may have against any Lender that is a Defaulting Lender.
(c) If any Lender (such Lender, a "NON-CONSENTING LENDER") has
failed to consent to a proposed amendment, waiver, discharge or termination
which pursuant to the terms of Section 10.08 requires the consent of all of the
Lenders affected and with respect to which the Required Lenders shall have
granted their consent, then provided no Event of Default then exists, the
Borrower shall have the right (unless such Non-Consenting Lender grants such
consent) to replace such Non-Consenting Lender by requiring such Non-Consenting
Lender to assign its Loans and its Commitments hereunder to one or more
assignees reasonably acceptable to the Administrative Agent, provided that: (a)
all Bridge Obligations of the Borrower owing to such Non-Consenting Lender being
replaced shall be paid in full to such Non-Consenting Lender concurrently with
such assignment, and (b) the replacement Lender shall purchase the foregoing by
paying to such Non-Consenting Lender a price equal to the principal amount
thereof plus accrued and unpaid interest thereon. In connection with any such
assignment the Borrower, Administrative Agent, such Non-Consenting Lender and
the replacement Lender shall otherwise comply with Section 10.04.
Section 2.16. Additional Reserve Costs. (a) For so long as any Lender
is required to make special deposits with the Bank of England and/or the
Financial Services Authority (or, in either case any other authority which
replaces all or any of its functions) and/or the European Central Bank or comply
with reserve assets, liquidity, cash margin or other requirements of the Bank of
England and/or the Financial Services Authority (or, in either case any other
authority which replaced all or any of its functions) and/or the European
Central Bank, to maintain reserve asset ratios or to pay fees, in each case in
respect of such Lender's Loans, such Lender shall be entitled to require the
Borrower to pay, contemporaneously with each payment of interest on each of such
Loans, additional interest on such Loan at a percentage rate per annum equal to
the Mandatory Costs Rate calculated in accordance with the formulae and in the
manner set forth in Exhibit I hereto.
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(b) Any additional interest owed pursuant to paragraph (a) above
shall be determined by the applicable Lender, which determination shall be prima
facie evidence of the amount thereof, and notified to the Borrower (with a copy
to the Administrative Agent) at least 10 days before each date on which interest
is payable for the applicable Loan, and such additional interest so notified to
the Borrower by such Lender shall be payable to the Administrative Agent for the
account of such Lender on each date on which interest is payable for such Loan.
Section 2.17. Illegality. If any Lender reasonably determines that any
change in law has made it unlawful, or that any Governmental Authority has
asserted after the Closing Date that it is unlawful, for any Lender or its
applicable lending office to make or maintain any Loans, then (x) within 15 days
of notice thereof by such Lender to the Borrower through the Administrative
Agent, the Administrative Agent and the Borrower shall enter into negotiations
in good faith with a view to agreeing on an alternative rate of interest
acceptable to the Borrower to make, fund or maintain the affected Loans and (y)
if, at the expiration of 20 days from the giving of such notice by the
Administrative Agent, the Administrative Agent and the Borrower shall not have
reached agreement, such Loans will bear interest at a rate per annum specified
by such Lender to represent its cost of funds therefor plus the Applicable
Margin.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES.
Each of Holdings and the Borrower represents and warrants to each of
the Lenders that:
Section 3.01. Organization; Powers. Except as set forth on Schedule
3.01, each of Holdings, the Borrower and each of the Material Subsidiaries (a)
is a partnership, limited liability company, exempted company or corporation
duly organized, validly existing and in good standing (or, if applicable in a
foreign jurisdiction, enjoys the equivalent status under the laws of any
jurisdiction of organization outside the United States) under the laws of the
jurisdiction of its organization, (b) has all requisite power and authority to
own its property and assets and to carry on its business as now conducted, (c)
is qualified to do business in each jurisdiction where such qualification is
required, except where the failure so to qualify could not reasonably be
expected to have a Material Adverse Effect, and (d) has the power and authority
to execute, deliver and perform its obligations under each of the Loan Documents
and each other agreement or instrument contemplated thereby to which it is or
will be a party and, in the case of the Borrower, to borrow and otherwise obtain
credit hereunder.
Section 3.02. Authorization. The execution, delivery and performance
by Holdings, the Borrower, and each of their Subsidiaries of each of the Loan
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Documents to which it is a party, and the borrowings hereunder (a) have been
duly authorized by all corporate, stockholder, shareholder, limited liability
company or partnership action required to be obtained by Holdings, the Borrower
and such Subsidiaries and (b) will not (i) violate (A) any provision of law,
statute, rule or regulation, or of the certificate or articles of incorporation
or other constitutive documents or by-laws of Holdings, the Borrower or any such
Subsidiary, (B) any applicable order of any court or any rule, regulation or
order of any Governmental Authority or (C) any provision of any indenture,
certificate of designation for preferred stock, agreement or other instrument to
which Holdings, the Borrower or any such Subsidiary is a party or by which any
of them or any of their property is or may be bound, (ii) be in conflict with,
result in a breach of or constitute (alone or with notice or lapse of time or
both) a default under, give rise to a right of or result in any cancellation or
acceleration of any right or obligation (including any payment) or to a loss of
a material benefit under any such indenture, certificate of designation for
preferred stock, agreement or other instrument, where any such conflict,
violation, breach or default referred to in clause (i) or (ii) of this Section
3.02, could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, or (iii) result in the creation or imposition of any
Lien upon or with respect to any material property or assets now owned or
hereafter acquired by Holdings, Borrower or any such Subsidiary, other than the
Liens created by the Loan Documents.
Section 3.03. Enforceability. This Agreement has been duly executed
and delivered by Holdings and the Borrower and constitutes, and each other Loan
Document when executed and delivered by each Loan Party that is party thereto
will constitute, a legal, valid and binding obligation of such Loan Party
enforceable against each such Loan Party in accordance with its terms, subject
to (i) the effects of bankruptcy, insolvency, moratorium, reorganization,
fraudulent conveyance or other similar laws affecting creditors' rights
generally, (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and (iii)
implied covenants of good faith and fair dealing.
Section 3.04. Governmental Approvals. No action, consent or approval
of, registration or filing with or any other action by, any Governmental
Authority is or will be required in connection with the Transaction, except for
(a) the filing of Uniform Commercial Code financing statements, (b) such as have
been made or obtained and are in full force and effect, (c) such actions,
consents and approvals the failure to be obtained or made which could not
reasonably expected to have a Material Adverse Effect and (d) filings or other
actions listed on Schedule 3.04.
Section 3.05. Financial Statements. (a) Holdings has heretofore
furnished to the Lenders the audited consolidated balance sheet as of December
31, 2002 and the related audited consolidated statements of income and cash
flows of the Company and its subsidiaries for the year ended December 31, 2002
and the
70
unaudited interim consolidated balance sheet as of September 30, 2003 and the
related unaudited interim consolidated statements of income and cash flows of
the Company and its subsidiaries for the nine months ended September 30, 2003,
which were prepared in accordance with GAAP consistently applied (except as may
be indicated in the notes thereto), and fairly present in all material respects
the consolidated financial position of the Company and its subsidiaries as of
the dates thereof and their consolidated results of operations and cash flows
for the period then ended (in the case of the unaudited interim statements,
subject to normal year-end adjustments and the absence of notes).
(b) Holdings has heretofore furnished to the Lenders its pro forma
consolidated balance sheet as of December 31, 2003 prepared giving effect to the
Transaction as if the Transaction had occurred on such date. Such pro forma
consolidated balance sheet (i) has been prepared in good faith based on the
assumptions believed by Holdings and the Borrower to have been reasonable at the
time made and to be reasonable as of the Closing Date (it being understood that
such assumptions are based on good faith estimates with respect to certain items
and that the actual amounts of such items on the Closing Date is subject to
variation and that purchase accounting will not have been applied), (ii) subject
to the assumptions and qualifications described therein, accurately reflects all
adjustments necessary to give effect to the Transaction and (iii) subject to the
assumptions and qualifications described therein, presents fairly, in all
material respects, the pro forma consolidated financial position of Holdings and
its consolidated Subsidiaries as of December 31, 2003, as if the Transaction had
occurred on such date.
Section 3.06. No Material Adverse Effect. Since December 31, 2002 (but
after giving effect to the Transaction) no Material Adverse Effect has occurred.
Section 3.07. Title To Properties; Possession Under Leases. (a) Each
of Holdings, the Borrower and the Material Subsidiaries has good and valid
record fee simple title (insurable at ordinary rates) to, or valid leasehold
interests in, or easements or other limited property interests in, all its
properties and assets, except where the failure to have such title could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect. All such properties and assets are free and clear of Liens,
other than Liens expressly permitted by Section 6.04 or arising by operation of
law.
(b) Each of Holdings, the Borrower and the Material Subsidiaries
has complied with all obligations under all leases to which it is a party,
except where the failure to comply would not have a Material Adverse Effect, and
all such leases are in full force and effect, except leases in respect of which
the failure to be in full force and effect could not reasonably be expected to
have a Material Adverse Effect. Each of Holdings, the Borrower and each of the
Material Subsidiaries enjoys peaceful and undisturbed possession under all such
leases,
71
other than leases in respect of which the failure to enjoy peaceful and
undisturbed possession could not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect.
(c) Each of Holdings, the Borrower and the Material Subsidiaries
owns or possesses, or could obtain ownership or possession of, on terms not
materially adverse to it, all patents, trademarks, service marks, trade names,
copyrights, licenses and rights with respect thereto necessary for the present
conduct of its business, without any known conflict with the rights of others,
and free from any burdensome restrictions, except where such conflicts and
restrictions could not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
Section 3.08. Subsidiaries. (a) On the Closing Date, after giving
effect to the Transaction, the corporate structure of Holdings and its
Subsidiaries is in all material respects as set forth on Schedule 3.08(a) and on
the Restructuring Date, after giving effect to the Restructuring, the corporate
structure of Holdings and its Subsidiaries shall in all material respects be as
set forth on a Schedule delivered to the Lenders prior to the Restructuring
Date, such Schedule, to the extent it contains changes to the structure set
forth on Schedule 3.08(a) not provided for in the definition of "Restructuring
Date" or expressly permitted by the terms hereof, to be reasonably satisfactory
to the Administrative Agent.
(b) Schedule 3.08(b) sets forth as of the Closing Date the name
and jurisdiction of incorporation, formation or organization of each Material
Subsidiary and, as to each such Material Subsidiary, the percentage of each
class of Equity Interests owned by Holdings or by any such Material Subsidiary,
subject to such changes as are reasonably satisfactory to the Administrative
Agent.
(c) As of the Closing Date, there are no outstanding
subscriptions, options, warrants, calls, rights or other similar agreements or
commitments (other than stock options granted to employees or directors and
directors' qualifying shares) of any nature relating to any Equity Interests of
Holdings, the Borrower, the Company or any of the Material Subsidiaries, except
as set forth on Schedule 3.08(c).
(d) Except to the extent, if any, specified for a Subsidiary in
Schedule 1.01(a), each Subsidiary listed on Schedule 1.01(a) owns no property
other than de minimis assets and conducts no business other than de minimis
business.
Section 3.09. Litigation; Compliance with Laws. (a) Except as set
forth on Schedule 3.09, there are no actions, suits, investigations or
proceedings at law or in equity or by or on behalf of any Governmental Authority
or in arbitration now pending, or, to the knowledge of Holdings or the Borrower,
threatened in
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writing against or affecting Holdings or the Borrower or any of their
Subsidiaries or any business, property or rights of any such Person which could
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect or materially adversely affect the Transaction.
(b) None of Holdings, the Borrower, the Material Subsidiaries and
their respective properties or assets is in violation of (nor will the continued
operation of their material properties and assets as currently conducted
violate) any law, rule or regulation (including any zoning, building,
Environmental Law, ordinance, code or approval or any building permit), or is in
default with respect to any judgment, writ, injunction or decree of any
Governmental Authority, where such violation or default could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 3.10. Federal Reserve Regulations. (a) None of Holdings, the
Borrower and their Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.
(a) No part of the proceeds of any Loan or of the Senior Secured
Facilities or the loans under the Senior Subordinated Bridge C Loan Agreement
will be used, whether directly or indirectly, and whether immediately,
incidentally or ultimately, for any purpose that entails a violation of, or that
is inconsistent with, the provisions of the Regulations of the Board, including
Regulation U or Regulation X.
Section 3.11. Investment Company Act; Public Utility Holding Company
Act. None of Holdings, the Borrower and their Subsidiaries is (a) an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940, as amended, or (b) a "holding company" as defined in, or subject to
regulation under, the Public Utility Holding Company Act of 1935, as amended.
Section 3.12. Use Of Proceeds. (a) The proceeds of the Loans will,
upon receipt thereof by the Borrower, be lent by the Borrower to Bidco as an
intercompany loan.
(b) Bidco shall apply the proceeds of the intercompany loan
referred to in clause (a) solely to pay amounts payable as consideration for the
Offer.
Section 3.13. Tax Returns. Except as set forth on Schedule 3.13:
(a) each of Holdings, the Borrower and the Material Subsidiaries
(i) has timely filed or caused to be timely filed all federal, state, local and
non-U.S. Tax returns required to have been filed by it that are material to such
companies taken
73
as a whole and each such Tax return is true and correct in all material respects
and (ii) has timely paid or caused to be timely paid all material Taxes shown
thereon to be due and payable by it and all other material Taxes or assessments,
except Taxes or assessments that are being contested in good faith by
appropriate proceedings in accordance with Section 5.03 and for which Holdings,
the Borrower or any of the Material Subsidiaries (as the case may be) has set
aside on its books adequate reserves;
(b) each of Holdings, the Borrower and the Material Subsidiaries
has paid in full or made adequate provision (in accordance with GAAP) for the
payment of all Taxes due with respect to all periods or portions thereof ending
on or before the Closing Date, which Taxes, if not paid or adequately provided
for, could reasonably be expected to have a Material Adverse Effect; and
(c) as of the Closing Date, with respect to each of Holdings, the
Borrower and the Material Subsidiaries, (i) there are no material audits,
investigations or claims being asserted in writing with respect to any Taxes,
(ii) no presently effective waivers or extensions of statutes of limitation with
respect to Taxes have been given or requested and (iii) no material Tax returns
are being examined by, and no written notification of intention to examine has
been received from, the Internal Revenue Service or, with respect to any
material potential Tax liability, any other Taxing authority.
Section 3.14. No Material Misstatements. (a) All written information
(other than the Projections, estimates and information of a general economic
nature) (the "INFORMATION") concerning Holdings, the Borrower, their
Subsidiaries, the Transaction and any other transactions contemplated hereby
included in the Offer Document and/or (after the preparation and delivery
thereof) the Information Memorandum or otherwise prepared by or on behalf of the
foregoing or their representatives and made available to any Lenders or the
Administrative Agent in connection with the Transaction (as such Information may
have been supplemented in writing prior to the Closing Date) or the other
transactions contemplated hereby, when taken as a whole, were true and correct
in all material respects, as of the date such Information was furnished to the
Lenders and (in the case of such Information delivered prior to the Closing
Date) as of the Closing Date and did not contain any untrue statement of a
material fact as of any such date or omit to state a material fact necessary in
order to make the statements contained therein not materially misleading in
light of the circumstances under which such statements were made.
(b) The Projections and estimates and information of a general
economic nature prepared by or on behalf of the Borrower or any of its
representatives and that have been made available to any Lenders or the
Administrative Agent in connection with the Transaction or the other
transactions contemplated hereby (i) have been prepared in good faith based upon
assumptions
74
believed by the Borrower to be reasonable as of the date thereof and as of the
Closing Date, and (ii) as of the Closing Date, have not been modified in any
material respect by the Borrower.
Section 3.15. Employee Benefit Plans. (a) Each of the Borrower,
Holdings, the Material Subsidiaries and the ERISA Affiliates is in compliance
with the applicable provisions of ERISA and the provisions of the Code relating
to Plans and the regulations and published interpretations thereunder and any
similar applicable non-U.S. law, except for such noncompliance that could not
reasonably be expected to have a Material Adverse Effect. No Reportable Event
has occurred during the past five years as to which the Borrower, Holdings, any
of the Material Subsidiaries or any ERISA Affiliate was required to file a
report with the PBGC, other than reports that have been filed and reports the
failure of which to file could not reasonably be expected to have a Material
Adverse Effect. As of the Closing Date, the excess of the present value of all
benefit liabilities under each Plan of the Borrower, Holdings, the Material
Subsidiaries and the ERISA Affiliates (based on those assumptions used to fund
such Plan), as of the last annual valuation date applicable thereto for which a
valuation is available, over the value of the assets of such Plan could not
reasonably be expected to have a Material Adverse Effect, and the excess of the
present value of all benefit liabilities of all underfunded Plans (based on
those assumptions used to fund each such Plan) as of the last annual valuation
dates applicable thereto for which valuations are available, over the value of
the assets of all such under funded Plans could not reasonably be expected to
have a Material Adverse Effect. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events
which have occurred or for which liability is reasonably expected to occur,
could reasonably be expected to result in a Material Adverse Effect. None of the
Borrower, Holdings, the Material Subsidiaries and the ERISA Affiliates has
received any written notification that any Multiemployer Plan is in
reorganization or has been terminated within the meaning of Title IV of ERISA,
or has knowledge that any Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated, where such reorganization or termination has
had or could reasonably be expected to have, through increases in the
contributions required to be made to such Plan or otherwise, a Material Adverse
Effect.
(b) Each of Holdings, the Borrower and the Material Subsidiaries
is in compliance (i) with all applicable provisions of law and all applicable
regulations and published interpretations thereunder with respect to any
employee pension benefit plan or other employee benefit plan governed by the
laws of a jurisdiction other than the United States and (ii) with the terms of
any such plan, except, in each case, for such noncompliance that could not
reasonably be expected to have a Material Adverse Effect.
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Section 3.16. Environmental Matters. Except as disclosed in Schedule
3.16 and except as to matters that could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect (i) no written
notice, request for information, order, complaint or penalty has been received
by the Borrower or any of the Material Subsidiaries relating to the Borrower or
any of the Material Subsidiaries, and there are no judicial, administrative or
other actions, suits or proceedings relating to the Borrower or any of the
Material Subsidiaries pending or, to the knowledge of the Borrower, threatened
which allege a violation of or liability under any Environmental Laws, (ii) each
of the Borrower and the Material Subsidiaries has all environmental permits
necessary for its current operations to comply with all applicable Environmental
Laws and is, and since January 1, 2001 has been, in compliance with the terms of
such permits and with all other applicable Environmental Laws, (iii) there has
been no written environmental audit conducted since January 1, 2000 by the
Borrower or any of the Material Subsidiaries of any property currently owned or
leased by the Borrower or any of the Material Subsidiaries which has not been
made available to the Administrative Agent prior to the date hereof, (iv) no
Hazardous Material is located at any property currently owned, operated or
leased by the Borrower or any of the Material Subsidiaries that would reasonably
be expected to give rise to any cost, liability or obligation of the Borrower or
any of the Material Subsidiaries under any Environmental Laws, and no Hazardous
Material has been generated, owned or controlled by the Borrower or any of the
Material Subsidiaries and transported to or released at any location in a manner
that would reasonably be expected to give rise to any cost, liability or
obligation of the Borrower or any of the Material Subsidiaries under any
Environmental Laws, and (v) there are no acquisition agreements entered into
after December 31, 2000 in which the Borrower or any of the Material
Subsidiaries has expressly assumed or undertaken responsibility for any
liability or obligation of any other Person arising under or relating to
Environmental Laws, which in any such case has not been made available to the
Administrative Agent prior to the date hereof.
Section 3.17. Security Documents. Each Security Document is effective
to create in favor of the Collateral Agent (for the benefit of the Pledgees) a
legal, valid and enforceable security interest in the Collateral described
therein and proceeds thereof. In the case of the Pledge Agreement, when (i)
certificates, if any, representing the Collateral described therein are
delivered to the Collateral Agent (or the respective claims for delivery have
been assigned to the Collateral Agent) or (ii) such certificates, if any, are
deposited in the Securities Account (as defined therein), the Collateral Agent
(for the benefit of the Pledgees) shall
76
have a fully perfected Lien on, and security interest in, all right, title and
interest of Bidco in such Collateral and the proceeds thereof, as security for
the Bridge Obligations. In the case of the Bidco Loan Pledge Agreement, when
Bidco is notified of the pledge of the Bidco Loan by Parent pursuant to the
Bidco Loan Pledge Agreement, the Collateral Agent (for the benefit of the
Pledgees) shall have a fully perfected Lien on, and security interest in, all
right, title and interest of the Parent in the Collateral referred to therein
and the proceeds thereof, as security for the Bridge Obligations. The security
interests referred to in the preceding two sentences are prior and superior in
right to any other Person; provided that the "Bridge Obligations" (as defined in
the Senior Subordinated Bridge C Loan Agreement as in effect on the date hereof)
shall be secured on a pari passu basis with the Bridge Obligations following the
Delisting.
Section 3.18. Solvency. (a) (A) Both (x) immediately after giving
effect to the Transaction and (y) on the Restructuring Date, (i) the fair value
of the assets of Holdings and its Subsidiaries on a consolidated basis, at a
fair valuation, will exceed the debts and liabilities, direct, subordinated,
contingent or otherwise, of Holdings and its Subsidiaries on a consolidated
basis, respectively; (ii) the present fair saleable value of the property of
Holdings and its Subsidiaries on a consolidated basis will be greater than the
amount that will be required to pay the probable liability of Holdings and its
Subsidiaries on a consolidated basis on their debts and other liabilities,
direct, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (iii) Holdings and its Subsidiaries on
a consolidated basis will be able to pay their debts and liabilities, direct,
subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured; and (iv) Holdings and its Subsidiaries on a consolidated
basis will not have unreasonably small capital with which to conduct the
businesses in which they are engaged as such businesses are now conducted and
are proposed to be conducted following the Closing Date and (B) after giving
effect to the Transaction and prior to the Restructuring Date, Parent (x) has
not ceased, and does not expect that it will cease, making payments on its
liabilities when due and (y) can, and expects that it can, obtain credit in the
ordinary course of business.
(b) Neither Holdings nor the Borrower intends to, and does not
believe that it or any of the Material Subsidiaries will, incur debts beyond its
ability to pay such debts as they mature, taking into account the timing and
amounts of cash to be received by it or any such subsidiary and the timing and
amounts of cash to be payable on or in respect of its Indebtedness or the
Indebtedness of any such subsidiary.
Section 3.19. Labor Matters. There are no strikes pending or
threatened against Holdings, the Borrower or any of the Material Subsidiaries
that, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect. The hours worked and payments made to employees of
Holdings, the Borrower and the Material Subsidiaries have not been in violation
in any material respect of the Fair Labor Standards Act or any other applicable
law dealing with such matters. All material payments due from Holdings, the
Borrower or any of the Material Subsidiaries or for which any claim may be made
against Holdings, the Borrower or any of the Material Subsidiaries, on account
of
77
wages and employee health and welfare insurance and other benefits have been
paid or accrued as a liability on the books of Holdings, the Borrower or such
Material Subsidiary to the extent required by GAAP. Except as set forth on
Schedule 3.19, consummation of the Transaction will not give rise to a right of
termination or right of renegotiation on the part of any union under any
collective bargaining agreement to which Holdings, the Borrower or any of the
Material Subsidiaries (or any predecessor) is a party or by which Holdings, the
Borrower or any of the Material Subsidiaries (or any predecessor) is bound,
other than collective bargaining agreements that, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
Section 3.20. Insurance. Schedule 3.20 sets forth a true, complete and
correct description of all material insurance maintained by or on behalf of
Holdings, the Borrower or the Material Subsidiaries as of the Closing Date. As
of the Closing Date, such insurance is in full force and effect. The Borrower
believes that the insurance maintained by or on behalf of Holdings, the Borrower
and the Material Subsidiaries is adequate.
ARTICLE 4
CONDITIONS OF LENDING
Section 4.01. Initial Loans. The obligations of the Lenders to make
the Initial Loans are subject to the satisfaction of the following conditions on
the date of the Borrowing of the Initial Loans:
(a) The Administrative Agent shall have received a Borrowing
Request as required by Section 2.03.
(b) The Administrative Agent (or its counsel) shall have received
from each party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the Administrative
Agent (which may include telecopy transmission of a signed signature page of
this Agreement) that such party has signed a counterpart of this Agreement.
(c) The Administrative Agent shall have received, on behalf of
itself, the Collateral Agent and the Lenders, a favorable written opinion of (i)
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, special counsel for Holdings and the Borrower,
in form and substance reasonably satisfactory to the Administrative Agent and
(ii) local U.S. and/or foreign counsel reasonably satisfactory to the
Administrative Agent as specified on Schedule 4.01(c), in each case (A) dated
the Closing Date, (B) addressed to the Administrative Agent, the Collateral
Agent and the Lenders and (C) in form and substance reasonably satisfactory to
the Administrative Agent and covering such other matters relating to the Loan
Documents and the Transaction
78
as the Administrative Agent shall reasonably request, and each of Holdings and
the Borrower hereby instructs its counsel to deliver such opinions.
(d) The Administrative Agent shall have received in the case of
each Person that is a Loan Party on the Closing Date each of the items referred
to in clauses (i), (ii) and (iii) below:
(i) a copy of the certificate or articles of
incorporation, memorandum and articles of association, partnership
agreement or limited liability agreement, including all amendments
thereto, of each such Loan Party, (A) in the case of a corporation,
certified as of a recent date by the Secretary of State (or other
similar official) of the jurisdiction of its organization, and a
certificate as to the good standing under the jurisdiction of its
organization (to the extent such concept or a similar concept exists
under the laws of such jurisdiction) of each such Loan Party as of a
recent date from such Secretary of State (or other similar official),
(B) in the case of a partnership or limited liability company,
certified by the manager, Secretary or Assistant Secretary or other
appropriate officer of each such Loan Party or (C) in the case of a
Cayman Islands exempted company, a copy of the memorandum and articles
of association of such company stamped as registered and filed as of a
recent date by the Registrar of Companies in the Cayman Islands;
(ii) a certificate of the manager, director, Secretary or
Assistant Secretary or similar officer of each such Loan Party dated
the Closing Date and certifying:
(A) that attached thereto is a true and complete
copy of the by-laws (or partnership agreement, limited
liability company agreement or other equivalent governing
documents) of such Loan Party as in effect on the Closing Date
and at all times since a date prior to the date of the
resolutions described in clause (B) below,
(B) that attached thereto is a true and complete
copy of resolutions duly adopted by the Board of Directors (or
equivalent governing body) of such Loan Party (or its managing
general partner or managing member) authorizing the execution,
delivery and performance of the Loan Documents to which such
Person is a party and, in the case of the Borrower, the
borrowings hereunder, and that such resolutions have not been
modified, rescinded or amended and are in full force and
effect on the Closing Date,
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(C) that the certificate or articles of
incorporation, memorandum and articles of association,
partnership agreement or limited liability agreement of such
Loan Party have not been amended since the date of the last
amendment thereto disclosed pursuant to clause (i) above,
(D) as to the incumbency and specimen signature
of each officer executing any Loan Document or any other
document delivered in connection herewith on behalf of such
Loan Party, and
(E) as to the absence of any pending proceeding
for the dissolution or liquidation of such Loan Party or, to
the knowledge of such Person, threatening the existence of
such Loan Party; and
(iii) to the extent customarily provided in the applicable
jurisdiction, a certificate of another officer, director or
attorney-in-fact as to the incumbency and specimen signature of the
Secretary or Assistant Secretary or similar officer executing the
certificate pursuant to clause (ii) above.
(e) Each of the Holdco Equity Financing and the borrowing of the
loans under the Senior Subordinated Bridge C Loan Agreement shall have been
consummated as described in the recitals of this Agreement.
(f) The Administrative Agent shall have received all fees payable
to it, DBNY or any other Lender on or prior to the Closing Date and, to the
extent invoiced, all other amounts due and payable pursuant to the Loan
Documents on or prior to the Closing Date, including, to the extent invoiced,
reimbursement or payment of all reasonable out-of-pocket expenses (including
reasonable fees, charges and disbursements of Xxxxx Xxxx & Xxxxxxxx and U.S. and
foreign local counsel) required to be reimbursed or paid by the Loan Parties
hereunder or under any Loan Document.
(g) Holdings or the Borrower shall not have cancelled or rescinded
this Agreement or the Commitments hereunder.
(h) The Offer shall have been accepted with respect to at least
75% of the registered ordinary shares of the Company outstanding at the end of
the acceptance period under the Offer, excluding treasury shares.
(i) At the time of and immediately after giving effect to the
Borrowing, (i) no Major Default shall have occurred and be continuing and (ii)
the representations and warranties contained in Section 3.01(a), (b) and (d) and
3.02
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with respect to Holdings, Parent and/or Bidco and Section 3.10 shall be true and
correct in all material respects.
Section 4.02. Certain Funds Period. For the avoidance of doubt, during
the Certain Funds Period (other than as referred to above) no Lender shall (a)
exercise any right to terminate the obligation to make any Loan, (b) exercise
any right of rescission in respect of this Agreement or in respect of a Loan or
(c) exercise any right of acceleration, termination, cancellation or set-off in
respect of any Loan (other than set-off in respect of fees, costs and expenses
as agreed in the funds flow document).
ARTICLE 5
AFFIRMATIVE COVENANTS
Each of Holdings and the Borrower covenants and agrees with each Lender
that so long as this Agreement shall remain in effect and until the Commitments
have been terminated and the principal of and interest on each Loan, all fees
and all other expenses or amounts payable under any Loan Document shall have
been paid in full, unless the Required Lenders shall otherwise consent in
writing, each of Holdings and the Borrower will, and (other than in the case of
Sections 5.04 and 5.05) will cause each of the Material Subsidiaries to:
Section 5.01. Existence; Business And Properties. (a) Do or cause to
be done all things necessary to preserve, renew and keep in full force and
effect its legal existence, except as otherwise expressly permitted under
Section 6.05, and except for the liquidation or dissolution of Subsidiaries if
the assets of such Subsidiaries to the extent they exceed estimated liabilities
are acquired by a Borrower or a Wholly Owned Subsidiary of a Borrower in such
liquidation or dissolution; provided that Subsidiaries that are Loan Parties may
not be liquidated into Subsidiaries that are not Loan Parties and Domestic
Subsidiaries may not be liquidated into Foreign Subsidiaries.
(b) Do or cause to be done all things necessary to (i) obtain,
preserve, renew, extend and keep in full force and effect the permits,
franchises, authorizations, patents, trademarks, service marks, trade names,
copyrights, licenses and rights with respect thereto necessary to the normal
conduct of its business, (ii) comply in all material respects with all material
applicable laws, rules, regulations and material judgments, writs, injunctions,
decrees and orders of any Governmental Authority, whether now in effect or
hereafter enacted and (iii) at all times maintain and preserve all property
necessary to the normal conduct of its business and keep such property in good
repair, working order and condition and from time to time make, or cause to be
made, all needful and proper repairs, renewals, additions, improvements and
replacements thereto necessary in order
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that the business carried on in connection therewith, if any, may be properly
conducted at all times (in each case except as expressly permitted by this
Agreement).
Section 5.02. Insurance. Keep its insurable properties insured at all
times by financially sound and reputable insurers in such amounts as shall be
customary for similar businesses and maintain such other reasonable insurance
(including, to the extent consistent with past practices, self-insurance), of
such types, to such extent and against such risks, as is customary with
companies in the same or similar businesses and maintain such other insurance as
may be required by law or any other Loan Document.
Section 5.03. Taxes. Pay and discharge promptly when due all material
Taxes, assessments and governmental charges or levies imposed upon it or upon
its income or profits or in respect of its property, before the same shall
become delinquent or in default, as well as all lawful claims for labor,
materials and supplies or otherwise that, if unpaid, might give rise to a Lien
upon such properties or any part thereof; provided, however, that such payment
and discharge shall not be required with respect to any such Tax, assessment,
charge, levy or claim so long as the validity or amount thereof shall be
contested in good faith by appropriate proceedings, and Holdings, the Borrower
or the affected Subsidiary, as applicable, shall have set aside on its books
reserves in accordance with GAAP with respect thereto.
Section 5.04. Financial Statements, Reports, Etc. Furnish to the
Administrative Agent (which will furnish such information to the Lenders):
(a) within 90 days after the end of each fiscal year, a
consolidated balance sheet and related consolidated statements of operations,
cash flows and owners' equity showing the financial position of Holdings and the
Subsidiaries as of the close of such fiscal year and the consolidated results of
their operations during such year, with all consolidated statements audited by
independent public accountants of recognized national standing reasonably
acceptable to the Administrative Agent and accompanied by an opinion of such
accountants (which shall not be qualified in any material respect) to the effect
that such consolidated financial statements fairly present, in all material
respects, the financial position and results of operations of Holdings and the
Subsidiaries on a consolidated basis in accordance with GAAP (it being
understood that the delivery by Holdings of Annual Reports on Form 10-K of
Holdings and its consolidated Subsidiaries shall satisfy the requirements of
this Section 5.04(a) to the extent such Annual Reports include the information
specified herein);
(b) within 45 days (75 days in the case of the fiscal quarter
ending June 30, 2004) after the end of each of the first three fiscal quarters
of each fiscal year commencing with the fiscal quarter ending June 30, 2004, a
consolidated balance
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sheet and related consolidated statements of operations and cash flows showing
the financial position of Holdings and the Subsidiaries as of the close of such
fiscal quarter and the consolidated results of their operations during such
fiscal quarter and the then-elapsed portion of the fiscal year, all certified by
a Financial Officer of Holdings, on behalf of Holdings, as fairly presenting, in
all material respects, the financial position and results of operations of
Holdings and the Subsidiaries on a consolidated basis in accordance with GAAP
(subject to normal year-end adjustments and the absence of footnotes) (it being
understood that the delivery by Holdings of Quarterly Reports on Form 10-Q of
Holdings and its consolidated Subsidiaries shall satisfy the requirements of
this Section 5.04(b) to the extent such Quarterly Reports include the
information specified herein);
(c) (x) concurrently with any delivery of financial statements
under (a) or (b) above, (A) a certificate of a Financial Officer of Holdings
certifying that no Event of Default or Default has occurred or, if such an Event
of Default or Default has occurred, specifying the nature and extent thereof and
any corrective action taken or proposed to be taken with respect thereto and (B)
a reasonably detailed break-out of operational performance by business units for
the year or quarter then ended and (y) concurrently with any delivery of
financial statements under (a) above, a certificate of the accounting firm
opining on or certifying such statements stating whether they obtained knowledge
during the course of their examination of such statements of any Default or
Event of Default (which certificate may be limited to accounting matters and
disclaim responsibility for legal interpretations);
(d) promptly after the same become publicly available, copies of
all periodic and other publicly available reports, proxy statements and, to the
extent requested by the Administrative Agent, other materials filed by Holdings,
the Borrower or any of the Subsidiaries with the SEC, or after an initial public
offering, distributed to its stockholders generally, as applicable;
(e) if, as a result of any change in accounting principles and
policies from those as in effect on the Closing Date, the consolidated financial
statements of Holdings and the Subsidiaries delivered pursuant to paragraphs (a)
or (b) above will differ in any material respect from the consolidated financial
statements that would have been delivered pursuant to such clauses had no such
change in accounting principles and policies been made, then, together with the
first delivery of financial statements pursuant to paragraph (a) and (b) above
following such change, a schedule prepared by a Financial Officer on behalf of
Holdings reconciling such changes to what the financial statements would have
been without such changes;
(f) within 90 days after the beginning of each fiscal year, an
operating and capital expenditure budget, in form reasonably satisfactory to the
Administrative Agent prepared by Holdings for each of the four fiscal quarters
of
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such fiscal year prepared in reasonable detail, of Holdings and the
Subsidiaries, accompanied by the statement of a Financial Officer of Holdings to
the effect that, to the best of his knowledge, the budget is a reasonable
estimate for the period covered thereby;
(g) promptly, a copy of all reports submitted to the Board of
Directors (or any committee thereof) of any of Holdings, the Borrower or any
Material Subsidiary in connection with any interim or special audit that is
material made by independent accountants of the books of Holdings, the Borrower
or any Subsidiary;
(h) promptly following delivery thereof to any Permitted Investor,
periodic information packages relating to the operations and cash flows of
Holdings and the Subsidiaries;
(i) promptly, from time to time, such other information regarding
the operations, business affairs and financial condition of Holdings, the
Borrower or any of the Subsidiaries, or compliance with the terms of any Loan
Document, as in each case the Administrative Agent may reasonably request;
(j) promptly upon request by the Administrative Agent, copies of:
(i) each Schedule B (Actuarial Information) to the annual report (Form 5500
Series) filed with the Internal Revenue Service with respect to a Plan; (ii) the
most recent actuarial valuation report for any Plan; (iii) all notices received
from a Multiemployer Plan sponsor or any governmental agency concerning an ERISA
Event; and (iv) such other documents or governmental reports or filings relating
to any Plan or Multiemployer Plan as the Administrative Agent shall reasonably
request; and
(k) promptly and in any event within 45 days after the Closing
Date, an unaudited consolidated balance sheet and related unaudited consolidated
statements of operations and cash flows showing the financial position of the
Company and its subsidiaries as of the close of the period commencing January 1,
2004 and ending on either the Closing Date or March 31, 2004 (at the election of
the Company) and the consolidated results of their operations during such period
certified by a Responsible Officer of, and acting on behalf of, Holdings or the
Company as fairly presenting, in all material respects, the financial position
and results of operations of the Company and its subsidiaries on a consolidated
basis.
Section 5.05. Litigation And Other Notices. Furnish to the
Administrative Agent written notice of the following promptly after any
Responsible Officer of Holdings or the Borrower obtains actual knowledge
thereof:
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(a) any Event of Default or Default, specifying the nature and
extent thereof and the corrective action (if any) proposed to be taken with
respect thereto;
(b) the filing or commencement of, or any written threat or notice
of intention of any Person to file or commence, any action, suit or proceeding,
whether at law or in equity or by or before any Governmental Authority or in
arbitration, against Holdings, the Borrower or any of the Subsidiaries as to
which an adverse determination is reasonably probable and which, if adversely
determined, could reasonably be expected to have a Material Adverse Effect;
(c) any other development specific to Holdings, the Borrower or
any of the Subsidiaries that is not a matter of general public knowledge and
that has had, or could reasonably be expected to have, a Material Adverse
Effect; and
(d) the occurrence of any ERISA Event, that together with all
other ERISA Events that have occurred, could reasonably be expected to have a
Material Adverse Effect.
Section 5.06. Compliance With Laws. Comply with all laws, rules,
regulations and orders of any Governmental Authority applicable to it or its
property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect;
provided that this Section 5.06 shall not apply to Environmental Laws, which are
the subject of Section 5.09, or to laws related to Taxes, which are the subject
of Section 5.03.
Section 5.07. Maintaining Records; Access To Properties And
Inspections. Maintain all financial records in accordance with GAAP and permit
any Persons designated by the Agents or, upon the occurrence and during the
continuance of an Event of Default, any Lender to visit and inspect the
financial records and the properties of Holdings, the Borrower or any of the
Subsidiaries at reasonable times, upon reasonable prior notice to Holdings or
the Borrower, and as often as reasonably requested and to make extracts from and
copies of such financial records, and permit any Persons designated by the
Agents or, upon the occurrence and during the continuance of an Event of
Default, any Lender upon reasonable prior notice to Holdings or the Borrower to
discuss the affairs, finances and condition of Holdings, the Borrower or any of
the Subsidiaries with the officers thereof and (subject to a senior officer of
the respective company or a parent thereof being present) independent
accountants therefor (subject to reasonable requirements of confidentiality,
including requirements imposed by law or by contract).
Section 5.08. Use Of Proceeds. Use the proceeds of Loans only in
compliance with the representation contained in Section 3.12.
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Section 5.09. Compliance With Environmental Laws. Comply, and make
reasonable efforts to cause all lessees and other Persons occupying its
properties to comply, with all Environmental Laws applicable to its operations
and properties; and obtain and renew all material authorizations and permits
required pursuant to Environmental Law for its operations and properties, in
each case in accordance with Environmental Laws, except, in each case with
respect to this Section 5.09, to the extent the failure to do so could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
Section 5.10. Further Assurances. (a) Execute any and all further
documents, financing statements, agreements and instruments, and take all such
further actions (including the filing and recording of financing statements and
other documents and recordings of Liens in stock registries), that may be
required under any applicable law, or that the Administrative Agent may
reasonably request, to cause the Collateral and Guarantee Requirement to be and
remain satisfied, all at the expense of the Loan Parties (other than Bidco) and
provide to the Administrative Agent, from time to time upon reasonable request,
evidence reasonably satisfactory to the Administrative Agent as to the
perfection and priority of the Liens created or intended to be created by the
Security Documents.
(b) Furnish to the Collateral Agent prompt written notice of any
change (A) in Bidco's or the Borrower's corporate or organization name, (B) in
Bidco's or the Borrower's identity or organizational structure or (C) in Bidco's
or the Borrower's organizational identification number; provided that the
Borrower shall not effect or permit any such change unless all filings have been
made, or will have been made within any statutory period, under the Uniform
Commercial Code or otherwise that are required in order for the Collateral Agent
to continue at all times following such change to have a valid, legal and
perfected security interest in all the Collateral for the benefit of the
Pledgees; and provided further that this paragraph (b) shall not apply to Bidco
after the Restructuring Date.
(c) Cause any shares of capital stock of the Company that are
acquired by Bidco pursuant to the Offer and that are held in book-entry form
through the Clearstream Banking AG system to be subject to the lien of the
Pledge Agreement promptly (and in any event within two Business Days) following
such acquisition.
(d) Cause any shares of capital stock of the Company that are
acquired by Bidco pursuant to the Offer (other than any such shares that are
held in book-entry form through the Clearstream Banking AG system) to be subject
to the lien of the Pledge Agreement promptly (and in any event within four
Business Days) following such acquisition.
Section 5.11. Fiscal Year; Accounting. In the case of Holdings and the
Borrower, cause its fiscal year to end on December 28 or on such other date as
is
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consented to by the Administrative Agent (which consent shall not be
unreasonably withheld or delayed).
Section 5.12. Post-Closing Matters. To the extent not executed and
delivered on the Closing Date, execute and deliver the documents and complete
the tasks set forth on Schedule 5.12, in each case within the time limits
specified on such schedule.
Section 5.13. Delisting. In the case of the Borrower, use its
commercially reasonable best efforts to effect the Delisting as promptly as
possible.
Section 5.14. Permanent Securities. In the case of the Borrower, upon
notice by the Joint Lead Arrangers (acting together) in writing at any time on
or after the 90th day (or such earlier day as may be separately agreed by the
Borrower and the Joint Lead Arrangers) after the Closing Date and prior to the
first anniversary of the Closing Date that the Joint Lead Arrangers are prepared
to execute a purchase agreement, committing them to the purchase of Permanent
Securities, after a customary marketing period (as determined by the Joint Lead
Arrangers, acting together, after consultation with the Borrower and in any
event not less than six days), issue and sell Permanent Securities with interest
expense, restrictive covenants, events of defaults and remedies, maturity,
redemption features and other provisions as previously agreed in writing in the
Commitment Papers.
Section 5.15. Use of Proceeds of the Permanent Securities. In the case
of the Borrower, use the net proceeds received by it from the sale of the
Permanent Securities to repay the Loans to the extent required by Section
2.07(b).
Section 5.16. Exchange Notes. (a) In the case of the Borrower, as
promptly as practicable after being requested to do so by the Joint Lead
Arrangers at any time on or after the Initial Maturity Date, (i) select a bank
or trust company reasonably acceptable to the Lenders to act as Exchange Note
Trustee, (ii) enter into the Exchange Note Indenture and the Exchange and
Registration Rights Agreement substantially in the form of Exhibit G, and (iii)
cause counsel to the Borrower to deliver to the Administrative Agent an executed
legal opinion in form and substance customary for a transaction of that type to
be mutually agreed upon by the Borrower and the Administrative Agent (including,
without limitation, with respect to due authorization, execution and delivery;
validity; and enforceability of the Exchange Documents and the Exchange and
Registration Rights Agreement referred to in clause (ii) above).
(b) In the case of the Borrower, on the fifth Business Day
following the written request (the "EXCHANGE REQUEST") of the holder of any Loan
(or beneficial owner of a portion thereof) at any time after the Initial
Maturity Date:
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(i) execute and deliver, cause each other Loan Party to
execute and deliver, and cause the Exchange Note Trustee to execute and
deliver, the Exchange Note Indenture if such Exchange Note Indenture
has not previously been executed and delivered;
(ii) if such Exchange Request is delivered prior to the
Restructuring Date, at the request of the Collateral Agent, cause each
Loan Party that is party to a Security Document to enter into such
amendments to such Security Document as are reasonably necessary to
enable the Exchange Note Holders and the Lenders to obtain the benefits
thereof to the same extent as contemplated in such Security Document on
the date hereof; and
(iii) execute and deliver to such holder or beneficial
owner in accordance with the Exchange Note Indenture an Exchange Note
bearing interest as set forth therein (which, at the election of such
holder or beneficial owner, may be fixed at a rate not higher than the
rate then applicable to such Loan) in exchange for such Loan dated the
date of the issuance of such Exchange Note, payable to the order of
such holder or owner, as the case may be, in the same principal amount
as such Loan (or portion thereof) being exchanged.
The Exchange Request shall specify the principal amount of the Loans to
be exchanged pursuant to this Section which shall be at least $80,000,000 and
integral multiples of $1,000,000 in excess thereof or the entire remaining
aggregate principal amount of the Loans of such Lender. Loans delivered to the
Borrower under this Section in exchange for Exchange Notes shall be canceled by
the Borrower, and the corresponding amount of the Loan deemed repaid and the
Exchange Notes shall be governed by and construed in accordance with the terms
of the Exchange Note Indenture.
The Exchange Note Trustee shall at all times be a corporation organized
and doing business under the laws of the United States or the State of New York,
in good standing and having its principal offices in the Borough of Manhattan,
in The City of New York, which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or examination by federal
or state authority and which has a combined capital and surplus of not less than
$500,000,000.
(c) If Exchange Notes are issued pursuant to the terms hereof,
then the holders of such Exchange Notes shall have the registration rights with
respect to such Exchange Notes described in Exhibit G.
Section 5.17. Change of Control. (a) Upon a Change of Control, the
Borrower shall prepay each Lender's Loans and Loan Notes (including any
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Subsequent Initial Notes and Subsequent Extended Notes), without any premium,
plus accrued and unpaid interest, if any, to the date of prepayment in
accordance with the terms contemplated in this Section 5.17.
(b) Prior to complying with the provisions of this Section 5.17,
but in any event within 30 days following a Change of Control, the Borrower
shall either repay all outstanding Indebtedness under the Senior Secured
Facilities or obtain the requisite consents, if any, under the Senior Secured
Facilities necessary to permit the prepayment of the Loans and Loan Notes
required by this Section 5.17, provided that the failure to repay such
Indebtedness or obtain such consent shall not affect the obligation of the
Borrower pursuant to Section 5.17(a).
(c) The Borrower shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws or regulations are applicable in connection with the
repayment of the Loans pursuant to a Change of Control. To the extent that the
provisions of any securities laws or regulations conflict with the provisions of
this Section 5.17, the Borrower shall comply with the applicable securities laws
and regulations and shall not be deemed to have breached its obligations
described in this Section 5.17 by virtue thereof; provided that the Borrower
shall comply with the provisions of this Section 5.17 to the extent legally
possible.
Section 5.18. Conduct Of Offer and Squeeze Out. In the case of
Holdings and the Borrower:
(a) cause Bidco to conduct the Offer in all material respects in
accordance with, and ensure that the Offer Documents at all times conform to and
satisfy in all material respects the applicable requirements of, all material
consents, laws, rules, regulations and orders of any Governmental Authority
applicable thereto (including, without limitation, the German Takeover Act
(Wertpapiererwerbs-und Ubernahmegesetz) (the "TAKEOVER ACT") and the ordinances
enacted thereunder (except to the extent any provisions of such Act and
ordinances are waived by BAFin) and other applicable securities laws (including,
without limitation, the Exchange Act));
(b) cause Bidco (i) to conduct any Squeeze Out in all material
respects in accordance with, and ensure that all documents required to be
prepared by Bidco in connection with any Squeeze Out (including, without
limitation, the report to the shareholders, the application to appoint an
independent appraiser and the bank guarantee), conform to and satisfy in all
material respects, the applicable requirements of all material consents, laws,
rules, regulations and orders of any Governmental Authority applicable thereto
(including, without limitation, the German Stock Corporation Act (Aktiengesetz)
(the "STOCK CORPORATION ACT") and (ii) to use its influence (to the maximum
extent permitted by applicable law) to cause the Company to ensure that all
documents required to be prepared by the
89
Company in connection with the Squeeze Out (including, without limitation, the
invitation to the shareholders' meeting) and the procedures prior to and during
the shareholders' meeting approving the Squeeze Out conform to and satisfy in
all material respects the applicable requirements of all material consents,
laws, rules, regulations and orders of any Governmental Authority applicable
thereto (including, without limitation, the Stock Corporation Act) and
applicable securities laws (including without limitation, the Exchange Act);
(c) provide the Administrative Agent with periodic written reports
of the then current status of and progress with respect to all material matters
relating to the Offer (including any Squeeze Out), which matters, individually
or in the aggregate, could reasonably be expected to materially and adversely
affect the Lenders;
(d) promptly upon the occurrence thereof, notify the
Administrative Agent of any event or circumstance the occurrence of which would
entitle Bidco to withdraw the Offer, such notice to specify the nature of such
event or circumstance and the action (if any) proposed to be taken with respect
thereto; and
(e) ensure that neither Bidco, nor any of its Affiliates, nor any
"Person Acting in Concert" (gemeinsam handelnde Personen) (as defined in the
Takeover Act) with it shall become obligated to make an offer to the
shareholders of the Company under Section 35 of the Takeover Act without the
consent of the Joint Lead Arrangers.
Section 5.19. Guarantees By Certain Subsidiaries. On and after the
Restructuring Date, upon the occurrence of the guarantee by any Restricted
Subsidiary of the obligations of the Borrower or any Subsidiary that is not a
Foreign Subsidiary under the Senior Secured Facilities, cause each such
Restricted Subsidiary to execute the Guarantee Agreement or a Guarantee
Supplement (and provide such documentation relating thereto as the
Administrative Agent may reasonably require, including, without limitation,
opinions of counsel as to the enforceability of such guarantee), pursuant to
which such Restricted Subsidiary will become a Guarantor.
Notwithstanding the foregoing and the other provisions of this Agreement, any
Guarantee by a Restricted Subsidiary shall provide by its terms that it shall be
automatically and unconditionally released and discharged under the
circumstances set forth in Section 10.20.
Section 5.20. Closing Date Matters. Cause each of the following to be
satisfied as of the Closing Date:
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(a) The representations and warranties set forth in Article 3
hereof shall be true and correct in all material respects on and as of the
Closing Date, with the same effect as though made on and as of such date, except
to the extent such representations and warranties expressly relate to an earlier
date (in which case such representations and warranties shall be true and
correct in all material respects as of such earlier date).
(b) At the time of and immediately after the Borrowing of the
Initial Loans on the Closing Date, no Event of Default or Default shall have
occurred and be continuing.
(c) All legal matters incident to this Agreement, the borrowings
and extensions of credit hereunder and the other Loan Documents shall be
reasonably satisfactory to the Administrative Agent and to the Lenders on the
Closing Date.
(d) The Administrative Agent shall have received in the case of
each Person that is a Loan Party on the Closing Date, such documents as the
Administrative Agent may have reasonably requested (including, without
limitation, tax identification numbers and addresses).
(e) The Collateral and Guarantee Requirements shall have been
satisfied or waived, or arrangements satisfactory to the Collateral Agent shall
have been made for the satisfaction of the Collateral and Guarantee Requirements
relating to the Pledge Agreement promptly after the Closing Date.
(f) Consummation of the Offer shall have occurred.
(g) The Lenders shall have received the financial statements
referred to in Section 3.05(a).
(h) The Lenders shall have received the pro forma consolidated
balance sheet referred to in Section 3.05(b).
(i) After giving effect to the Transaction and the other
transactions contemplated hereby, Holdings and its Subsidiaries shall have
outstanding no Indebtedness other than (i) the Loans and other extensions of
credit under this Agreement, (ii) the Senior Secured Facilities, (iii) the
Senior Subordinated Bridge C Loan Agreement and (iv) other Indebtedness
permitted pursuant to Section 6.03. The Bidco Loan (in an amount not less than
the aggregate principal amount of borrowings hereunder on the Closing Date)
shall be effected concurrently with the making of the Loans hereunder.
(j) The Lenders shall have received a solvency certificate
substantially in the form of Exhibit H and signed by a director or a Responsible
Officer of
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Holdings confirming the solvency of Holdings and its Subsidiaries on a
consolidated basis after giving effect to the Transaction.
(k) No provision of any applicable law or regulation and no
judgment, injunction, order or decree shall prohibit the consummation of the
Transaction, and all material actions by or in respect of or material filings
with any Governmental Authority required to permit the consummation of the
Transaction shall have been taken, made or obtained, except for any such actions
or filings the failure to take, make or obtain would not be material to Holdings
and its Subsidiaries, taken as a whole.
(l) The Credit Agreement shall have been entered into by the
parties thereto and shall be in full force and effect.
ARTICLE 6
NEGATIVE COVENANTS
Except as modified on the Initial Maturity Date as set forth in Section
10.08, each of Holdings and the Borrower covenants and agrees with each Lender
that, so long as this Agreement shall remain in effect and until the Commitments
have been terminated and the principal of and interest on each Loan, all Fees
and all other expenses or amounts payable under any Loan Document have been paid
in full, unless the Required Lenders shall otherwise consent in writing, neither
Holdings (solely in the case of Section 6.05(a)) nor the Borrower will or will
cause or permit any of the Restricted Subsidiaries to:
Section 6.01. Limitation on Asset Sales. (a) Make or suffer to exist
an Asset Sale, unless (x) the Borrower or such Restricted Subsidiary, as the
case may be, receives consideration at the time of such Asset Sale at least
equal to the fair market value (as determined in good faith by the Borrower) of
the assets sold or otherwise disposed of and (y) except in the case of the sale
of the performance products business of Nutrinova, at least 75% of the
consideration therefor received by the Borrower or such Restricted Subsidiary,
as the case may be, is in the form of cash or Cash Equivalents; provided that
the amount of (i) any liabilities (as shown on the Borrower's or such Restricted
Subsidiary's most recent balance sheet or in the notes thereto) of the Borrower
or any Restricted Subsidiary (other than liabilities that are by their terms
subordinated to the Loans) that are assumed by the transferee of any such assets
and for which the Borrower and all Restricted Subsidiaries have been validly
released by all creditors in writing, (ii) any securities received by the
Borrower or such Restricted Subsidiary from such transferee that are converted
by the Borrower or such Restricted Subsidiary into cash (to the extent of the
cash received) within 180 days following the closing of such Asset Sale and/or
(iii) any Designated Non-Cash Consideration received by the Borrower or any
Restricted Subsidiary in such
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Asset Sale having an aggregate fair market value, taken together with all other
Designated Non-Cash Consideration received pursuant to this clause (iii) that is
at that time outstanding, not to exceed $50.0 million (with the fair market
value of each item of Designated Non-Cash Consideration being measured at the
time received and without giving effect to subsequent changes in value), shall
be deemed to be cash for purposes of this provision and for no other purpose.
Subject to compliance with clause (b) below, this clause (a) shall not restrict
any Asset Sale described in the definition of "Restructuring" and entered into
to give effect to the Restructuring.
(b) Notwithstanding anything to the contrary in Section 6.01(a),
at all times prior to the Restructuring Date, (i) the Borrower shall own
directly or indirectly 100% of the Equity Interests of Bidco and (ii) neither
the Borrower nor Bidco shall sell, transfer or otherwise dispose of any
Collateral (other than as set forth in the Security Documents).
Section 6.02. Limitation On Restricted Payments. (a) Directly or
indirectly (the payments and other actions described in the following clauses
being collectively referred to as "RESTRICTED PAYMENTS"):
(i) declare or pay any dividend or make any distribution
on account of the Borrower's or any Restricted Subsidiary's Equity
Interests, including any dividend or distribution payable in connection
with any merger or consolidation (other than dividends or distributions
by the Borrower payable in Equity Interests (other than Disqualified
Stock) of the Borrower or in options, warrants or other rights to
purchase such Equity Interests);
(ii) purchase, redeem, defease or otherwise acquire or
retire for value any Equity Interests of the Borrower or any direct or
indirect parent of the Borrower, including in connection with any
merger or consolidation;
(iii) make any principal payment on, or redeem, repurchase,
defease or otherwise acquire or retire for value in each case, prior to
any scheduled repayment, sinking fund payment or maturity, any
Subordinated Indebtedness (other than (x) Indebtedness permitted under
Section 6.03(b)(x) or 6.03(b)(xi) or (y) the purchase, repurchase or
other acquisition of Subordinated Indebtedness purchased in
anticipation of satisfying a sinking fund obligation, principal
installment or final maturity, in each case due within one year of the
date of purchase, repurchase or acquisition); or
(iv) make any Restricted Investment.
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(b) The foregoing provisions will not prohibit:
(i) any Restricted Subsidiary of the Borrower from paying
dividends to, repurchasing its Equity Interests from or making other
distributions to the Borrower or any Wholly Owned Restricted Subsidiary
of the Borrower (or, in the case of non-Wholly Owned Restricted
Subsidiaries, the Borrower or any Subsidiary that is a direct or
indirect parent of such Restricted Subsidiary and each other owner of
Equity Interests of such Restricted Subsidiary on a pro rata basis (or
more favorable basis from the perspective of the Borrower or such
Subsidiary) based on their relative ownership interests);
(ii) (A) the redemption, repurchase, retirement or other
acquisition of any Equity Interests of the Borrower ("RETIRED CAPITAL
STOCK") or Subordinated Indebtedness, in exchange for, or out of
proceeds of the substantially concurrent sale (other than to a
Restricted Subsidiary or the Borrower) of, Equity Interests of the
Borrower (other than Disqualified Stock) ("REFUNDING CAPITAL STOCK")
and (B) the declaration and payment of dividends on the Refunding
Capital Stock in an aggregate amount per year no greater than the
aggregate amount of dividends per annum that was declarable and payable
on such Retired Capital Stock immediately prior to such retirement;
(iii) the redemption, repurchase or other acquisition or
retirement of Subordinated Indebtedness made by exchange for, or out of
the proceeds of the substantially concurrent sale of, new Indebtedness
of the borrower thereof, which is incurred in compliance with Section
6.03 so long as (A) the principal amount of such new Indebtedness does
not exceed the principal amount of the Subordinated Indebtedness being
so redeemed, repurchased, acquired or retired for value (plus the
amount of any premium required to be paid under the terms of the
instrument governing the Subordinated Indebtedness being so redeemed,
repurchased, acquired or retired), (B) such Indebtedness is
subordinated to the Loans and any Guarantees thereof at least to the
same extent as such Subordinated Indebtedness so purchased, exchanged,
redeemed, repurchased, acquired or retired for value, (C) such
Indebtedness has a final scheduled maturity date equal to or later than
the final scheduled maturity date of the Subordinated Indebtedness
being so redeemed, repurchased, acquired or retired and (D) such
Indebtedness has a Weighted Average Life to Maturity equal to or
greater than the remaining Weighted Average Life to Maturity of the
Subordinated Indebtedness being so redeemed, repurchased, acquired or
retired;
(iv) a Restricted Payment to pay for the repurchase,
retirement or other acquisition or retirement for value of common
Equity Interests of
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the Borrower or any of its direct or indirect parent entities held by any
future, present or former employee, director or consultant of the Borrower, any
of its Subsidiaries or any of its direct or indirect parent entities pursuant to
any management equity plan or stock option plan or any other management or
employee benefit plan or agreement; provided, however, that the aggregate amount
of all such Restricted Payments made under this Section 6.02(b)(iv) does not
exceed $10.0 million; and provided, further, that such amount may be increased
by an amount not to exceed (A) the cash proceeds from the sale of Equity
Interests of the Borrower and, to the extent contributed to the Borrower, Equity
Interests of any of its direct or indirect parent entities, in each case to
members of management, directors or consultants of the Borrower or any of its
Subsidiaries or any of its direct or indirect parent entities that occurs after
the Closing Date, plus (B) the amount of any cash bonuses otherwise payable to
members of management, directors or consultants of the Borrower or any of its
Subsidiaries or any of its direct or indirect parent entities that are foregone
in return for the receipt of Equity Interests of any direct or indirect parent
entity of the Borrower pursuant to a deferred compensation plan of such entity,
in each case in connection with the Transaction plus (C) the cash proceeds of
key man life insurance policies received by the Borrower or its Restricted
Subsidiaries after the Closing Date less (D) the amount of any Restricted
Payments previously made pursuant to clauses (A), (B) and (C) of this Section
6.02(b)(iv);
(v) Investments in Unrestricted Subsidiaries having an
aggregate fair market value, taken together with all other Investments
made pursuant to this Section 6.02(b)(v) that are at the time
outstanding, without giving effect to the sale of an Unrestricted
Subsidiary to the extent the proceeds of such sale do not consist of
cash and/or marketable securities, not to exceed $15.0 million at the
time of such Investment (with the fair market value of each Investment
being measured at the time made and without giving effect to subsequent
changes in value);
(vi) repurchases of Equity Interests deemed to occur upon
exercise of stock options or warrants if such Equity Interests
represent a portion of the exercise price of such options or warrants;
(vii) Investments that are made with Excluded
Contributions;
(viii) the declaration and payment of dividends to, or the
making of loans to, Holdings (or if the direct parent of the Borrower
is New US Holdco, to New US Holdco, which in turn will declare and pay
dividends to, or make loans to, Holdings) in amounts required for it to
pay:
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(A) (i) overhead, tax liabilities of Holdings
(including, prior to the consummation of the Parent Merger,
any distribution necessary to allow Holdings to make a Tax
Distribution in accordance with clause (B)), legal, accounting
and other professional fees and expenses, (ii) fees and
expenses related to any equity offering, investment or
acquisition permitted hereunder (whether or not successful)
and (iii) other fees and expenses in connection with the
maintenance of its existence and its ownership of the
Borrower; and
(B) (i) with respect to each tax year (or
portion thereof) that Holdings qualifies as a Flow Through
Entity, a distribution by Holdings to the holders of the
Equity Interests of Holdings of an amount equal to the product
of (A) the amount of aggregate net taxable income allocated by
Holdings to the direct or indirect holders of the Equity
Interests of Holdings for such period and (B) the Presumed Tax
Rate for such period and (ii) with respect to any tax year (or
portion thereof) that Holdings does not qualify as a Flow
Through Entity, the payment of dividends or other
distributions to any direct or indirect holders of Equity
Interests of Holdings in amounts required for such holder to
pay federal, state or local income taxes (as the case may be)
imposed directly on such holder to the extent such income
taxes are attributable to the income of Holdings and its
Subsidiaries; provided, however, that in each case the amount
of such payments in respect of any tax year does not exceed
the amount that Holdings and its Subsidiaries would have been
required to pay in respect of federal, state or local taxes
(as the case may be) in respect of such year if Holdings and
its Subsidiaries paid such taxes directly as a stand-alone
taxpayer (or stand-alone group);
(ix) distributions or payments of Receivables Fees;
(x) cash dividends or other distributions on the
Borrower's or any Restricted Subsidiary's Capital Stock used to fund
the payment of fees and expenses incurred in connection with the
Transaction or owed to Affiliates and permitted by Section 6.06;
(xi) declaration and payment of dividends to holders of
any class or series of Disqualified Stock of the Borrower or any
Restricted Subsidiary issued in accordance with Section 6.03 to the
extent such dividends are included in the definition of "Fixed
Charges";
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(xii) the payment to CAG minority shareholders of the
"guaranteed dividends" (Ausgleichszahlung) payable pursuant to the
Domination Agreement;
(xiii) the payment to CAG shareholders of the "minimum
dividend" (Mindestausschuttung) payable for 2003 pursuant to Section
254 of the German Stock Corporation Act (Aktiengesetz) in an aggregate
amount not to exceed (euro)6,000,000; and
(xiv) other Restricted Payments in an aggregate amount not
to exceed $3,000,000;
provided in the case of each of Sections 6.02(b)(ii)(B), 6.02(b)(v) and
6.02(b)(xi), that no Default or Event of Default shall exist or result from such
payment.
(c) As of the Closing Date, all of the Borrower's Subsidiaries
will be Restricted Subsidiaries. The Borrower will not permit any Unrestricted
Subsidiary to become a Restricted Subsidiary except pursuant to the second to
last sentence of the definition of "UNRESTRICTED SUBSIDIARY." For purposes of
designating any Restricted Subsidiary as an Unrestricted Subsidiary, all
outstanding Investments by the Borrower and the Restricted Subsidiaries (except
to the extent repaid) in the Subsidiaries so designated will be deemed to be
Restricted Payments in an amount determined as set forth in the last sentence of
the definition of "INVESTMENTS." Such designation will be permitted only if a
Restricted Payment in such amount would be permitted at such time under Section
6.02(b)(v), (b)(vii) or (b)(xiv) and if such Subsidiary otherwise meets the
definition of an Unrestricted Subsidiary. Unrestricted Subsidiaries will not be
subject to any of the restrictive covenants set forth in this Agreement.
Section 6.03 . Limitations On Incurrence Of Indebtedness And Issuance
Of Disqualified Stock. (a) Directly or indirectly, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable, contingently or
otherwise, with respect to (collectively, "INCUR" and collectively, an
"INCURRENCE") any Indebtedness (including Acquired Indebtedness).
(b) The foregoing limitations will not apply to:
(i) Indebtedness pursuant to the Senior Secured
Facilities (including Guarantees thereof and Indebtedness in respect of
letters of credit and bankers' acceptances issued thereunder (with
letters of credit and bankers' acceptances being deemed to have a
principal amount equal to the face amount thereof)), in an aggregate
principal amount not to exceed the Dollar Equivalent on the Closing
Date of (euro)1,100 million less the amount of all mandatory principal
payments actually made by the relevant borrower thereunder in respect
of Indebtedness thereunder with
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Net Proceeds from Asset Sales and less the amount of any Indebtedness
then outstanding pursuant to Section 6.03(b)(ii);
(ii) Indebtedness of any Receivables Subsidiary pursuant
to any Receivables Facility;
(iii) Indebtedness created hereunder and under the other
Loan Documents, the Exchange Notes (and any Guarantees thereof) and the
Permanent Securities and any Guarantees thereof;
(iv) Indebtedness of the Borrower under the Senior
Subordinated Bridge C Loan Agreement and any Exchange Notes (as defined
in the Senior Subordinated Bridge C Loan Agreement as in effect on the
date hereof) issued in connection therewith in an aggregate principal
amount (not including any pay-in-kind interest payable thereunder and
added to principal pursuant to the terms thereof) not to exceed the C
Debt Amount and (x) on and after the date on which the Delisting occurs
and prior to the Restructuring Date, Indebtedness of Bidco with respect
thereto under the Security Documents and (y) on and after the
Restructuring Date, any Guarantee thereof by any Guarantor;
(v) Existing Indebtedness (other than Indebtedness
described in the foregoing clauses);
(vi) Indebtedness consisting of intercompany current
liabilities incurred in the ordinary course of business in connection
with the cash management operations of the Borrower and its
Subsidiaries;
(vii) Indebtedness (including Capitalized Lease
Obligations) and Preferred Stock incurred or issued by the Borrower or
any Restricted Subsidiary to finance the purchase, lease or improvement
of property (real or personal) or equipment that is used or useful in a
Similar Business (whether through the direct purchase of assets or the
Capital Stock of any Person owning such assets) in an aggregate
principal amount or liquidation preference which, when aggregated with
the Remaining Present Value of leases permitted under Section 6.12, the
principal amount and liquidation preference of all other Indebtedness
and Preferred Stock then outstanding pursuant to Section 6.03(b)(xix)
and the principal amount and liquidation preference of all other
Indebtedness and Preferred Stock then outstanding and incurred or
issued pursuant to this Section 6.03(b)(vii) and including all
Refinancing Indebtedness incurred to refund, refinance or replace any
other Indebtedness or Preferred Stock initially incurred or issued or
assumed pursuant to this Section 6.03(b)(vii) or 6.03(b)(xix), does not
exceed 4% of Consolidated Total Assets as of the end of the fiscal
quarter immediately prior to the date of such incurrence
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or issuance, as applicable, for which financial statements have been
delivered pursuant to Section 5.04;
(viii) Indebtedness owed to (including obligations in
respect of letters of credit or bank guarantees or similar instruments
for the benefit of) any person providing workers' compensation, health,
disability or other employee benefits or property, casualty or
liability insurance to the Borrower or any Restricted Subsidiary,
pursuant to reimbursement or indemnification obligations to such
person, provided that upon the incurrence of Indebtedness with respect
to reimbursement obligations regarding workers' compensation claims,
such obligations are reimbursed not later than 30 days following such
incurrence;
(ix) Indebtedness arising from agreements of the Borrower
or a Restricted Subsidiary providing for indemnification, adjustment of
purchase price or similar obligations, in each case, incurred or
assumed in connection with the disposition of any business, assets or a
Subsidiary permitted by this Agreement, other than Guarantees of
Indebtedness incurred by any Person acquiring all or any portion of
such business, assets or a Subsidiary for the purpose of financing such
acquisition; provided, however, that (A) such Indebtedness is not
reflected on the balance sheet of the Borrower or any Restricted
Subsidiary (contingent obligations referred to in a footnote to
financial statements and not otherwise reflected on the balance sheet
will not be deemed to be reflected on such balance sheet for purposes
of this clause (A)) and (B) the maximum assumable liability in respect
of all such Indebtedness shall at no time exceed the gross proceeds
including non-cash proceeds (the fair market value of such non-cash
proceeds being measured at the time received and without giving effect
to any subsequent changes in value) actually received by the Borrower
and any Restricted Subsidiary in connection with such disposition;
(x) Indebtedness of the Borrower owed to and held by any
Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owed
to and held by the Borrower or any Restricted Subsidiary; provided,
however, that (A) any subsequent issuance or transfer of any Capital
Stock or any other event that results in any such Restricted Subsidiary
ceasing to be a Restricted Subsidiary or any subsequent transfer of any
such Indebtedness (except to the Borrower or a Restricted Subsidiary)
shall be deemed, in each case, to constitute the incurrence of such
Indebtedness by the issuer thereof and (B) if the Borrower or a
Guarantor is the obligor on such Indebtedness, such Indebtedness (to
the extent such Indebtedness is owed to and held by a Restricted
Subsidiary that is not a Guarantor) is expressly subordinated to the
prior payment in full in cash of all
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obligations of the Borrower or such Guarantor, with respect to the
Loans or the Guarantee thereof, as applicable;
(xi) shares of Preferred Stock of a Restricted Subsidiary
issued to the Borrower or a Restricted Subsidiary; provided that any
subsequent issuance or transfer of any Capital Stock or any other event
which results in any such Restricted Subsidiary ceasing to be a
Restricted Subsidiary or any other subsequent transfer of any such
shares of Preferred Stock (except to the Borrower or a Restricted
Subsidiary) shall be deemed in each case to be an issuance of such
shares of Preferred Stock;
(xii) Hedging Obligations of the Borrower or any Restricted
Subsidiary that are not entered into for speculative purposes and that
are entered into for the purpose of limiting (A) interest rate risk
with respect to any Indebtedness that is permitted by the terms of this
Agreement to be outstanding, (B) exchange rate risk with respect to any
currency exchange or (C) commodity risk;
(xiii) Indebtedness in respect of performance bonds, bid
bonds, appeal bonds, surety bonds and completion guarantees and similar
obligations, in each case provided in the ordinary course of business,
including those incurred to secure health, safety and environmental
obligations in the ordinary course of business;
(xiv) Indebtedness and Preferred Stock of the Borrower or
any Restricted Subsidiary not otherwise permitted hereunder in an
aggregate principal amount or liquidation preference, which when
aggregated with the principal amount and liquidation preference of all
other Indebtedness and Preferred Stock then outstanding and incurred
pursuant to this Section 6.03(b)(xiv), does not at any one time
outstanding exceed $175 million; provided that the aggregate principal
amount of Indebtedness and liquidation preference of Preferred Stock of
Foreign Subsidiaries outstanding and incurred pursuant to this Section
6.03(b)(xiv) shall not at any time exceed $100 million;
(xv) (A) any guarantee by the Borrower of Indebtedness or
other obligations of any Restricted Subsidiary so long as the
incurrence of such Indebtedness incurred by such Restricted Subsidiary
is permitted under the terms of this Agreement or (B) any guarantee by
a Guarantor of Indebtedness of the Borrower that is otherwise permitted
under this Agreement;
(xvi) the incurrence by the Borrower or any Restricted
Subsidiary of Indebtedness or Preferred Stock that serves to refund or
refinance any Indebtedness incurred as permitted under Section
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6.03(b)(iii), 6.03(b)(v), 6.03(b)(vii), 6.03(b)(xvi) and 6.03(b)(xix)
or any Indebtedness issued to so refund or refinance such Indebtedness,
including additional Indebtedness incurred to pay premiums and fees in
connection therewith (the "REFINANCING INDEBTEDNESS") prior to its
respective maturity; provided, however, that such Refinancing
Indebtedness (A) has a Weighted Average Life to Maturity at the time
such Refinancing Indebtedness is incurred which is not less than the
remaining Weighted Average Life to Maturity of the Indebtedness being
refunded or refinanced, (B) to the extent such Refinancing Indebtedness
refinances Indebtedness subordinated or pari passu to the Loans or any
Guarantee of the Loans, such Refinancing Indebtedness is subordinated
or pari passu to the Loans or such Guarantee at least to the same
extent as the Indebtedness being refinanced or refunded, (C) shall not
include (1) Indebtedness or Preferred Stock of a Subsidiary that is not
a Guarantor that refinances Indebtedness or Preferred Stock of the
Borrower or a Guarantor or (2) Indebtedness or Preferred Stock of the
Borrower or another Restricted Subsidiary that refinances Indebtedness
or Preferred Stock of an Unrestricted Subsidiary, (D) shall not be in a
principal amount in excess of the principal amount of, premium, if any,
accrued interest on, and related fees and expenses of, the Indebtedness
being refunded or refinanced and (E) shall not have a stated maturity
date prior to the stated maturity date of the Indebtedness being
refunded or refinanced; and provided further that subclauses (A), (B)
and (E) of this Section 6.03(b)(xvi) will not apply to any refunding or
refinancing of any Senior Indebtedness;
(xvii) Indebtedness arising from the honoring by a bank or
other financial institution of a check, draft or similar instrument
drawn against insufficient funds in the ordinary course of business or
other cash management services in the ordinary course of business,
provided that (x) such Indebtedness (other than credit or purchase
cards) is extinguished within three Business Days of its incurrence and
(y) such Indebtedness in respect of credit or purchase cards is
extinguished within 60 days from its incurrence;
(xviii) Indebtedness consisting of the financing of insurance
premiums in the ordinary course of business;
(xix) Indebtedness or Preferred Stock of Persons that are
acquired by the Borrower or any Restricted Subsidiary or merged into
the Borrower or a Restricted Subsidiary in accordance with the terms of
this Agreement, in an aggregate principal amount or liquidation
preference which, when aggregated with the Remaining Present Value of
leases permitted under Section 6.12, the principal amount and
liquidation preference of all other Indebtedness and Preferred Stock
then outstanding
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pursuant to Section 6.03(b)(vii) and the principal amount and
liquidation preference of all other Indebtedness and Preferred Stock
then outstanding pursuant to this Section 6.03(b)(xix) and including
all Refinancing Indebtedness incurred to refund, refinance or replace
any other Indebtedness or Preferred Stock initially incurred or issued
or assumed pursuant to this Section 6.03(b)(xix) or 6.03(b)(vii), does
not exceed 4% of Consolidated Total Assets as of the end of the fiscal
quarter immediately prior to the date of such acquisition or merger, as
applicable, for which financial statements have been delivered pursuant
to Section 5.04; provided that such Indebtedness is not incurred or
Preferred Stock is not issued in contemplation of such acquisition or
merger;
(xx) Contribution Indebtedness;
(xxi) Indebtedness incurred on behalf of or representing
Guarantees of Indebtedness of joint ventures not in excess of $25.0
million at any time outstanding;
(xxii) letters of credit issued for the account of a
Restricted Subsidiary that it not a Loan Party (and the reimbursement
obligations in respect of which are not guaranteed by a Loan Party) in
support of a Captive Insurance Subsidiary's reinsurance of insurance
policies issued for the benefit of Subsidiaries and other letters of
credit or bank guarantees (other than letters of credit issued pursuant
to Senior Secured Facilities) having an aggregate face amount not in
excess of $10 million;
(xxiii) Indebtedness pursuant to the Initial Intercompany
Loans;
(xxiv) Indebtedness in the form of Parent CPECs;
(xxv) Capital Lease Obligations incurred by the Borrower or
any Restricted Subsidiary in respect of any Sale and Lease-Back
Transaction that is permitted under Section 6.12;
(xxvi) Indebtedness of the Borrower not in excess of $175.0
million (or the Euro Equivalent thereof) incurred to effect the
Designated Acquisition (by, if prior to the Restructuring Date, lending
the proceeds thereof to CAC), and guarantees of such Indebtedness (or
of the loan to CAC if prior to the Restructuring Date), with all such
loans and guarantees to be unsecured (unless such Indebtedness is
incurred under the Senior Secured Facilities and except, if prior to
the Restructuring Date, as may be agreed by the Administrative Agent
thereunder) and the terms and conditions thereof, and all documents
relating thereto, to be reasonably satisfactory to the Administrative
Agent;
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(xxvii) Indebtedness of one or more Subsidiaries organized
under the laws of the People's Republic of China for their own general
corporate purposes in an aggregate principal amount not to exceed
$150.0 million at any time outstanding, provided that such Indebtedness
(and any Guarantee thereof) is not Guaranteed by, does not receive any
credit support from, and is non-recourse to, the Borrower or any
Restricted Subsidiary other than any Subsidiary organized under the
laws of the People's Republic of China; and
(xxviii) all premium (if any), interest (including
post-petition interest), fees, expenses, charges and additional or
contingent interest on obligations described in paragraphs (i) through
(xxvii) above.
Notwithstanding anything to the contrary herein, prior to the Restructuring
Date, Bidco shall not be permitted to incur any Indebtedness other than
Indebtedness under Section 6.03(b)(iii), 6.03(b)(iv), 6.03(b)(xxiii) and, in
respect of Indebtedness under such clauses, any Refinancing Indebtedness in
respect thereof permitted under 6.03(b)(xvi).
(c) For purposes of determining compliance with this Section, in
the event that an item of Indebtedness meets the criteria of more than one of
the categories of permitted Indebtedness described in Section 6.03(b), the
Borrower shall, in its sole discretion, classify and later reclassify such item
of Indebtedness in any manner that complies with this covenant and such item of
Indebtedness will be treated as having been incurred pursuant to only one of
such categories. Accrual of interest, the accretion of accreted value and the
payment of interest in the form of additional Indebtedness will not be deemed to
be an incurrence of Indebtedness for purposes of this Section 6.03.
Section 6.04. Liens. Directly or indirectly, create, incur, assume or
suffer to exist any Lien (other than Permitted Liens) that secures obligations
under any Senior Subordinated Indebtedness or Subordinated Indebtedness of the
Borrower or any Guarantor on any asset or property of the Borrower or any
Restricted Subsidiary, or any income or profits therefrom, or assign or convey
any right to receive income therefrom, unless the Loans are equally and ratably
secured with (or senior to, in the event the Lien relates to Subordinated
Indebtedness) the obligations so secured or until such time as such obligations
are no longer secured by a Lien. Notwithstanding the foregoing, no Liens shall
be permitted to exist, directly or indirectly, on the Collateral, other than
Liens under the Security Documents.
Section 6.05. Merger, Consolidation or Sale of Assets. (a) Permit
Holdings or the Borrower to consolidate or merge with or into or wind up into
(whether or not Holdings or the Borrower, as the case may be, is the surviving
corporation), or sell, assign, transfer, lease, convey or otherwise dispose of
all or
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substantially all of its properties or assets in one or more related
transactions to, any Person; provided that the foregoing shall be permitted if
(i) Holdings or the Borrower, as the case may be, is the surviving corporation
or the Person formed by or surviving any such consolidation or merger (if other
than Holdings or the Borrower, as the case may be) or to which such sale,
assignment, transfer, lease, conveyance or other disposition is made is a
corporation organized or existing under the laws of the jurisdiction of
organization of Holdings or the Borrower, as the case may be, or the United
States, any state thereof, the District of Columbia or any territory thereof
(Holdings, the Borrower or such Person, as the case may be, being herein called
the "SUCCESSOR COMPANY"); (ii) the Successor Company (if other than Holdings or
the Borrower) expressly assumes all the obligations of Holdings or the Borrower,
as the case may be, under this Agreement and the Loans pursuant to an agreement
or other documents or instruments in form reasonably satisfactory to the
Administrative Agent; (iii) immediately after such transaction no Default or
Event of Default exists; (iv) immediately after giving pro forma effect to such
transaction the Fixed Charge Coverage Ratio for the Successor Company and the
Restricted Subsidiaries' most recently ended four full fiscal quarters for which
internal financial statements are available immediately preceding the date on
which such transaction would occur would have been either (A) at least 2.00 to
1.00 or (B) greater than immediately prior to such transaction, in each case
determined on a pro forma basis (including a pro forma application of the net
proceeds therefrom), as if such transaction had occurred at the beginning of
such four-quarter period; (v) each Guarantor, unless it is the other party to
the transactions described above, in which case clause (ii) shall apply, shall
have confirmed in writing that its Guarantee shall apply to such Person's
obligations under this Agreement and the Loans; and (vi) Holdings or the
Borrower, as the case may be, shall have delivered to the Administrative Agent a
certificate from a Responsible Officer and an Opinion of Counsel, each stating
that such consolidation, merger or transfer and such amendment or supplement (if
any) comply with this Agreement. The Successor Company will succeed to, and be
substituted for, Holdings or the Borrower, as the case may be, under this
Agreement and the Loans. Notwithstanding the foregoing clause (iii) or (iv), (a)
any Restricted Subsidiary (other than, prior to the Restructuring Date, Bidco)
may consolidate with, merge into or transfer all or part of its properties and
assets to the Borrower and (b) Holdings or the Borrower may merge with an
Affiliate (other than, prior to the Restructuring Date, Bidco) incorporated
solely for the purpose of reincorporating Holdings or the Borrower in another
state of the United States so long as the amount of Indebtedness of Holdings,
the Borrower and the Restricted Subsidiaries is not increased thereby.
Notwithstanding the foregoing clauses (i) through (vi), the Parent Merger shall
be permitted.
(b) Subject to Section 10.20, no Guarantor shall, and the Borrower
will not permit any such Guarantor to, consolidate or merge with or into or wind
up into (whether or not such Guarantor is the surviving corporation), or sell,
assign,
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transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions to, any Person unless
(i) such Guarantor is the surviving corporation or the Person formed by or
surviving any such consolidation or merger (if other than such Guarantor) or to
which such sale, assignment, transfer, lease, conveyance or other disposition
will have been made is a corporation organized or existing under the laws of the
United States, any state thereof, the District of Columbia or any territory
thereof (such Guarantor or such Person, as the case may be, being herein called
the "SUCCESSOR GUARANTOR"); (ii) the Successor Guarantor (if other than such
Guarantor) expressly assumes all the obligations of such Guarantor under this
Agreement and such Guarantor's Guarantee under the Guarantee Agreement pursuant
to a supplemental agreement or other documents or instruments in form reasonably
satisfactory to the Administrative Agent; (iii) immediately after such
transaction no Default or Event of Default exists; and (iv) the Borrower shall
have delivered to the Administrative Agent a certificate from a Responsible
Officer and an Opinion of Counsel, each stating that such consolidation, merger
or transfer and such amendment or supplement (if any) comply with this
Agreement. Subject to Section 10.20, the Successor Guarantor will succeed to,
and be substituted for, such Guarantor under this Agreement and the Guarantee
Agreement. Notwithstanding the foregoing, any Guarantor may merge into or
transfer all or part of its properties and assets to the Borrower or another
Guarantor. Notwithstanding anything to the contrary herein, except as expressly
permitted under any Loan Document (x) no Guarantor shall be permitted to
consolidate with, merge into or transfer all or part of its properties and
assets to Holdings and (y) Bidco shall not, prior to the Restructuring Date, be
permitted to consolidate with, merge into or transfer all or part of its
properties and assets to any Person.
Section 6.06. Transactions With Affiliates. (a) Make any payment to,
or sell, lease, transfer or otherwise dispose of any of their respective
properties or assets to, or purchase any property or assets from, or enter into
or make or amend any transaction, contract, agreement, understanding, loan,
advance or guarantee with, or for the benefit of, any Affiliate of the Borrower
(each of the foregoing, an "AFFILIATE TRANSACTION") involving aggregate payments
or consideration in excess of $2.0 million, unless (i) such Affiliate
Transaction is on terms that are not materially less favorable, taken as a
whole, to the Borrower or the relevant Restricted Subsidiary than those that
would have been obtained in a comparable transaction by the Borrower or such
Restricted Subsidiary with an unrelated Person on an arm's length basis, (ii)
the Borrower delivers to the Administrative Agent, with respect to any Affiliate
Transaction or series of related Affiliate Transactions involving aggregate
consideration in excess of $5.0 million, a resolution adopted by the majority of
the Board of Directors approving such Affiliate Transaction and set forth in a
certificate of a Responsible Officer certifying that such Affiliate Transaction
complies with clause (i) above and (iii)
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the Borrower delivers to the Administrative Agent, with respect to any Affiliate
Transaction or series of related Affiliate Transactions involving aggregate
consideration in excess of $15.0 million, a written opinion from an Independent
Financial Advisor stating that the terms of such Affiliate Transaction are fair,
from a financial point of view, to the Borrower or the Restricted Subsidiaries
involved in such Affiliate Transaction, as the case may be.
(b) The foregoing provisions will not apply to the following:
(i) transactions between or among the Borrower and/or any
Restricted Subsidiary or any entity that becomes a Restricted
Subsidiary;
(ii) Restricted Payments permitted by the provisions of
this Agreement described in Section 6.02 and Investments expressly
included as "Permitted Investments" under the definition thereof
(except for clause (ix) thereof);
(iii) the payment to Blackstone and all other Permitted
Investors of annual management, consulting, monitoring and advisory
fees in an aggregate amount in any fiscal year not in excess of the
greater of (A) $5.0 million and (B) 2% of EBITDA of the Borrower for
the immediately preceding fiscal year, plus reasonable out-of-pocket
costs and expenses in connection therewith and unpaid amounts accrued
for prior periods (but after the Closing Date);
(iv) the payment of reasonable and customary fees to
directors, officers and employees of the Borrower, any of its direct or
indirect parent entities or any Restricted Subsidiary and any
reasonable and customary indemnity provided on behalf of officers,
directors, employees or consultants of the Borrower, any of its direct
or indirect parent entities or any Restricted Subsidiary;
(v) payments by the Borrower or any Restricted Subsidiary
to Blackstone made for any financial advisory, financing, underwriting
or placement services or in respect of other investment banking
activities, including, without limitation, in connection with
acquisitions or divestitures which payments are approved by a majority
of the Board of Directors of the Borrower in good faith;
(vi) transactions in which the Borrower or any Restricted
Subsidiary, as the case may be, delivers to the Administrative Agent a
letter from an Independent Financial Advisor stating that such
transaction is fair to the Borrower or such Restricted Subsidiary from
a financial point of view or meets the requirements of clause (i) of
the preceding paragraph;
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(vii) payments or loans (or cancellations of loans) to
employees or consultants of the Borrower or any of its direct or
indirect parent entities or any Restricted Subsidiary which are
approved by a majority of the Board of Directors of the Borrower in
good faith and which otherwise are permitted by this Agreement;
(viii) any agreement as in effect as of the Closing Date
(including, without limitation, each of the agreements entered into in
connection with the Transactions) or any amendment thereto (so long as
any such amendment is not disadvantageous to the Lenders in any
material respect) or any transaction contemplated thereby;
(ix) the payment of all fees, expenses, bonuses and awards
related to the Transaction, including any fees to Blackstone;
(x) the transactions pursuant to the Restructuring;
(xi) transactions with customers, clients, suppliers, or
purchasers or sellers of goods or services, in each case in the
ordinary course of business and otherwise in compliance with the terms
of this Agreement which are fair to the Borrower or the Restricted
Subsidiaries, in the reasonable determination of the Board of Directors
of the Borrower or the senior management thereof, or are on terms at
least as favorable as might reasonably have been obtained at such time
from an unaffiliated party;
(xii) if otherwise permitted hereunder, the issuance of
Equity Interests (other than Disqualified Stock) of the Borrower to
Holdings or any Permitted Holder;
(xiii) the transactions pursuant to a Receivables Facility;
(xiv) any employment agreements entered into by the
Borrower or any of the Restricted Subsidiaries in the ordinary course
of business;
(xv) the existence of, or the performance by the Borrower
or any of the Restricted Subsidiaries of its obligations under the
terms of, the Offer Document; provided, however, that the existence of,
or the performance by the Borrower or any Restricted Subsidiary of
obligations under any future amendment to any such existing agreement
or under any similar agreement entered into after the Closing Date
shall only be permitted by this clause to the extent that such
amendment or new agreement is permitted by Section 6.08(b);
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(xvi) transactions with joint ventures for the purchase or
sale of chemicals, equipment and services entered into in the ordinary
course of business and in a manner consistent with past practice;
(xvii) any issuance of securities, or other payments, awards
or grants in cash, securities or otherwise pursuant to, or the funding
of, employment arrangements, stock options and stock ownership plans
approved by the Board of Directors of the Borrower;
(xviii) HC Investments and HC Activities; and
(xix) any Guarantee by any Subsidiary organized under the
laws of the People's Republic of China in respect of Indebtedness
permitted under Section 6.03(b)(xxvii).
Section 6.07. Dividend And Other Payment Restrictions Affecting
Subsidiaries. Permit any Restricted Subsidiary to, directly or indirectly,
create or otherwise cause or suffer to exist or become effective any consensual
encumbrance or consensual restriction on the ability of any Restricted
Subsidiary to:
(a) (i) pay dividends or make any other distributions to the
Borrower or any Restricted Subsidiary (1) on its Capital Stock or (2) with
respect to any other interest or participation in, or measured by, its profits,
or (ii) pay any Indebtedness owed to the Borrower or any Restricted Subsidiary;
(b) make loans or advances to the Borrower or any Restricted
Subsidiary; or
(c) sell, lease or transfer any of its properties or assets to the
Borrower or any Restricted Subsidiary,
except (in each case) for such encumbrances or restrictions existing under or by
reason of:
(i) contractual encumbrances or restrictions in effect on
the Closing Date, including, without limitation, pursuant to Existing
Indebtedness, the Senior Secured Facilities or the Senior Subordinated
Bridge C Loan Agreement and their related documentation;
(ii) this Agreement and the Loans;
(iii) purchase money obligations for property acquired in
the ordinary course of business that impose restrictions of the nature
discussed in clause (c) above of the property so acquired;
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(iv) applicable law or any rule, regulation or order;
(v) any agreement or other instrument of a Person
acquired by the Borrower or any Restricted Subsidiary in existence at
the time of such acquisition (but not created in contemplation
thereof), which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the
Person, or the property or assets of the Person, so acquired;
(vi) contracts for the sale of assets, including, without
limitation, customary restrictions with respect to a Subsidiary
pursuant to an agreement that has been entered into for the sale or
disposition of all or substantially all of the Capital Stock or assets
of such Subsidiary;
(vii) secured Indebtedness otherwise permitted to be
incurred pursuant to Section 6.03 or 6.04 that limit the right of the
debtor to dispose of the assets securing such Indebtedness;
(viii) restrictions on cash or other deposits or net worth
imposed by customers under contracts entered into in the ordinary
course of business;
(ix) other Indebtedness of Restricted Subsidiaries
permitted to be incurred subsequent to the Closing Date pursuant to the
provisions of the covenant described under Section 6.03, provided that
the Borrower determines in good faith at the time such dividend and
other payment restrictions are created that such dividend and other
payment restrictions do not materially adversely affect the Borrower's
ability to pay principal of, and interest on, the Loans, except that
this proviso shall not apply to Indebtedness of Foreign Subsidiaries
incurred in accordance with Section 6.03 of this Agreement (other than
pursuant to Section 6.03(b)(i))
(x) customary provisions in joint venture agreements and
other similar agreements entered into in the ordinary course of
business;
(xi) customary provisions contained in leases or licenses
of intellectual property and other similar agreements entered into in
the ordinary course of business;
(xii) customary provisions restricting subletting or
assignment of any lease governing a leasehold interest;
(xiii) customary provisions restricting assignment of any
agreement entered into in the ordinary course of business;
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(xiv) any encumbrances or restrictions of the type referred
to in clauses (a), (b) and (c) above imposed by any amendments,
modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings of the contracts, instruments
or obligations referred to in clauses (i) through (xiii) above,
provided that such amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings are,
in the good faith judgment of the Borrower's Board of Directors, no
more restrictive with respect to such dividend and other payment
restrictions than those contained in the dividend or other payment
restrictions prior to such amendment, modification, restatement,
renewal, increase, supplement, refunding, replacement or refinancing;
or
(xv) restrictions created in connection with any
Receivables Facility that, in the good faith determination of the
Borrower, are necessary or advisable to effect such Receivables
Facility.
Section 6.08. Amendments or Waivers of Certain Documents; Prepayments.
(a) Directly or indirectly, enter into any amendment, modification, supplement
or waiver with respect to the Senior Secured Facilities as in effect on the
Closing Date that would modify any of the provisions thereof or any of the
definitions relating to the provisions thereof in respect of (i) the issuance of
the Exchange Notes, (ii) the issuance or sale of any preferred equity or debt
securities or the incurrence of any Indebtedness to repay or refinance the Loans
or the Exchange Notes or (iii) the application of Net Proceeds from a Prepayment
Event (subject to Section 2.07(e)) to repay the Loans and the Exchange Notes, in
each case, in a manner adverse to the Lenders.
(b) (x) Amend, modify or waive any term of the Offer in a manner
which would materially adversely affect the Lenders without the prior written
approval of the Joint Lead Arrangers, (y) amend or modify, or permit the
amendment or modification of, the Offer Document to (i) reduce the minimum
tender requirement of 75%, (ii) increase the price per share above (euro)32.50
or (iii) ameliorate or replace or terminate any condition or provision relating
to the occurrence of a material adverse change in the business of the Company
and (z) without the prior written approval of the Joint Lead Arrangers, to the
extent Bidco has any consent rights under the Offer Document, grant, or permit
there to be granted, any such consent if the effect of granting such consent
would result in a breach or anticipated breach of any representation and
warranty or covenant contained herein or cause an Event of Default hereunder.
(c) Amend or modify in any manner materially adverse to the
Lenders, or grant any waiver or release under or terminate in any manner (if
such granting or termination shall be materially adverse to the Lenders) any
agreements establishing, governing or evidencing the Parent CPEC's.
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(d) Prior to the Restructuring Date, amend or modify, or permit
the amendment or modification of (i) the articles of association of GP GmbH, if
the effect of such amendment or modification is to increase the stated capital
of GP GmbH or (ii) the Bidco Loan Agreement, if the effect of such amendment or
modification is to alter the terms upon which principal of the Bidco Loan may be
repaid or prepaid.
(e) Prior to the Restructuring Date, make or agree to pay or make,
directly or indirectly, any payment or other distribution (whether in cash,
securities or other property) of or in respect of principal of the Bidco Loan,
or any payment or other distribution (whether in cash, securities or other
property) on account of the purchase, redemption, defeasance or termination of
the Bidco Loan, except payments permitted under the Bidco Loan Pledge Agreement,
unless after giving effect to any such payment or distribution and any
contemporaneous application thereof towards repayment or prepayment of the
principal amount of the Loans and the Exchange Notes, the outstanding principal
amount of the Bidco Loan exceeds the aggregate principal amount of Loans and the
Exchange Notes then outstanding.
Section 6.09. Changes In Business. Permit the Borrower and its
Restricted Subsidiaries (other than any Receivables Subsidiary), taken as a
whole, to fundamentally and substantively alter the character of their business,
taken as a whole, from the business conducted by the Borrower and its Restricted
Subsidiaries, taken as a whole, on the Closing Date following the consummation
of the Offer and the other transactions contemplated hereby (including the
Restructuring) and other business activities incidental or related to any of the
foregoing.
Section 6.10. Limitation on Other Senior Subordinated Indebtedness.
Permit the Borrower or any Guarantor to, directly or indirectly, incur any
Indebtedness that is, or purports to be, contractually subordinated or junior in
right of payment to any Senior Indebtedness (including Acquired Indebtedness),
unless such Indebtedness is either (i) pari passu in right of payment with the
Borrower's Obligations hereunder or such Guarantor's Guarantee of the Borrower's
Obligations hereunder, as the case may be, or (ii) subordinate in right of
payment to the Borrower's Obligations hereunder or such Guarantee, as the case
may be.
Section 6.11. Limitation on Activities. In the case of Bidco, prior to
the Restructuring Date, engage at any time in any business or activity other
than (i) the acquisition and ownership of the Equity Interests of the Company
and any HC Corporation, together with incidental activities reasonably related
thereto, (ii) the holding of cash in amounts reasonably required to pay for its
own costs and expenses, (iii) owing and paying legal and auditing fees, (iv) HC
Activities and
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HC Investments not covered by clause (i) above and (v) the execution and
performance of the Loan Documents to which it is a party.
Section 6.12. Sale And Lease-Back Transactions. Enter into any
arrangement, directly or indirectly, with any Person whereby it shall sell or
transfer any property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or
other property that it intends to use for substantially the same purpose or
purposes as the property being sold or transferred (a "SALE AND LEASE-BACK
TRANSACTION"), provided that a Sale and Lease-Back Transaction shall be
permitted so long as at the time the lease in connection therewith is entered
into, and after giving effect to the entering into of such lease, the Remaining
Present Value of such lease (together with the aggregate principal amount and
liquidation preference of Indebtedness and Preferred Stock outstanding pursuant
to Section 6.03(b)(vii), the aggregate principal amount and liquidation
preference of Indebtedness and Preferred Stock outstanding pursuant to Section
6.03(b)(xix), Refinancing Indebtedness under Section 6.03(b)(xvi) (in respect of
Indebtedness or Preferred Stock initially incurred or issued or assumed pursuant
to Section 6.03(b)(vii) or 6.03(b)(xix)) and the Remaining Present Value of
outstanding leases previously entered into under this Section 6.12) would not
exceed 4% of Consolidated Total Assets as of the end of the fiscal quarter
immediately prior to the date such lease is entered into for which financial
statements have been delivered pursuant to Section 5.04.
ARTICLE 7
EVENTS OF DEFAULT
Section 7.01. Events of Default. An "EVENT OF DEFAULT" occurs if:
(a) the Borrower defaults in payment when due and payable, upon
redemption, acceleration or otherwise, of principal on the Loans, whether or not
the payment is prohibited under Article 8;
(b) the Borrower defaults in the payment when due of interest on
or with respect to the Loans and such default continues for a period of 10 days,
or the Borrower defaults in the payment when due of any other amount (other than
principal) payable under the Loan Documents and such default continues for a
period of 30 days, in each case whether or not the payment thereof is prohibited
under Article 8; provided that the foregoing grace periods shall not apply, and
there shall be an immediate Event of Default, if the Borrower defaults in the
payment when due of any amount payable pursuant to Section 2.07(g), whether or
not the payment of such amount is prohibited under Article 8;
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(c) any Loan Party or any Restricted Subsidiary defaults in the
performance of or breaches any covenant, warranty or other agreement contained
in this Agreement, the Guarantee Agreement, any Security Document or any other
Loan Document (other than a default in the performance or breach of a covenant,
warranty or agreement which is specifically dealt with in clauses (a) or (b) of
this Section 7.01) and such default or breach continues for a period of 30 days
after receipt of written notice given by the Administrative Agent at the request
of the Required Lenders;
(d) any Loan Party or any Restricted Subsidiary defaults under any
mortgage, indenture or instrument under which there is issued or by which there
is secured or evidenced any Indebtedness for money borrowed by such Loan Party
or Restricted Subsidiary or the payment of which is guaranteed by such Loan
Party or Restricted Subsidiary (other than Indebtedness owed to the Borrower or
a Restricted Subsidiary), whether such Indebtedness or guarantee now exists or
is created after the Closing Date, if both (i) such default either (A) results
from the failure to pay any such Indebtedness at its stated final maturity
(after giving effect to any applicable grace periods) or (B) relates to an
obligation other than the obligation to pay principal of any such Indebtedness
at its stated final maturity and results in the holder or holders of such
Indebtedness causing such Indebtedness to become due prior to its stated final
maturity and (ii) the principal amount of such Indebtedness, together with the
principal amount of any other such Indebtedness in default for failure to pay
principal at its stated final maturity (after giving effect to any applicable
grace periods), or the maturity of which has been so accelerated, aggregate
$40.0 million or more at any one time outstanding;
(e) any Loan Party, the Company or any Significant Subsidiary
pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against
it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or
for all or substantially all of its property; or
(iv) makes a general assignment for the benefit of its
creditors;
or takes any comparable action under any foreign laws relating to insolvency
(including, without limitation (x) in the case of any such Person organized
under the laws of Germany, commencing negotiations with any one or more of such
Person's creditors with a view to the general readjustment or rescheduling of
its indebtedness or making a general assignment for the benefit of or a
composition with its creditors or, for any of the reasons set out in Sections
17-19 of the
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German Insolvenzordnung, filing for insolvency (Antrag auf Eroffnung eines
Insolvenzverfahrens) or the board of directors (Geschaftsfuhrung) of such Person
being required by law to file for insolvency and (y) in the case of any such
Person organized under the laws of Luxembourg, commencing bankruptcy proceedings
(faillite) or applying to be admitted to the regime of suspension of payments
(sursis de paiements), controlled management (gestion controlee) or composition
with its creditors (concordat));
(f) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law (or takes any comparable action under any foreign laws
relating to insolvency (including, without limitation (x) in the case of any
such Person organized under the laws of Germany, taking any of the actions set
out in Section 21 of the German Insolvenzordnung or instituting insolvency
proceedings against any such Person (Eroffnung des Insolvenzverfahrens) and (y)
in the case of any such Person organized under the laws of Luxembourg,
instituting bankruptcy proceedings (faillite) or compulsory liquidation
proceedings against such Person)) that remains unstayed and in effect for 60
days and:
(i) is for relief against any Loan Party, the Company or
any Significant Subsidiary in an involuntary case;
(ii) appoints a Custodian of any Loan Party, the Company
or any Significant Subsidiary or for all or substantially all of the
property of any Loan Party, the Company or any Significant Subsidiary;
or
(iii) orders the winding up or liquidation of any Loan
Party, the Company or any Significant Subsidiary;
provided that clauses (i), (ii) and (iii) shall not apply to an Unrestricted
Subsidiary, unless such action or proceeding has a material adverse effect on
the interests of any Loan Party, the Company or any Significant Subsidiary;
(g) one or more final judgments or orders for the payment of money
in the aggregate for all such Persons are rendered against any Loan Party, the
Company or any Significant Subsidiary and are not paid or discharged, and there
is a period of 60 consecutive days following entry of the final judgment or
order that causes the aggregate amount for all such final judgments or orders
outstanding and not paid or discharged against all such Persons to exceed $40.0
million (in excess of amounts which the Borrower's insurance carriers have
agreed to pay under applicable policies) during which a stay of enforcement, by
reason of a pending appeal or otherwise, is not in effect;
(h) (i) a Reportable Event or Reportable Events shall have
occurred with respect to any Plan or a trustee shall be appointed by a United
States district court to administer any Plan, (ii) the PBGC shall institute
proceedings (including
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giving notice of intent thereof) to terminate any Plan or Plans, (iii) Holdings,
the Borrower or any Subsidiary or any ERISA Affiliate shall have been notified
by the sponsor of a Multiemployer Plan that it has incurred or will be assessed
Withdrawal Liability to such Multiemployer Plan and such Person does not have
reasonable grounds for contesting such Withdrawal Liability or is not contesting
such Withdrawal Liability in a timely and appropriate manner, (iv) Holdings, the
Borrower or any Subsidiary or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of ERISA,
(v) Holdings, the Borrower or any Subsidiary or any ERISA Affiliate shall engage
in any "prohibited transaction" (as defined in Section 406 of ERISA or Section
4975 of the Code) involving any Plan or (vi) any other similar event or
condition shall occur or exist with respect to a Plan; and in each case in
clauses (i) through (vi) above, such event or condition, together with all other
such events or conditions, if any, could reasonably be expected to have a
Material Adverse Effect;
(i) there shall be any material impairment of this Agreement, the
Guarantee Agreement or any Security Document, or this Agreement, the Guarantee
Agreement or any Security Document shall for any reason cease to be in full
force and effect or be declared null and void, or any officer of Holdings, the
Borrower, any Guarantor or, prior to the Restructuring Date, Bidco denies that
it has any further liability under this Agreement or its Guarantee or any
Security Document or gives notice to such effect (other than by reason of the
termination of this Agreement or such Security Document or the release of such
Guarantee, in each case in accordance with this Agreement);
(j) any Lien purported to be created under any Security Document
shall cease to be, or shall be asserted by any Loan Party not to be, a valid and
perfected Lien on any Collateral, with the priority required by such Security
Document;
(k) any representation or warranty made or deemed made by any Loan
Party (or any of its officers) under or in connection with any Loan Document
shall prove to have been incorrect in any material respect when made or deemed
made; or
(l) the Borrower shall have failed to have registered and caused
to have become effective a domination and profit and loss transfer agreement
(Beherrschungs-und Ergebnisabfuhrungsvertrag) among the Company and Bidco in
form and substance reasonably satisfactory to the Required Lenders ("DOMINATION
AGREEMENT") on or prior to the Domination Agreement Entry Date or, if registered
prior to such date, such agreement shall not be in full force and effect on the
Domination Agreement Entry Date, or the Domination Agreement is terminated or
terminates for any reason whatsoever. For purposes of this clause, "DOMINATION
AGREEMENT ENTRY DATE" means the date that is 18 months after the
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Closing Date; provided that if on such date (x) there is no injunction or
similar order from any court of competent jurisdiction which prohibits or
restricts the ability of the Company to make dividend payments or other
distributions to the Borrower or (y) the Borrower shall have delivered to the
Lenders a certificate of a Responsible Officer in form and substance reasonably
satisfactory to the Required Lenders stating that the Borrower has cash on hand
(other than any such cash that has been allocated to or reserved for any other
purpose (including payments on other Indebtedness of the Borrower)) in an amount
as is necessary to enable the Borrower to pay all amounts required to be paid
hereunder during the six-month period immediately following such date as and
when such amounts become due and payable, then "Domination Agreement Entry Date"
shall mean the earlier of (1) the date that is 24 months after the Closing Date
and (2) the date on which a Default under Section 7.01(a) or 7.01(b) occurs.
The foregoing shall constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body.
The term "BANKRUPTCY LAW" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any
similar federal or state law for the relief of debtors. The term "CUSTODIAN"
means any receiver, trustee, assignee, liquidator, administrator, administrative
receiver, custodian or similar official under any Bankruptcy Law.
If any Event of Default (other than of a type specified in Section
7.01(e) or 7.01(f) with respect to a Loan Party) occurs and is continuing, the
Administrative Agent, at the request of the Required Lenders, may declare the
Commitments to be terminated forthwith and the principal, premium, if any,
interest and any other monetary obligations on all the then outstanding Loans to
be due and payable immediately. Upon the effectiveness of such declaration, the
Commitments will immediately terminate and such principal, premium, interest and
other obligations will be due and payable immediately, without presentment,
demand, protest or any other notice of any kind, all of which are expressly
waived by the Borrower. Notwithstanding the foregoing, in the case of an Event
of Default arising under Section 7.01(e) or 7.01(f) with respect to any Loan
Party, all Commitments shall immediately terminate and all outstanding Loans and
other obligations will become immediately due and payable without presentment,
demand, protest or any notice of any kind, all of which are expressly waived by
the Borrower.
In the event of any Event of Default specified in Section 7.01(d)
above, such Event of Default and all consequences thereof (excluding, however,
any resulting payment default) shall be annulled, waived and rescinded,
automatically and without any action by the Administrative Agent or the Lenders,
if within 20 days after such Event of Default arose (x) the Indebtedness or
guarantee that is the basis for such Event of Default has been discharged, or
(y) the holders thereof
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have rescinded or waived the acceleration, notice or action (as the case may be)
giving rise to such Event of Default, or (z) the default that is the basis for
such Event of Default has been cured, it being understood that in no event shall
an acceleration of the principal amount of the Loans pursuant to this Article 7
be annulled, waived or rescinded upon the happening of any such events.
For the avoidance of doubt, during the Certain Funds Period (other than as
referred to in Section 4.01) no Lender shall (a) exercise any right to terminate
the obligation to make any Loan, (b) exercise any right of rescission in respect
of this Agreement or in respect of a Loan or (c) exercise any right of
acceleration, termination, cancellation or set-off in respect of any Loan (other
than set-off in respect of fees, costs and expenses as agreed in the funds flow
document).
Section 7.02. Clean-Up Period. Notwithstanding anything to the
contrary contained in Section 7.01, if during the Clean-Up Period any matter,
circumstance or event exists or has occurred that would otherwise constitute a
breach of any representation and warranty, or a covenant, contained in any Loan
Document or result in a Default or Event of Default, such matter, circumstance
or event will not constitute a Default or Event of Default (other than any
matter, circumstance or event that (x) would have a Material Adverse Effect, (y)
has been procured by Holdings, the Borrower, Midco, LP GmbH or Bidco or (z) has
not been remedied prior to the expiration of the Clean-Up Period), provided that
(i) such matter, circumstance or event does not constitute (x) a Major Default
or (y) an Event of Default incapable of being cured and (ii) reasonable steps
are being taken to cure such matter, circumstance or event.
ARTICLE 8
SUBORDINATION OF THE LOANS
Section 8.01. Agreement to Subordinate. The Borrower agrees, and each
Agent, Lender and transferee of any Loan also agrees, that the Subordinated
Bridge Payments are subordinated in right of payment, to the extent and in the
manner provided in this Article 8, to the prior payment in full in cash or Cash
Equivalents of all Senior Indebtedness of the Borrower, whether outstanding on
the date of this Agreement or incurred thereafter, and that the subordination is
for the benefit of and enforceable by the holders of such Senior Indebtedness.
The Bridge Obligations shall in all respects rank pari passu with all other
Senior Subordinated Indebtedness of the Borrower and shall rank senior to all
existing and future Subordinated Indebtedness of the Borrower; and only
Indebtedness of the Borrower that is Senior Indebtedness of the Borrower shall
rank senior to the Subordinated Bridge Payments of the Borrower in accordance
with the provisions set forth herein. All provisions of this Article 8 shall be
subject to Section 8.12 and 8.18.
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Section 8.02. Liquidation, Dissolution, Bankruptcy. Upon any
distribution to creditors of the Borrower in a liquidation or dissolution of the
Borrower or in a bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to the Borrower or its property, an assignment for the
benefit of creditors or any marshaling of the Borrower's assets and liabilities,
the holders of Senior Indebtedness shall be entitled to receive payment in full
in cash or Cash Equivalents of Senior Indebtedness and all outstanding Letter of
Credit Obligations thereunder shall be fully cash collateralized before the
Lenders will be entitled to receive any Subordinated Bridge Payments, and until
all Senior Indebtedness is paid in full in cash or Cash Equivalents, any
distribution to which the Lenders would be entitled but for these subordination
provisions shall be made to the holders of Senior Indebtedness (except that
Lenders may receive (a) Permitted Junior Securities and (b) Excluded Bridge
Payments).
Section 8.03. Default On Senior Indebtedness. The Borrower shall not
make any Subordinated Bridge Payments (except that Lenders may receive (a)
Permitted Junior Securities and (b) Excluded Bridge Payments) if (i) a default
in the payment of the principal of, premium, if any, or interest on, or of
unreimbursed amounts under drawn letters of credit or in respect of bankers'
acceptances or fees relating to letters of credit or bankers' acceptances
constituting Designated Senior Indebtedness occurs and is continuing beyond any
applicable period of grace in the indenture, agreement or other document
governing such Designated Senior Indebtedness (a "PAYMENT DEFAULT") or (ii) any
other default occurs and is continuing with respect to Designated Senior
Indebtedness that permits holders of the Designated Senior Indebtedness as to
which such default relates to accelerate its maturity without further notice
(except such notice as may be required to effect such acceleration) or the
expiration of any applicable grace periods (a "NONPAYMENT DEFAULT") and the
Administrative Agent receives a notice of such default (a "PAYMENT BLOCKAGE
NOTICE") from a representative of holders of any such Designated Senior
Indebtedness (the "REPRESENTATIVE"). The restriction on payments of Subordinated
Bridge Payments shall cease to apply (a) in the case of a payment default, upon
the date on which such default is cured or waived or shall have ceased to exist
or such Designated Senior Indebtedness shall have been discharged or paid in
full in cash or Cash Equivalents and all outstanding Letter of Credit
Obligations thereunder shall have been fully cash collateralized and (b) in case
of a nonpayment default, the earlier of (x) the date on which such nonpayment
default is cured or waived or shall have ceased to exist, (y) 179 days after the
date on which the applicable Payment Blockage Notice is received (each such
period, the "PAYMENT BLOCKAGE PERIOD") or (z) the date such Payment Blockage
Period shall be terminated by written notice to the Administrative Agent from
the requisite holders of such Designated Senior Indebtedness necessary to
terminate such period or from their Representative. No new Payment Blockage
Period may be commenced unless and until 365 days have elapsed since the
effectiveness of the immediately
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preceding Payment Blockage Notice. However, if any Payment Blockage Notice
within such 365-day period is given by or on behalf of any holders of Designated
Senior Indebtedness (other than the administrative agent under the Senior
Secured Facilities), the administrative agent under the Senior Secured
Facilities may give another Payment Blockage Notice within such period. In no
event, however, shall the total number of days during which any Payment Blockage
Period or Periods is in effect exceed 179 days in the aggregate during any 365
consecutive day period. No nonpayment default that existed or was continuing on
the date of delivery of any Payment Blockage Notice to the Administrative Agent
shall be, or be made, the basis for a subsequent Payment Blockage Notice unless
such default shall have been cured or waived for a period of not less than 90
days.
Section 8.04. Acceleration of Payment of Loans. If payment of the
Loans is accelerated because of an Event of Default, the Borrower or the
Administrative Agent shall promptly notify the holders of Designated Senior
Indebtedness (or their Representative) of the acceleration. If any Designated
Senior Indebtedness is outstanding, the Borrower shall not make any Subordinated
Bridge Payments until five Business Days after such holders or the
Representative of the Designated Senior Indebtedness receives notice of such
acceleration and, thereafter, shall make Subordinated Bridge Payments only if
this Article 8 otherwise permits payment at that time. Nothing in this Section
8.04 shall limit or delay any Excluded Bridge Payments.
Section 8.05. When Distribution Must Be Paid Over. If a distribution
is made to Lenders (including by way of setoff) that because of this Article 8
should not have been made to them, the Lenders who receive the distribution
shall hold it in trust for holders of Senior Indebtedness of the Borrower and
pay it over to them as their interests may appear.
Section 8.06. Subrogation. After all Senior Indebtedness of the
Borrower is paid in full and until the Bridge Obligations are paid in full,
Lenders shall be subrogated to the rights of holders of Senior Indebtedness to
receive distributions applicable to such Senior Indebtedness. A distribution
made under this Article 8 to holders of such Senior Indebtedness which otherwise
would have been made to Lenders is not, as between the Borrower and Lenders, a
payment by the Borrower on such Senior Indebtedness.
Section 8.07. Relative Rights. This Article 8 defines the relative
rights of Lenders and holders of Senior Indebtedness of the Borrower. Nothing in
this Agreement shall:
(1) impair, as between the Borrower and Lenders, the
obligation of the Borrower, which is absolute and unconditional, to pay
principal of, and interest on, the Loans and the other Bridge
Obligations of the Borrower in accordance with their terms; or
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(2) prevent the Administrative Agent or any Lender from
exercising its available remedies upon a Default, subject to the rights
of holders of Senior Indebtedness of the Borrower to receive
distributions otherwise payable to Lenders.
Section 8.08. Subordination May Not Be Impaired by the Borrower. No
right of any holder of Senior Indebtedness of the Borrower to enforce the
subordination of the Subordinated Bridge Payments shall be impaired by any act
or failure to act by the Borrower or by its failure to comply with this
Agreement.
Section 8.09. Rights of Agents and Paying Agent. Notwithstanding
Section 8.03, the Administrative Agent or Paying Agent (but not any Loan Party)
may continue to make Subordinated Bridge Payments and shall not be charged with
knowledge of the existence of facts that would prohibit the making of any such
payments unless, not less than two Business Days prior to the date of such
payment, the Administrative Agent receives notice satisfactory to it that
payments may not be made under this Article 8 (although any receipt of any such
payment by the Lenders shall be subject to the applicable provisions of Section
8.05). The Borrower, the Registrar, the Paying Agent, a Representative or a
holder of Senior Indebtedness of the Borrower may give the notice; provided,
however, that, if an issue of Senior Indebtedness of the Borrower has a
Representative, only the Representative may give the notice.
The Agents in their individual or any other capacities may hold Senior
Indebtedness of the Borrower with the same rights they would have if they were
not Agents. The Registrar and the Paying Agent may do the same with like rights.
The Agents shall each be entitled to all the rights set forth in this Article 8
with respect to any Senior Indebtedness of the Borrower which may at any time be
held by them, to the same extent as any other holder of such Senior
Indebtedness; and nothing in Article 9 shall deprive any Agent of any of its
rights as such holder. Nothing in this Article 8 shall apply to claims of, or
payments to, any Agent under or pursuant to Section 9.05 or 10.05.
Section 8.10. Distribution or Notice to Representative. Whenever a
distribution is to be made or a notice given to holders of Senior Indebtedness
of the Borrower, the distribution may be made and the notice may be given to
their Representative (if any).
Section 8.11. Article 8 Not to Prevent Events of Default or Limit
Right to Accelerate. The failure to make a payment of the Bridge Obligations by
reason of any provision in this Article 8 shall not be construed as preventing
the occurrence of a Default. Nothing in this Article 8 shall have any effect on
the right of the Lenders or the Administrative Agent to accelerate the maturity
of the Loans or other Bridge Obligations.
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Section 8.12. Agent Entitled to Rely. Upon any payment or distribution
pursuant to this Article 8, the Administrative Agent and the Lenders shall be
entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 8.02
are pending, (ii) upon a certificate of the liquidating trustee, agent or other
Person making such payment or distribution to the Administrative Agent or to the
Lenders or (iii) upon the Representatives for the holders of Senior Indebtedness
of the Borrower for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of such Senior
Indebtedness and other Indebtedness of the Borrower, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article 8. In the event that the
Administrative Agent determines, in good faith, that evidence is required with
respect to the right of any Person as a holder of Senior Indebtedness of the
Borrower to participate in any payment or distribution pursuant to this Article
8, the Administrative Agent may request such Person to furnish evidence to the
reasonable satisfaction of the Administrative Agent as to the amount of such
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and other facts
pertinent to the rights of such Person under this Article 8, and, if such
evidence is not furnished, the Administrative Agent may defer any payment to
such Person pending judicial determination as to the right of such Person to
receive such payment. The provisions of Article 9 shall be applicable to all
actions or omissions of actions by the Administrative Agent pursuant to this
Article 8.
Section 8.13. Administrative Agent To Effectuate Subordination. Each
Lender authorizes and directs the Administrative Agent on its behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination between the Lenders and the holders of Senior Indebtedness of the
Borrower as provided in this Article 8 and appoints the Administrative Agent as
attorney-in-fact for any and all such purposes.
Section 8.14. Administrative Agent Not Fiduciary for Holders of Senior
Indebtedness. The Administrative Agent shall not be deemed to owe any fiduciary
duty to the holders of Senior Indebtedness of the Borrower and shall not be
liable to any such holders if it shall mistakenly pay over or distribute to the
Lenders or the Borrower or any other Person, money or assets to which any
holders of Senior Indebtedness of the Borrower shall be entitled by virtue of
this Article 8 or otherwise; provided that this Section 8.14 shall not impair
the rights of holders of Senior Indebtedness under this Article 8 as against the
Lenders and the Borrower.
Section 8.15. Reliance by Holders of Senior Indebtedness on
Subordination Provisions. Each Lender acknowledges and agrees that the foregoing
subordination provisions are, and are intended to be, an inducement and a
consideration to each holder of any Senior Indebtedness of the Borrower,
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whether such Senior Indebtedness was created or acquired before or after the
Closing Date, to acquire and continue to hold, or to continue to hold, such
Senior Indebtedness and such holder of such Senior Indebtedness shall be deemed
conclusively to have relied on such subordination provisions in acquiring and
continuing to hold, or in continuing to hold, such Senior Indebtedness.
Section 8.16. Terms of Senior Debt. The holders of Senior Indebtedness
may, at any time and from time to time, without the consent of or notice to the
Administrative Agent or the Lenders, without incurring any liability or
responsibility to the Administrative Agent or the Lenders, and without impairing
the rights of holders of Senior Indebtedness under these subordination
provisions, do any of the following:
(1) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior Indebtedness
or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding or secured;
(2) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Indebtedness;
(3) release any Person liable in any manner for the
payment of Senior Indebtedness; or
(4) exercise or refrain from exercising any rights
against the Borrower and any other Person.
Section 8.17. Agents' Compensation Not Prejudiced. Nothing in this
Article 8 shall apply to amounts due to the Agents pursuant to this Agreement.
Section 8.18. Payments Not Subordinated, Including Payments Pursuant
To The Security Documents. Notwithstanding anything to the contrary in this
Agreement or any other Loan Document, the holders of Senior Indebtedness
acknowledge and agree that (x) the Excluded Bridge Payments are not subordinated
to the prior payment of Senior Indebtedness or otherwise subject to these
subordination provisions and do not, for any purposes hereof, constitute
Subordinated Bridge Payments, and none of the Lenders will be obligated to pay
over any such payments to any holder of Senior Indebtedness and (y) nothing
herein shall be deemed to affect or limit the obligations of Bidco or any other
Person under or in respect of the Security Documents in respect of the
Collateral thereunder.
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ARTICLE 9
THE AGENTS
Section 9.01. Appointment. (a) In order to expedite the transactions
contemplated by this Agreement, MSSF is hereby appointed to act as
Administrative Agent (with each reference in this Article to the Administrative
Agent to include MSSF in its capacity as Collateral Agent). Each of the Lenders
and each assignee of any such Lender hereby irrevocably authorizes the
Administrative Agent to take such actions on behalf of such Lender or assignee
and to exercise such powers as are specifically delegated to the Administrative
Agent by the terms and provisions hereof and of the other Loan Documents,
together with such actions and powers as are reasonably incidental thereto. The
Administrative Agent is hereby expressly authorized by the Lenders, without
hereby limiting any implied authority, (i) to receive on behalf of the Lenders
all payments of principal of and interest on the Loans, and all other amounts
due to the Lenders hereunder, and promptly to distribute to each Lender its
proper share of each payment so received; (ii) to give notice on behalf of each
of the Lenders of any Event of Default specified in this Agreement of which the
Administrative Agent has actual knowledge acquired in connection with the
performance of its duties as Administrative Agent hereunder; and (iii) to
distribute to each Lender copies of all notices, financial statements and other
materials delivered by the Borrower pursuant to this Agreement as received by
the Administrative Agent. Without limiting the generality of the foregoing, each
of the Agents is hereby expressly authorized to execute the Pledge Agreement,
the Bidco Loan Pledge Agreement and any and all other documents (including
releases) with respect to the Collateral and the rights of the Pledgees with
respect thereto (including any reconfirmation of the pledges created thereunder
upon the Delisting as contemplated thereby) in the name of and on behalf of the
Lenders as their attorney-in-fact (and each Lender appoints each Agent as such
Lender's attorney-in-fact for such purpose and such Agent is hereby released
from the restrictions imposed by Section 181 of the German Civil Code (BGB)), as
contemplated by and in accordance with the provisions of this Agreement and the
Security Documents. In the event that any party other than the Lenders and the
Agents shall participate in all or any portion of the Collateral pursuant to any
Security Document, all rights and remedies in respect of such Collateral shall
be controlled by the Administrative Agent and the Collateral Agent as set forth
in such Security Document.
(b) Neither the Agents nor any of their respective directors,
officers, employees or agents shall be liable as such for any action taken or
omitted by any of them except for its or his own gross negligence or willful
misconduct, or be responsible for any statement, warranty or representation
herein or the contents of any document delivered in connection herewith, or be
required to ascertain or to make any inquiry concerning the performance or
observance by the Borrower or any other Loan Party of any of the terms,
conditions, covenants or agreements
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contained in any Loan Document. The Agents shall not be responsible to the
Lenders for the due execution, genuineness, validity, enforceability or
effectiveness of this Agreement or any other Loan Documents or other instruments
or agreements. The Agents shall in all cases be fully protected in acting, or
refraining from acting, in accordance with written instructions signed by the
Required Lenders and, except as otherwise specifically provided herein, such
instructions and any action or inaction pursuant thereto shall be binding on all
the Lenders. Notwithstanding the foregoing, in the case of any enforcement
against any Collateral or exercise of any remedies with respect thereto pursuant
to any Security Document, the Agents shall in all cases be fully protected in
acting, or refraining from acting, in accordance with written instructions
signed by the requisite secured parties specified therein (whether or not the
Required Lenders shall have consented to such action or inaction) and such
instructions and any action or inaction pursuant thereto shall be binding on all
the Lenders. Each Agent shall, in the absence of knowledge to the contrary, be
entitled to rely on any instrument or document believed by it in good faith to
be genuine and correct and to have been signed or sent by the proper Person or
Persons. Neither the Agents nor any of their respective directors, officers,
employees or agents shall have any responsibility to the Borrower or any other
Loan Party or any other party hereto on account of the failure, delay in
performance or breach by, or as a result of information provided by, any Lender
of any of its obligations hereunder or to any Lender on account of the failure
of or delay in performance or breach by any other Lender or the Borrower or any
other Loan Party of any of their respective obligations hereunder or under any
other Loan Document or in connection herewith or therewith. Each Agent may
execute any and all duties hereunder by or through agents or employees and shall
be entitled to rely upon the advice of legal counsel selected by it with respect
to all matters arising hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of such counsel.
Section 9.02. Nature of Duties. The Lenders hereby acknowledge that
the Administrative Agent shall not be under any duty to take any discretionary
action permitted to be taken by it pursuant to the provisions of this Agreement
unless it shall be requested in writing to do so by the Required Lenders. The
Lenders further acknowledge and agree that so long as the Administrative Agent
shall make any determination to be made by it hereunder or under any other Loan
Document in good faith, the Administrative Agent shall have no liability in
respect of such determination to any Person. Notwithstanding any provision to
the contrary elsewhere in this Agreement, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth herein, or
any fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into the Loan
Documents or otherwise exist against the Administrative Agent. Each Lender
recognizes and agrees that, except for any functions or rights expressly
specified
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herein, the Global Coordinator and the Joint Lead Arrangers shall have no duties
or responsibilities under this Agreement or any other Loan Document, or any
fiduciary relationship with any Lender, and shall have no functions,
responsibilities, duties, obligations or liabilities for acting as the Global
Coordinator or as the Joint Lead Arrangers hereunder. Each Lender recognizes and
agrees that nothing in this Agreement shall impose upon Bank of America, N.A.,
as documentation agent, any duty or responsibility whatsoever.
Section 9.03. Resignation by the Agents. Subject to the appointment
and acceptance of a successor Administrative Agent as provided below, the
Administrative Agent may resign at any time by notifying the Lenders and the
Borrower. Upon any such resignation, the Required Lenders shall have the right
to appoint a successor with the consent of the Borrower (not to be unreasonably
withheld or delayed). If no successor shall have been so appointed by the
Required Lenders and approved by the Borrower and shall have accepted such
appointment within 45 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders with the consent of the Borrower (not to be unreasonably withheld or
delayed), appoint a successor Administrative Agent which shall be a bank with an
office in New York, New York and an office in London, England (or a bank having
an Affiliate with such an office) having a combined capital and surplus having a
Dollar Equivalent that is not less than $500.0 million or an Affiliate of any
such bank. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor bank, such successor shall succeed to and become vested
with all the rights, powers, privileges and duties of the retiring
Administrative Agent and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. After the Administrative Agent's
resignation hereunder, the provisions of this Article and Section 10.05 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Agent.
Section 9.04. The Administrative Agent In Its Individual Capacity.
With respect to the Loans made by it hereunder, the Administrative Agent in its
individual capacity and not as Administrative Agent shall have the same rights
and powers as any other Lender and may exercise the same as though it were not
the Administrative Agent, and the Administrative Agent and its Affiliates may
accept deposits from, lend money to and generally engage in any kind of business
with Holdings, the Borrower or any of the Subsidiaries or other Affiliates
thereof as if it were not the Administrative Agent.
Section 9.05. Indemnification. Each Lender agrees (a) to reimburse the
Agents, on demand, in the amount of its pro rata share (based on its Commitments
hereunder (or if such Commitments shall have expired or been terminated, in
accordance with the respective principal amounts of its applicable outstanding
Loans)) of any reasonable expenses incurred for the benefit of the
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Lenders by the Administrative Agent, including counsel fees and compensation of
agents and employees paid for services rendered on behalf of the Lenders, which
shall not have been reimbursed by the Borrower and (b) to indemnify and hold
harmless the Administrative Agent and any of its directors, officers, employees
or agents, on demand, in the amount of such pro rata share, from and against any
and all liabilities, Taxes, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against it in its
capacity as Administrative Agent or any of them in any way relating to or
arising out of this Agreement or any other Loan Document or any action taken or
omitted by it or any of them under this Agreement or any other Loan Document, to
the extent the same shall not have been reimbursed by the Borrower, provided
that no Lender shall be liable to the Administrative Agent for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the gross negligence or
willful misconduct of the Administrative Agent or any of its directors,
officers, employees or agents.
Section 9.06. Lack of Reliance on Agents. Each Lender acknowledges
that it has, independently and without reliance upon the Administrative Agent
and any Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent, any other Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based
upon this Agreement or any other Loan Document, any related agreement or any
document furnished hereunder or thereunder.
ARTICLE 10
MISCELLANEOUS
Section 10.01. Notices. (a) Notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopy, as
follows:
(i) if to any Loan Party, to it at c/o BCP Caylux
Holdings Luxembourg S.C.A., xxx Xxxxxx Xxxxxxx, X-0000 Xxxxxxxxxx, with
a copy to Blackstone Capital Partners Cayman IV L.P. 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000; and
(ii) if to the Administrative Agent or the Collateral
Agent, to 0000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, attention:
Xxxx Xxxxxx (telecopy: 212-537-1867) (e-mail:
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xxxx.xxxxxx@xxxxxxxxxxxxx.xxx), with a copy to 00 Xxxxx Xxxxxx, Xxxxxx
Xxxxx, Xxxxxx X00 0XX, attention: Xxxxx Xxxx (telecopy:
011-44-207-677-3089) (e-mail: xxxxxx@xxxxxxxxxxxxx.xxx).
(b) Notices and other communications to the Lenders hereunder may
be delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Article 2 unless otherwise agreed by the
Administrative Agent and the applicable Lender. Each of the Administrative
Agent, the Collateral Agent and the Borrower may, in its discretion, agree to
accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; provided, further, that
approval of such procedures may be limited to particular notices or
communications.
(c) All notices and other communications given to any party hereto
in accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt if delivered by hand or overnight courier service,
sent by telecopy or (to the extent permitted by paragraph (b) above) electronic
means or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 10.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 10.01.
(d) Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other parties
hereto.
Section 10.02. Survival Of Agreement. All covenants, agreements,
representations and warranties made by the Loan Parties herein, in the other
Loan Documents and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Agreement or any other Loan
Document shall be considered to have been relied upon by the Lenders and shall
survive the making by the Lenders of the Loans and the execution and delivery of
the Loan Documents, regardless of any investigation made by such Persons or on
their behalf, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any Fee or any other amount
payable under this Agreement or any other Loan Document is outstanding and
unpaid and so long as the Commitments have not been terminated. Without
prejudice to the survival of any other agreements contained herein,
indemnification and reimbursement obligations contained herein (including
pursuant to Sections 2.11, 2.12, 2.13 and 10.05) shall survive the payment in
full of the principal and interest hereunder and the termination of the
Commitments or this Agreement.
Section 10.03. Binding Effect. This Agreement shall become effective
when it shall have been executed by Holdings, the Borrower and the
Administrative Agent and when the Administrative Agent shall have received
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copies hereof which, when taken together, bear the signatures of each of the
other parties hereto, and thereafter shall be binding upon and inure to the
benefit of Holdings, the Borrower, the Administrative Agent and each Lender and
their respective permitted successors and assigns.
Section 10.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that (i)
the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent shall be
null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby, Participants (to the extent provided in paragraph (c) of this
Section) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Agents and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it) with the prior written consent
(such consent not to be unreasonably withheld or delayed) of:
(A) the Borrower, but only if such assignment is
by a Joint Lead Arranger prior to the date on which Exchange
Notes are first issued and is the first assignment that would
result in such Joint Lead Arranger holding Loans with an
aggregate principal amount less than 50.1% of the Commitments
held by such Joint Lead Arranger as of the date of the Fee
Letter (it being understood that any subsequent assignment by
such Joint Lead Arranger shall not require the consent of the
Borrower); and
(B) the Administrative Agent; provided that no
consent of the Administrative Agent shall be required for an
assignment of a Loan to an assignee that is a Lender, an
Affiliate of a Lender or Approved Fund immediately prior to
giving effect to such assignment.
(ii) Assignments shall be subject to the following
additional conditions:
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(A) except in the case of an assignment to a
Lender, an Affiliate of a Lender or an Approved Fund or an
assignment of the entire remaining amount of the assigning
Lender's Commitment or Loans, the amount of the commitment or
principal amount of the Loans of the assigning Lender subject
to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall be an integral
multiple of $1.0 million and not less than $5.0 million,
unless each of the Borrower and the Administrative Agent
otherwise consent; provided that no such consent of the
Borrower shall be required if an Event of Default under
Section 7.01(a), 7.01(b), 7.01(e) or 7.01(f) has occurred and
is continuing;
(B) 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; and
(C) the parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and
Acceptance, together with a processing and recordation fee of
$3,500; provided that no such recordation fee shall be due in
connection with an assignment to an existing Lender or
Affiliate of a Lender or an assignment by the Administrative
Agent.
(iii) Subject to acceptance and recording thereof pursuant
to Section 10.04(b)(iv), from and after the effective date specified in
each Assignment and Acceptance the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment
and Acceptance, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender hereunder shall, to the extent of
the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all of the assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of
Section 2.11, 2.12, 2.13 and 10.05). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not
comply with this Section 10.04 shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with Section 10.04(c).
(iv) The Administrative Agent, acting for this purpose as
an agent of the Borrower, shall maintain at one of its offices a copy
of each Assignment and Acceptance delivered to it and a register for
the
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recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount and currency of the Loans owing to,
each Lender pursuant to the terms hereof from time to time (the
"REGISTER"). The entries in the Register shall be conclusive, and the
Borrower, the Agents and the Lenders may treat each Person whose name
is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary. The Register shall be available for inspection by the
Borrower and any Lender, at any reasonable time and from time to time
upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the
processing and recordation fee referred to in Section 10.04(b) and any
written consent to such assignment required by Section 10.04(b), the
Administrative Agent acting for itself and, in any situation where the
consent of the Borrower is not required, the Borrower shall accept such
Assignment and Acceptance and record the information contained therein
in the Register. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in
this paragraph.
(c) (i) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(a "PARTICIPANT") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitment and the Loans
owing to it); provided that (A) such Lender's obligations under this Agreement
shall remain unchanged, (B) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (C) the
Borrower, the Agents and the Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
this Agreement. Any agreement or instrument (oral or written) pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and the other Loan Documents and to
approve any amendment, modification or waiver of any provision of this Agreement
and the other Loan Documents; provided that (x) such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, modification or waiver described in Section 10.04(a)(i) or the
first proviso to Section 10.08(b) that affects such Participant and (y) no other
agreement (oral or written) with respect to such participation which is
inconsistent with the foregoing provisions of this sentence may exist between
such Lender and such Participant. Subject to Section 10.04(c)(ii), the Borrower
agrees that each Participant shall be entitled to the benefits of Sections 2.11,
2.12 and 2.13, to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to Section 10.04(b). To the extent permitted by
law, each
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Participant also shall be entitled to the benefits of Section 10.06 as though it
were a Lender, provided such Participant agrees to be subject to Section 2.14(c)
as though it were a Lender.
(ii) A Participant shall not be entitled to receive any
greater payment under Section 2.11, 2.12 or 2.13 than the applicable
Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower's prior
written consent (which shall not be unreasonably withheld or delayed).
A Participant that would be a Foreign Lender if it were a Lender shall
not be entitled to the benefits of Section 2.13 to the extent such
Participant fails to comply with Section 2.13(e) as though it were a
Lender.
(d) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
Section 10.05. Expenses; Indemnity. (a) The Borrower agrees to pay all
reasonable out-of-pocket expenses (including Other Taxes) incurred by the Agents
in connection with the preparation of this Agreement and the other Loan
Documents or the administration of this Agreement and by the Joint Lead
Arrangers in connection with the syndication of the Commitments (including
expenses incurred prior to the Closing Date in connection with due diligence and
the reasonable fees, disbursements and the charges for no more than one counsel
in each jurisdiction where Collateral is located) or in connection with any
amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the Transactions hereby contemplated shall be consummated) or
incurred by the Agents or any Lender in connection with the enforcement or
protection of their rights in connection with this Agreement and the other Loan
Documents, in connection with the Loans made hereunder, including the reasonable
fees, charges and disbursements of Xxxxx Xxxx & Xxxxxxxx, counsel for the Agents
and the Joint Lead Arrangers and Xxxxx & XxXxxxxx, special German counsel to the
Agents and the Joint Lead Arrangers, and, in connection with any such
enforcement or protection, the reasonable fees, charges and disbursements of any
other counsel (including the reasonable allocated costs of internal counsel if a
Lender elects to use internal counsel in lieu of outside counsel) for the
Agents, the Joint Lead Arrangers or all Lenders (but no more than one such
counsel for all Lenders).
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(b) The Borrower agrees to indemnify the Agents, the Joint Lead
Arrangers, each Lender and each of their respective directors, trustees,
officers, employees and agents (each such Person being called an "INDEMNITEE")
against, and to hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including reasonable counsel fees,
charges and disbursements, incurred by or asserted against any Indemnitee
arising out of, in any way connected with, or as a result of (i) the execution
or delivery of this Agreement or any other Loan Document or any agreement or
instrument contemplated hereby or thereby, the performance by the parties hereto
and thereto of their respective obligations thereunder or the consummation of
the Transactions and the other transactions contemplated hereby, (ii) the use of
the proceeds of the Loans or (iii) any claim, litigation, investigation or
proceeding relating to any of the foregoing, whether or not any Indemnitee is a
party thereto, provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses result primarily from the gross negligence or willful
misconduct of such Indemnitee (treating, for this purpose only, any Agent, any
Joint Lead Arranger, any Lender and any of their respective Related Parties as a
single Indemnitee). Subject to and without limiting the generality of the
foregoing sentence, the Borrower agrees to indemnify each Indemnitee against,
and hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including reasonable counsel or consultant
fees, charges and disbursements, incurred by or asserted against any Indemnitee
arising out of, in any way connected with, or as a result of (A) any
Environmental Claim related in any way to Holdings, the Borrower or any of their
Subsidiaries, or (B) any actual or alleged presence, Release or threatened
Release of Hazardous Materials at, under, on or from any material property or
any property owned, leased or operated by, or by any predecessor of, Holdings,
the Borrower or any of their Subsidiaries, provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee or any of its Related
Parties. The provisions of this Section 10.05 shall remain operative and in full
force and effect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repayment of any of
the Bridge Obligations, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of any Agent or any Lender. All amounts due under this
Section 10.05 shall be payable on written demand therefor accompanied by
reasonable documentation with respect to any reimbursement, indemnification or
other amount requested.
(c) Unless an Event of Default shall have occurred and be
continuing, the Borrower shall be entitled to assume the defense of any action
for which
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indemnification is sought hereunder with counsel of its choice at its expense
(in which case the Borrower shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by an Indemnitee except as set forth
below); provided, however, that such counsel shall be reasonably satisfactory to
each such Indemnitee. Notwithstanding the Borrower's election to assume the
defense of such action, each Indemnitee shall have the right to employ separate
counsel and to participate in the defense of such action, and the Borrower shall
bear the reasonable fees, costs and expenses of such separate counsel, if (i)
the use of counsel chosen by the Borrower to represent such Indemnitee would
present such counsel with a conflict of interest; (ii) the actual or potential
defendants in, or targets of, any such action include both the Borrower and such
Indemnitee and such Indemnitee shall have reasonably concluded that there may be
legal defenses available to it that are different from or additional to those
available to the Borrower (in which case the Borrower shall not have the right
to assume the defense or such action on behalf of such Indemnitee); (iii) the
Borrower shall not have employed counsel reasonably satisfactory to such
Indemnitee to represent it within a reasonable time after notice of the
institution of such action; or (iv) the Borrower shall authorize in writing such
Indemnitee to employ separate counsel at the Borrower's expense. The Borrower
will not be liable under this Agreement for any amount paid by an Indemnitee to
settle any claims or actions if the settlement is entered into without the
Borrower's consent, which consent may not be withheld or delayed unless such
settlement is unreasonable in light of such claims or actions against, and
defenses available to, such Indemnitee.
(d) Except as expressly provided in Section 10.05(a) with respect
to Other Taxes, which shall not be duplicative with any amounts paid pursuant to
Section 2.13, this Section 10.05 shall not apply to Taxes.
Section 10.06. Right of Set-off. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of Holdings, the Borrower or any Subsidiary
against any of and all the obligations of Holdings or the Borrower now or
hereafter existing under this Agreement or any other Loan Document held by such
Lender, irrespective of whether or not such Lender shall have made any demand
under this Agreement or such other Loan Document and although the obligations
may be unmatured. The rights of each Lender under this Section 10.06 are in
addition to other rights and remedies (including other rights of set-off) that
such Lender may have.
Section 10.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE
CONSTRUED IN
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ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
Section 10.08. Waivers; Amendments. (a) No failure or delay of the
Administrative Agent or any Lender in exercising any right or power hereunder or
under any Loan Document shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Administrative Agent and the Lenders hereunder and under the
other Loan Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of this
Agreement or any other Loan Document or consent to any departure by Holdings,
the Borrower or any other Loan Party therefrom shall in any event be effective
unless the same shall be permitted by this Section, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for
which given. No notice or demand on Holdings, the Borrower or any other Loan
Party in any case shall entitle such Person to any other or further notice or
demand in similar or other circumstances.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except (x) as set
forth in Section 10.08(c) or 10.08(d) or as contemplated by Section 5.16(b)(ii)
or in connection with a reconfirmation of the pledges under the Security
Documents upon the Delisting as contemplated thereby or (y) (A) in the case of
this Agreement, pursuant to an agreement or agreements in writing entered into
by Holdings, the Borrower and the Required Lenders, (B) in the case of any other
Loan Document (other than any Security Document), pursuant to an agreement or
agreements in writing entered into by each party thereto and consented to by the
Required Lenders, and (C) in the case of any Security Document, pursuant to an
agreement or agreements in writing entered into by the Collateral Agent and
consented to by the Required Lenders; provided, however, that no such agreement
shall:
(i) decrease or forgive the principal amount of, or
extend the final maturity of, or decrease the rate of interest on, or
change the currency of payment of, any Loan, without the prior written
consent of each Lender directly affected thereby,
(ii) increase or extend the Commitment of any Lender or
decrease the fees of any Lender without the prior written consent of
such Lender (it being understood that waivers or modifications of
conditions precedent, covenants or Defaults or Events of Default shall
not constitute an increase of the Commitments of any Lender),
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(iii) extend any date on which payment of interest on any
Loan is due, without the prior written consent of each Lender adversely
affected thereby,
(iv) amend or modify the provisions of Section 2.14(c) in
a manner that would by its terms alter the pro rata sharing of payments
required thereby, without the prior written consent of each Lender
adversely affected thereby,
(v) amend or modify the provisions of this Section or the
definition of the terms "Required Lenders" or any other provision
hereof specifying the number or percentage of Lenders required to
waive, amend or modify any rights hereunder or make any determination
or grant any consent hereunder, without the prior written consent of
each Lender adversely affected thereby,
(vi) amend, modify or waive any provision in the Exchange
Notes that requires (or would, if any Exchange Notes were outstanding,
require) the approval of all Holders of Exchange Notes, in each case
without the consent of each Lender directly affected thereby,
(vii) restrict the right of any Lender to exchange Initial
Loans for Extended Loans on the Initial Maturity Date, or Extended
Loans for Exchange Notes, amend the rate of such exchange or amend the
terms of the Exchange Notes in any manner that requires (or would, if
the Exchange Notes were outstanding, require) the approval of all
Holders of Exchange Notes, in each case without the consent of each
Lender directly affected thereby,
(viii) release all or substantially all the Collateral or
release Bidco or the Borrower from its obligations under the Security
Documents (except pursuant to the terms thereof), without the prior
written consent of each Lender; or
(ix) on or after the Restructuring Date, except pursuant
to Section 10.20, release any Guarantor from its obligations under the
Guarantee Agreement, or limit its liability in respect of thereof,
without the prior written consent of each Lender,
provided, further, that no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent hereunder without the
prior written consent of the Administrative Agent.
(c) Notwithstanding anything else to the contrary herein, without
notice to or the consent of any Lender, immediately following the Initial
Maturity Date,
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if the Initial Loans are converted into Extended Loans, the affirmative
covenants set forth in Article 5 (other than Section 5.04, 5.05 and 5.07), the
negative covenants set forth in Article 6 and the Events of Default and remedies
set forth in Article 7 shall be deemed to have been automatically replaced
(without any further action necessary by the parties hereto) by (i) the
affirmative covenants described in the Description of Exchange Notes under the
heading " -- REPURCHASE AT THE OPTION OF THE HOLDERS," and other affirmative
covenants customary in high yield securities offerings by Blackstone, (ii) the
negative covenants (including the consolidation, merger or sale of assets
covenants) described in the Description of Exchange Notes under the heading " --
CERTAIN COVENANTS" and (iii) the defaults and remedies described in the
Description of Exchange Notes under the heading " -- EVENTS OF DEFAULTS AND
REMEDIES," each as applicable, which replacement provisions, along with the
relevant defined terms used therein for the purposes thereof, will thereupon be
deemed incorporated by reference herein, with references therein to the "ISSUER"
and the "TRUSTEE" being deemed to be references to the "BORROWER" and the
"ADMINISTRATIVE AGENT," respectively, and with such other modifications to this
Agreement necessary to give effect to the foregoing; in furtherance of the
foregoing, the Administrative Agent will, at the request of the Borrower, enter
into such technical amendments to the Loan Documents reasonably necessary to
effect the foregoing; provided that following the Initial Maturity Date, the Net
Proceeds of any Asset Sale Prepayment Event or Equity Issuance Prepayment Event
shall continue to be applied in accordance with Section 2.07(b) (and the
definition of "NET PROCEEDS") during the periods set forth in the definitions of
such terms.
(d) Without the consent of the Global Coordinator, any Joint Lead
Arranger or any Lender, the Loan Parties and the Administrative Agent and/or
Collateral Agent may (in their respective sole discretion, or shall, to the
extent required by any Loan Document) enter into any amendment, modification or
waiver of any Loan Document, or enter into any new agreement or instrument, to
effect the granting, perfection, protection, expansion or enhancement of any
security interest in any Collateral or additional property to become Collateral
for the benefit of the Pledgees, or as required by local law to give effect to,
or protect any security interest for the benefit of the Pledgees, in any
property or so that the security interests therein comply with applicable law.
(e) Each Lender shall be bound by any waiver, amendment or
modification authorized by this Section 10.08 and any consent by any Lender
pursuant to this Section 10.08 shall bind any assignee of such Lender.
Section 10.09 . Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the applicable interest rate, together
with all fees and charges that are treated as interest under applicable law
(collectively, the "CHARGES"), as provided for herein or in any other document
executed in
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connection herewith, or otherwise contracted for, charged, received, taken or
reserved by any Lender, shall exceed the maximum lawful rate (the "MAXIMUM
RATE") that may be contracted for, charged, taken, received or reserved by such
Lender in accordance with applicable law, the rate of interest payable
hereunder, together with all Charges payable to such Lender, shall be limited to
the Maximum Rate, provided that such excess amount shall be paid to such Lender
on subsequent payment dates to the extent not exceeding the legal limitation.
Section 10.10. Entire Agreement. This Agreement, the other Loan
Documents and the agreements regarding certain Fees referred to herein
constitute the entire contract between the parties relative to the subject
matter hereof. Any previous agreement among or representations from the parties
or their Affiliates with respect to the subject matter hereof is superseded by
this Agreement and the other Loan Documents. Notwithstanding the foregoing, the
Fee Letter shall survive the execution and delivery of this Agreement and remain
in full force and effect. Nothing in this Agreement or in the other Loan
Documents, expressed or implied, is intended to confer upon any party other than
the parties hereto and thereto any rights, remedies, obligations or liabilities
under or by reason of this Agreement or the other Loan Documents.
Section 10.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS
APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS Section 10.11.
Section 10.12. Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
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Section 10.13. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original but all of which,
when taken together, shall constitute but one contract, and shall become
effective as provided in Section 10.03. Delivery of an executed counterpart to
this Agreement by facsimile transmission shall be as effective as delivery of a
manually signed original.
Section 10.14. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
Section 10.15. Jurisdiction; Consent To Service Of Process. (a) Each
of Holdings and the Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that any Lender may otherwise have to bring any action or proceeding
relating to this Agreement or the other Loan Documents against Holdings, the
Borrower or any other Loan Party or their properties in the courts of any
jurisdiction.
(b) Each of Holdings and the Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
the other Loan Documents in any New York State or federal court. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Each of Holdings and the Borrower hereby irrevocably and
unconditionally appoints BCP Crystal US Holdings Corp. with an office on the
date hereof at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 and its
successors hereunder (the "PROCESS AGENT"), as its agent to receive on behalf of
each of Holdings and the Borrower and its property of all writs, claims,
process, and summonses in any action or proceeding brought against it in the
State of New York. Such service may be made by mailing or delivering a copy of
such process
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to Holdings and the Borrower, as the case may be, in care of the Process Agent
at the address specified above for the Process Agent, and each of Holdings and
the Borrower hereby irrevocably authorizes and directs the Process Agent to
accept such service on its behalf. Failure by the Process Agent to give notice
to Holdings or the Borrower, as applicable, or failure of Holdings or the
Borrower, as applicable, to receive notice of such service of process shall not
impair or affect the validity of such service on the Process Agent, Holdings or
the Borrower, or of any judgment based thereon. Each of Holdings and the
Borrower covenants and agrees that it shall take any and all reasonable action,
including the execution and filing of any and all documents, that may be
necessary to continue the designation of the Process Agent above in full force
and effect, and to cause the Process Agent to act as such. Each of Holdings and
the Borrower further covenants and agrees to maintain at all times an agent with
offices in New York City to act as its Process Agent. Nothing herein shall in
any way be deemed to limit the ability to serve any such writs, process or
summonses in any other manner permitted by applicable law.
Section 10.16. Confidentiality. (a) Each of the Lenders and the
Administrative Agent agrees that it shall maintain in confidence any information
relating to Holdings, the Borrower and the other Loan Parties furnished to it by
or on behalf of Holdings, the Borrower or the other Loan Parties (other than
information that (a) has become generally available to the public other than as
a result of a disclosure by such party, (b) has been independently developed by
such Lender or the Administrative Agent without violating this Section 10.16 or
(c) was available to such Lender or the Administrative Agent from a third party
having, to such Person's knowledge, no obligations of confidentiality to
Holdings, the Borrower or any other Loan Party) and shall not reveal the same
other than to its directors, trustees, officers, employees and advisors with a
need to know or to any Person that approves or administers the Loans on behalf
of such Lender (so long as each such Person shall have been instructed to keep
the same confidential in accordance with this Section 10.16), except: (A) to the
extent necessary to comply with law or any legal process or the requirements of
any Governmental Authority, the National Association of Insurance Commissioners
or of any securities exchange on which securities of the disclosing party or any
Affiliate of the disclosing party are listed or traded, (B) as part of normal
reporting or review procedures to Governmental Authorities or the National
Association of Insurance Commissioners, (C) to its parent companies, Affiliates
or auditors (so long as each such Person shall have been instructed to keep the
same confidential in accordance with this Section 10.16), (D) in order to
enforce its rights under any Loan Document in a legal proceeding, (E) to any
prospective assignee of, or prospective Participant in, any of its rights under
this Agreement (so long as such Person shall have been instructed to keep the
same confidential in accordance with this Section 10.16) and (F) to any direct
or indirect contractual counterparty in any Hedging Obligation or such
contractual counterparty's professional advisor
139
(so long as such contractual counterparty or professional advisor to such
contractual counterparty agrees to be bound by the provisions of this Section).
(b) Neither the Administrative Agent, any Lender, any of their
respective affiliates nor any Loan Party provide accounting, tax or legal
advice. Notwithstanding anything provided herein, and any express or implied
claims of exclusivity or proprietary rights, each party hereto hereby agrees and
acknowledges that each such party (and each of their employees, representatives
or other agents) are authorized to disclose to any and all Persons, beginning
immediately upon commencement of their discussions and without limitation of any
kind, the tax treatment and tax structure of the Transaction, and all materials
of any kind (including opinions or other tax analyses) that are provided by any
such party to any other party relating to such tax treatment and tax structure,
except to the extent that such disclosure is subject to restrictions reasonably
necessary to comply with securities laws. In this regard, each party hereto
acknowledges and agrees that disclosure of the tax treatment and tax structure
of the Transaction has not been and is not limited in any manner by an express
or implied understanding or agreement (whether oral or written, and whether or
not such understanding or agreement is legally binding), except to the extent
that such disclosure is subject to restrictions reasonably necessary to comply
with securities laws. For purposes of this authorization, "tax treatment" means
the purported or claimed U.S. federal income tax treatment of the Transaction,
and "tax structure" means any fact that may be relevant to understanding the
purported or claimed U.S. federal income tax treatment of the Transaction. This
paragraph is intended to reflect the understanding of the parties hereto that
the Transaction has not been offered under "conditions of confidentiality" as
that phrase is used in Treasury Regulation Sections 1.6011-4(b)(3)(i) and 30
1.6111-2(c)(1), and shall be interpreted in a manner consistent therewith.
Section 10.17. Conversion Of Currencies. (a) If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum owing
hereunder in one currency into another currency, each party hereto agrees, to
the fullest extent that it may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures in the
relevant jurisdiction the first currency could be purchased with such other
currency on the Business Day immediately preceding the day on which final
judgment is given.
(b) The obligations of the Borrower in respect of any sum due to
any party hereto or any holder of the obligations owing hereunder (the
"APPLICABLE CREDITOR") shall, notwithstanding any judgment in a currency (the
"JUDGMENT CURRENCY") other than the currency in which such sum is stated to be
due hereunder (the "AGREEMENT CURRENCY"), be discharged only to the extent that,
on the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
140
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, the Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss. The obligations of the Borrower contained
in this Section 10.17 shall survive the termination of this Agreement and the
payment of all other amounts owing hereunder.
Section 10.18. Acknowledgments. Each Loan Party hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Credit Documents;
(b) no Agent or Lender has any fiduciary relationship with or duty
to such Loan Party arising out of or in connection with this Agreement or any of
the other Credit Documents, and the relationship between the Agents and Lenders,
on one hand, and such Loan Party, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Credit
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Loan Parties and the Lenders.
Section 10.19. Patriot Act Notice. Each Lender and the Administrative
Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower
that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the "ACT"), it is required to
obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information
that will allow such Lender or the Administrative Agent, as applicable, to
identify such Borrower in accordance with the Act.
Section 10.20. Release Of Guarantor. A Guarantor shall be
automatically and unconditionally released and discharged from all of its
obligations under its Guarantee of the Loans if:
(a) (i) all of its assets or Capital Stock is sold or transferred
other than to the Borrower or any Restricted Subsidiary, in each case in a
transaction in compliance with Section 6.01 and, if applicable, Section 6.02,
(ii) the Guarantor merges with or into, or consolidates with or amalgamates
with, or transfers all or substantially all of its assets to, another Person in
compliance with Section 6.05, (iii) (A) the guarantee of the Senior Secured
Facilities, except a discharge or release by or as a result of payment under
such guarantee or (B) the Indebtedness that resulted in the creation of such
Guarantee, as the case may be, is released or
141
discharged or (iv) such Guarantor is designated an Unrestricted Subsidiary in
accordance with the terms of this Agreement;
(b) in the case of clauses (a)(i), (ii) and (iv) above, such
Guarantor has delivered to the Holders a certificate of a Responsible Officer
stating that all conditions precedent herein provided for relating to such
transaction have been complied with; and
(c) such Guarantor is released from its guarantee of the Senior
Secured Facilities and the Senior Subordinated Bridge C Loan Agreement.
In the case of a release of a Guarantor pursuant to clause (a)(iii) above, the
Borrower shall, promptly following such release, deliver a notice to the
Administrative Agent informing the Administrative Agent of such release.
Section 10.21. Parallel Debt.
(a) Each of the parties hereto agrees and the Borrower
acknowledges by way of an abstract acknowledgement of debt (the "PARALLEL DEBT")
that each and every obligation of the Borrower (and any of its successors
pursuant to this Agreement) under this Agreement and the other Loan Documents
shall also be owing in full to the Collateral Agent (including its successors in
such capacity under this Agreement), and that accordingly the Collateral Agent
will have its own independent right to demand performance by the Borrower of
those obligations. The Collateral Agent agrees with the Borrower that in case of
any discharge of any such obligation owing to the Collateral Agent or any
Lender, such discharge shall be deemed to be in satisfaction pro tanto of the
Parallel Debt; provided that the foregoing shall not apply if such discharge is
made by virtue of any set off, counterclaim or similar defense invoked by the
Borrower vis-a-vis the Collateral Agent.
(b) Without limiting or affecting the Collateral Agent's rights
against the Borrower (whether under this paragraph or under any other provision
of the Loan Documents), the Collateral Agent agrees with each other Lender (on a
several and divided basis) that, except as set out in the next sentence, it will
not exercise its rights under the Parallel Debt except with the consent of the
relevant Lender. However, for the avoidance of doubt, nothing in the previous
sentence shall in any way limit the Collateral Agent's right to act in the
protection or preservation of rights under or to enforce any Loan Document as
contemplated by this Agreement and/or the relevant Loan Document (or to do any
act reasonably incidental to the foregoing).
142
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Agreement to be duly executed and delivered as of the date first written
above.
BCP CRYSTAL HOLDINGS LTD. 2
By: /s/ XXXXXXXX XXXXXXX
-----------------------
Name: Xxxxxxxx Xxxxxxx
Title: Director
BCP CAYLUX HOLDINGS LUXEMBOURG S.C.A.,
By its Manager BCP CAYLUX HOLDINGS LTD. 1,
By: /s/ XXXXXX XXXXX
-----------------------
Name: Xxxxxx Xxxxx
Title: Director
XXXXXX XXXXXXX SENIOR FUNDING, INC., as
Administrative Agent
By: /s/ Xxxxxxx Xxxx
-----------------------------------
Name: Xxxxxxx Xxxx
Title: Managing Director
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Joint Lead Arranger
By: /s/ Xxxx Xxxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Lender
By: /s/ Xxxx Xxxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
DEUTSCHE BANK SECURITIES INC.,
as Joint Lead Arranger
By: /s/ Xxxx Xxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxx
Title: Director
By: /s/ Xxxx Xxxxx
-----------------------------------
Name: Xxxx Xxxxx
Title: Managing Director
DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH,
as Lender
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Director
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Title: Director
BANK OF AMERICA, N.A., as
Documentation Agent
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Name: Xxxx X. Xxxxx
Title: Managing Director
BANC OF AMERICA BRIDGE LLC, as Lender
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Name: Xxxx X. Xxxxx
Title: Managing Director
ABN AMRO BANK N.V., as Lender
By: /s/ Xxxxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Director
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Vice President
BAYERISCHE HYPO- UND VEREINSBANK AG,
LONDON BRANCH, as Lender
By: /s/ Xxx Xxxxx
--------------------------------------
Name: Xxx Xxxxx
Title: SVP
By: /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Title: AVP
MIZUHO CORPORATE BANK, LTD.,
NEW YORK BRANCH, as Lender
By: /s/ Xxxxxxx Xxxxxx
----------------------------
Name: Xxxxxxx Xxxxxx
Title: Deputy General Manager
THE BANK OF NOVA SCOTIA, as Lender
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
KfW, as Lender
By: /s/ Xxxx Xxxx
-------------------------------
Name: Xx. Xxxx Xxxx
Title: Senior Vice President
By: /s/ Xxxx Xxxxxxx
-------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Project Manager
COMMERZBANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES, as Lender
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
AIG ANNUITY INSURANCE COMPANY
THE VARIABLE ANNUITY LIFE INSURANCE COMPANY
SUNAMERICA LIFE INSURANCE COMPANY
THE UNITED STATES LIFE INSURANCE COMPANY IN THE CITY OF NEW YORK
AMERICAN GENERAL LIFE INSURANCE COMPANY
AMERICAN INTERNATIONAL LIFE ASSURANCE COMPANY OF NEW YORK
By: AIG Global Investment Corp.,
Investment Advisor
By: /s/ Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Director
157