EXHIBIT 10.33.1
AMENDED AND RESTATED
CREDIT AND GUARANTY AGREEMENT
dated as of August 27, 2004
among,
XXXXXXX BEDDING COMPANY,
as Company,
THL-SC BEDDING COMPANY AND CERTAIN SUBSIDIARIES OF COMPANY,
as Guarantors,
THE FINANCIAL INSTITUTIONS LISTED HEREIN,
as Lenders,
XXXXXXX SACHS CREDIT PARTNERS L.P.,
as Sole Bookrunner, a Joint Lead Arranger and as Co-Syndication Agent,
UBS SECURITIES LLC,
as a Joint Lead Arranger and as Co-Syndication Agent,
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Administrative Agent
GENERAL ELECTRIC CAPITAL CORPORATION,
as Co-Documentation Agent
and
CIT LENDING SERVICES CORPORATION,
as Co-Documentation Agent
TERM LOAN AND REVOLVING CREDIT FACILITIES
TABLE OF CONTENTS
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SECTION 1. DEFINITIONS; INTERPRETATION.................................................................. 2
1.1 Defined Terms......................................................................... 2
1.2 Accounting Terms...................................................................... 36
1.3 Interpretation, etc................................................................... 36
SECTION 2. CREDIT EXTENSIONS............................................................................ 37
2.1 Tranche C Term Loans.................................................................. 37
2.2 Revolving Loans and Swing Line Loans.................................................. 37
2.3 Letters of Credit..................................................................... 40
2.4 Pro Rata Shares....................................................................... 45
2.5 Use of Proceeds....................................................................... 45
2.6 Notes; Register; Lenders' Books and Records........................................... 46
2.7 Interest Payments..................................................................... 46
2.8 Conversion; Continuation.............................................................. 48
2.9 Post-Maturity Interest................................................................ 49
2.10 Fees.................................................................................. 49
2.11 Scheduled Payments.................................................................... 50
2.12 Voluntary Prepayments/Commitment Reductions........................................... 51
2.13 Mandatory Prepayments/Commitment Reductions........................................... 53
2.14 Application of Prepayments and Reductions of Commitments.............................. 55
2.15 Collateral Proceeds; Guaranty Payments................................................ 56
2.16 General Provisions Regarding Payments................................................. 57
2.17 Ratable Sharing....................................................................... 57
2.18 Making or Maintaining Eurodollar Rate Loans........................................... 58
2.19 Increased Costs; Capital Adequacy..................................................... 60
2.20 Taxes; Withholding, Etc............................................................... 61
2.21 Capital Adequacy Adjustment........................................................... 64
2.22 Obligation to Mitigate................................................................ 64
2.23 Defaulting Lenders.................................................................... 65
2.24 Removal or Replacement of a Lender.................................................... 65
2.25 Incremental Facilities................................................................ 66
SECTION 3. CONDITIONS PRECEDENT......................................................................... 68
3.1 Effective Date........................................................................ 68
3.2 Conditions to Each Credit Extension................................................... 70
SECTION 4. REPRESENTATIONS AND WARRANTIES............................................................... 71
4.1 Organization and Powers............................................................... 71
4.2 Qualification and Good Standing....................................................... 71
4.3 Subsidiaries.......................................................................... 71
4.4 Authorization of Borrowing; No Conflict............................................... 72
4.5 Governmental Consents................................................................. 72
4.6 Binding Obligation.................................................................... 72
4.7 Valid Issuance of the Senior Subordinated Notes....................................... 72
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4.8 Financial Condition................................................................... 73
4.9 No Material Adverse Change............................................................ 73
4.10 Litigation; Adverse Facts............................................................. 73
4.11 Payment of Taxes...................................................................... 73
4.12 Title to Properties; Real Property.................................................... 73
4.13 Collateral............................................................................ 74
4.14 Environmental......................................................................... 75
4.15 No Defaults........................................................................... 75
4.16 Governmental Regulation............................................................... 75
4.17 Margin Stock.......................................................................... 75
4.18 Employee Matters...................................................................... 76
4.19 Employee Benefit Plans................................................................ 76
4.20 [Reserved]............................................................................ 76
4.21 Solvency.............................................................................. 76
4.22 Certain Related Agreements............................................................ 76
4.23 [Reserved]............................................................................ 76
4.24 Disclosure............................................................................ 77
4.25 Intellectual Property................................................................. 77
SECTION 5. AFFIRMATIVE COVENANTS........................................................................ 77
5.1 Financial Statements and Other Reports................................................ 77
5.2 Legal Existence, etc.................................................................. 81
5.3 Payment of Taxes and Claims........................................................... 81
5.4 Maintenance of Properties............................................................. 81
5.5 Insurance............................................................................. 81
5.6 Inspection Rights; Lender Meeting..................................................... 82
5.7 Compliance with Laws, Etc............................................................. 82
5.8 Environmental Matters................................................................. 82
5.9 Subsidiaries.......................................................................... 84
5.10 Interest Rate Protection.............................................................. 85
5.11 [Reserved]............................................................................ 85
5.12 Matters Relating to Additional Real Property Collateral............................... 85
5.13 Further Assurances.................................................................... 87
SECTION 6. NEGATIVE COVENANTS........................................................................... 87
6.1 Indebtedness.......................................................................... 87
6.2 Liens................................................................................. 90
6.3 Investments........................................................................... 91
6.4 [Reserved]............................................................................ 94
6.5 Restricted Junior Payments............................................................ 94
6.6 Financial Covenants................................................................... 96
6.7 Fundamental Changes; Asset Sales...................................................... 98
6.8 Consolidated Capital Expenditures..................................................... 100
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6.9 Sales and Lease-Backs................................................................. 100
6.10 Transactions with Shareholders and Affiliates......................................... 100
6.11 Amendments or Waivers of Certain Documents............................................ 101
6.12 Conduct of Company Business........................................................... 101
6.13 Special Covenants of Holdings......................................................... 102
6.14 Fiscal Year........................................................................... 102
6.15 Securities of Company and Subsidiaries; Restrictions on Subsidiaries.................. 102
6.16 Designated Senior Debt................................................................ 102
SECTION 7. GUARANTY..................................................................................... 103
7.1 Guaranty of the Obligations........................................................... 103
7.2 Limitation on Amount Guarantied....................................................... 103
7.3 Payment by Guarantors................................................................. 104
7.4 Liability of Guarantors Absolute...................................................... 104
7.5 Waivers by Guarantors................................................................. 106
7.6 Guarantors' Rights of Subrogation, Contribution, Etc.................................. 107
7.7 Subordination of Other Obligations.................................................... 107
7.8 Continuing Guaranty................................................................... 108
7.9 Authority of Guarantors or Company.................................................... 108
7.10 Financial Condition of Company and Guarantors......................................... 108
7.11 Bankruptcy, Etc....................................................................... 108
7.12 Discharge of Guaranty Upon Sale of Guarantor.......................................... 109
SECTION 8. EVENTS OF DEFAULT............................................................................ 109
8.1 Events of Default..................................................................... 109
8.2 Certain Option of Lenders............................................................. 112
8.3 Company's Right to Cure Financial Performance Covenants............................... 113
SECTION 9. AGENTS....................................................................................... 113
9.1 Appointment of Agents................................................................. 113
9.2 Powers and Duties..................................................................... 114
9.3 General Immunity...................................................................... 114
9.4 Agent Entitled to Act as Lender....................................................... 115
9.5 Lenders' Representations and Warranties............................................... 115
9.6 Right to Indemnity.................................................................... 116
9.7 Successor Administrative Agent and Swing Line Lender.................................. 116
9.8 Collateral Documents and Guaranties................................................... 117
SECTION 10. MISCELLANEOUS............................................................................... 119
10.1 Notices............................................................................... 119
10.2 Expenses.............................................................................. 119
10.3 Indemnity............................................................................. 120
10.4 Set-Off............................................................................... 121
10.5 Amendments and Waivers................................................................ 121
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10.6 Successors and Assigns; Participations................................................ 123
10.7 Independence of Covenants............................................................. 126
10.8 Survival of Representations, Warranties and Agreements................................ 126
10.9 No Waiver; Remedies Cumulative........................................................ 126
10.10 Marshalling; Payments Set Aside....................................................... 126
10.11 Severability.......................................................................... 127
10.12 Obligations Several; Independent Nature of Lenders' Rights............................ 127
10.13 Headings.............................................................................. 127
10.14 APPLICABLE LAW........................................................................ 127
10.15 CONSENT TO JURISDICTION AND SERVICE OF PROCESS........................................ 127
10.16 WAIVER OF JURY TRIAL.................................................................. 128
10.17 Confidentiality....................................................................... 128
10.18 Counterparts; Effectiveness........................................................... 129
10.19 Maximum Amount........................................................................ 129
10.20 Reaffirmation and Grant of Security Interest.......................................... 130
10.21 Amendment and Restatement............................................................. 131
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SCHEDULES:
1.1(b) Term Loan Amounts, Revolving Loan Commitments and Pro Rata
Shares
2.1(a) Continuing Lenders
4.1 Subsidiaries of Holdings
4.12 Real Property Assets
6.1 Certain Existing Indebtedness
6.2 Certain Existing Liens
6.3 Certain Existing Investments
EXHIBITS:
A-1 Funding Notice
A-2 Conversion/Continuation Notice
A-3 Request for Issuance
B-1 Tranche C Term Loan Note
B-2 New Term Loan Note
B-3 Revolving Note
B-4 Swing Line Note
C Compliance Certificate
D Opinion of Weil, Gotshal & Xxxxxx LLP
E Assignment Agreement
F Certificate Re Non-Bank Status
G Solvency Certificate
H Effective Date Certificate
I Counterpart Agreement
J Pledge and Security Agreement
K Mortgage
L Certain Adjustments to EBITDA
M Joinder Agreement
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AMENDED AND RESTATED
CREDIT AND GUARANTY AGREEMENT
This AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT dated as of August
27, 2004, is entered into by and among XXXXXXX BEDDING COMPANY (formerly known
as Xxxxxxx Company), a Delaware corporation ("COMPANY"), THL-SC BEDDING COMPANY,
a Delaware corporation ("HOLDINGS"), CERTAIN SUBSIDIARIES OF COMPANY PARTY
HERETO, as Guarantors, XXXXXXX SACHS CREDIT PARTNERS L.P. ("GSCP"), as sole
bookrunner, joint lead arranger and as co-syndication agent, THE FINANCIAL
INSTITUTIONS LISTED ON THE SIGNATURE PAGES HERETO (together with each such
institution's successors and permitted assigns, each a "LENDER"), UBS SECURITIES
LLC ("UBSS"), as joint lead arranger and co-syndication agent, DEUTSCHE BANK AG,
NEW YORK BRANCH ("DBNY"), as administrative agent for Lenders (together with its
permitted successors in such capacity, "ADMINISTRATIVE AGENT") and as collateral
agent for Lenders (together with its permitted successors in such capacity,
"COLLATERAL AGENT"), GENERAL ELECTRIC CAPITAL CORPORATION ("GE CAPITAL") as
Co-Documentation Agent, and CIT LENDING SERVICES CORPORATION ("CIT") as
Co-Documentation Agent.
R E C I T A L S
WHEREAS, capitalized terms used herein having the meanings assigned to
those terms in Section 1.1;
WHEREAS, reference is made to that certain Credit and Guaranty Agreement
dated as of December 19, 2003 by and among THL Bedding Company, a Delaware
corporation ("THL COMPANY"), THL-SC Bedding Company, a Delaware corporation
("THL HOLDINGS"), GSCP, as sole bookrunner, joint lead arranger and as
co-syndication agent, the financial institutions listed on the signature pages
thereto (together with each such institutions successors and assigns, the
"EXISTING LENDERS"), UBSS, as joint lead arranger and co-syndication agent,
DBNY, as administrative agent and collateral agent, GE Capital as
co-documentation agent and CIT, as co-documentation agent (as it may amended,
restated, supplemented or otherwise modified from time to time, the "EXISTING
CREDIT AGREEMENT");
WHEREAS, pursuant to that certain Assumption Agreement dated as of
December 19, 2003, (i) Holdings has assumed all of the obligations of THL
Holdings under the Existing Credit Agreement; (ii) Company has assumed all of
the obligations of THL Company under the Existing Credit Agreement; and (iii)
certain subsidiaries of Company agreed to be "Guarantors" of the obligations
under the Existing Credit Agreement;
WHEREAS, Company desires that certain Existing Lenders and other Lenders
party hereto agree to amend and restate the Existing Credit Agreement in its
entirety to (i) refinance the existing Tranche B Term Loans made under the
Existing Credit Agreement (the "EXISTING TRANCHE B TERM LOANS") with the Tranche
C Term Loans made hereunder; (ii) to permit the Parent IPO and (iii) make
certain other changes as more fully set forth herein, which amendment and
restatement shall become effective upon satisfaction of the conditions precedent
set forth herein;
WHEREAS, Company has agreed to secure all of the Obligations by
reaffirming its grant to Collateral Agent, on behalf of the Secured Parties, of
a First Priority Lien on certain of its real and substantially all of its
personal property, including a pledge of all of the capital stock of each of its
Domestic Subsidiaries and 65% of the capital stock of each of the Foreign
Subsidiaries which is directly owned by Company;
WHEREAS, Holdings and certain Subsidiaries of Company have agreed to
guarantee the Obligations and to secure their guaranties by reaffirming their
grant to Collateral Agent, on behalf of the Secured Parties, of a First Priority
Lien on certain of their real and substantially all of their respective personal
property, including (i) a pledge of all of the capital stock of Company and (ii)
a pledge of all of the capital stock of each Domestic Subsidiary which is a
Subsidiary Guarantor and 65% of the capital stock of each Foreign Subsidiary
which is directly owned by a Subsidiary Guarantor;
WHEREAS, it is the intent of the parties hereto that this Agreement not
constitute a novation of the obligations and liabilities of the parties under
the Existing Credit Agreement and that this Agreement amend and restate in its
entirety the Existing Credit Agreement; and
WHEREAS, it is the intent of the Credit Parties to confirm that all
Obligations of the Credit Parties under the other Credit Documents shall
continue in full force and effect and that, from and after the Effective Date,
all references to the "CREDIT AGREEMENT" contained therein shall be deemed to
refer to this Agreement.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Holdings, Company, each of its
Subsidiaries party hereto, Lenders and Agents agree as follows:
SECTION 1. DEFINITIONS; INTERPRETATION
1.1 DEFINED TERMS. The following terms used herein, including (except to
the extent specifically stated otherwise) the preamble, recitals, exhibits and
schedules hereto, shall have the following meanings:
"ACQUISITION" means the acquisition of 84% of the outstanding capital
stock of Xxxxxxx Holdco by THL Company on December 19, 2003.
"ADJUSTED EURODOLLAR RATE" means, for any Interest Rate Determination Date
with respect to an Interest Period for a Eurodollar Rate Loan, the rate per
annum obtained by dividing (i) the offered rate (rounded upward to the nearest
1/16 of one percent) appearing on the Dow Xxxxx/Telerate Monitor on Telerate
Access Service Page 3750 (British Bankers Association Settlement Rate) (or if
such page or service is not available, any page reasonably determined by
Administrative Agent to be the successor thereto) at or about 10:00 a.m. (New
York time) on such Interest Rate Determination Date for U.S. dollar deposits of
amounts in same day funds comparable to the principal amount of the Eurodollar
Rate Loan for which the Adjusted Eurodollar Rate is then being determined with
maturities comparable to such Interest Period, by (ii) the difference of (1) a
percentage equal to 100%, minus (2) the stated maximum rate of all reserve
requirements (including any marginal, emergency, supplemental, special or other
2
reserves) applicable on such Interest Rate Determination Date to any member bank
of the Federal Reserve System in respect of "Eurocurrency liabilities" as
defined in Regulation D (or any successor category of liabilities under
Regulation D). If for any reason the portion of the Adjusted Eurodollar Rate
determined by reference to the mechanics of clause (i) of this definition is
unavailable, as determined by Administrative Agent, such portion of Adjusted
Eurodollar Rate for the applicable Interest Period shall mean the offered
quotation (rounded upward to the nearest 1/16 of one percent) to first class
banks in the London interbank market by DBNY for U.S. dollar deposits of amounts
in same day funds comparable to the principal amount of the Eurodollar Rate Loan
of DBNY for which the Adjusted Eurodollar Rate is then being determined with
maturities comparable to such Interest Period as of approximately 10:00 a.m.
(New York time) on such Interest Rate Determination Date.
"ADDITIONAL MORTGAGED POLICY" has the meaning assigned to that term in
Section 5.12.
"ADDITIONAL MORTGAGED PROPERTY" has the meaning assigned to that term in
Section 5.12.
"ADJUSTED MAXIMUM AMOUNT" has the meaning assigned to that term in Section
7.2(b).
"ADMINISTRATIVE AGENT" has the meaning assigned to that term in the
preamble hereto.
"ADVERSE PROCEEDING" means any action, suit, proceeding (whether
administrative, judicial or otherwise), governmental investigation or
arbitration (whether or not purportedly on behalf of Company or any of its
Subsidiaries) at law or in equity, or before or by any federal, state, municipal
or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign (including any Environmental Claims),
whether pending or, to the knowledge of Company or its Material Subsidiaries,
threatened in writing against or affecting Company or any of its Subsidiaries or
any property of Company or any of its Subsidiaries.
"AFFECTED LENDER" has the meaning assigned to that term in Section
2.18(b).
"AFFECTED LOANS" has the meaning assigned to that term in Section 2.18(b).
"AFFILIATE," as applied to any Person, means any other Person directly or
indirectly controlling, controlled by, or under common control with, that
Person. For the purposes of this definition, "CONTROL" (including, with
correlative meanings, the terms "CONTROLLING," "CONTROLLED BY" and "UNDER COMMON
CONTROL WITH"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting securities or
by contract or otherwise. Notwithstanding the foregoing, neither any Agent or
any Lender shall be deemed to be an Affiliate of any Credit Parties or any
Affiliate thereof.
"AGENT" means each of the Co-Syndication Agents, Joint Lead Arrangers,
Administrative Agent, Collateral Agent and Co-Documentation Agents.
"AGGREGATE PAYMENTS" has the meaning assigned to that term in Section
7.2(b).
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"AGREEMENT" means this Amended and Restated Credit and Guaranty Agreement,
as it may be amended, restated, supplemented or otherwise modified from time to
time.
"APPLICABLE COMMITMENT FEE PERCENTAGE" means (i) 0.50% per annum and (ii)
0.375% per annum if and for so long as the Leverage Ratio in effect from time to
time is less than 4.50:1.00; provided, (A) no change in the Applicable
Commitment Fee Percentage shall be effective until three Business Days after the
date on which Administrative Agent receives the financial statements and a
Compliance Certificate pursuant to Section 5.1(d) calculating the Leverage
Ratio, and (B) the Applicable Commitment Fee Percentage shall be 0.50% per
annum, in each case for so long (but only for so long) as Company has not
submitted to Administrative Agent the information described in clause (A) when
required under Section 5.1(d).
"APPLICABLE MARGIN" means (i) (A) for Tranche C Term Loans which are Base
Rate Loans, 1.50% per annum and for Tranche C Term Loans which are Eurodollar
Rate Loans, 2.50% per annum or (B) for Tranche C Term Loans which are Base Rate
Loans, 1.25% per annum and for Tranche C Term Loans which are Eurodollar Rate
Loans, 2.25% per annum upon the earlier of (and for so long as) (x) the Leverage
Ratio in effect is less than 4.50:1.00 or (y) the Loans are rated at least B1 or
better by Xxxxx'x, (ii) for Swing Line Loans, 1.00% per annum, and (iii) for
Revolving Loans, the applicable percentage per annum determined by reference to
the Leverage Ratio in effect from time to time as set forth below:
APPLICABLE MARGIN FOR REVOLVING APPLICABLE MARGIN FOR REVOLVING
LEVERAGE RATIO LOANS WHICH ARE EURODOLLAR LOANS LOANS WHICH ARE BASE RATE LOANS
----------------------------- -------------------------------- -------------------------------
> or = 5.00:1.00 2.50% 1.50%
< 5.00:1.00 and > or = 4.50:1.00 2.25% 1.25%
< 4.50:1.00 and > or = 4.00:1.00 2.00% 1.00%
< 4.00:1.00 and > or = 3.50:1.00 1.75% 0.75%
< 3.50:1.00 1.50% 0.50%
; provided, (A) no change in the Applicable Margin shall be effective until
three Business Days after the date on which Administrative Agent receives the
financial statements and a Compliance Certificate pursuant to Section 5.1(d)
calculating the Leverage Ratio which as of the Effective Date shall be the
Leverage Ratio as of June 30, 2004 set forth in the Compliance Certificate
delivered pursuant to Section 5.1(d) of the Existing Credit Agreement, and (B)
the Applicable Margin for Tranche C Term Loans and Revolving Loans shall be the
applicable percentage per annum amount set forth opposite the greatest Leverage
Ratio above, in each case for so long (but only for so long) as Company has not
submitted to Administrative Agent the information described in clause (A) when
required under Section 5.1(d). The Applicable Margin with respect to any Series
of New Term Loans shall be set forth in the Joinder Agreement for such Series.
"ASSET SALE" means a sale, lease or sub-lease (as lessor or sublessor),
transfer, conveyance or disposition to any Person of all or any part of
Company's or any of its Subsidiaries' businesses, properties or assets,
including, without limitation, a sale, transfer or other disposition of any
Security of Company or any of its Subsidiaries.
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"ASSIGNMENT AGREEMENT" means an Assignment and Assumption Agreement in the
form of Exhibit E.
"AUTHORIZED OFFICERS" means, as applied to any Person, (i) its chairman of
the board (if an officer) or president or any vice president, and (ii) its chief
financial officer, treasurer or any assistant treasurer.
"BANKRUPTCY CODE" means Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statute.
"BASE RATE" means, at any time, the higher of (i) the Prime Rate, and (ii)
the rate equal to the sum of (a) 0.50%, plus (b) the Federal Funds Effective
Rate.
"BASE RATE LOAN" means a Loan bearing interest at a rate determined by
reference to the Base Rate.
"BENEFICIARY" means Administrative Agent, each of the other Agents, each
of the Lenders, and each Lender Counterparty.
"BUSINESS DAY" means any day excluding Saturday, Sunday and any day which
is a legal holiday under the laws of the State of New York or is a day on which
banking institutions located in such state are authorized or required by law or
other governmental action to close, and with respect to all notices,
determinations, fundings and payments in connection with the Adjusted Eurodollar
Rate or any Eurodollar Rate Loans, that is also a day for trading by and between
banks in Dollar deposits in the London interbank market.
"CAPITAL LEASE" means, as applied to any Person, any lease of any property
(whether real, personal or mixed) by that Person as lessee that, in conformity
with GAAP, is accounted for as a capital lease on the balance sheet of that
Person.
"CAPTIVE INSURANCE SUBSIDIARY" has the meaning assigned to that term in
Section 6.3(i).
"CASH" means money, currency or a credit balance in any demand or deposit
account.
"CASH EQUIVALENTS" means, as at any date of determination, (i) marketable
securities (a) issued or directly and unconditionally guaranteed as to interest
and principal by the United States Government or (b) issued by any agency or
instrumentality of the United States the obligations of which are backed by the
full faith and credit of the United States, in each case maturing within one
year after such date; (ii) marketable general obligations issued by any state of
the United States of America or any political subdivision of any such state or
any public instrumentality thereof, in each case maturing within one year after
such date and having, at the time of the acquisition thereof, a rating of "A" or
better from either Standard & Poor's Ratings Group ("S&P") or Xxxxx'x; (iii)
commercial paper maturing no more than one year from the date of creation
thereof and having, at the time of the acquisition thereof, a rating of at least
A-1 from S&P or at least P-1 from Xxxxx'x; (iv) certificates of deposit, time
deposits, eurodollar time deposits or bankers' acceptances maturing within one
year after such date and issued or accepted by any Lender or by any commercial
bank organized under the laws of the United
5
States of America or any state thereof or the District of Columbia that has
capital and surplus in excess of $500,000,000; (v) repurchase obligations for
underlying securities of the types described in clauses (i), (ii) and (iv) above
entered into with any financial institution meeting the qualifications specified
in clause (iv) above; and (vi) shares of any money market mutual fund that
invests substantially all of its assets in the types of investments referred to
in clauses (i) through (iv) above or in Dollars.
"CERTIFICATE RE NON-BANK STATUS" means a certificate in the form of
Exhibit F.
"CFO CERTIFICATION" means, with respect to the financial statements for
which such certification is required, the certification of the chief financial
officer of Company that such financial statements fairly present, in all
material respects, the financial condition of Company and its Subsidiaries as at
the dates indicated and the results of their operations and their cash flows for
the periods indicated, subject to (in the case of unaudited financial
statements) changes resulting from audit and normal year-end adjustments and, in
the case of monthly financial statements, the absence of footnotes.
"CHANGE OF CONTROL" means the earlier to occur of (a) the Equity Investors
shall cease to have the power, directly or indirectly, to vote or direct the
voting of equity Securities having a majority of the ordinary voting power for
the election of directors of Holdings; provided, that the occurrence of the
foregoing event shall not be deemed a Change of Control if,
(i) any time prior to the consummation of an initial public offering of
either Parent or Holdings, and for any reason whatsoever, (A) the
Equity Investors otherwise have the right to designate (and does so
designate) a majority of the board of directors of Holdings or (B)
the Equity Investors own of record and beneficially, directly or
indirectly, an amount of common stock of Holdings equal to an amount
of more than fifty percent (50%) of the amount of common stock of
Holdings owned, directly or indirectly, by the Equity Investors of
record and beneficially as of the Closing Date and such ownership by
the Equity Investors represents the largest single block of voting
securities of Holdings held by any Person or related group for
purposes of Section 13(d) of the Securities and Exchange Act of
1934, as amended, or
(ii) at any time after the consummation of an initial public offering of
either Parent or Holdings, and for any reason whatsoever, (A) no
"person" or "group" (as such terms are used in sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended, but
excluding any employee benefit plan of such Person and its
Subsidiaries, and any person or entity acting in its capacity as
trustee, agent or other fiduciary or administrator of any such
plan), excluding the Equity Investors, shall become the "beneficial
owner" (as defined in Rules 13(d)-3 and 13(d)-5 under such Act),
directly or indirectly, of more than the greater of (x) thirty-five
percent (35%) of the then outstanding voting stock of Holdings or
(y) the percentage of the then outstanding voting stock of Holdings
owned beneficially, directly or indirectly, by the Equity Investors,
(B) during any period of twelve (12) consecutive months, the board
of directors of Holdings shall consist of a majority of the
Continuing Directors or (C) the Equity Investors have the power,
directly or
6
indirectly, to vote or direct the voting of at least thirty percent
(30%) of the voting of securities having a majority of the ordinary
voting power for the election of directors of Holdings; or
(b) any "Change of Control" (or any comparable term) in any document
pertaining to the Subordinated Indebtedness with an aggregate outstanding
principal amount in excess of $20,000,000; or
(c) Holdings shall cease to own 100% of the equity Securities of Company.
"CIT" has the meaning assigned to that term in the preamble hereto.
"CLASS" means (i) with respect to Lenders, each following class of
Lenders: (a) Lenders having Tranche C Term Loan Exposure, (b) Lenders having
Revolving Credit Exposure (including Swing Line Lender), and (c) Lenders having
New Term Loan Exposure of each Series, and (ii) with respect to Loans, each of
the following class of Loans: (a) Tranche C Term Loans, (b) Revolving Loans
(including Swing Line Loans) and (c) each Series of New Term Loans.
"CLOSING DATE" means December 19, 2003, the date on which the Existing
Tranche B Term Loans were made.
"CO-DOCUMENTATION AGENTS" means each of, GE Capital and CIT in its
capacity as a co-documentation agent.
"COLLATERAL" means all of the properties and assets (including capital
stock) in which Liens are purported to be granted by the Collateral Documents.
"COLLATERAL AGENT" has the meaning assigned to that term in the preamble
hereto.
"COLLATERAL DOCUMENTS" means the Pledge and Security Agreement, the
Mortgages and any other documents, instruments or agreements delivered by any
Credit Party pursuant to this Agreement or any of the other Credit Documents in
order to grant or perfect Liens on any assets of such Credit Party as security
for the Obligations.
"COLLATERAL QUESTIONNAIRE" means a certificate of an Authorized Officer in
a form reasonably satisfactory to Collateral Agent that provides information
with respect to the personal or mixed property of each Credit Party.
"COMMERCIAL LETTER OF CREDIT" means any letter of credit or similar
instrument issued for the purpose of providing the primary payment mechanism in
connection with the purchase of any materials, goods or services by Company or
any of its Subsidiaries in the ordinary course of business of Company or such
Subsidiary.
"COMMITMENTS" means, collectively, the Swing Line Loan Commitments, the
Revolving Loan Commitments, the New Revolving Loan Commitments and the New Term
Loan Commitments.
"COMPANY" has the meaning assigned to that term in the preamble hereto.
7
"COMPLIANCE CERTIFICATE" means a certificate executed by an Authorized
Officer in the form of Exhibit C.
"CONSOLIDATED ADJUSTED EBITDA" means, for any period, without duplication,
the sum of the amounts for such period of (i) Consolidated Net Income, plus to
the extent the following amounts were deducted in calculating Consolidated Net
Income: (ii) Consolidated Interest Expense, plus (iii) provisions for taxes
based on income, plus (iv) total depreciation expense, plus (v) total
amortization expense, plus (vi) Management Fees, plus (vii) ESOP expenses, plus
(viii) the aggregate amount of the fees, costs and cash expenses paid by Company
in connection with the consummation of the Acquisition (including, without
limitation, bonus and option payments) for such period, plus (ix) other non-cash
items reducing Consolidated Net Income (including, without limitation, non-cash
purchase accounting adjustments and debt extinguishment costs but excluding
accruals of expenses and the establishment of reserves in the ordinary course of
business), plus (x) the Cure Amount, if any, received by Company in respect of
such period, plus (xi) any extraordinary, unusual or non-recurring gains or
losses or charges or credits, including, but not limited to, any expenses
relating to the Acquisition, the Mergers and the Related Agreements, plus (xii)
any reasonable expenses or charges related to any issuance of Securities,
Investments permitted under Section 6.3, Permitted Acquisitions,
recapitalizations, Asset Sales permitted by Section 6.7 or Indebtedness
permitted to be incurred under Section 6.1, less other non-cash items increasing
Consolidated Net Income (other than accruals of revenue or reversals of reserves
in the ordinary course of business), all of the foregoing as determined on a
consolidated basis for Company and its Subsidiaries in conformity with GAAP;
provided, that for the periods set forth on Exhibit L, Consolidated Adjusted
EBITDA shall be the amount set forth opposite such period on Exhibit L.
"CONSOLIDATED CAPITAL EXPENDITURES" means, for any period, the sum of (i)
the aggregate of all expenditures (whether paid in cash or other consideration
or accrued as a liability and including that portion of Capital Leases which is
capitalized on the consolidated balance sheet of Company and its Subsidiaries)
by Company and its Subsidiaries during that period that, in conformity with
GAAP, are included in "additions to property, plant or equipment" or comparable
items reflected in the consolidated statement of cash flows of Company and its
Subsidiaries; provided, however, that Consolidated Capital Expenditures shall
not include (i) any expenditures by Company or any of its Subsidiaries during
that period in connection with a Permitted Acquisition or, (ii) capital
expenditures arising from deployment of any Proposed Reinvestment Proceeds or
the Net Cash Proceeds of any issuance of Securities not otherwise required to
repay the Loans pursuant to Section 2.13(b) or (iii) any expenditures made with
respect to the original acquisition of any property that has been transferred
pursuant to a Permitted Sale/Lease-Back Transaction permitted by Section 6.9.
"CONSOLIDATED CASH INTEREST EXPENSE" means, for any period, Consolidated
Interest Expense for such period; provided, however, any (i) interest expense
not payable in Cash (including amortization of discount and amortization of debt
issuance costs), but excluding, however, any amounts referred to in Section 2.10
payable on or before the Closing Date and (ii) any costs associated with
xxxx-to-market changes in Interest Rate Agreements and any other charges or
payments related to any Interest Rate Agreements, in each case, shall be
excluded from the calculation of Consolidated Cash Interest Expense.
8
"CONSOLIDATED CURRENT ASSETS" means, as at any date of determination, the
total assets of Company and its Subsidiaries on a consolidated basis that may
properly be classified as current assets in conformity with GAAP, excluding (i)
Cash and Cash Equivalents, (ii) assets (other than inventory) that are held for
sale and (iii) assets pertaining to the Retail Business (including inventory
pertaining to the Retail Business) that are held for sale.
"CONSOLIDATED CURRENT LIABILITIES" means, as at any date of determination,
the total liabilities of Company and its Subsidiaries on a consolidated basis
that may properly be classified as current liabilities in conformity with GAAP,
excluding any current liabilities with respect to long-term Indebtedness,
excluding liabilities associated with the Retail Business that are held for
sale.
"CONSOLIDATED EXCESS CASH FLOW" means, for any period, an amount (if
positive) equal to the difference of (a) the sum, without duplication, of the
amounts for such period of (i) Consolidated Adjusted EBITDA, plus (ii) the
Consolidated Working Capital Adjustment (excluding any non-cash adjustments to
Consolidated Working Capital Adjustment), minus (b) the sum, without
duplication, of the amounts for such period of (i) voluntary prepayments
(including repurchases of Term Loans made pursuant to Section 2.12), mandatory
prepayments pursuant to Section 2.13(d) and scheduled repayments of Consolidated
Total Debt (excluding repayments of Revolving Loans or Swing Line Loans except
to the extent the Revolving Loan Commitments are permanently reduced in
connection with such repayments), plus (ii) Consolidated Capital Expenditures
(net of any proceeds of any related financings with respect to such
expenditures), plus (iii) Consolidated Cash Interest Expense (without giving
effect to the proviso set forth in the definition thereof), plus (iv) the
provision for current taxes based on income of Company and its Subsidiaries and
payable in cash with respect to such period, plus (v) Management Fees actually
paid in cash during such period, plus (vi) the cash portion of any purchase
price payments made during such period by Company or any of its Subsidiaries in
connection with any Permitted Acquisition or Investments (net of the proceeds of
any related debt or equity financings with respect to such Investments), plus
(vii) the cash portion of any purchase price payments made during such period by
Company or any of its Subsidiaries in connection with the acquisition of any
Intellectual Property (net of any proceeds of any related financings with
respect to such expenditures), plus (viii) the cash portion of any Restricted
Junior Payments made by Company during such period pursuant to Section 6.5 (net
of any proceeds of any related financings with respect to such Restricted Junior
Payments), plus (ix) cash expenses and charges added to Consolidated Net Income
for purposes of determining Consolidated Adjusted EBITDA pursuant to clauses
(xi) and (xii) thereof plus, (x) the Cure Amount, if any.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, total interest
expense (including that portion attributable to Capital Leases in accordance
with GAAP and capitalized interest) of Company and its Subsidiaries on a
consolidated basis with respect to all outstanding Indebtedness of Company and
its Subsidiaries, including all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance
financing, but excluding net costs under Interest Rate Agreements. For purposes
of greater clarity, it is understood that "Consolidated Interest Expense"
excludes interest income.
9
"CONSOLIDATED NET INCOME" means, for any period, the net income (or loss)
of Company and its Subsidiaries on a consolidated basis for such period
determined in conformity with GAAP; provided, there shall be excluded the sum of
(i) the income (or loss) of any Person (other than a Subsidiary of Company) in
which any other Person (other than Company or any of its Subsidiaries) has a
joint interest, except to the extent of the amount of dividends or other
distributions actually paid to Company or any of its Subsidiaries by such Person
during such period; plus (ii) the income (or loss) of any Person accrued prior
to the date it becomes a Subsidiary of Company or is merged into or consolidated
with Company or any of its Subsidiaries or that Person's assets are acquired by
Company or any of its Subsidiaries; plus (iii) the income of any Subsidiary of
Company to the extent that the declaration or payment of dividends or similar
distributions by that Subsidiary of that income is not at the time permitted by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Subsidiary; plus (iv) any after-tax gains or losses attributable to Asset Sales
or returned surplus assets of any Pension Plan; plus (v) (to the extent not
included in clauses (i) through (iv) above) any net non-cash extraordinary gains
or net non-cash extraordinary losses; plus (vi) for purposes of Section 6.5
only, any goodwill impairment charges; plus (vii) for purposes of Section 6.6
only, any gains, losses or charges associated with Interest Rate Agreements.
"CONSOLIDATED TOTAL DEBT" means, as at any date of determination, the
aggregate stated balance sheet amount of all Indebtedness of the type specified
in clauses (a) or (b) of the definition thereof of Company and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED WORKING CAPITAL" means, as at any date of determination, the
excess of Consolidated Current Assets less Consolidated Current Liabilities.
"CONSOLIDATED WORKING CAPITAL ADJUSTMENT" means, for any period on a
consolidated basis, the amount (which may be a negative number) by which
Consolidated Working Capital as of the beginning of such period exceeds (or is
less than) Consolidated Working Capital as of the end of such period, excluding
any pro forma effects of changes in the classification of assets held for sale.
"CONTINGENT OBLIGATION" means, as to any Person, without duplication, any
obligation, contingent or otherwise, of such Person guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation payable or
performable by another Person (the "PRIMARY OBLIGOR") in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or
indirect, (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation, (ii) to purchase or lease
property, securities or services for the purpose of assuring the obligee in
respect of such Indebtedness or other obligation of the payment or performance
of such Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity or level
of income or cash flow of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation, or (iv) entered into for
the purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part). The
amount of any Contingent Obligation shall be deemed to be an amount equal to the
stated or
10
determinable amount of the related primary obligation, or portion thereof, in
respect of which such Contingent Obligation is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof as
determined by such Person in good faith.
"CONTINUING DIRECTORS" shall mean the directors of Holdings on the
Effective Date, and each other director, if, in each case, such other directors'
nomination for election to the board of directors of Holdings is recommended by
a majority of the then Continuing Directors or such other director receives the
vote of the Equity Investors in his or her election by the stockholders of
Holdings.
"CONTINUING LENDERS" means those lenders under the Existing Credit
Agreement identified as Continuing Lenders in Schedule 2.1(a).
"CONTRACTUAL OBLIGATION" means, as applied to any Person, any provision of
any equity Security issued by that Person or of any material indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument to
which that Person is a party or by which it or any of its properties is bound or
to which it or any of its properties is subject.
"CONTRIBUTING GUARANTORS" has the meaning assigned to that term in Section
7.2(b).
"CONVERSION/CONTINUATION NOTICE" means a notice in the form of Exhibit
A-2.
"CO-OP SUBSIDIARY" means a Subsidiary formed by The Xxxxxxx Manufacturing
Co., LLC, Xxxxxxx Caribbean Bedding, Inc. (or another Subsidiary of Company) and
a third Person formed to operate as a "T corporation" under the Internal Revenue
Code.
"CO-SYNDICATION AGENT" means each of GSCP and UBSS in its capacity as a
co-syndication agent.
"COUNTERPART AGREEMENT" means a counterpart agreement in the form of
Exhibit I.
"CREDIT DOCUMENT" means any of this Agreement, the Notes, any documents or
certificates executed by Company in favor of Issuing Bank relating to the
Letters of Credit, the Collateral Documents and all other documents, instruments
or agreements executed and delivered by a Credit Party for the benefit of
Agents, Issuing Bank or any Lender in connection herewith (in each case, as such
other documents, instruments or agreements may be amended, restated,
supplemented or otherwise modified from time to time).
"CREDIT EXTENSION" means the making of a Loan or the issuing of a Letter
of Credit.
"CREDIT EXTENSION DATE" means the date of a Credit Extension.
"CREDIT PARTY" means Holdings, Company and the Subsidiary Guarantors.
"CURE AMOUNT" has the meaning assigned to that term in Section 8.3.
"CURE RIGHT" has the meaning assigned to that term in Section 8.3.
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"CURRENCY AGREEMENT" means any foreign exchange contract, currency swap
agreement, futures contract, option contract, synthetic cap or other similar
agreement or arrangement to which Company or any of its Subsidiaries is a party
and which is designed to hedge against fluctuations in currency values and not
for speculative purposes.
"DBNY" has the meaning assigned to that term in the preamble hereto.
"DEFAULT" means a condition or event that, after notice or lapse of time
or both, would constitute an Event of Default.
"DEFAULT EXCESS" means, with respect to any Defaulting Lender, the excess,
if any, of such Defaulting Lender's Pro Rata Share of the aggregate outstanding
principal amount of Revolving Loans of all Lenders (calculated as if all
Defaulting Lenders (other than such Defaulting Lender) had funded all of their
respective Defaulted Revolving Loans) over the aggregate outstanding principal
amount of all Revolving Loans of such Defaulting Lender.
"DEFAULTING LENDER" has the meaning assigned to that term in Section 2.23.
"DEFAULT PERIOD" means, with respect to any Defaulting Lender, the period
commencing on the date of the applicable Funding Default and ending on the
earliest of the following dates: (i) the date on which all Commitments are
cancelled or terminated and/or the Obligations are declared or become
immediately due and payable, (ii) the date on which (a) the Default Excess with
respect to such Defaulting Lender shall have been reduced to zero (whether by
the funding by such Defaulting Lender of any Defaulted Revolving Loans of such
Defaulting Lender or by the non-pro rata application of any voluntary or
mandatory prepayments of the Revolving Loans in accordance with the terms of
Section 2.12 or Section 2.13 or by a combination thereof) and (b) such
Defaulting Lender shall have delivered to Company and Administrative Agent a
written reaffirmation of its intention to honor its obligations hereunder with
respect to its Commitment, and (iii) the date on which Company, Administrative
Agent and Requisite Lenders waive all Funding Defaults of such Defaulting Lender
in writing.
"DEFAULTED REVOLVING LOAN" has the meaning assigned to that term in
Section 2.23.
"DOLLARS" and the sign "$" mean the lawful money of the United States of
America.
"DOMESTIC SUBSIDIARY" means any Subsidiary of Company organized under the
laws of any jurisdiction within the United States of America (but excluding any
Foreign Subsidiary).
"EFFECTIVE DATE" means the date upon which the conditions set forth in
Section 3.1 are satisfied.
"EFFECTIVE DATE CERTIFICATE" means a certificate in the form of Exhibit H.
"ELIGIBLE ASSETS" has the meaning assigned to that term in Section
2.13(a).
"ELIGIBLE ASSIGNEE" means (i) a commercial bank, savings and loan
association or savings bank or any other entity which is an "accredited
investor" (as defined in Regulation D under the Securities Act) which extends
credit or buys loans as one of its businesses including
12
insurance companies, mutual funds and lease financing companies and any
investment fund that invests in commercial loans; and (ii) any Lender, any
Affiliate of any Lender and, with respect to any Lender that is an investment
fund that invests in commercial loans, any other investment fund that invests in
commercial loans and that is managed or advised (other than any fund that is
managed or advised by Highland Capital Management, L.P. or any of its Affiliates
or Subsidiaries) by the same investment advisor as such Lender or by an
Affiliate of such investment advisor; provided, Eligible Assignee shall not
include (a) any Affiliate of Company or Holdings or (b) Highland Capital
Management, L.P. or any of its Affiliates or Subsidiaries.
"EMPLOYEE BENEFIT PLAN" means any "employee benefit plan" as defined in
Section 3(3) of ERISA which is (currently or hereafter) or within the prior 6
years was maintained or contributed to by Company, any of its Subsidiaries or
any of their respective ERISA Affiliates.
"ENVIRONMENTAL CLAIM" means any investigation, notice, notice of
violation, claim, action, suit, proceeding, demand, abatement order or other
order or directive (conditional or otherwise), by any governmental authority or
any other Person, arising (i) pursuant to or in connection with any actual or
alleged violation of any Environmental Law; (ii) in connection with any
Hazardous Material or any actual or alleged Hazardous Materials Activity; or
(iii) in connection with any actual or alleged damage, injury, threat or harm to
health, safety, natural resources or the environment.
"ENVIRONMENTAL LAWS" means any and all federal or state (or any
subdivision of either of them), statutes, ordinances, orders, rules,
regulations, guidance documents, judgments, Governmental Authorizations, or any
other requirements of governmental authorities relating to (i) environmental
matters, including those relating to any Hazardous Materials Activity; (ii) the
generation, use, storage, transportation or disposal of Hazardous Materials; or
(iii) occupational safety and health, industrial hygiene, land use or the
protection of human, plant or animal health or welfare, in any manner applicable
to Company or any of its Subsidiaries or any Facility.
"EQUITY INVESTORS" means Sponsor and the Management Investors.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor thereto.
"ERISA AFFILIATE" means, as applied to any Person, (i) any corporation
which is a member of a controlled group of corporations within the meaning of
Section 414(b) of the Internal Revenue Code of which that Person is a member;
(ii) any trade or business (whether or not incorporated) which is a member of a
group of trades or businesses under common control within the meaning of Section
414(c) of the Internal Revenue Code of which that Person is a member; and (iii)
any member of an affiliated service group within the meaning of Section 414(m)
or (o) of the Internal Revenue Code of which that Person, any corporation
described in clause (i) above or any trade or business described in clause (ii)
above is a member. Any former ERISA Affiliate of Company or any of its
Subsidiaries shall continue to be considered an ERISA Affiliate of Company or
such Subsidiary within the meaning of this definition with respect to the period
such entity was an ERISA Affiliate of Company or such Subsidiary and with
respect to liabilities arising after such period for which Company or such
Subsidiary could be liable under the Internal Revenue Code or ERISA.
13
"ERISA EVENT" means (i) a "reportable event" within the meaning of Section
4043 of ERISA and the regulations issued thereunder with respect to any Pension
Plan (excluding those for which the provision for 30-day notice to the PBGC has
been waived by regulation); (ii) the failure to meet the minimum funding
standard of Section 412 of the Internal Revenue Code with respect to any Pension
Plan (whether or not waived in accordance with Section 412(d) of the Internal
Revenue Code) or the failure to make by its due date a required installment
under Section 412(m) of the Internal Revenue Code with respect to any Pension
Plan or the failure to make any required contribution to a Multiemployer Plan;
(iii) the filing by the administrator of any Pension Plan pursuant to Section
4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress
termination described in Section 4041(c) of ERISA; (iv) the withdrawal by
Company, any of its Subsidiaries or any of their respective ERISA Affiliates
from any Pension Plan with two or more contributing sponsors or the termination
of any such Pension Plan resulting in liability pursuant to Section 4063 or 4064
of ERISA; (v) the institution by the PBGC of proceedings to terminate any
Pension Plan, or the occurrence of any event or condition which might constitute
grounds under ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan; (vi) the imposition of liability on Company, any
of its Subsidiaries or any of their respective ERISA Affiliates pursuant to
Section 4062(e) or 4069 of ERISA or by reason of the application of Section
4212(c) of ERISA; (vii) the withdrawal of Company, any of its Subsidiaries or
any of their respective ERISA Affiliates in a complete or partial withdrawal
(within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer
Plan that could reasonably be expected to result in material liability therefor,
or the receipt by Company, any of its Subsidiaries or any of their respective
ERISA Affiliates of notice from any Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or that
it intends to terminate or has terminated under Section 4041A or 4042 of ERISA;
(viii) the occurrence of an act or omission which could give rise to the
imposition on Company, any of its Subsidiaries or any of their respective ERISA
Affiliates of material fines, penalties, taxes or related charges under Chapter
43 of the Internal Revenue Code or under Section 406, 409, Section 502(c), (i)
or (l), or Section 4071 of ERISA in respect of any Employee Benefit Plan; (ix)
the assertion of a material claim (other than routine claims for benefits)
against any Employee Benefit Plan other than a Multiemployer Plan or the assets
thereof, or against Company, any of its Subsidiaries or any of their respective
ERISA Affiliates in connection with any Employee Benefit Plan; (x) receipt from
the Internal Revenue Service of notice of the failure of any Pension Plan (or
any other Employee Benefit Plan intended to be qualified under Section 401(a) of
the Internal Revenue Code) to qualify under Section 401(a) of the Internal
Revenue Code, or the failure of any trust forming part of any Pension Plan to
qualify for exemption from taxation under Section 501(a) of the Internal Revenue
Code; or (xi) the imposition of a Lien pursuant to Section 401(a)(29) or 412(n)
of the Internal Revenue Code or pursuant to ERISA with respect to any Pension
Plan.
"ESOP" means the Xxxxxxx Company Employee Stock Ownership Plan, as amended
and restated effective January 17, 1989 whereby the Xxxxxxx Company Employee
Stock Ownership Trust is the record and beneficial owner of the shares of
Holdings equity Securities pursuant to the terms thereof.
"EURODOLLAR RATE LOAN" means a Loan bearing interest at a rate determined
by reference to the Adjusted Eurodollar Rate.
14
"EVENT OF DEFAULT" means each of the events set forth in Section 8.1.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended from
time to time, and any successor statute.
"EXISTING CREDIT AGREEMENT" has the meaning assigned to that term in the
recitals hereto.
"EXISTING LENDERS" has the meaning assigned to that term in the recitals
hereto.
"EXISTING NOTES" means the 10-1/4% of Series B Senior Subordinated Notes
due 2009 of Company.
"EXISTING TRANCHE B TERM LOANS" has the meaning assigned to that term in
the recitals hereto.
"FACILITIES" means any real property (including all buildings, fixtures or
other improvements located thereon) now, hereafter or (except with respect to
Section 5 and Section 6) heretofore owned, leased, operated or used by Company
or any of its Subsidiaries or any of their respective predecessors or
Affiliates.
"FAIR SHARE" has the meaning assigned to that term in Section 7.2(b).
"FAIR SHARE SHORTFALL" has the meaning assigned to that term in Section
7.2(b).
"FEDERAL FUNDS EFFECTIVE RATE" means, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by Administrative Agent from three Federal funds brokers
of recognized standing selected by Administrative Agent.
"FENWAY" means Fenway Partners Capital Fund II, L.P., a Delaware limited
partnership, FPIP, LLC, a Delaware limited liability company and FPIP Trust,
LLC, a Delaware limited liability company.
"FINANCIAL PERFORMANCE COVENANTS" means the covenants of Company set forth
in Section 6.6.
"FINANCIAL PLAN" has the meaning assigned to that term in Section 5.1(k).
"FIRST PRIORITY" means, with respect to any Lien purported to be created
in any Collateral pursuant to any Collateral Document, that (i) such Lien has
priority over any other Lien on such Collateral (other than Permitted
Encumbrances and Liens permitted pursuant to Section 6.2) and (ii) such Lien is
the only Lien (other than Permitted Encumbrances and Liens permitted pursuant to
Section 6.2) to which such Collateral is subject.
15
"FISCAL QUARTER" means a fiscal quarter of any Fiscal Year.
"FISCAL YEAR" means the fiscal year of Company and its Subsidiaries ending
on the last Saturday of each calendar year or, at the option of Company,
December 31 of each calendar year.
"FLOOD HAZARD PROPERTY" means any Real Estate Asset subject to a Mortgage
in favor of Collateral Agent, for the benefit of the Lenders, and located in an
area designated by the Federal Emergency Management Agency as having special
flood or mud slide hazards.
"FLOOR PLAN SALES" means sales by Company or any of is Subsidiaries of (i)
inventory (other than inventory classified as floor sample inventory) to any
Person for a discount not to exceed 2.5% and (ii) with respect to inventory
classified as floor sample inventory, for a discount not to exceed 5.0%;
provided that the discounts set forth in clauses (i) and (ii) above may be
increased by an additional 0.05% (up to a maximum amount of 10.0%) for every
0.50% increase to the Base Rate above 7.50% per annum.
"FOREIGN SUBSIDIARY" means any Subsidiary of Company organized under the
laws of any jurisdiction outside the United States of America (and including any
Subsidiary of a Foreign Subsidiary that is organized under the laws of any
jurisdiction within the United States of America).
"FRAUDULENT TRANSFER LAWS" has the meaning assigned to that term in
Section 7.2(a).
"FUNDING AND PAYMENT OFFICE" means (i) the office of Administrative Agent
located at the address set forth on the Administrative Agent's signature page
hereto, or (ii) such other office of Administrative Agent as may from time to
time hereafter be designated as such in a written notice delivered by
Administrative Agent to Company and each Lender.
"FUNDING DEFAULT" shall have the meaning assigned to that term in Section
2.23.
"FUNDING GUARANTOR" has the meaning assigned to that term in Section
7.2(b).
"FUNDING NOTICE" means a notice substantially in the form of Exhibit A-1.
"GAAP" means United States of America generally accepted accounting
principles in effect as of the date of determination thereof.
"GE CAPITAL" has the meaning assigned to that term in the preamble hereto.
"GOVERNMENTAL ACT" means any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government or
governmental authority.
"GOVERNMENTAL AUTHORIZATION" means any permit, license, authorization,
plan, directive, consent order or consent decree of or from any federal, state
or local governmental authority, agency or court.
"GSCP" has the meaning assigned to that term in the preamble hereto.
16
"GUARANTEED OBLIGATIONS" has the meaning assigned to that term in Section
7.1.
"GUARANTOR" means Holdings and each Subsidiary Guarantor.
"GUARANTY" means the Guaranty of each Guarantor set forth in Section 7.
"HAZARDOUS MATERIALS" means any chemical, material or substance, exposure
to which is prohibited, limited or regulated by any governmental authority or
which may or could pose a hazard to the health and safety of the owners,
occupants or any persons in the vicinity of any Facility, or to the indoor or
outdoor environment as defined as such by, or regulated as such under, any
Environmental Law including Hazardous Substances, Oils, Pollutants or
Contaminants as defined in the National Oil and Hazardous Substances Pollution
Contingency Plan, 40 C.F.R. Section 300.5.
"HAZARDOUS MATERIALS ACTIVITY" means any past, current, proposed or
threatened activity, event or occurrence involving any Hazardous Materials,
including the use, manufacture, possession, storage, holding, presence,
existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment, abatement,
removal, remediation, disposal, disposition or handling of any Hazardous
Materials, and any corrective action or response action with respect to any of
the foregoing.
"HEDGE AGREEMENT" means an Interest Rate Agreement or a Currency Agreement
designed to hedge against fluctuations in interest rates or currency values,
respectively and not for speculative purposes.
"HISTORICAL FINANCIAL STATEMENTS" means (i) the audited financial
statements of Pre-Merger Xxxxxxx and its Subsidiaries for the Fiscal Year ended
December 28, 2002, consisting of a consolidated balance sheet and the related
consolidated statements of operations, changes in stockholders' deficit and cash
flows for such Fiscal Year filed under form 8-K-A on September 16, 2003; and
(ii) unaudited financial statements of Pre-Merger Xxxxxxx and its Subsidiaries
for the third Fiscal Quarter of 2003, consisting of a consolidated balance sheet
and the related consolidated statements of operations, changes in stockholders'
deficit and cash flows for the period ending on such date, all in reasonable
detail and certified by the chief financial officer of Company that they fairly
present, in all material respects, the financial condition of Company and its
Subsidiaries as at the dates indicated and the results of their operations and
their cash flows for the periods indicated, subject to changes resulting from
audit and normal year-end adjustments and the absence of footnotes, in the case
of such unaudited financial statements.
"HOLDCO NOTES" has the meaning assigned to that term in Section 6.1(p).
"HOLDINGS" has the meaning assigned to that term in the preamble hereto.
"INCREASED AMOUNT DATE" has the meaning assigned to that term in Section
2.25(a).
"INDEBTEDNESS", as applied to any Person, means, without duplication (a)
all indebtedness for borrowed money, (b) that portion of obligations with
respect to Capital Leases that is properly classified as a liability on a
balance sheet in conformity with GAAP, (c) notes payable
17
and drafts accepted representing extensions of credit whether or not
representing obligations for borrowed money, (d) any obligation owed for all or
any part of the deferred purchase price of property or services (excluding any
such obligations incurred under ERISA or any deferred compensation plan), which
purchase price is (i) due more than six months from the date of incurrence of
the obligation in respect thereof (other than trade payables which are due more
than six months from the date of incurrence in the ordinary course of business)
or (ii) evidenced by a note or similar written debt instrument, (e) all
indebtedness secured by any Lien on any property or asset owned by that Person
regardless of whether the indebtedness secured thereby shall have been assumed
by that Person or is nonrecourse to the credit of that Person, (f) the face
amount of any letter of credit issued for the account of that Person or as to
which that Person is otherwise liable for reimbursement of drawings; (g) all
obligations of such Person in respect of any exchange traded or over the counter
derivative transaction, including, without limitation, any Interest Rate
Agreement and Currency Agreement, whether entered into for hedging or
speculative purposes; and (h) Contingent Obligations of such Person in respect
of any of the foregoing; provided, in no event shall obligations under any
Interest Rate Agreement and any Currency Agreement be deemed "Indebtedness" for
any purpose under Section 6.6. The amount of Indebtedness of any Person for
purposes of clause (e) shall be deemed to be the lesser of (x) the aggregate
unpaid principal amount of such Indebtedness and (y) the fair market value of
the property encumbered thereby as determined by such Person in good faith.
"INDEMNIFIED LIABILITIES" means, collectively, any and all liabilities,
obligations, losses, damages (including natural resource damages), penalties,
actions, judgments, suits, claims (including Environmental Claims), costs
(including the costs of any investigation, study, sampling, testing, abatement,
cleanup, removal, remediation or other response action necessary to remove,
remediate, clean up or xxxxx any Hazardous Materials Activity), expenses and
disbursements of any kind or nature whatsoever (including the reasonable fees
and disbursements of counsel for Indemnitees in connection with any
investigative, administrative or judicial proceeding commenced or threatened by
any Person, whether or not any such Indemnitee shall be designated as a party or
a potential party thereto, and any fees or expenses incurred by Indemnitees in
enforcing this indemnity), whether direct or indirect and whether based on any
federal, state or foreign laws, statutes, rules or regulations (including
securities and commercial laws, statutes, rules or regulations and Environmental
Laws), on common law or equitable cause or on contract or otherwise, that may be
imposed on, incurred by, or asserted against any such Indemnitee, in any manner
relating to or arising out of (i) this Agreement or the other Credit Documents
or the transactions contemplated hereby or thereby (including Lenders' agreement
to make Credit Extensions or the use or intended use of the proceeds thereof or
the use or intended use of any thereof, or any enforcement of any of the Credit
Documents (including any sale of, collection from, or other realization upon any
of the Collateral or the enforcement of the Guaranty)); (ii) the statements
contained in the commitment letter delivered by any Lender to Company with
respect thereto; or (iii) any Environmental Claim or any Hazardous Materials
Activity relating to or arising from, directly or indirectly, any past or
present activity, operation, land ownership, or practice of Company or any of
its Subsidiaries.
"INDEMNITEE" has the meaning assigned to that term in Section 10.3.
"INSTALLMENT" has the meaning assigned to that term in Section 2.11.
18
"INSTALLMENT DATE" has the meaning assigned to that term in Section 2.11.
"INTELLECTUAL PROPERTY" means all patents, trademarks, servicemarks,
tradenames, copyrights, mask works, trade secrets, technology, know-how and
processes and rights of publicity used in or necessary for the conduct of the
business of Company and its Subsidiaries as currently conducted that are
material to the condition (financial or otherwise), business or operations of
Company and its Subsidiaries, individually or in the aggregate.
"INTEREST PAYMENT DATE" means with respect to (i) any Base Rate Loan, each
March 30, June 30, September 30 and December 30 of each year, commencing on the
first such date to occur after the Closing Date; and (ii) any Eurodollar Rate
Loan, the last day of each Interest Period applicable to such Loan; provided, in
the case of each Interest Period of longer than three months "INTEREST PAYMENT
DATE" shall also include each date that is three months, or an integral multiple
thereof, after the commencement of such Interest Period.
"INTEREST PERIOD" means, in connection with a Eurodollar Rate Loan, an
interest period of one-, two-, three-, six-, nine- or twelve-months, as selected
by Company in the applicable Notice, (i) initially, commencing on the Credit
Extension Date or the date of any conversion or continuation thereof, as the
case may be (permitted pursuant to Section 2.8); and (ii) thereafter, commencing
on the day on which the immediately preceding Interest Period expires; provided,
(a) if an Interest Period would otherwise expire on a day that is not a Business
Day, such Interest Period shall expire on the next succeeding Business Day
unless no further Business Day occurs in such month, in which case such Interest
Period shall expire on the immediately preceding Business Day; (b) any Interest
Period that begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of a calendar month;
(c) no Interest Period with respect to any portion of any Class of Term Loans
shall extend beyond the such Class's Tranche C Term Loan Maturity Date or New
Term Loan Maturity Date, respectively; and (d) no Interest Period with respect
to any portion of the Revolving Loans shall extend beyond the Revolving Loan
Commitment Termination Date.
"INTEREST RATE AGREEMENT" means any interest rate swap agreement, interest
rate cap agreement, interest rate collar agreement or other similar agreement or
arrangement to which Company or any of its Subsidiaries is a party and which is
designed to hedge against fluctuations in interest rates and not for speculative
purposes.
"INTEREST RATE DETERMINATION DATE" means, with respect to any Interest
Period, the second Business Day prior to the first day of such Interest Period.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter, and any successor
statute.
"INVESTMENT" means (a) any direct or indirect purchase or other
acquisition by Company or any of its Subsidiaries of, or of a beneficial
interest in, any of the Securities of any other Person (including any Subsidiary
of Company); (b) any direct or indirect loan, advance (other than advances to
employees for moving, entertainment and travel expenses, drawing accounts and
similar expenditures in the ordinary course of business) or capital contribution
by Company
19
or any of its Subsidiaries to any other Person, including all indebtedness and
accounts receivable from that other Person that are not current assets or did
not arise from sales to that other Person in the ordinary course of business;
(c) Interest Rate Agreements or Currency Agreements not constituting Hedge
Agreements; or (d) the purchase or other acquisition (in one transaction or a
series of transactions) of all or substantially all of the property and assets
or business of another Person or assets constituting a business unit, line of
business or division of any other Person. The amount of any Investment shall be
the original cost of such Investment plus the cost of all additions thereto,
without any adjustments for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such Investment.
"ISSUING BANK" means, with respect to any Letter of Credit, the Lender or
any of its Subsidiaries or Affiliates, which issues such Letter of Credit.
"JOINDER AGREEMENT" means a Joinder Agreement substantially in the form of
Exhibit M.
"JOINT LEAD ARRANGER" means each of GSCP and UBSS, in its capacity as
joint lead arranger.
"JOINT VENTURE" means a joint venture, partnership or other similar
arrangement, whether in corporate, partnership or other legal form; provided, in
no event shall any Subsidiary of any Person be considered to be a Joint Venture.
"JUNIOR NOTE" means the Junior Subordinated Note issued by Xxxxxxx Holdco
on October 29, 1998 in the original principal amount of $10,000,000.
"LENDER" has the meaning assigned to that term in the preamble hereto;
provided, the term "Lenders" shall include Swing Line Lender unless the context
otherwise requires.
"LENDER COUNTERPARTY" means each Lender, Joint Lead Arranger or any of
their respective Affiliates counterparty to a Hedge Agreement.
"LETTER OF CREDIT" or "LETTERS OF CREDIT" means Commercial Letters of
Credit and Standby Letters of Credit issued or to be issued by Issuing Bank for
the account of Company pursuant to Section 2.3.
"LETTER OF CREDIT SUBLIMIT" means the lesser of (i) $40,000,000 and (ii)
the aggregate amount of the Revolving Loan Commitments then in effect.
"LETTER OF CREDIT USAGE" means, as at any date of determination, the sum
of (i) the maximum aggregate amount which is, or at any time thereafter may
become, available for drawing under all Letters of Credit then outstanding, plus
(ii) the aggregate amount of all drawings under Letters of Credit honored by
Issuing Bank and not theretofore reimbursed by or on behalf of Company.
"LEVERAGE RATIO" means the ratio, as of any date of determination, of (i)
Consolidated Total Debt as of such date minus, Cash and Cash Equivalents of
Company and its Subsidiaries as of such date not in excess of $30,000,000 to
(ii) Consolidated Adjusted EBITDA for the most recent four-Fiscal Quarter period
ended on or prior to such date.
20
"LIEN" means any lien, mortgage, pledge, assignment, security interest,
charge or encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof, and any agreement to give
any security interest) and any option, trust or other preferential arrangement
having the practical effect of any of the foregoing.
"LOAN" means a Tranche C Term Loan, a Revolving Loan, a Swing Line Loan or
a New Term Loan.
"MANAGEMENT AGREEMENT" means that certain Management Agreement dated as of
the Closing Date by and among Company and THL Managers V, LLC, a Delaware
limited liability company, as the same may be amended, restated, supplemented or
otherwise modified from time to time in a manner not prohibited by this
Agreement.
"MANAGEMENT FEES" means the fees payable pursuant to the Management
Agreement.
"MANAGEMENT INVESTORS" means the management officers and employees of
Parent and its Subsidiaries who are investors in Parent or Holdings on the
Effective Date.
"MARGIN STOCK" has the meaning assigned to that term in Regulation U of
the Board of Governors of the Federal Reserve System as in effect from time to
time.
"MATERIAL ADVERSE EFFECT" means (i) a material adverse effect upon the
business, operations, properties, assets or condition (financial or otherwise)
of Company and its Subsidiaries, taken as a whole, or (ii) the impairment (other
than as a result of circumstances covered by clause (i) above) of the ability of
Company or any of its Subsidiaries to perform, or Administrative Agent or
Lenders to enforce, the Obligations in any material respect.
"MATERIAL SUBSIDIARY" means each Subsidiary of Company now existing or
hereafter acquired or formed by Company or its Subsidiaries which, on a
consolidated basis for such Subsidiary and its Subsidiaries, (i) for the most
recent Fiscal Year accounted for more than 5% of the consolidated revenues of
Company and its Subsidiaries or (ii) as at the end of such Fiscal Year, was the
owner of more than 5% of the consolidated assets of Company and its
Subsidiaries.
"MAXIMUM AMOUNT" has the meaning assigned to that term in Section 10.19.
"MAXIMUM CONSOLIDATED CAPITAL EXPENDITURES AMOUNT" has the meaning
assigned to that term in Section 6.8.
"MD&A" means, with respect to financial statements to which it pertains,
management's discussion and analysis of Company's and its Subsidiaries'
financial performance for the period covered by such financial statements as
compared to projected financial performance for such period.
"MERGERS" means the mergers which occurred on December 19, 2003 of (i) THL
Company with and into Xxxxxxx Holdco, with Xxxxxxx Holdco being the surviving
corporation and (ii) Pre-Merger Xxxxxxx with and into Xxxxxxx Holdco, with
Xxxxxxx Holdco being the surviving corporation and changing its name to "Xxxxxxx
Company".
21
"MONTHLY REPORTS" has the meaning assigned to that term in Section 5.1(a).
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"MORTGAGE" means (i) a security instrument (whether designated as a deed
of trust or a mortgage or by any similar title) executed and delivered by any
Credit Party, substantially in the form of Exhibit K annexed hereto or in such
other form as may be approved by Collateral Agent in its sole discretion, in
each case with such changes thereto as may be recommended by Collateral Agent's
local counsel based on local laws or customary local mortgage or deed of trust
practices, or (ii) at Collateral Agent's option, in the case of an Additional
Mortgaged Property (as defined in Section 5.12), an amendment to an existing
Mortgage, in form satisfactory to Administrative Agent, adding such Additional
Mortgaged Property to the Real Property Assets encumbered by such existing
Mortgage, in either case as such security instrument or amendment may be
amended, restated, supplemented or otherwise modified from time to time.
"MORTGAGES" means all such instruments, collectively.
"MORTGAGE POLICY" means an Additional Mortgage Policy (as defined in
Section 5.12).
"MULTIEMPLOYER PLAN" means any Employee Benefit Plan which is a
"multiemployer plan" as defined in Section 3(37) of ERISA.
"NATIONAL FLOOD INSURANCE PROGRAM" means the National Flood Insurance
Program under the National Flood Insurance Act of 1968 and the Flood Disaster
Protection Act of 1973.
"NET ASSET SALE PROCEEDS" means, with respect to any Asset Sale, an amount
equal to the difference of (i) Cash payments (including any Cash received by way
of deferred payment pursuant to, or by monetization of, a note receivable or
otherwise, but only as and when so received) received from such Asset Sale,
minus (ii) any bona fide direct costs incurred in connection with such Asset
Sale, including (a) income taxes reasonably estimated to be actually payable
within two years of the date of such Asset Sale as a result of any gain
recognized in connection with such Asset Sale, (b) payment of the outstanding
principal amount of, premium or penalty, if any, and interest on any
Indebtedness (other than the Loans) that is secured by a Lien on the stock or
assets in question and that is repaid as a result of such Asset Sale, (c) the
out-of-pocket expenses incurred by such Person in connection with such Asset
Sale and (d) any reserve for adjustment in respect of (x) the sale price of such
asset or assets established in accordance with GAAP and (y) any liabilities
associated with such asset or assets and retained by such Person after such sale
or other disposition thereof, including, without limitation, pension and other
post-employment benefit liabilities and liabilities related to environmental
matters or against any indemnification obligations associated with such
transaction.
"NET INSURANCE/CONDEMNATION PROCEEDS" means the difference of (i) any Cash
payments or proceeds received by Company or any of its Subsidiaries (a) under
any business interruption or casualty insurance policy in respect of a covered
loss thereunder or (b) as a result of the taking of any assets of Company or any
of its Subsidiaries by any Person pursuant to the power of eminent domain,
condemnation or otherwise, or pursuant to a sale of any such assets to a
purchaser with such power under threat of such a taking, minus, in each case,
(ii)(a) any actual and reasonable documented costs incurred by Company or any of
its Subsidiaries in connection
22
with the adjustment or settlement of any claims of Company or such Subsidiary in
respect thereof, (b) income taxes reasonably estimated to be actually payable
within two years of the date of such event giving rise to such Net
Insurance/Condemnation Proceeds as a result of any gain recognized in connection
with such event, (c) payment of the outstanding principal amount of, premium or
penalty, if any, and interest on any Indebtedness (other than the Loans) that is
secured by a Lien on the assets in question and that is repaid as a result of
such casualty or condemnation, (d) the out-of-pocket expenses incurred by such
Person in connection with such casualty or condemnation and (e) any reserve for
adjustment in respect of (x) the sale price of such asset or assets established
in accordance with GAAP and (y) any liabilities associated with such asset or
assets and retained by such Person after such sale or other disposition thereof,
including, without limitation, liabilities related to environmental matters or
against any indemnification obligations associated with such transaction,
provided, however, that the receipt by Company and its Subsidiaries from the
Closing Date through the date of determination of up to an aggregate of
$10,000,000 in Net Insurance/Condemnation Proceeds in respect of business
interruption insurance described in clause (a) above shall not be "Net
Insurance/Condemnation Proceeds" for purposes of Section 2.13(a).
"NEW REVOLVING LOAN" has the meaning assigned to that term in Section
2.25(b).
"NEW REVOLVING LOAN COMMITMENTS" has the meaning assigned to that term in
Section 2.25(a).
"NEW REVOLVING LOAN LENDER" has the meaning assigned to that term in
Section 2.25(a).
"NEW TERM LOAN COMMITMENTS" has the meaning assigned to that term in
Section 2.25(a).
"NEW TERM LOAN EXPOSURE" means, with respect to any Lender as of any date
of determination, the outstanding principal amount of the New Term Loans of such
Lender.
"NEW TERM LOAN LENDER" has the meaning assigned to that term in Section
2.25(a).
"NEW TERM LOAN MATURITY DATE" means the date that New Term Loans of a
Series shall become due and payable in full hereunder, as specified in the
applicable Joinder Agreement, including by acceleration or otherwise.
"NEW TERM LOAN NOTE" means a promissory note substantially in the form of
Exhibit B-2, as it may be amended, restated, supplemented or otherwise modified.
"NEW TERM LOANS" has the meaning assigned to that term in Section 2.25(c).
"NON-GUARANTOR SUBSIDIARY" means (i) each of the Subsidiaries identified
as a Non-Guarantor Subsidiary on Schedule 4.1 annexed hereto and (ii) each
Person that becomes a Subsidiary of Company after the date hereof and in
accordance with Section 5.9, and is not required to become a Subsidiary
Guarantor; provided, however, that any such Domestic Subsidiary shall cease to
be a Non-Guarantor Subsidiary if (x) it is or at any time becomes a Material
Subsidiary or (y) it otherwise ceases to be a Non-Guarantor Subsidiary pursuant
to
23
Section 5.9. Notwithstanding the foregoing, each of Co-Op Subsidiary and any
Captive Insurance Subsidiary shall always be a Non-Guarantor Subsidiary.
"NOTE" means a Tranche C Term Loan Note, a New Term Loan Note, a Revolving
Note or a Swing Line Note.
"NOTICE" means a Funding Notice, a Request for Issuance or a
Conversion/Continuation Notice.
"OBLIGATIONS" means, with respect to any Credit Party, obligations of such
Credit Party, whether now existing or hereafter made, incurred or created,
whether absolute or contingent, liquidated or unliquidated, whether due or not
due, and however arising under or in connection with this Agreement and any
other Credit Documents, including those arising under successive borrowing
transactions hereunder which shall either continue the Obligations of such
Credit Party from time to time or renew them after they have been satisfied and
including interest which, but for the filing of a petition in bankruptcy with
respect to such Credit Party, would have accrued on any Obligation, whether or
not a claim is allowed against such Credit Party for such interest in the
related bankruptcy proceeding.
"OFFER" has the meaning assigned to that term in Section 2.12.
"OFFER LOANS" has the meaning assigned to that term in Section 2.12.
"OPERATING LEASE" means, as applied to any Person, any lease (including
leases that may be terminated by the lessee at any time but excluding any such
lease under which that Person is the lessor) of any property (whether real,
personal or mixed) that is not a Capital Lease.
"PARENT" means Xxxxxxx Company (formerly known as THL Bedding Holding
Company), a Delaware corporation.
"PARENT IPO" means an initial public offering of the Securities of Parent.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"PENSION PLAN" means any Employee Benefit Plan, other than a Multiemployer
Plan, which is subject to Title IV of ERISA.
"PERMITTED ACQUISITION" means an acquisition of Securities or assets made
pursuant to Section 6.3(e).
"PERMITTED CURE SECURITY" means Securities of Holdings (or of Parent, the
proceeds of which have been contributed to Holdings) having no mandatory
redemption, repurchase, repayment or similar requirements prior to the date
which occurs six (6) months after the Tranche C Term Loan Maturity Date and upon
which all dividends or distributions, at the election of Holdings (or Parent, as
the case may be), may be payable in additional shares of such Security.
24
"PERMITTED ENCUMBRANCES" means the following types of Liens (excluding any
such Lien imposed by ERISA):
(a) Liens for taxes, assessments or governmental charges or claims the
payment of which is not, at the time, required by Section 5.3;
(b) statutory Liens of landlords, statutory Liens of banks and rights of
set-off, statutory Liens of carriers, warehousemen, mechanics, repairmen,
workmen and materialmen, and other Liens imposed by law, in each case incurred
in the ordinary course of business which are not, at the time, required to be
paid by Section 5.3;
(c) Liens incurred or deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance, old age pensions
and other types of social security, or to secure the performance of tenders,
statutory obligations, surety, stay, customs and appeal bonds, bids, leases,
government contracts, insurance premiums, deductibles or co-insured amounts,
trade contracts, performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed money);
(d) any attachment or judgment Lien not constituting an Event of Default
under Section 8.1(h);
(e) leases, subleases, licenses or sublicenses granted to third parties
and not interfering in any material respect with the ordinary conduct of the
business of Company or any of its Subsidiaries;
(f) easements, rights-of-way, restrictions, encroachments, protrusions,
and other minor defects or irregularities in title, in each case which do not
and will not interfere in any material respect with the ordinary conduct of the
business of Company or any of its Subsidiaries;
(g) any (i) interest or title of a lessor, sublessor, licensor or
sublicensor, (ii) restriction, Lien or encumbrance that the interest or title of
such lessor or sublessor, licensor, sublicensor may be subject to, or (iii)
subordination of the interest of the lessee, sublessee, licensee or sublicensee
under such lease or license to any restriction, Lien or encumbrance referred to
in the preceding clause (ii);
(h) Liens arising from filing UCC financing statements relating to
operating leases and in connection with consignment arrangements;
(i) 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;
(j) any zoning or similar law or right reserved to or vested in any
governmental office or agency to control or regulate the use of any real
property;
(k) Liens securing obligations (other than obligations representing
Indebtedness for borrowed money) under operating, reciprocal easement or similar
agreements entered into in the ordinary course of business of Company and its
Subsidiaries; and
25
(l) licenses of patents, trademarks and other intellectual property rights
granted by Company or any of its Subsidiaries in the ordinary course of business
and not interfering in any material respect with the ordinary conduct of the
business of Company or such Subsidiary.
"PERMITTED LIENS" means each of the Liens permitted pursuant to Section
6.2.
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of Holdings or
any Subsidiary of Holdings issued in exchange for, or the net proceeds of which
are used to extend, refinance, renew, replace, defease or refund (collectively,
to "REFINANCE") any Indebtedness of such Person; provided that (a) the principal
amount (or accreted value, if applicable) thereof does not exceed the principal
amount (or accreted value, if applicable) of the Indebtedness so modified,
refinanced, refunded, renewed, replaced, defeased or extended except by an
amount equal to a reasonable premium or other reasonable amount paid, and fees
and expenses reasonably incurred, in connection with such modification,
refinancing, refunding, renewal, replacement, defeasance or extension and by an
amount equal to any existing commitments unutilized thereunder or as otherwise
permitted pursuant to Section 6.1, (b) such modification, refinancing,
refunding, renewal or extension providing for a final maturity date of such
Indebtedness equal to or later than the final maturity date of, and has a
weighted average life equal to or greater than the weighted average life of, the
Indebtedness being modified, refinanced, refunded, renewed or extended, (c) if
the Indebtedness being modified, refinanced, refunded, renewed, replaced,
defeased or extended is subordinated in right of payment to the Obligations,
such modification, refinancing, refunding, renewal, replacement or extension is
subordinated in right of payment to the Obligations on terms not materially less
favorable to the Lenders as those contained in the documentation governing the
Indebtedness being modified, refinanced, refunded, renewed, replaced, defeased
or extended, taken as a whole, (d) the terms, conditions (including, if
applicable, as to collateral) and interest rates of any such modified,
refinanced, refunded, renewed, defeased, replaced or extended Indebtedness are
not materially less favorable to the Credit Parties or the Lenders than the
terms and conditions of the Indebtedness being modified, refinanced, refunded,
renewed, defeased, replaced or extended, taken as a whole, (e) such
modification, refinancing, refunding, renewal, replacement or extension is
incurred only by the Person who is the obligor on the Indebtedness being
modified, refinanced, refunded, renewed, defeased, replaced or extended;
provided, that such Indebtedness may include any new or additional obligors so
long as (i) such new or additional obligors are Credit Parties or simultaneously
with the incurrence of such Permitted Refinancing Indebtedness become Credit
Parties pursuant to Section 5.9, and (ii) with respect to Indebtedness being
refinanced with Permitted Refinancing Indebtedness that is Subordinated
Indebtedness, the obligations of such new or additional obligors shall be
subordinated in right of payment to the Obligations on terms not materially less
favorable to the Lenders as those contained in the Senior Subordinated Note
Indenture, taken as a whole, and (f) at the time thereof and after giving effect
thereto, no Default or Event of Default shall have occurred and be continuing.
"PERMITTED SALE/LEASE-BACK TRANSACTION" has the meaning assigned to that
term in Section 6.9.
"PERMITTED SUBORDINATED INDEBTEDNESS" means any unsecured Indebtedness of
Company that (a) is expressly subordinated to the prior payment in full in cash
of the Obligations on terms and conditions not materially less favorable to the
Lenders than the terms and conditions of the
26
Senior Subordinated Notes or any Permitted Refinancing Indebtedness pertaining
thereto, taken as a whole, (b) will not mature prior to the date that is six (6)
months after the Tranche C Term Loan Maturity Date, (c) has no scheduled
amortization or payments of principal prior to the date that is six (6) months
after the Tranche C Term Loan Maturity Date, and (d) has covenant, default and
remedy provisions not materially more restrictive, or mandatory prepayment,
repurchase, defeasance or redemption provisions no more onerous or expansive in
scope, than those contained in the Senior Subordinated Notes Indenture or any
Permitted Refinancing Indebtedness pertaining thereto, taken as a whole;
provided any such Indebtedness shall constitute Permitted Subordinated
Indebtedness only if (i) both before and after giving effect to the issuance or
incurrence thereof, no Default or Event of Default shall have occurred and be
continuing, and (ii) the chief financial officer of Company shall have delivered
an officer's certificate demonstrating compliance with the covenants set forth
in Section 6.6 on a Pro Forma Basis as of the most recently ended Fiscal Quarter
in form and substance reasonably satisfactory to the Administrative Agent, it
being understood that any capitalized or paid-in-kind interest or accreted
principal on such Indebtedness shall not constitute an issuance or incurrence of
Indebtedness for purposes of this proviso.
"PERSON" means and includes natural persons, corporations, limited
partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, Joint Ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments (whether federal,
state or local, domestic or foreign, and including political subdivisions
thereof) and agencies or other administrative or regulatory bodies thereof.
"PERSONAL PROPERTY COLLATERAL DOCUMENTS" means such documents,
certificates and opinions required in order to create in favor of Collateral
Agent, for the benefit of Secured Parties, a valid, perfected First Priority
security interest in the personal property Collateral, which include:
(i) evidence reasonably satisfactory to Collateral Agent of the
compliance by each Credit Party of its obligations under the Pledge and
Security Agreement and the other Collateral Documents (including, without
limitation, their obligations to execute and deliver UCC financing
statements, originals of securities, instruments, chattel paper and
intercompany notes evidencing Indebtedness permitted to be incurred
pursuant to Section 6.1);
(ii) a completed Collateral Questionnaire executed by an Authorized
Officer of the relevant Person, together with all attachments contemplated
thereby, including (a) the results of a recent search of all effective UCC
financing statements (or equivalent filings) made with respect to any
personal or mixed property of the relevant Person in the jurisdictions
specified in the Collateral Questionnaire, together with copies of all
such filings disclosed by such search, and (b) UCC termination statements
(or similar documents) duly executed by all applicable Persons for filing
in all applicable jurisdictions as may be necessary to terminate any
effective UCC financing statements (or equivalent filings) disclosed in
such search (other than any such financing statements in respect of
Permitted Liens); and
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(iii) customary opinions of counsel (which counsel shall be
reasonably satisfactory to Collateral Agent) with respect to the creation
and perfection of the security interests in favor of Collateral Agent in
such Collateral and such other matters governed by the laws of each
jurisdiction in which the relevant Person is located as Collateral Agent
may reasonably request, in each case in form and substance reasonably
satisfactory to Collateral Agent.
"PF ASSET SALE" means any Asset Sale pertaining to (x) an entire line of
business of Company or its Subsidiaries or (y) all of the equity Securities or
all or substantially all of the assets of any Subsidiary of Company.
"PLEDGE AND SECURITY AGREEMENT" means the Pledge and Security Agreement
entered into by and among Company, Guarantors and Collateral Agent dated as of
the Closing Date, substantially in the form of Exhibit J annexed hereto, as such
Pledge and Security Agreement may hereafter be amended, restated, supplemented
or otherwise modified from time to time.
"PLEDGED COLLATERAL" means the "Pledged Collateral" as defined in the
Pledge and Security Agreement.
"PRE-MERGER XXXXXXX" means Xxxxxxx Company, a Delaware corporation, which
existed prior to the Mergers.
"PRIME RATE" means the rate that the Administrative Agent announces from
time to time as its prime lending rate, as in effect from time to time. The
Prime Rate is a reference rate and does not necessarily represent the lowest or
best rate actually charged to any customer. The Administrative Agent or any
other Lender may make commercial loans or other loans at rates of interest at,
above or below the Prime Rate.
"PRO FORMA BASIS" shall mean for purposes of this Agreement (but not for
determining the Applicable Commitment Fee Percentage or the Applicable Margin)
as to any Person, for any Permitted Acquisition, PF Asset Sale or incurrence of
Indebtedness which occurs subsequent to the commencement of a period for which
the financial effect of such events is being calculated (each, a "REFERENT
EVENT"), and giving effect to the Referent Event for which such calculation is
being made, such calculation as will give pro forma effect to such events as if
same had occurred at the beginning of such period of calculation; and
(a) for purposes of the foregoing calculation, each Referent
Event shall be assumed to have occurred on the first day of the four
consecutive Fiscal Quarter period last ended on or before the occurrence
of the Referent Event for which such pro forma effect is being determined
(the "REFERENCE PERIOD"); and
(b) (x) all Indebtedness (including Indebtedness incurred or
assumed in connection with the Referent Event, whether incurred under this
Agreement or otherwise, but including, with respect to revolving
Indebtedness the average amount of such Indebtedness outstanding during
the Reference Period) incurred or permanently repaid in connection with
the Referent Event shall be deemed to have been incurred or repaid at the
beginning of such Reference Period and (y) interest expense of such Person
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attributable to interest on any Indebtedness, for which pro forma effect
is being given as provided in preceding clause (x), bearing floating
interest rates shall be computed on a pro forma basis as if the rates
which would have been in effect during the period for which pro forma
effect is being given had been actually in effect during such periods.
Calculations made pursuant to the definition of Pro Forma Basis shall be
determined in good faith by an Authorized Officer of Company and may include
adjustments, in the reasonable determination of Company as set forth in an
officer's certificate, to (i) reflect operating expense reductions reasonably
expected to result from any acquisition, merger or PF Asset Sale to the extent
(x) determined on a basis consistent with Article 11 of Regulation S-X
promulgated under the Securities Act or (y) reasonably acceptable to two of the
three persons constituting the Administrative Agent and the Co-Syndication
Agents and (ii) eliminate the effect of any extraordinary accounting event with
respect to any acquired person or assets on Consolidated Net Income.
"PRO RATA SHARE" means (i) with respect to all payments, computations and
other matters relating to the Tranche C Term Loan of any Lender, the percentage
obtained by dividing (a) the Tranche C Term Loan Exposure of such Lender by (b)
the aggregate Tranche C Term Loan Exposure of all Lenders, (ii) with respect to
all payments, computations and other matters relating to the Revolving Loan
Commitment or Revolving Loans of any Lender or any Letters of Credit issued or
participations therein purchased by any Lender or any participations in any
Swing Line Loans purchased by any Lender, the percentage obtained by dividing
(a) the Revolving Credit Exposure of that Lender by (b) the aggregate Revolving
Credit Exposure of all Lenders, (iii) with respect to all payments,
computations, and other matters relating to New Term Loan Commitments or New
Term Loans of a particular Series, the percentage obtained by dividing (a) the
New Term Loan Exposure of that Lender with respect to that Series by (b) the
aggregate New Term Loan Exposure of all Lenders with respect to that Series, and
(iv) for all other purposes with respect to each Lender, the percentage obtained
by dividing (a) the sum of the Tranche C Term Loan Exposure of that Lender,
plus, the Revolving Credit Exposure of that Lender, plus, the New Term Loan
Exposure of that Lender by (b) the sum of the aggregate Tranche C Term Loan
Exposure of all Lenders, plus the aggregate Revolving Credit Exposure of all
Lenders, plus the aggregate New Term Loan Exposure of all Lenders in any such
case as the applicable percentage may be adjusted by assignments permitted
pursuant to Section 10.6. The initial Pro Rata Share of each Lender for purposes
of each of clauses (i) and (ii) of the preceding sentence is set forth opposite
the name of that Lender in Schedule 1.1(b) annexed hereto.
"PROJECTIONS" has the meaning assigned to that term in Section 4.24.
"PROPOSED REINVESTMENT PROCEEDS" has the meaning assigned to that term in
Section 2.13(a).
"RCRA" means the Resource Conservation and Recovery Act and any state
equivalents, as any of the same may be amended from time to time, and any
successors thereto.
"REAL PROPERTY ASSET" means, at any time of determination, any interest
then owned in fee simple by any Credit Party in any real property.
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"REFINANCED TERM LOAN" has the meaning assigned to that term in Section
10.5(f).
"REFUNDED SWING LINE LOAN" has the meaning assigned to that term in
Section 2.2(e).
"REFUNDING NOTICE" has the meaning assigned to that term in Section
2.2(e).
"REGISTER" has the meaning assigned to that term in Section 2.6.
"REGULATION D" means Regulation D of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"REIMBURSEMENT DATE" has the meaning assigned to that term in Section
2.3(d).
"RELATED AGREEMENTS" means, collectively, the Stock Purchase Agreement,
the Stockholders Agreement, the Management Agreement, the Senior Subordinated
Note Documents, the Tender Offer Documents, the Senior Unsecured Term Loan
Agreement, and all documents relating to any of the foregoing.
"RELEASE" means any release, spill, emission, leaking, pumping, pouring,
injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching
or migration of any Hazardous Material into the indoor or outdoor environment
(including the abandonment or disposal of any barrels, containers or other
closed receptacles containing any Hazardous Material), including the movement of
any Hazardous Material through the air, soil, surface water or groundwater.
"REPLACEMENT TERM LOANS" has the meaning assigned to that term in Section
10.5(f).
"REQUEST FOR ISSUANCE" means a notice in the form of Exhibit A-3.
"REQUISITE CLASS LENDERS" means, at any time of determination (i) for the
Class of Lenders having Tranche C Term Loan Exposure, Lenders having or holding
more than 50% of the sum of the aggregate Tranche C Term Loan Exposure of all
Lenders, (ii) for the Class of Lenders having Revolving Credit Exposure, Lenders
having or holding more than 50% of the sum of the aggregate Revolving Credit
Exposure of all Lenders, and (iii) for each class of Lender having New Term Loan
Exposure, Lenders having or holding more than 50% of the aggregate New Term Loan
Exposure of that class.
"REQUISITE LENDERS" means Lenders having or holding more than 50% of the
sum of (i) the aggregate Tranche C Term Loan Exposure of all Lenders, plus (ii)
the aggregate Revolving Credit Exposure of all Lenders, plus (iii) the aggregate
New Term Loan Exposure of all Lenders.
"RESPONSIBLE OFFICER" means, as to any Person, any of the chairman of the
board, the president, the chief executive officer, the chief financial officer,
any senior or executive vice president, the general counsel, the treasurer or
assistant treasurer, secretary or assistant secretary, the principal financial
officer or principal accounting officer, of such Person.
"RESTRICTED JUNIOR PAYMENT" means (i) any dividend or other distribution,
direct or indirect, on account of any equity Securities of Holdings or its
Subsidiaries now or hereafter
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outstanding, except a dividend or other distribution payable solely in shares of
equity Securities, (ii) any redemption, retirement, sinking fund or similar
payment, purchase or other acquisition for value, direct or indirect, of any
equity Securities of Holdings or its Subsidiaries now or hereafter outstanding,
(iii) any payment made to retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire equity Securities of Holdings or
its Subsidiaries now or hereafter outstanding, and (iv) any payment or
prepayment of principal of, premium, if any, or interest on, or redemption,
purchase, repurchase, retirement, defeasance (including in-substance or legal
defeasance), sinking fund or similar payment with respect to, any Subordinated
Indebtedness.
"RETAIL BUSINESS" means, the assets owned by, or the equity Securities of
collectively, SC Holdings, Inc., a Delaware corporation and Gallery Corp., a
Delaware corporation and each of their respective Subsidiaries.
"REVOLVING CREDIT EXPOSURE" means, with respect to any Lender as of any
date of determination (i) prior to the termination of the Revolving Loan
Commitments, such Lender's Revolving Loan Commitment; and (ii) after the
termination of the Revolving Loan Commitments, the sum of (a) the aggregate
outstanding principal amount of the Revolving Loans of such Lender, plus (b) in
the case of Issuing Bank, the aggregate Letter of Credit Usage in respect of all
Letters of Credit (net of any participations purchased by Lenders in such
Letters of Credit or any unreimbursed drawing thereunder), plus (c) the
aggregate amount of all participations purchased by such Lender in any
outstanding Letters of Credit or any unreimbursed drawing under any Letter of
Credit, plus (d) in the case of Swing Line Lender, the aggregate outstanding
principal amount of all Swing Line Loans (net of any participation therein
purchased by other Lenders), plus (e) the aggregate amount of all participations
purchased by such Lender in any outstanding Swing Line Loans.
"REVOLVING LOAN" means a Loan made by a Lender to Company pursuant to its
Revolving Loan Commitment.
"REVOLVING LOAN COMMITMENT" means the commitment of a Lender to make
Revolving Loans to Company pursuant to Section 2.2(a)(i) and/or Section 2.25 and
"REVOLVING LOAN COMMITMENTS" means such commitments of all Lenders in the
aggregate. The amount of each Lender's Revolving Loan Commitment is initially as
set forth opposite the name of that Lender in Schedule 1.1(b) annexed hereto,
and may be adjusted or reduced pursuant to the terms and conditions hereof. As
of the Effective Date, the aggregate amount of the Revolving Loan Commitments
shall be $75,000,000.
"REVOLVING LOAN COMMITMENT PERIOD" means the period from the Closing Date
to but excluding the Revolving Loan Commitment Termination Date.
"REVOLVING LOAN COMMITMENT TERMINATION DATE" means the earliest to occur
of (i) the sixth anniversary of the Closing Date, (ii) the date the Revolving
Loan Commitments are permanently reduced to zero pursuant to Section 2.12(b),
Section 2.13 or Section 2.14, and (iii) the date of the termination of the
Revolving Loan Commitments pursuant to Section 8.1.
"REVOLVING LOAN LENDER" means a Lender having a Revolving Loan Commitment.
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"REVOLVING NOTE" means a promissory note in the form of Exhibit B-3, as it
may be amended, restated, supplemented or otherwise modified from time to time.
"SECURED PARTIES" has the meaning assigned to that term in the Pledge and
Security Agreement.
"SECURED OBLIGATIONS" has the meaning assigned to that term in the Pledge
and Security Agreement.
"SECURITIES" means, with respect to any Person, any stock, shares,
partnership or other similar 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 of such Person.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time to
time, and any successor statute.
"SELLERS" means collectively, Xxxxxxx Holdings, LLC, a Delaware limited
liability company, Fenway, the Management Investors and the ESOP.
"SENIOR UNSECURED TERM LOAN AGREEMENT" means the Senior Unsecured Term
Loan and Guaranty Agreement dated as of the Closing Date among Company,
Holdings, GSCP, as sole bookrunner, joint lead arranger and co-syndication
agent, UBSS as joint lead arranger and co-syndication agent, DBNY, as
administrative agent and the other agents and lenders party thereto as it may be
amended, modified, renewed, refunded, replaced or refinanced or otherwise
restructured in whole or in part from time to time whether by the same or any
other agent, lender or group of lenders.
"SENIOR UNSECURED TERM LOANS" means the Senior Unsecured Term Loan and
Guaranty Agreement of Company due 2012 in an aggregate principal amount of
$140,000,000 made on the Closing Date under the Senior Unsecured Term Loan
Agreement.
"SENIOR SUBORDINATED NOTE DOCUMENTS" means the Senior Subordinated Note
Indenture, the Senior Subordinated Notes and each other document executed in
connection with the Senior Subordinated Notes, as each such document may be
amended, restated, supplemented or otherwise modified from time to time to the
extent permitted under Section 6.11.
"SENIOR SUBORDINATED NOTE INDENTURE" means the indenture dated December
19, 2003 pursuant to which the Senior Subordinated Notes are issued, as such
indenture may thereafter be amended, restated, supplemented or otherwise
modified from time to time to the extent permitted under Section 6.11 or
replaced pursuant to a refinancing permitted under Section 6.1.
"SENIOR SUBORDINATED NOTES" means the Senior Subordinated Notes of Company
in the aggregate principal amount not to exceed $200,000,000 and issued pursuant
to the Senior
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Subordinated Note Indenture, with such changes thereto when executed as are
permitted under Section 6.11, which principal amount may be increased by amounts
permitted to be incurred pursuant to Section 6.1 and as such notes may
thereafter be amended, restated, supplemented or otherwise modified from time to
time to the extent permitted under Section 6.11 or refinanced to the extent
permitted under Section 6.1.
"SERIES" has the meaning assigned to that term in Section 2.25.
"XXXXXXX HOLDCO" means Xxxxxxx Holdings, Inc., a Delaware corporation,
before giving effect to the Mergers.
"SOLVENCY CERTIFICATE" means a certificate in the form of Exhibit G.
"SOLVENT" means, with respect to any Person, that as of the date of
determination both (i) (a) the then fair saleable value of the property of such
Person is (1) greater than the total amount of liabilities (including contingent
liabilities) of such Person and (2) not less than the amount that will be
required to pay the probable liabilities on such Person's then existing debts as
they become absolute and matured considering all financing alternatives and
potential asset sales reasonably available to such Person; (b) such Person's
capital is not unreasonably small in relation to its business or any
contemplated or undertaken transaction; and (c) such Person does not intend to
incur, or believe (nor should it reasonably believe) that it will incur, debts
beyond its ability to pay such debts as they become due; and (ii) such Person is
"solvent" within the meaning given that term and similar terms under applicable
laws relating to fraudulent transfers and conveyances. For purposes of this
definition, the amount of any contingent liability at any time shall be computed
as the amount that, in light of all of the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability.
"SPONSOR" means Xxxxxx X. Xxx Partners, L.P. and its Affiliates.
"STANDBY LETTER OF CREDIT" means any standby letter of credit or similar
instrument issued for the purpose of supporting (i) workers' compensation
liabilities of Company or any of its Subsidiaries, (ii) the obligations of third
party insurers of Company or any of its Subsidiaries arising by virtue of the
laws of any jurisdiction requiring third party insurers, (iii) performance,
payment, deposit or surety obligations of Company or any of its Subsidiaries, in
any case if required by law or governmental rule or regulation or in accordance
with custom and practice in the industry, and (iv) such other obligations of
Company and its Subsidiaries as may be reasonably acceptable to Administrative
Agent.
"STOCK PURCHASE AGREEMENT" means that certain Stock Purchase Agreement
dated as of November 17, 2003, by and among Xxxxxxx Holdco, THL Company, and the
Sellers.
"SUBORDINATED INDEBTEDNESS" means (i) the Indebtedness of Company under
the Senior Subordinated Note Documents; and (ii) any other Permitted
Subordinated Indebtedness and, in each case, any Permitted Refinancing
Indebtedness with respect thereto.
33
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, limited liability company, association, joint venture or other
business entity of which more than 50% of the total voting power of shares of
stock or other ownership interests entitled (without regard to the occurrence of
any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and policies
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof.
"SUBSIDIARY GUARANTOR" means any Domestic Subsidiary of Company that is a
party hereto as of the Effective Date and is not identified as a Non-Guarantor
Subsidiary on Schedule 4.1 or becomes a party to the Guaranty at any time after
the Effective Date pursuant to Section 5.9.
"SUPPLEMENTAL COLLATERAL AGENT" has the meaning assigned to that term in
Section 9.8(c).
"SWING LINE LENDER" means Deutsche Bank A.G., Cayman Islands branch, in
its capacity as Swing Line Lender hereunder, together with its permitted
successors and assigns in such capacity.
"SWING LINE LOAN" means a Loan made by Swing Line Lender to Company
pursuant to Section 2.2(a)(ii).
"SWING LINE LOAN COMMITMENT" means the commitment of Swing Line Lender to
make Swing Line Loans to Company pursuant to Section 2.2(a)(ii).
"SWING LINE NOTE" means a promissory note substantially in the form of
Exhibit B-4, as it may be amended, restated, supplemented or otherwise modified
from time to time.
"SWING LINE SUBLIMIT" means the lesser of (i) $10,000,000, and (ii) the
aggregate amount of Revolving Loan Commitments then in effect.
"TAX" means any present or future tax, levy, impost, duty, charge, fee,
deduction or withholding of any nature and whatever called, by a governmental
authority, on whomsoever and wherever imposed, levied, collected, withheld or
assessed; provided, "TAX ON THE OVERALL NET INCOME" of a Person shall be
construed as a reference to a tax imposed by the jurisdiction in which that
Person is organized or in which that Person's principal office (and/or, in the
case of a Lender, its lending office) is located or in which that Person
(and/or, in the case of a Lender, its lending office) is deemed to be doing
business, on all or part of the net income, profits or gains (whether worldwide,
or only insofar as such income, profits or gains are considered to arise in or
to relate to a particular jurisdiction, or otherwise, including, franchise taxes
or taxes substantially similar to franchise taxes) of that Person (and/or, in
the case of a Lender, its lending office).
"TENDER OFFER" means the offer by Company to purchase at least 50% of the
outstanding Existing Notes pursuant to the Tender Offer Documents.
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"TENDER OFFER DOCUMENTS" means the Offer to Purchase and Consent
Solicitation Statement and the Consent of Company dated November 18, 2003.
"TERM LOAN" means a Tranche C Term Loan or a New Term Loan.
"TERMINATION DATE" means the date upon which all of the Commitments of the
Lenders hereunder have terminated, any Loan or any other non-contingent
Obligation which is accrued has been paid or satisfied in full in Cash and no
Letters of Credit are then outstanding.
"TITLE COMPANY" means, collectively, First American Title Insurance
Company and/or one or more other title insurance companies reasonably
satisfactory to the Agents.
"TOTAL LEVERAGE RATIO" means the ratio, as of any date of determination of
(i) Consolidated Total Debt as of such date plus (A) any outstanding
Indebtedness incurred by Holdings pursuant to Section 6.1(p) minus (B) Cash and
Cash Equivalents of Company and its Subsidiaries as of such date not in excess
of $30,000,000 to (ii) Consolidated Adjusted EBITDA for the most recent
four-Fiscal Quarter period ended on or prior to such date.
"TOTAL UTILIZATION OF REVOLVING LOAN COMMITMENTS" means, as at any date of
determination, the sum of (i) the aggregate principal amount of all outstanding
Revolving Loans (other than Revolving Loans made for the purpose of repaying any
Refunded Swing Line Loans or reimbursing Issuing Bank for any amount drawn under
any Letter of Credit but not yet so applied), plus (ii) the aggregate principal
amount of all outstanding Swing Line Loans, plus (iii) the Letter of Credit
Usage.
"TRANCHE C TERM LOAN" means a Loan made by a Lender to Company pursuant to
Section 2.1.
"TRANCHE C TERM LOAN AMOUNT" means the amount of the Tranche C Term Loan
to be lent by a Lender to Company. The Tranche C Term Loan Amount of each Lender
is initially as set forth opposite the name of that Lender in Schedule 1.1(b)
annexed hereto, and may be adjusted or reduced pursuant to the terms and
conditions hereof. As of the Effective Date, the aggregate amount of the Tranche
C Term Loan Amounts shall be $396,600,000.
"TRANCHE C TERM LOAN EXPOSURE" means, with respect to any Lender, as of
any date of determination, the outstanding principal amount of the Tranche C
Term Loans of such Lender; provided, at any time prior to the making of the
Tranche C Term Loans, the Tranche C Term Loan Exposure of any Lender shall be
equal to such Lender's Tranche C Term Loan Amount.
"TRANCHE C TERM LOAN MATURITY DATE" means the earlier of (i) December 19,
2011, and (ii) the date that all Tranche C Term Loans shall become due and
payable in full hereunder, whether by acceleration or otherwise.
"TRANCHE C TERM LOAN NOTE" means a promissory note substantially in the
form of Exhibit B-1, as it may be amended, restated, supplemented or otherwise
modified from time to time.
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"TRANSACTION COSTS" means the fees, costs and expenses payable by Company
on or before the Closing Date in connection with the transactions contemplated
by the Credit Documents and the Related Agreements.
"TRUSTEE" means State Street Bank & Trust Company as trustee of the ESOP.
"TYPE" means (i) with respect to either Term Loans or Revolving Loans, a
Base Rate Loan or a Eurodollar Rate Loan, and (ii) with respect to Swing Line
Loans, a Base Rate Loan.
"UBSS" has the meaning assigned to that term in the preamble hereto.
"UCC" means the Uniform Commercial Code (or any similar or equivalent
legislation) as in effect in any applicable jurisdiction.
"UNFUNDED BENEFIT LIABILITIES" has the meaning assigned to that term in
Section 4.19.
"US LENDER" has the meaning assigned to that term in Section 2.20(d).
1.2 ACCOUNTING TERMS. Except as otherwise expressly provided herein, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP. Financial statements and other information
required to be delivered by Company to Administrative Agent pursuant to Section
5.1(a), 5.1(b) and 5.1(c) shall be prepared in accordance with GAAP as in effect
at the time of such preparation (and delivered together with the reconciliation
statements provided for in Section 5.1(e), if applicable); provided, that all
calculations in connection with financial definitions and financial covenants
set forth in Section 6.6 shall utilize accounting principles and policies in
conformity with those used to prepare the Historical Financial Statements;
provided, further, if Company notifies the Administrative Agent that Company
wishes to amend any covenant in Section 2.13 or Section 6 or any related
definition to eliminate the effect of any change in GAAP occurring after the
date of this Agreement on the operation of such covenant (or if Administrative
Agent notifies Company that the Requisite Lenders wish to amend Section 2.13,
Section 6 or any related definition for such purpose), then (i) Company and
Administrative Agent shall negotiate in good faith to agree upon an appropriate
amendment to such covenant and (ii) Company's compliance with such covenant
shall be determined on the basis of GAAP in effect immediately before the
relevant change in GAAP became effective until such covenant is amended in a
manner satisfactory to Company and Requisite Lenders. With respect to the fourth
Fiscal Quarter of 2003, and notwithstanding the actual accounting periods for
which any financial statements were prepared for the fourth Fiscal Quarter of
2003, such fourth Fiscal Quarter shall be treated as one accounting period and
all financial definitions shall be calculated with all applicable financial
statements prepared for such fourth Fiscal Quarter, taken as a whole.
1.3 INTERPRETATION, ETC. Any of the terms defined herein may, unless the
context otherwise requires, be used in the singular or the plural, depending on
the reference. References herein to any Section, Exhibit or Schedule shall be to
a Section, an Exhibit and a Schedule, respectively, hereof unless otherwise
specifically provided. The use herein of the word "INCLUDE" or "INCLUDING", when
following any general statement, term or matter, shall not be construed to limit
such statement, term or matter to the specific items or matters set forth
36
immediately following such word or to similar items or matters, whether or not
nonlimiting language (such as "WITHOUT LIMITATION" or "BUT NOT LIMITED TO" or
words of similar import) is used with reference thereto, but rather shall be
deemed to refer to all other items or matters that fall within the broadest
possible scope of such general statement, term or matter. Furthermore, when the
performance of any covenant, duty or other non-monetary obligation is stated to
be required on a day which is not a Business Day, the date of such performance
shall extend to the immediately succeeding Business Day. Except as otherwise set
forth in this Agreement, whenever any payment to be made hereunder shall be
stated to be due on a day that is not a Business Day, such payment shall be made
on the next succeeding Business Day and such extension of time shall be included
in the computation of the payment of interest hereunder or of the commitment
fees hereunder, as the case may be. For purposes of this Agreement and the other
Credit Documents, Letters of Credit which have been cash collateralized or
otherwise backstopped shall not be deemed to be outstanding Letters of Credit.
SECTION 2. CREDIT EXTENSIONS
2.1 TRANCHE C TERM LOANS. (a) Subject to and upon the terms and conditions
herein set forth, each of the Continuing Lenders agrees that the Existing
Tranche B Term Loans made by such Continuing Lender under the Existing Credit
Agreement shall remain outstanding on and after the Effective Date as "Tranche C
Term Loans" made pursuant to this Agreement in the same pro rata amount of such
Continuing Lenders pro rata share of the Existing Tranche B Term Loans and such
Existing Tranche B Term Loans shall on and after the Effective Date have all of
the rights and benefits of Tranche C Term Loans as set forth in this Agreement
and the other Credit Documents.
(b) Subject to the terms and conditions hereof, each Lender (other than a
Continuing Lender) severally agrees to lend to Company on the Effective Date, a
Tranche C Term Loan in an amount equal to such Lender's Tranche C Term Loan
Amount to be used for the purposes identified in Section 2.5.
(c) Any amount borrowed under this Section 2.1, and subsequently repaid or
prepaid, may not be reborrowed.
2.2 REVOLVING LOANS AND SWING LINE LOANS. (a) During the Revolving Loan
Commitment Period, subject to the terms and conditions hereof, (i) each Lender
severally agrees to make Revolving Loans to Company in the aggregate amount up
to but not exceeding such Lender's Revolving Loan Commitment, and (ii) Swing
Line Lender hereby agrees to make Swing Line Loans to Company in an aggregate
amount up to but not exceeding the Swing Line Sublimit, in each case to be used
for the purposes identified in Section 2.5. Amounts borrowed pursuant to this
Section 2.2 may be repaid and reborrowed during the Revolving Loan Commitment
Period. Each Lender's Revolving Loan Commitment, and Swing Line Lender's Swing
Line Loan Commitment, shall expire on the Revolving Loan Commitment Termination
Date and all Revolving Loans and all Swing Line Loans and all other amounts owed
hereunder with respect to the Revolving Loans, the Swing Line Loans, the
Revolving Loan Commitments and the Swing Line Loan Commitment shall be paid in
full no later than such date. Notwithstanding the foregoing, the Revolving Loan
Commitments and the Swing Line Loan
37
Commitment shall expire immediately and without further action on December 19,
2003 if the Tranche C Term Loans are not made on or before that date.
(b) Except pursuant to Section 2.2(e) or Section 2.3(d), (i) Revolving
Loans that are Base Rate Loans shall be made in an aggregate minimum amount of
$500,000 and integral multiples of $100,000 in excess of that amount, (ii)
Eurodollar Rate Revolving Loans shall be made in an aggregate minimum amount of
$2,000,000 and integral multiples of $500,000 in excess of that amount, and
(iii) Swing Line Loans shall be made in an aggregate minimum amount of $250,000
and integral multiples of $100,000 in excess of that amount. Anything contained
herein to the contrary notwithstanding, in no event shall the Total Utilization
of Revolving Loan Commitments at any time exceed the Revolving Loan Commitments
then in effect.
(c) Whenever Company desires that Lenders make Loans, Company shall
deliver to Administrative Agent a fully executed and delivered Funding Notice no
later than 12:00 noon (New York City time) (i) at least three (3) Business Days
in advance of the proposed Credit Extension Date in the case of a Eurodollar
Rate Loan; and (ii) at least one (1) Business Day in advance of the proposed
Credit Extension Date in the case of a Base Rate Loan; provided, whenever
Company desires that Swing Line Lender make a Swing Line Loan, it shall deliver
to Administrative Agent a Funding Notice no later than 12:00 noon (New York City
time) on the proposed Credit Extension Date. Except as otherwise provided
herein, a Funding Notice for a Eurodollar Rate Loan (or telephonic notice in
lieu thereof) shall be irrevocable on and after the related Interest Rate
Determination Date, and Company shall be bound to make a borrowing in accordance
therewith. Promptly after receipt by Administrative Agent of a Funding Notice
(or telephonic notice in lieu thereof), Administrative Agent shall notify each
Lender or Swing Line Lender, as the case may be, of the proposed borrowing.
(d) Each Lender shall make the amount of its Loan available to
Administrative Agent not later than 12:00 noon (New York City time) on the
applicable Credit Extension Date, and Swing Line Lender shall make the amount of
its Swing Line Loan available to Administrative Agent not later than 2:30 p.m.
(New York City time) on the applicable Credit Extension Date, in each case by
wire transfer of same day funds in Dollars, at the Funding and Payment Office
(or, in the case of Swing Line Loans, at such other place as Administrative
Agent, Company and Swing Line Lender may approve). Except as provided herein,
upon satisfaction or waiver of the conditions precedent specified herein,
Administrative Agent shall make the proceeds of such Loans available to Company
on the applicable Credit Extension Date by causing an amount of same day funds
in Dollars equal to the proceeds of all such Loans received by Administrative
Agent from Lenders or Swing Line Lender, as the case may be, to be credited to
the account of Company at the Funding and Payment Office (or, in the case of
Swing Line Loans, at such other place as Administrative Agent, Company and Swing
Line Lender may approve).
(e) With respect to any Swing Line Loan that has not been voluntarily
prepaid by Company, Swing Line Lender may, at any time in its sole and absolute
discretion, deliver to Administrative Agent (with a copy to Company), no later
than 10:00 a.m. (New York City time) on the first Business Day in advance of the
proposed Credit Extension Date, a notice (the "REFUNDING NOTICE") (which shall
be deemed to be a Funding Notice given by Company) requesting Lenders having
Revolving Credit Exposure to make Revolving Loans that are Base
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Rate Loans on such Credit Extension Date in an amount equal to the amount of
such Swing Line Loans (each, a "REFUNDED SWING LINE Loan") outstanding on the
date of such Refunding Notice. Promptly after receipt by Administrative Agent of
a Refunding Notice, Administrative Agent shall notify each such Lender thereof.
Anything contained herein to the contrary notwithstanding, the proceeds of such
Revolving Loans made by Lenders shall be immediately delivered by Administrative
Agent solely to Swing Line Lender and applied to repay a corresponding amount of
the applicable Refunded Swing Line Loans. Company hereby authorizes
Administrative Agent and Swing Line Lender to charge Company's accounts, if any
(up to the amount available in each such account) in order to immediately pay
Swing Line Lender the amount of the Refunded Swing Line Loans to the extent the
proceeds of such Revolving Loans made by Lenders are not sufficient to repay in
full the Refunded Swing Line Loans. If any portion of any such amount paid to
Swing Line Lender should be recovered by or on behalf of Company from Swing Line
Lender in bankruptcy, by assignment for the benefit of creditors or otherwise,
the loss of the amount so recovered shall be ratably shared among all Lenders
having Revolving Credit Exposure in the manner contemplated by Section 10.4.
(f) If for any reason (i) Revolving Loans are not made upon the request of
Swing Line Lender as provided in Section 2.2(e) in an amount sufficient to repay
any amounts owed to Swing Line Lender in respect of any outstanding Swing Line
Loans; or (ii) the Revolving Loan Commitments are terminated at a time when any
Swing Line Loans are outstanding, then, in either case, each Lender having
Revolving Credit Exposure shall be deemed to, and hereby agrees to, have
purchased a participation in such outstanding Swing Line Loans in an amount
equal to its Pro Rata Share (calculated, in the case of this clause (ii),
immediately prior to such termination of the Revolving Loan Commitments) of the
unpaid amount of such Swing Line Loans together with accrued interest thereon.
Upon one Business Day's notice from Swing Line Lender, each such Lender shall
deliver to Swing Line Lender an amount equal to its respective participation in
same day funds at the Funding and Payment Office. In order to further evidence
such participation (and without prejudice to the effectiveness of the
participation provisions set forth above), each such Lender agrees to enter into
a separate participation agreement at the request of Swing Line Lender in form
and substance reasonably satisfactory to Swing Line Lender. In the event any
such Lender fails to make available to Swing Line Lender the amount of such
Lender's participation as provided herein, Swing Line Lender shall be entitled
to recover such amount on demand from such Lender together with interest thereon
at the rate customarily used by Swing Line Lender for the correction of errors
among banks for three (3) Business Days and thereafter at the Base Rate. In the
event Swing Line Lender receives a payment of any amount in which other Lenders
have purchased participations as provided herein, Swing Line Lender shall
promptly distribute to each such other Lender its Pro Rata Share of such
payment. In addition, in the case of each Lender that is deemed to have
purchased a participation in such outstanding Swing Line Loan as specified in
this Section 2.2(f), the Swing Line Lender (i) shall keep a register, meeting
the requirements of Temporary Treasury Regulation Section 5f.103-1(c), of each
such Lender, specifying such Lender's entitlement to payments of principal and
interest with respect to such participation, and (ii) shall collect, prior to
the time such Lender receives payments, from each such Lender the appropriate
forms, certificates and statements described in Section 2.20 (and updated as
required by Section 2.20) as if such Lender were a Lender under Section 2.20.
39
(g) Anything contained herein to the contrary notwithstanding, each such
Lender's obligation to make Revolving Loans for the purpose of repaying any
Refunded Swing Line Loans, and each such Lender's obligation to purchase a
participation in any unpaid Swing Line Loans, shall be absolute and
unconditional and shall not be affected by any circumstance, including (i) any
set-off, counterclaim, recoupment, defense or other right which such Lender may
have against Swing Line Lender, any Credit Party or any other Person for any
reason whatsoever; (ii) the occurrence or continuation of an Event of Default or
a Default; (iii) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Company or any of its
Subsidiaries; (iv) any breach hereof or any other Credit Document by any party
thereto; or (v) any other circumstance, happening or event whatsoever, whether
or not similar to any of the foregoing; provided, such obligations of each such
Lender are subject to the condition that (1) Swing Line Lender believed in good
faith that all conditions under Section 3 to the making of the applicable
Refunded Swing Line Loans or other unpaid Swing Line Loans, as the case may be,
were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line
Loans were made, or (2) the satisfaction of any such condition not satisfied had
been waived in accordance with Section 10.5 prior to or at the time such
Refunded Swing Line Loans or other unpaid Swing Line Loans were made.
2.3 LETTERS OF CREDIT. (a) During the Revolving Loan Commitment Period,
subject to the terms and conditions hereof, Company may request from time to
time (but in no event later than the date that is thirty (30) days prior to the
Revolving Loan Commitment Termination Date) that one or more Lenders issue
Letters of Credit for the account of Company for the purposes specified in the
definitions of Commercial Letters of Credit and Standby Letters of Credit;
provided that all such Letters of Credit shall provide for sight drawings.
Subject to the terms and conditions of this Agreement and in reliance upon the
representations and warranties of Company herein set forth, any one or more
Lenders may, but (except as provided herein) shall not be obligated to, issue
such Letters of Credit in accordance with the provisions hereof; provided,
Company shall not request that any Lender issue, and no Lender shall issue: (i)
any Letter of Credit if, after giving effect to such issuance, the Total
Utilization of Revolving Loan Commitments would exceed the Revolving Loan
Commitments then in effect; (ii) any Letter of Credit if, after giving effect to
such issuance, the Letter of Credit Usage would exceed the Letter of Credit
Sublimit then in effect; (iii) any Standby Letter of Credit having an expiration
date later than the earlier of (1) the 10th Business Day prior to the Revolving
Loan Commitment Termination Date and (2) the date which is one year after the
date of issuance of such Standby Letter of Credit. Notwithstanding the
foregoing, Issuing Bank may agree that the expiration date of a Standby Letter
of Credit will be automatically extended for one or more successive periods not
to exceed one year each unless the Issuing Bank elects not to extend the
expiration date for any such additional period and further provided that no
expiration date for a Standby Letter of Credit will be extended beyond the 10th
Business Day prior to the Revolving Loan Commitment Termination Date; (iv) any
Commercial Letter of Credit having an expiration date (a) later than the earlier
of (1) the 30th day prior to the Revolving Loan Commitment Termination Date and
(2) the date which is 180 days after the date of issuance of such Commercial
Letter of Credit (or such other date as shall be agreed to by the Issuing Bank)
or (b) that is otherwise unacceptable to the Issuing Bank in its reasonable
discretion; or (v) any Letter of Credit denominated in a currency other than
Dollars.
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(b) Whenever Company desires the issuance of a Letter of Credit, it shall
deliver to Administrative Agent a Request for Issuance no later than 12:00 noon
(New York City time) at least three (3) Business Days (in the case of Standby
Letters of Credit) or five (5) Business Days (in the case of Commercial Letters
of Credit), or in each case such shorter period as may be agreed to by Issuing
Bank in any particular instance, in advance of the proposed date of issuance.
Issuing Bank, in its reasonable discretion, may require changes in the text of
the proposed Letter of Credit or any such documents. Upon receipt by
Administrative Agent of a Request for Issuance pursuant to this Section, in the
event Administrative Agent elects to issue such Letter of Credit, Administrative
Agent shall promptly so notify Company, and Administrative Agent shall be
Issuing Bank with respect thereto. In the event that Administrative Agent, in
its sole discretion, elects not to issue such Letter of Credit, Administrative
Agent shall promptly so notify Company, whereupon Company may request any other
Lender to issue such Letter of Credit by delivering to such Lender a copy of the
applicable Request for Issuance. Any Lender so requested to issue such Letter of
Credit shall promptly notify Company and Administrative Agent whether or not, in
its sole discretion, it has elected to issue such Letter of Credit, and any such
Lender which so elects to issue such Letter of Credit shall be the Issuing Bank
with respect thereto. In the event that all other Lenders shall have declined to
issue such Letter of Credit, notwithstanding the prior election of
Administrative Agent not to issue such Letter of Credit, Administrative Agent
shall be obligated to issue such Letter of Credit and shall be Issuing Bank with
respect thereto, notwithstanding the fact that the Letter of Credit Usage with
respect to such Letter of Credit and with respect to all other Letters of Credit
issued by Administrative Agent, when aggregated with Administrative Agent's
outstanding Revolving Loans and Swing Line Loans, may exceed Administrative
Agent's Revolving Loan Commitment then in effect. Upon satisfaction or waiver of
the conditions set forth in Section 3.2, Issuing Bank shall issue the requested
Letter of Credit. Upon the issuance or amendment of any Standby Letter of
Credit, Issuing Bank shall notify the Administrative Agent and the Company, in
writing of such issuance or amendment and such notice shall be accompanied by a
copy of such issuance or amendment. Promptly after the receipt of such notice,
the Administrative Agent shall notify each Lender, in writing, of such issuance
or amendment and in the event any Lender shall so request, the Administrative
Agent shall provide such Lender with copies of such issuance or amendment. With
regard to Commercial Letters of Credit, each Issuing Bank shall on the first
Business Day of each week furnish the Administrative Agent, by facsimile, with a
report detailing the daily aggregate outstanding Commercial Letters of Credit
for such Issuing Bank during the previous week.
(c) In determining whether to honor any drawing under any Letter of Credit
by the beneficiary thereof, Issuing Bank shall be responsible only to examine
the documents delivered under such Letter of Credit with reasonable care so as
to ascertain whether they appear on their face to be in accordance with the
terms and conditions of such Letter of Credit. As between Company and Issuing
Bank, Company assumes all risks of the acts and omissions of, or misuse of the
Letters of Credit issued by Issuing Bank by, the respective beneficiaries of
such Letters of Credit. In furtherance and not in limitation of the foregoing,
Issuing Bank shall not be responsible for: (i) the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of any such Letter of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (ii) the validity or sufficiency
of any instrument transferring or
41
assigning or purporting to transfer or assign any such Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part, which
may prove to be invalid or ineffective for any reason; (iii) failure of the
beneficiary of any such Letter of Credit to comply fully with any conditions
required in order to draw upon such Letter of Credit, except to the extent that
such failure is the result of the gross negligence or willful misconduct of the
Issuing Bank, as determined by a final and non-appealable judgment of a court of
competent jurisdiction; (iv) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher; (v) errors in interpretation of
technical terms; (vi) any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any such Letter of Credit or
of the proceeds thereof; (vii) the misapplication by the beneficiary of any such
Letter of Credit of the proceeds of any drawing under such Letter of Credit; or
(viii) any consequences arising from causes beyond the control of Issuing Bank,
including any Governmental Acts, and none of the above shall affect or impair,
or prevent the vesting of, any of Issuing Bank's rights or powers hereunder.
Without limiting the foregoing and in furtherance thereof, any action taken or
omitted by Issuing Bank under or in connection with the Letters of Credit or any
documents and certificates delivered thereunder, if taken or omitted in good
faith (and without gross negligence or willful misconduct, as determined by a
final and non-appealable judgment of a court of competent jurisdiction and in
accordance with the standard of care specified in the UCC with respect to
Letters of Credit), shall not put Issuing Bank under any resulting liability to
Company. Notwithstanding anything to the contrary contained in this Section
2.3(c), Company shall retain any and all rights it may have against Issuing Bank
for any liability arising solely out of the gross negligence or willful
misconduct of Issuing Bank, as determined by a final and non-appealable judgment
of a court of competent jurisdiction or failure of such Issuing Bank to use the
standard of care specified in the UCC with respect to Letters of Credit.
(d) In the event Issuing Bank has determined to honor a drawing under a
Letter of Credit, it shall immediately notify Company and Administrative Agent,
and Company shall reimburse Issuing Bank on or before the Business Day
immediately following the date on which such drawing is honored (the
"REIMBURSEMENT DATE") in an amount in Dollars and in same day funds equal to the
amount of such honored drawing; provided, anything contained herein to the
contrary notwithstanding, (i) unless Company shall have notified Administrative
Agent and Issuing Bank prior to 11:00 a.m. (New York City time) on the date such
drawing is honored (or prior to 11:00 a.m. (New York City time) on the
immediately following Business Day if such drawing is made after 11:00 a.m. on
the previous Business Day) that Company intends to reimburse Issuing Bank for
the amount of such honored drawing with funds other than the proceeds of
Revolving Loans, Company shall be deemed to have given a timely Funding Notice
to Administrative Agent requesting Lenders having a Revolving Loan Commitment to
make Revolving Loans that are Base Rate Loans on the Reimbursement Date in an
amount in Dollars equal to the amount of such honored drawing, and (ii) subject
to satisfaction or waiver of the conditions specified in Section 3.2 (and
Administrative Agent shall promptly notify each such Lender of such deemed
request), Lenders having a Revolving Loan Commitment shall, on the Reimbursement
Date, make Revolving Loans that are Base Rate Loans in the amount of such
honored drawing, the proceeds of which shall be applied directly by
Administrative Agent to reimburse Issuing Bank for the amount of such honored
drawing; and provided further, if for any reason proceeds of Revolving Loans are
not received by Issuing Bank on the Reimbursement
42
Date in an amount equal to the amount of such honored drawing, Company shall
reimburse Issuing Bank, on demand, in an amount in same day funds equal to the
excess of the amount of such honored drawing over the aggregate amount of such
Revolving Loans, if any, which are so received. Nothing in this Section 2.3(d)
shall be deemed to relieve any Lender having a Revolving Loan Commitment from
its obligation to make Revolving Loans on the terms and conditions set forth
herein, and Company shall retain any and all rights it may have against any such
Lender resulting from the failure of such Lender to make such Revolving Loans
under this Section 2.3(d).
(e) Immediately upon the issuance of each Letter of Credit, each Lender
having a Revolving Loan Commitment shall be deemed to have irrevocably
purchased, and hereby agrees to irrevocably purchase, from Issuing Bank a
participation in such Letter of Credit and any drawings honored thereunder in an
amount equal to such Lender's Pro Rata Share (with respect to the Revolving Loan
Commitments) of the maximum amount which is or at any time may become available
to be drawn thereunder. In the event that Company shall fail for any reason to
reimburse Issuing Bank as provided in Section 2.3(d), Issuing Bank shall
promptly notify each such Lender of the unreimbursed amount of such honored
drawing and of such Lender's respective participation therein based on such
Lender's Pro Rata Share of the Revolving Loan Commitments. Each such Lender
shall make available to Issuing Bank an amount equal to its respective
participation, in Dollars and in same day funds, at the office of Issuing Bank
specified in such notice, not later than 12:00 noon (New York City time) on the
first Business Day (under the laws of the jurisdiction in which such office of
Issuing Bank is located) after the date notified by Issuing Bank. In the event
that any Lender having a Revolving Loan Commitment fails to make available to
Issuing Bank on such business day the amount of such Lender's participation in
such Letter of Credit as provided in this Section 2.3(e), Issuing Bank shall be
entitled to recover such amount on demand from such Lender together with
interest thereon at the rate customarily used by Issuing Bank for the correction
of errors among banks for three (3) Business Days and thereafter at the Base
Rate. Nothing in this Section 2.3(e) shall be deemed to prejudice the right of
any Lender to recover from Issuing Bank any amounts made available by such
Lender to Issuing Bank pursuant to this Section in the event that it is
determined by the final judgment of a court of competent jurisdiction that the
payment with respect to a Letter of Credit in respect of which payment was made
by such Lender constituted gross negligence or willful misconduct on the part of
Issuing Bank or resulted from Issuing Bank's failure to use the standard of care
specified in the UCC with respect to Letters of Credit. In the event Issuing
Bank shall have been reimbursed by other Lenders pursuant to this Section 2.3(e)
for all or any portion of any drawing honored by Issuing Bank under a Letter of
Credit, such Issuing Bank shall distribute to each Lender which has paid all
amounts payable by it under this Section 2.3(e) with respect to such honored
drawing such Lender's Pro Rata Share of all payments subsequently received by
Issuing Bank from Company in reimbursement of such honored drawing promptly when
such payments are received. Any such distribution shall be made to a Lender at
its primary address set forth below its name on the appropriate signature page
hereof or at such other address as such Lender may request. In addition, in the
case of each Lender that is deemed to have irrevocably purchased from Issuing
Bank a participation in such Letter of Credit as specified in this Section
2.3(e), the Issuing Bank shall keep a register specifying such Lender's
entitlement to payments with respect to such participation in accordance with
its
43
normal business practice which is intended to meet the requirements of Temporary
Treasury Regulation Section 5f.103-1(c).
(f) The obligation of Company to reimburse Issuing Bank for drawings
honored under the Letters of Credit issued by it and to repay any Revolving
Loans made by Lenders pursuant to Section 2.3(d) and the obligations of Lenders
having Revolving Credit Exposure under Section 2.3(e) shall be unconditional and
irrevocable and shall be paid strictly in accordance with the terms hereof under
all circumstances including any of the following circumstances: (i) any lack of
validity or enforceability of any Letter of Credit; (ii) the existence of any
claim, set-off, defense or other right which Company or any Lender may have at
any time against a beneficiary or any transferee of any Letter of Credit (or any
Persons for whom any such transferee may be acting), Issuing Bank, Lender or any
other Person or, in the case of a Lender, against Company, whether in connection
herewith, the transactions contemplated herein or any unrelated transaction
(including any underlying transaction between Company or one of its Subsidiaries
and the beneficiary for which any Letter of Credit was procured); (iii) any
draft or other document presented under any Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; (iv) payment by Issuing Bank
under any Letter of Credit against presentation of a draft or other document
which does not substantially comply with the terms of such Letter of Credit,
except where such payment constitutes gross negligence or willful misconduct on
the part of the Issuing Bank, as determined by a final and non-appealable
judgment of a court of competent jurisdiction or results from Issuing Bank's
failure to use the standard of care specified in the UCC with respect to Letters
of Credit; (v) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Company or any of its
Subsidiaries; (vi) any breach of this Agreement or any other Credit Document by
any party thereto; (vii) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing; or (viii) the fact that an Event of
Default or a Default shall have occurred and be continuing; provided, in each
case, that payment by Issuing Bank under the applicable Letter of Credit shall
not have constituted gross negligence or willful misconduct of Issuing Bank, as
determined by a final and non-appealable judgment of a court of competent
jurisdiction or failure of such Issuing Bank to use the standard of care
specified in the UCC with respect to Letters of Credit under the circumstances
in question.
(g) In addition to amounts payable as provided herein, Company hereby
agrees to protect, indemnify, pay and save harmless Issuing Bank from and
against any and all claims, demands, liabilities, damages, losses, costs,
charges and expenses (including reasonable fees, expenses and disbursements of
outside counsel but excluding, any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses relating to Taxes (and any
liabilities relating thereto), the indemnity for which shall be governed solely
and exclusively by Section 2.20) which Issuing Bank may incur or be subject to
as a consequence, direct or indirect, of (i) the issuance of any Letter of
Credit by Issuing Bank, other than as a result of (1) the gross negligence or
willful misconduct of Issuing Bank, as determined by a final and non-appealable
judgment of a court of competent jurisdiction or failure of such Issuing Bank to
use the standard of care specified in the UCC with respect to Letters of Credit,
or (2) subject to the following clause (ii), the wrongful dishonor by Issuing
Bank of a proper demand for payment made under
44
any Letter of Credit issued by it, or (ii) the failure of Issuing Bank to honor
a drawing under any such Letter of Credit as a result of any Governmental Act.
2.4 PRO RATA SHARES. All Loans made and all participations purchased
pursuant to Section 2.1, 2.2 and Section 2.3 shall be made or purchased, as the
case may be, by Lenders simultaneously and proportionately to their respective
applicable Pro Rata Shares, it being understood that no Lender shall be
responsible for any default by any other Lender in such other Lender's
obligation to make a Loan requested hereunder or purchase a participation
required hereby nor shall the Revolving Loan Commitment or Term Loan amount of
any Lender be increased or decreased as a result of a default by any other
Lender in such other Lender's obligation to make a Loan requested hereunder or
purchase a participation required hereby. Unless Administrative Agent shall have
been notified by any Lender prior to the applicable Credit Extension Date that
such Lender does not intend to make available to Administrative Agent the amount
of such Lender's Loan requested on such Credit Extension Date, Administrative
Agent may assume that such Lender has made such amount available to
Administrative Agent on such Credit Extension Date and Administrative Agent may,
in its sole discretion, but shall not be obligated to, make available to Company
a corresponding amount on such Credit Extension Date. If such corresponding
amount is not in fact made available to Administrative Agent by such Lender,
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender together with interest thereon, for each day from such
Credit Extension Date until the date such amount is paid to Administrative
Agent, at the customary rate set by Administrative Agent for the correction of
errors among banks for three (3) Business Days and thereafter at the Base Rate.
If such Lender does not pay such corresponding amount forthwith upon
Administrative Agent's demand therefor, Administrative Agent shall promptly
notify Company and Company shall immediately pay such corresponding amount to
Administrative Agent together with interest thereon, for each day from such
Credit Extension Date until the date such amount is paid to Administrative
Agent, at the rate payable hereunder for Base Rate Loans. Nothing in this
Section 2.4 shall be deemed to relieve any Lender from its obligation to fulfill
its Revolving Loan Commitments or its commitments to make Term Loans hereunder
or to prejudice any rights that Company may have against any Lender as a result
of any default by such Lender hereunder.
2.5 USE OF PROCEEDS. The proceeds of (a) the Tranche C Term Loans made on
the Effective Date shall be applied by Company to repay in full the Existing
Tranche B Term Loans that are not converting to Tranche C Term Loans on the
Effective Date, (b) the Existing Tranche B Term Loans that are converting to
Tranche C Term Loans as of the Effective Date shall remain outstanding on and
after the Effective Date as "Tranche C Term Loans" made pursuant to this
Agreement in accordance with the provisions of Section 2.1(a) and (c) the
Revolving Loans, Swing Line Loans and Letters of Credit made on and after the
Effective Date shall continue to be applied by Company for working capital and
general corporate purposes of Parent and its Subsidiaries and other purposes
permitted hereunder. The proceeds from any New Term Loans shall be applied by
Company for working capital, general corporate purposes and other purposes
permitted hereunder. No portion of the proceeds of any Credit Extension shall be
used in any manner that causes or might cause such Credit Extension or the
application of such proceeds to violate Regulation T, Regulation U or Regulation
X of the Board of Governors of the Federal Reserve System or any other
regulation thereof or to violate the Exchange Act.
45
2.6 NOTES; REGISTER; LENDERS' BOOKS AND RECORDS. If so requested by any
Lender by written notice to Company (with a copy to Administrative Agent) at
least two Business Days prior to the Effective Date, or at any time thereafter,
Company shall execute and deliver to such Lender (and/or, if applicable and if
so specified in such notice, to any Person who is a permitted assignee of such
Lender pursuant to Section 10.6) on the Effective Date (or, if such notice is
delivered after the Effective Date, promptly after Company's receipt of such
notice) a Note or Notes to evidence such Lender's Tranche C Term Loan, New Term
Loan, Revolving Loan or Swing Line Loan, as the case may be. Each Continuing
Lender who has a Note evidencing its Existing Tranche B Term Loan shall promptly
deliver to Company such Note in exchange for its Tranche C Term Loan Note. Any
Note delivered to a Lender to evidence such Lender's Revolving Loan or Swing
Line Loan, as the case may be, under the Existing Credit Agreement shall
continue to be a Note hereunder and shall evidence such Lender's Revolving Loan
or Swing Line Loan under this Agreement. Administrative Agent shall maintain, at
its address referred to in Section 10.1, a register for the recordation of the
names and addresses of Lenders and Issuing Banks and the Revolving Loan
Commitments and Loans of each Lender and Letters of Credit, and drawings honored
under the Letters of Credit, issued by each Issuing Bank from time to time (the
"REGISTER"). The Register shall be available for inspection by Company or any
Lender at any reasonable time and from time to time upon reasonable prior
notice. Administrative Agent shall record in the Register the Revolving Loan
Commitments and the Loans of each Lender and Letters of Credit, and drawings
honored under the Letters of Credit, issued by each Issuing Bank, and each
repayment or prepayment in respect of the principal amount of the Loans (and
related interest payments with respect to the Loans) and any reimbursement
amounts paid to each Issuing Bank pursuant to Section 2.3 (and related interest
payments), and any such recordation shall be conclusive and binding on Company
and each Lender, absent demonstrable error; provided, failure to make any such
recordation, or any error in such recordation, shall not affect any Lender's
Revolving Loan Commitment or Company's Obligations in respect of any Loan.
Company hereby designates the Administrative Agent to serve as Company's agent
solely for purposes of maintaining the Register as provided in this Section 2.6,
and Company hereby agrees that, to the extent the Administrative Agent serves in
such capacity, the Administrative Agent and its officers, directors, employees,
agents and affiliates shall constitute Indemnitees for all purposes. Each Lender
shall record on its internal records, including its Notes, the amount of the
Loans and Letters of Credit made or issued, as the case may be, by it and each
repayment and prepayment and interest payment in respect thereof. Any such
recordation shall be conclusive and binding on Company, absent demonstrable
error; provided, failure to make any such recordation, or any error in such
recordation, shall not affect any Lender's Commitments or Company's Obligations
in respect of any applicable Loans and Letters of Credit; and provided, further,
in the event of any inconsistency between the Register and any Lender's records,
the recordations in the Register shall govern. Company, Administrative Agent and
Lenders shall deem and treat the Persons listed as Lenders in the Register as
the holders and owners of the corresponding Revolving Loan Commitments and Loans
listed therein for all purposes hereof.
2.7 INTEREST PAYMENTS. (a) Except as otherwise set forth herein, each
Class of Loan shall bear interest on the unpaid principal amount thereof from
the date made through maturity (whether by acceleration or otherwise) at the sum
of (X) the applicable interest rate for the Type of Loan of such Class plus (Y)
the Applicable Margin for such Type of Loan of such Class. The
46
Type of any Loan (except a Swing Line Loan), and the Interest Period with
respect to any Eurodollar Rate Loan, shall be selected by Company and notified
to Administrative Agent and Lenders pursuant to the applicable Funding Notice or
Conversion/Continuation Notice, as the case may be. If on any day a Loan is
outstanding with respect to which notice has not been delivered to
Administrative Agent in accordance with the terms hereof specifying the
applicable basis for determining the rate of interest, then for that day such
Loan shall be a Base Rate Loan. Notwithstanding anything contained herein to the
contrary, in connection with Eurodollar Rate Loans (i) there shall be no more
than 16 Interest Periods outstanding at any time; and (ii) in the event Company
fails to specify an Interest Period for any Eurodollar Rate Loan in the
applicable Funding Notice or Conversion/Continuation Notice, Company shall be
deemed to have selected an Interest Period of one month. As soon as practicable
after 10:00 a.m. (New York City time) on each Interest Rate Determination Date,
Administrative Agent shall determine (which determination shall, absent
demonstrable error, be final, conclusive and binding upon all parties) the
interest rate that shall apply to the Eurodollar Rate Loans for which an
interest rate is then being determined for the applicable Interest Period and
shall promptly give notice thereof (in writing or by telephone confirmed in
writing) to Company and each Lender. The interest rates for the Tranche C Term
Loans on the Effective Date shall be determined in the same manner and with the
same Interest Periods as the Existing Tranche B Term Loans. Each Tranche C Term
Loan Lender shall be allocated its pro rata share of Tranche C Term Loans set at
the corresponding interest rates and Interest Periods as the Existing Tranche B
Term Loans. Upon expiration of the applicable Interest Period for the Tranche C
Term Loans on the Effective Date, each Eurodollar Rate Loan shall either be
converted to a Base Rate Loan or continued as a Eurodollar Rate Loan at
Company's option pursuant to Section 2.8 hereof.
(b) Company agrees to pay to Issuing Bank, with respect to drawings
honored under any Letter of Credit honored by it, interest on the amount paid by
Issuing Bank in respect of each such honored drawing from the date such drawing
is honored to but excluding the date such amount is reimbursed by or on behalf
of Company at a rate equal to (i) for the period from the date such drawing is
honored to but excluding one day after the applicable Reimbursement Date, (1)
the Base Rate, plus (2) the Applicable Margin for Revolving Loans that are Base
Rate Loans, and (ii) thereafter, a rate which is 2% per annum in excess of the
rate of interest otherwise payable hereunder with respect to Revolving Loans
that are Base Rate Loans.
(c) Interest payable hereunder shall be computed (i) in the case of Base
Rate Loans, on the basis of a 365/6-day year, as the case may be, and (ii) in
the case of Eurodollar Rate Loans, on the basis of a 360-day year, in each case
for the actual number of days elapsed in the period during which it accrues. In
computing interest on any Loan, the date of the making of such Loan or the first
day of an Interest Period applicable to such Loan or, with respect to a Base
Rate Loan being converted from a Eurodollar Rate Loan, the date of conversion of
such Eurodollar Rate Loan to such Base Rate Loan, as the case may be, shall be
included, and the date of payment of such Loan or the expiration date of an
Interest Period applicable to such Loan or, with respect to a Base Rate Loan
being converted to a Eurodollar Rate Loan, the date of conversion of such Base
Rate Loan to such Eurodollar Rate Loan, as the case may be, shall be excluded;
provided, if a Loan is repaid on the same day on which it is made, one day's
interest shall be paid on that Loan.
47
(d) Except as otherwise set forth herein, interest on each Loan shall be
payable in arrears on and to (i) each Interest Payment Date applicable to that
Loan; (ii) any prepayment of that Loan, to the extent accrued on the amount
being prepaid; and (iii) at maturity, including final maturity; provided, in the
event any Swing Line Loan or any Revolving Loan that is a Base Rate Loan is
prepaid pursuant to Section 2.12(a), interest accrued on such Swing Line Loan or
Revolving Loan through the date of such prepayment shall be payable on the next
succeeding Interest Payment Date applicable to Base Rate Loan, or, if earlier,
at final maturity.
(e) Interest payable pursuant to Section 2.7(b) shall be payable on demand
or, if no demand is made, on the date on which the related drawing honored under
a Letter of Credit is reimbursed in full. Promptly upon receipt by Issuing Bank
of any payment of interest pursuant to Section 2.7(b), (i) Issuing Bank shall
distribute to each Lender having Revolving Credit Exposure, out of the interest
received by Issuing Bank in respect of the period from the date such drawing is
honored to but excluding the date on which Issuing Bank is reimbursed for the
amount of such drawing (including any such reimbursement out of the proceeds of
any Revolving Loans), the amount that such Lender would have been entitled to
receive in respect of the letter of credit fee that would have been payable in
respect of such Letter of Credit for such period if no drawing had been honored
under such Letter of Credit, and (ii) in the event Issuing Bank shall have been
reimbursed by Lenders for all or any portion of such honored drawing, Issuing
Bank shall distribute to each Lender having Revolving Credit Exposure which has
paid all amounts payable by it under Section 2.3(e) with respect to such honored
drawing such other Lender's Pro Rata Share of any interest received by Issuing
Bank in respect of that portion of such honored drawing so reimbursed by Lenders
for the period from the date on which Issuing Bank was so reimbursed by Lenders
to but excluding the date on which such portion of such honored drawing is
reimbursed by Company. Any such distribution shall be made to a Lender at its
primary address set forth below its name on the appropriate signature page
hereof or at such other address as such Lender may request.
2.8 CONVERSION; CONTINUATION. Company shall have the option (a) to convert
at any time all or any part of any Class of Loans from one Type of Loan to
another Type of Loan, provided, that partial conversions of Base Rate Loans
shall be in the aggregate principal amount of $1,000,000 and integral multiples
of $100,000 in excess of that amount and the aggregate principal amount of the
resulting Eurodollar Rate Loans outstanding in respect of any one (1) Interest
Period shall be at least $2,000,000 and integral multiples of $1,000,000 in
excess of that amount; or (b) upon the expiration of any Interest Period
applicable to a Eurodollar Rate Loan, to continue all or any portion of such
Loan as a Eurodollar Rate Loan; provided, (1) a Eurodollar Rate Loan may only be
converted into a Base Rate Loan on the expiration date of an Interest Period
applicable thereto and (2) the aggregate principal amount of the resulting
Eurodollar Rate Loans outstanding in respect of any one Interest Period shall be
at least $2,000,000 and integral multiples of $1,000,000 in excess of that
amount. Company shall deliver a Conversion/Continuation Notice to Administrative
Agent no later than 10:00 a.m. (New York City time) at least one (1) Business
Day in advance of the proposed conversion date (in the case of a conversion to a
Base Rate Loan) and at least three (3) Business Days in advance of the proposed
conversion/continuation date (in the case of a conversion to, or a continuation
of, a Eurodollar Rate Loan). Except as otherwise provided herein, a
Conversion/Continuation Notice for conversion to, or continuation of, a
Eurodollar Rate Loan (or telephonic notice in lieu thereof)
48
shall be irrevocable on and after the related Interest Rate Determination Date,
and Company shall be bound to effect a conversion or continuation in accordance
therewith. After the occurrence of and during the continuation of an Event of
Default, unless the Requisite Lenders otherwise consent, (i) Company may not
elect to have a Loan be made or maintained as, or converted to, a Eurodollar
Rate Loan after the expiration of any Interest Period then in effect for that
Loan; and (ii) any Funding Notice or Conversion/Continuation Notice given by
Company with respect to a requested borrowing or conversion/continuation that
has not yet occurred shall be deemed to be rescinded by Company.
2.9 POST-MATURITY INTEREST. Any principal payments on the Loans not paid
when due and, to the extent permitted by applicable law, any interest payments
on the Loans or any fees or other amounts owed hereunder not paid when due, in
each case whether at stated maturity, by notice of prepayment, by acceleration
or otherwise, shall thereafter bear interest (including post-petition interest
in any proceeding under the Bankruptcy Code or other applicable bankruptcy laws)
payable on demand at a rate which is 2% per annum in excess of the interest rate
otherwise payable hereunder with respect to the applicable Loans (or, in the
case of any such fees and other amounts, at a rate which is 2% per annum in
excess of the interest rate otherwise payable hereunder for Base Rate Loans that
are Revolving Loans); provided, in the case of Eurodollar Rate Loans, upon the
expiration of the Interest Period in effect at the time any such increase in
interest rate is effective such Eurodollar Rate Loans shall thereupon become
Base Rate Loans and shall thereafter bear interest payable upon demand at a rate
which is 2% per annum in excess of the interest rate otherwise payable hereunder
for Base Rate Loans of the Class in question. Payment or acceptance of the
increased rates of interest provided for in this Section 2.9 is not a permitted
alternative to timely payment and shall not constitute a waiver of any Event of
Default or otherwise prejudice or limit any rights or remedies of Administrative
Agent or any Lender.
2.10 FEES. (a) Company agrees to pay to Administrative Agent, for
distribution to each Lender having Revolving Credit Exposure in proportion to
that Lender's Pro Rata Share (determined with respect to the Revolving Loan
Commitments), commitment fees for the Revolving Loan Commitment Period equal to
the product of (i) the average of the daily difference between (1) the Revolving
Loan Commitments, minus (2) the sum of (A) the aggregate principal amount of
outstanding Revolving Loans (but not any outstanding Swing Line Loans) plus (B)
the Letter of Credit Usage, multiplied by the (ii) Applicable Commitment Fee
Percentage. All such commitment fees shall be calculated on the basis of a
360-day year and the actual number of days elapsed and shall be payable
quarterly in arrears on March 30, June 30, September 30 and December 30 of each
year, commencing on the first such date to occur after the Closing Date, and on
the Revolving Loan Commitment Termination Date.
(b) Company agrees to pay (i) a fronting fee, payable directly to Issuing
Bank for its own account, equal to 0.25% per annum of the aggregate daily amount
available to be drawn under all Letters of Credit issued by it, and (ii) a
letter of credit fee, payable to Administrative Agent for the account of Lenders
having Revolving Credit Exposure, equal to the product of (1) the Applicable
Margin for Revolving Loans that are Eurodollar Rate Loans, multiplied by (2) the
daily amount available to be drawn under all such Letters of Credit, each such
fee to be payable in arrears on and to (but not including) the last Business Day
of each of January, April, July and
49
October of each year and computed on the basis of a 360-day year for the actual
number of days elapsed. Without duplication of the foregoing fees, Company
agrees to pay documentary and processing charges payable directly to Issuing
Bank for its own account in accordance with Issuing Bank's standard schedule for
such charges in effect at the time of such issuance, amendment, transfer or
payment, as the case may be. For purposes of calculating any fees payable under
this Section, the daily amount available to be drawn under any Letter of Credit
shall be determined as of the close of business on any date of determination.
Promptly upon receipt by Administrative Agent of any amount described in clause
(ii) above, Administrative Agent shall distribute to each Lender having
Revolving Credit Exposure its Pro Rata Share (determined with respect to the
Revolving Loan Commitments) of such amount.
(c) Company agrees to pay to the Agents such other fees in the amounts and
at the times separately agreed upon between Company and the Agents.
2.11 SCHEDULED PAYMENTS. Company shall make principal payments on the
Tranche C Term Loans in installments (each an "INSTALLMENT") on the dates (each
an "INSTALLMENT DATE") and in the amounts set forth below:
DATE AMOUNT
------------------ -----------
September 30, 2004 $924,000
December 31, 2004 $924,000
March 31, 2005 $924,000
June 30, 2005 $924,000
September 30, 2005 $924,000
December 31, 2005 $924,000
March 31, 2006 $924,000
June 30, 2006 $924,000
September 30, 2006 $924,000
December 31, 2006 $924,000
March 31, 2007 $924,000
June 30, 2007 $924,000
September 30, 2007 $924,000
December 31, 2007 $924,000
March 31, 2008 $924,000
June 30, 2008 $924,000
September 30, 2008 $924,000
December 31, 2008 $924,000
March 31, 2009 $924,000
June 30, 2009 $924,000
September 30, 2009 $924,000
December 31, 2009 $924,000
March 31, 2010 $924,000
June 30, 2010 $924,000
September 30, 2010 $924,000
50
DATE AMOUNT
------------------ -----------
December 31, 2010 $ 924,000
March 31, 2011 $93,144,000
June 30, 2011 $93,144,000
September 30, 2011 $93,144,000
December 19, 2011 $93,144,000
; provided, in the event any New Term Loans are made, such New Term Loans shall
be repaid on each Installment Date occurring on or after the applicable
Increased Amount Date in an amount equal to (i) the aggregate principal amount
of New Term Loans of the applicable Series of New Term Loans, times (ii) the
ratio (expressed as a percentage) of (y) the original Installment amount of the
Tranche C Term Loans to be repaid on such Installment Date and (z) the original
aggregate principal amount of the Tranche C Term Loans.
Notwithstanding the foregoing, (i) such scheduled installments shall be reduced
in connection with any voluntary or mandatory prepayments of the Term Loans in
accordance with Sections 2.12, 2.13 and 2.14; (ii) Tranche C Term Loans and all
other amounts owed hereunder with respect thereto shall be paid in full no later
than the Tranche C Term Loan Maturity Date, and the final installment payable by
Company in respect thereof on such date shall be in an amount sufficient to
repay all amounts owing by Company hereunder with respect to the Tranche C Term
Loans; and (iii) New Term Loans and all other amounts owed hereunder with
respect thereto shall be paid in full no later than the New Term Loan Maturity
Date, and the final installment payable by Company in respect thereof on such
date shall be in an amount sufficient to repay all amounts owing by Company
hereunder with respect to the New Term Loans.
2.12 VOLUNTARY PREPAYMENTS/COMMITMENT REDUCTIONS. (a) Company may, upon
written or telephonic notice to Administrative Agent on or prior to 12:00 noon
(New York City time) on the date of prepayment, which notice, if telephonic,
shall be promptly confirmed in writing, at any time and from time to time prepay
any Swing Line Loan on any Business Day in whole or in part in an aggregate
minimum amount of $250,000 and integral multiples of $100,000 in excess of that
amount. Company may, upon not less than one (1) Business Day's prior written or
telephonic notice, in the case of Base Rate Loans, and three (3) Business Days'
prior written or telephonic notice, in the case of Eurodollar Rate Loans, in
each case given to Administrative Agent by 12:00 noon (New York City time) on
the date required and, if given by telephone, promptly confirmed in writing to
Administrative Agent (which original written or telephonic notice Administrative
Agent will promptly transmit by telefacsimile or telephone to each Lender), at
any time and from time to time prepay any Term Loans or Revolving Loans on any
Business Day in whole or in part in an aggregate minimum amount of $500,000 and
integral multiples of $100,000 in excess of that amount in the case of Term
Loans and $100,000 and integral multiples of $500,000 in excess of that amount
in the case of Revolving Loans; provided, however, that a Eurodollar Rate Loan
may only be prepaid on the expiration of the Interest Period applicable thereto
unless Company pays Lenders any amount required pursuant to Section 2.18(c) on
the date of such prepayment. Notice of prepayment having been given as
aforesaid, the principal amount of the Loans specified in such notice shall
become due and payable on the prepayment date specified therein; provided that
Company may rescind or postpone any such
51
notice of prepayment if such prepayment would have resulted from a refinancing
of all of the Loans and such refinancing shall not be consummated or otherwise
shall be delayed.
(b) Company may, upon not less than three (3) Business Days' prior written
or telephonic notice confirmed in writing to Administrative Agent (which
original written or telephonic notice Administrative Agent will promptly
transmit by telefacsimile or telephone to each Lender), at any time and from
time to time terminate in whole or permanently reduce in part, without premium
or penalty, the Revolving Loan Commitments in an amount up to the amount by
which the Revolving Loan Commitments exceed the Total Utilization of Revolving
Loan Commitments at the time of such proposed termination or reduction;
provided, any such partial reduction of the Revolving Loan Commitments shall be
in an aggregate minimum amount of $2,000,000 and integral multiples of
$1,000,000 in excess of that amount. Company's notice to Administrative Agent
shall designate the date (which shall be a Business Day) of such termination or
reduction and the amount of any partial reduction, and such termination or
reduction of the Revolving Loan Commitments shall be effective on the date
specified in Company's notice and shall reduce the Revolving Loan Commitment of
each Lender having Revolving Credit Exposure proportionately to its Pro Rata
Share (determined with respect to Revolving Loan Commitments); provided that
Company may rescind or postpone any such notice of termination of the Revolving
Loan Commitments if such termination would have resulted from a refinancing of
all of the Loans and such refinancing shall not be consummated or otherwise
shall be delayed.
(c) Notwithstanding anything to the contrary contained in this Section
2.12 or any other provision of this Agreement, so long as (i) there is no
Default, (ii) there is no Event of Default and (iii) no Default or Event of
Default would result therefrom, Company may repurchase outstanding Term Loans on
the following bases:
(i) Company may repurchase on a non-pro rata basis all or any
portion of the Term Loans of one or more Lenders pursuant to an Assignment
Agreement, between Company and such Lender or Lenders in an aggregate
principal amount not to exceed 30% of the initial aggregate principal
amount of Term Loans with respect to all such repurchases pursuant to this
clause (i); provided that, with respect to such repurchases, Company shall
simultaneously provide a copy of such Assignment Agreement and any other
agreements between Company and such Lender with respect to such repurchase
to Administrative Agent and GSCP;
(ii) In addition, Company may make one or more offers (each, an
"OFFER") to repurchase all or any portion of the Term Loans (such Term
Loans, the "OFFER LOANS") of Lenders, provided, (A) Company delivers a
notice of such Offer to Administrative Agent (to be distributed to the
Lenders) no later than 12:00 noon (New York City time) at least five (5)
Business Days in advance of a proposed consummation date of such Offer
indicating (1) the last date on which such Offer may be accepted, (2) the
maximum dollar amount of the Offer, (3) the repurchase price per dollar of
principal amount of such Offer Loans at which Company is willing to
repurchase the Offer Loans and (4) the instructions, consistent with this
Section 2.12(c) with respect to the Offer (which shall be reasonably
acceptable to Company, Administrative Agent and GSCP), that a Lender must
follow in order to have its Offer Loans repurchased; (B) the maximum
dollar amount of the Offer
52
shall be no less than an aggregate $1,000,000; (C) Company shall hold the
Offer open for a minimum period of two (2) Business Days; (D) a Lender who
elects to participate in the Offer may choose to tender all or part of
such Lender's Offer Loans; and (E) the Offer shall be made to Lenders
holding the Offer Loans on a pro rata basis in accordance with their Pro
Rata Shares; provided, further that, if any Lender elects not to
participate in the Offer, either in whole or in part, the amount of such
Lender's Offer Loans not being tendered shall be excluded in calculating
the pro rata amount applicable to the balance of such Offer Loans;
(iii) With respect to all repurchases made by Company pursuant to
this Section 2.12(c), (A) Company shall pay all accrued and unpaid
interest, if any, on the repurchased Term Loans to the date of repurchase
of such Term Loans (B) Company shall have provided to all Lenders all
information that, together with any previously provided information, would
satisfy the requirements of Rule 10b-5 of the Exchange Act with respect to
an offer by Company to repurchase securities registered under the
Securities Act (whether or not such securities are outstanding) as if such
offer was being made as of the date of such repurchase of Term Loans from
a Lender and (C) such repurchases shall not be deemed to be voluntary
prepayments pursuant to this Section 2.12, Section 2.13 or 2.16 hereunder
except that the amount of the Loans so repurchased shall be applied on a
pro rata basis to reduce the scheduled remaining Installments of principal
on such Term Loan;
(iv) Following repurchase by Company pursuant to this Section
2.12(c), the Term Loans so repurchased shall be deemed cancelled for all
purposes and no longer outstanding (and may not be resold by Company), for
all purposes of this Agreement and all other Credit Documents, including,
but not limited to (A) the making of, or the application of, any payments
to the Lenders under this Agreement or any other Credit Document, (B) the
making of any request, demand, authorization, direction, notice, consent
or waiver under this Agreement or any other Credit Document or (C) the
determination of Requisite Lenders, or for any similar or related purpose,
under this Agreement or any other Credit Document. Any payment made by
Company in connection with a repurchase permitted by this Section 2.12(c)
shall not be subject to the provisions of either Section 2.16 or Section
2.17. Failure by Company to make any payment to a Lender required by an
agreement permitted by this Section 2.12(c) shall not constitute an Event
of Default under Section 8.1(a); and
(v) Notwithstanding any of the provisions set forth in this
Agreement to the contrary, Company, the Lenders and Agents hereby agree
that nothing in this Agreement shall be understood to mean or suggest that
the Term Loans constitute "securities" for purposes of either the
Securities Act or the Exchange Act.
2.13 MANDATORY PREPAYMENTS/COMMITMENT REDUCTIONS. (a) No later than the
first Business Day following the date of receipt by Holdings, Company or any of
its Subsidiaries of any Net Asset Sale Proceeds from Asset Sales made in
accordance with Sections 6.7(o), 6.7(p), and Section 6.9, or of any Net
Insurance/Condemnation Proceeds, Company shall prepay the Loans and/or the
Revolving Loan Commitments shall be permanently reduced in an aggregate amount
equal to such Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds, as
the
53
case may be; provided, so long as Event of Default shall have occurred and be
continuing, Company may deliver to Administrative Agent a certificate of an
Authorized Officer of Company setting forth (1) that portion of such Net Asset
Sale Proceeds or Net Insurance/Condemnation Proceeds (such portion being the
"PROPOSED REINVESTMENT PROCEEDS") that Company or such Subsidiary intends to
reinvest within 365 days of the date of receipt, in non-current assets useful in
the business of Company and its Subsidiaries, which may include, in the case of
any Proposed Reinvestment Proceeds which related to Net Insurance/Condemnation
Proceeds, the repair, restoration or replacement of the applicable assets of
Company or its Subsidiaries (such assets being "ELIGIBLE ASSETS") and (2) the
proposed use of such Proposed Reinvestment Proceeds and such other information
with respect to such reinvestment as Administrative Agent may reasonably
request. In the event Collateral Agent shall receive any Net
Insurance/Condemnation Proceeds in its capacity as loss payee pursuant to
Section 5.5, Company hereby authorizes Collateral Agent to apply an amount equal
to all such amounts in accordance with this Section 2.13(a); provided, if
Company shall elect to exercise its option to reinvest any such proceeds
pursuant to the first sentence of this Section 2.13(a), Company shall give
notice to Administrative Agent of such election and Administrative Agent shall
pay over to Company such proceeds and Company shall reinvest such proceeds in
accordance with the terms of such sentence.
(b) On the date of receipt by Parent, Holdings or Company of the Cash
proceeds from the issuance of any equity Securities in a public offering or in a
private placement underwritten, placed or initially purchased by an investment
bank (it being understood that Sponsor is not an investment bank) of Parent,
Holdings, Company or any of its Subsidiaries, Company shall prepay the Loans
and/or the Revolving Loan Commitments shall be permanently reduced in an
aggregate amount equal to 50% of such proceeds, net of investment banking fees,
underwriting discounts and commissions and other reasonable costs and expenses
associated therewith, including reasonable legal fees and expenses; provided,
during any period in which the Leverage Ratio as of the last day of the
immediately preceding Fiscal Quarter (determined for any such period by
reference to the most recent Compliance Certificate delivered pursuant to
Section 5.1(d) calculating the Leverage Ratio) (i) shall be 4.00:1.00 or less,
Company shall be required to make the prepayment and/or reduction required
hereby in an amount equal to 25% of such net proceeds, and (ii) shall be
2.50:1.00 or less, Company shall not be required to make any prepayment and/or
reduction hereby; and provided further that no such prepayment or commitment
reduction shall be required with respect to an amount equal to such proceeds
that are received (w) in a private offering or placement to the extent that such
proceeds do not exceed $25,000,000 in the aggregate and are utilized to finance
Permitted Acquisitions, (x) pursuant to any employee stock or stock option plan,
(y) in connection with sales or issuances of equity Securities to (A) the Equity
Investors, their Affiliates, related funds and limited partners and (B) other
Persons making additional equity investments together with the Equity Investors
after the Closing Date, and (z) in connection with any Permitted Cure
Securities. Notwithstanding the foregoing, in the event that Parent receives net
proceeds from the Parent IPO of at least $125,000,000, then Company shall not be
required to prepay the Loans hereunder to the extent such net proceeds are used
to repay either the Senior Unsecured Term Loans, the Senior Subordinated Notes
and/or the Holdco Notes.
54
(c) On the first Business Day following the date of receipt by Holdings,
Company or its Subsidiaries of the Cash proceeds from the issuance of any debt
Securities (other than the proceeds of Indebtedness permitted under Section 6.1
(unless indicated otherwise in Section 6.1)) of Holdings, Company or its
Subsidiaries, Company shall prepay the Loans and/or the Revolving Loan
Commitments shall be permanently reduced in an aggregate amount equal to equal
to 100% of such proceeds, net, in the case of any such issuance, of investment
banking fees, underwriting discounts and commissions and other reasonable costs
and expenses associated therewith, including reasonable legal fees and expenses.
(d) In the event that there shall be Consolidated Excess Cash Flow for any
Fiscal Year (commencing with Fiscal Year ended 2004), Company shall, no later
than one hundred-five (105) days after the end of such Fiscal Year, prepay the
Loans and/or the Revolving Loan Commitments shall be permanently reduced in an
aggregate amount equal to 50% of such Consolidated Excess Cash Flow; provided,
during any period in which the Leverage Ratio as of the last day of the last
Fiscal Quarter of such Fiscal Year (determined for any such period by reference
to the most recent Compliance Certificate delivered pursuant to Section 5.1(d)
calculating the Leverage Ratio) (i) shall be 4.00:1.00 or less, Company shall be
required to make the prepayment and/or reduction required hereby in an amount
equal to 25% of such Consolidated Excess Cash Flow, and (ii) shall be 2.50:1.00
or less, Company shall not be required to make any prepayment and/or reduction
hereby.
(e) Company shall from time to time prepay first, the Swing Line Loans,
and second, the Revolving Loans to the extent necessary so that the Total
Utilization of Revolving Loan Commitments shall not at any time exceed the
Revolving Loan Commitments then in effect.
(f) Concurrently with any prepayment of the Loans and/or reduction of the
Commitments pursuant to Sections 2.13(a) through 2.13(e), Company shall deliver
to Administrative Agent a certificate by its Authorized Officer demonstrating
the calculation of the amount of the applicable net proceeds or Consolidated
Excess Cash Flow, as the case may be, that gave rise to such prepayment and/or
reduction.
2.14 APPLICATION OF PREPAYMENTS AND REDUCTIONS OF COMMITMENTS. (a) Any
voluntary prepayments made pursuant to Section 2.12 (other than clause (c)
thereof) shall be applied as specified by Company in the applicable notice of
prepayment; provided, in the event Company fails to specify the Loans to which
any such prepayment shall be applied, such prepayment shall be applied first, to
repay outstanding Swing Line Loans to the full extent thereof, second to repay
outstanding Revolving Loans to the full extent thereof, third to prepay
scheduled Installments of the Term Loans for the immediately succeeding
twelve-month period, and fourth, to prepay the Term Loans on a pro rata basis
(in accordance with the respective outstanding principal amounts thereof) and
shall be further applied on a pro rata basis (in accordance with the respective
outstanding principal amounts thereof) to each scheduled installment of
principal of the Term Loans, that is unpaid at the time of such prepayment.
(b) Any amount (the "APPLIED AMOUNT") required to be paid pursuant to
Section 2.13 shall be applied first, to prepay scheduled Installments of the
Term Loans for the immediately succeeding twelve-month period, second, to prepay
the Term Loans on a pro rata basis (in accordance with the respective
outstanding principal amounts thereof) and shall be further
55
applied on a pro rata basis (in accordance with the respective outstanding
principal amounts thereof) to each scheduled installment of principal of the
Term Loans, that is unpaid at the time of such prepayment, third, to the extent
of any remaining portion of the Applied Amount, to prepay the Swing Line Loans
to the full extent thereof and to permanently reduce the Revolving Loan
Commitments by the amount of such prepayment, fourth, to the extent of any
remaining portion of the Applied Amount, to prepay the Revolving Loans to the
full extent thereof and to further permanently reduce the Revolving Loan
Commitments by the amount of such prepayment, fifth, to the extent of any
remaining portion of the Applied Amount, to further permanently reduce the
Revolving Loan Commitments to the full extent thereof, and sixth, to
cash-collateralize any Letters of Credit that are outstanding.
(c) Considering each Class of Loans being prepaid separately, any
prepayment thereof shall be applied first to Base Rate Loans to the full extent
thereof before application to Eurodollar Rate Loans, in each case in a manner
which minimizes the amount of any payments required to be made by Company
pursuant to Section 2.18(c); provided, so long as no Event of Default shall have
occurred and then be continuing, Company may elect that the remainder of such
prepayments (after application to all Base Rate Loans) be deposited in a cash
collateral account and applied thereafter to prepay any Eurodollar Rate Loans at
the earliest expiration of the Interest Periods applicable thereto. Company
hereby grants to Administrative Agent, for the benefit of such Lenders, a
security interest in all amounts in which Company has any right, title or
interest which are from time to time on deposit in such cash collateral account
and expressly waives all rights (which rights Company hereby acknowledges and
agrees are vested exclusively in the Administrative Agent) to exercise dominion
or control over any such amounts.
2.15 COLLATERAL PROCEEDS; GUARANTY PAYMENTS. (a) Except as otherwise
provided herein, all proceeds received by Collateral Agent in respect of any
sale of, collection from, or other realization upon all or any part of the
Collateral after the occurrence and during the continuance of an Event of
Default, may, in the discretion of Collateral Agent, be held by Collateral Agent
as Collateral for, and/or (then or at any time thereafter) applied in full or in
part by Collateral Agent against, the "SECURED OBLIGATIONS" or "OBLIGATIONS"
(each as defined in the applicable Collateral Documents) in the following order
of priority: first, to the payment of all costs and expenses of such sale,
collection or other realization, including reasonable compensation to Collateral
Agent and its agents and counsel, and all other expenses, liabilities and
advances made or incurred by Collateral Agent in connection therewith, and all
amounts for which Collateral Agent is entitled to indemnification under such
Collateral Documents and hereunder and all advances made by Collateral Agent
thereunder for the account of the applicable Credit Party, and to the payment of
all costs and expenses paid or incurred by Collateral Agent in connection with
the exercise of any right or remedy under such Collateral Document or hereunder,
all in accordance with the terms hereof; second, to the extent of any excess
such proceeds, to the payment of all other such Secured Obligations for the
ratable benefit of the holders thereof; and third, to the extent of any excess
such proceeds, to the payment to or upon the order of such Credit Party or to
whosoever may be lawfully entitled to receive the same or as a court of
competent jurisdiction may direct.
(b) All payments received by Administrative Agent under the Guaranty shall
be applied promptly from time to time by Administrative Agent in the following
order of priority:
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first, to the payment of the costs and expenses of any collection or other
realization under the Guaranty, including reasonable compensation to Collateral
Agent and its agents and counsel, and all expenses, liabilities and advances
made or incurred by Collateral Agent in connection therewith, all in accordance
with the terms of the Guaranty and this Agreement; second, to the extent of any
excess such payments, to the payment of all other Obligations for the ratable
benefit of the holders thereof; and third, to the extent of any excess such
payments, to the payment to the applicable Guarantor or to whosoever may be
lawfully entitled to receive the same or as a court of competent jurisdiction
may direct.
2.16 GENERAL PROVISIONS REGARDING PAYMENTS. All payments by Company of
principal, interest, fees and other Obligations shall be made in Dollars in same
day funds, without defense, set-off or counterclaim, free of any restriction or
condition, and delivered to Administrative Agent not later than 12:00 noon (New
York City time) on the date due at the Funding and Payment Office for the
account of Lenders; funds received by Administrative Agent after that time on
such due date shall be deemed to have been paid by Company on the next
succeeding Business Day. All payments in respect of the principal amount of any
Loan (other than voluntary prepayments of Revolving Loans and Swing Line Loans)
shall include payment of accrued interest on the principal amount being repaid
or prepaid, and all such payments (and, in any event, any payments in respect of
any Loan on a date when interest is due and payable with respect to such Loan)
shall be applied to the payment of interest before application to principal.
Administrative Agent shall promptly distribute to each Lender, at its primary
address set forth on its signature page hereto or at such other address as such
Lender may request, its applicable Pro Rata Share of all payments and
prepayments of principal and interest due hereunder, together with all other
amounts due thereto, including, without limitation, all fees payable thereto,
received by Administrative Agent. Notwithstanding the foregoing provisions
hereof, if any Conversion/Continuation Notice is withdrawn as to any Affected
Lender or if any Affected Lender makes Base Rate Loans in lieu of its applicable
Pro Rata Share of any Eurodollar Rate Loans, Administrative Agent shall give
effect thereto in apportioning payments received thereafter. Notwithstanding
anything to the contrary herein, payments of amounts deposited in the collateral
account pursuant to Section 2.14(c) shall be deemed to have been paid by Company
on the later of (a) the date such amounts are so deposited, and (b) if Company
elects to apply such amounts in accordance with Section 2.14(c), the applicable
date or dates such amounts are applied to prepay Eurodollar Rate Loans.
2.17 RATABLE SHARING. Lenders hereby agree among themselves that if any of
them shall, whether by voluntary payment (other than a voluntary prepayment of
Loans made and applied in accordance with the terms hereof), by realization upon
security, through the exercise of any right of set-off or banker's lien, by
counterclaim or cross action or by the enforcement of any right under the Credit
Documents or otherwise, or as adequate protection of a deposit treated as cash
collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal, interest, amounts payable in
respect of Letters of Credit, fees and other amounts then due and owing to such
Lender hereunder or under the other Credit Documents (collectively, the
"AGGREGATE AMOUNTS DUE" to such Lender) which is greater than the proportion
received by any other Lender in respect of the Aggregate Amounts Due to such
other Lender, then the Lender receiving such proportionately greater payment
shall (i) notify Administrative Agent and each other Lender of the receipt of
such payment and (ii) apply a
57
portion of such payment to purchase participations (which it shall be deemed to
have purchased from each seller of a participation simultaneously upon the
receipt by such seller of its portion of such payment) in the Aggregate Amounts
Due to the other Lenders so that all such recoveries of Aggregate Amounts Due
shall be shared by all Lenders in proportion to the Aggregate Amounts Due to
them; provided, if all or part of such proportionately greater payment received
by such purchasing Lender is thereafter recovered from such Lender upon the
bankruptcy or reorganization of Company or otherwise, those purchases shall be
rescinded and the purchase prices paid for such participations shall be returned
to such purchasing Lender ratably to the extent of such recovery, but without
interest. Company expressly consents to the foregoing arrangement and agrees
that any holder of a participation so purchased may exercise any and all rights
of banker's lien, set-off or counterclaim with respect to any and all monies
owing by Company to that holder with respect thereto as fully as if that holder
were owed the amount of the participation held by that holder directly by
Company.
2.18 MAKING OR MAINTAINING EURODOLLAR RATE LOANS. (a) In the event that
Administrative Agent shall have reasonably determined (which determination shall
be final and conclusive and binding upon all parties hereto), on any Interest
Rate Determination Date with respect to any Eurodollar Rate Loans, that by
reason of circumstances affecting the London interbank market adequate and fair
means do not exist for ascertaining the interest rate applicable to such Loans
on the basis provided for in the definition of Adjusted Eurodollar Rate,
Administrative Agent shall on such date give notice (by telefacsimile or by
telephone confirmed in writing) to Company and each Lender of such
determination, whereupon (i) no Loans may be made as, or converted to,
Eurodollar Rate Loans until such time as Administrative Agent notifies Company
and Lenders that the circumstances giving rise to such notice no longer exist,
which notice shall be given as soon as reasonably practicable and (ii) any
Funding Notice or Conversion/Continuation Notice given by Company with respect
to the Loans in respect of which such determination was made shall be deemed to
be rescinded by Company without the necessity of paying any amount under Section
2.18(c), and any Funding Notice previously delivered by Company which requested
Eurodollar Rate Loans may be revoked by Company or, failing that, shall be
deemed to be converted into a request(s) for borrowing of Base Rate Loans.
(b) In the event that on any date any Lender shall have reasonably
determined (which determination shall be final and conclusive and binding upon
all parties hereto but shall be made only after consultation with Company and
Administrative Agent) that the making, maintaining or continuation of its
Eurodollar Rate Loans (i) has become unlawful as a result of compliance by such
Lender in good faith with any law, treaty, governmental rule, regulation,
guideline or order (or would conflict with any such treaty, governmental rule,
regulation, guideline or order not having the force of law even though the
failure to comply therewith would not be unlawful), or (ii) has become
impracticable, or would cause such Lender material hardship, as a result of
contingencies occurring after the date hereof which materially and adversely
affect the London interbank market or the position of such Lender in that
market, then, and in any such event, such Lender shall be an "AFFECTED LENDER"
and it shall on that day give notice (by telefacsimile or by telephone confirmed
in writing) to Company and Administrative Agent of such determination (which
notice Administrative Agent shall promptly transmit to each other Lender).
Thereafter (1) the obligation of the Affected Lender to make Loans as, or to
convert Loans to, Eurodollar Rate Loans shall be suspended until such notice
shall be withdrawn by the Affected Lender, (2) to the
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extent such determination by the Affected Lender relates to a Eurodollar Rate
Loan then being requested by Company pursuant to a Funding Notice or a
Conversion/Continuation Notice, the Affected Lender shall make such Loan as (or
convert such Loan to, as the case may be) a Base Rate Loan, (3) the Affected
Lender's obligation to maintain its outstanding Eurodollar Rate Loans (the
"AFFECTED LOANS") shall be terminated at the earlier to occur of the expiration
of the Interest Period then in effect with respect to the Affected Loans or when
required by law, and (4) the Affected Loans shall automatically convert into
Base Rate Loans on the date of such termination. Notwithstanding the foregoing,
to the extent a determination by an Affected Lender as described above relates
to a Eurodollar Rate Loan then being requested by Company pursuant to a Funding
Notice or a Conversion/Continuation Notice, Company shall have the option,
subject to the provisions of Section 2.18(c), to rescind such Funding Notice or
Conversion/Continuation Notice as to all Lenders by giving notice (by
telefacsimile or by telephone confirmed in writing) to Administrative Agent of
such rescission on the date on which the Affected Lender gives notice of its
determination as described above (which notice of rescission Administrative
Agent shall promptly transmit to each other Lender). Except as provided in the
immediately preceding sentence, nothing in this Section 2.18(b) shall affect the
obligation of any Lender other than an Affected Lender to make or maintain Loans
as, or to convert Loans to, Eurodollar Rate Loans in accordance with the terms
hereof.
(c) Company shall compensate each Lender, upon written request by such
Lender (which request shall set forth the basis for requesting such amounts),
for all reasonable losses, expenses and liabilities (including any interest paid
by such Lender to lenders of funds borrowed by it to make or carry its
Eurodollar Rate Loans and any loss, expense or liability sustained by such
Lender in connection with the liquidation or re-employment of such funds but
excluding (a) any loss solely attributable to the failure to receive the
Applicable Margin on a Eurodollar Rate Loan for any period after (Y) the date
specified for such Eurodollar Rate Loan in the case of clause (i) below and (Z)
the date such Eurodollar Rate Loans are prepaid or converted in the case of
clause (ii) below) which such Lender may sustain: (i) if for any reason (other
than a default by such Lender) a borrowing of any Eurodollar Rate Loan does not
occur on a date specified therefor in a Funding Notice or a telephonic request
for borrowing, or a conversion to or continuation of any Eurodollar Rate Loan
does not occur on a date specified therefor in a Conversion/Continuation Notice
or a telephonic request for conversion or continuation; (ii) if any prepayment
or other principal payment or any conversion of any of its Eurodollar Rate Loans
occurs on a date prior to the last day of an Interest Period applicable to that
Loan; or (iii) if any prepayment of any of its Eurodollar Rate Loans is not made
on any date specified in a notice of prepayment given by Company and (b) any
loss, expense or liability with respect to Taxes (and any liabilities relating
thereto), the indemnity for which shall be governed solely and exclusively by
Section 2.20.
(d) Any Lender may make, carry or transfer Eurodollar Rate Loans at, to,
or for the account of any of its branch offices or the office of an Affiliate of
such Lender. In addition, in the case of each Lender that makes, carries or
transfers any Eurodollar Rate Loan at, to, or for the account of an office of an
Affiliate of such Lender pursuant to this Section 2.18(d), such Lender: (i)
shall keep a register, meeting the requirements of Temporary Treasury Regulation
Section 5f.103-1(c), relating to each such Affiliate of such Lender, specifying
such Affiliate's entitlement to payments of principal and interest with respect
to such Loan, and (ii) shall collect,
59
prior to the time such Affiliate receives payments, from each such Lender the
appropriate forms, certificates and statements described in Section 2.20 (and
updated as required by Section 2.20) as if such Affiliate were a Lender under
Section 2.20.
(e) Calculation of all amounts payable to a Lender under this Section 2.18
and under Section 2.19 shall be made as though such Lender had actually funded
each of its relevant Eurodollar Rate Loans through the purchase of a Eurodollar
deposit bearing interest at the rate obtained pursuant to clause (i) of the
definition of Adjusted Eurodollar Rate in an amount equal to the amount of such
Eurodollar Rate Loan and having a maturity comparable to the relevant Interest
Period and through the transfer of such Eurodollar deposit from an offshore
office of such Lender to a domestic office of such Lender in the United States
of America; provided, each Lender may fund each of its Eurodollar Rate Loans in
any manner it sees fit and the foregoing assumptions shall be utilized only for
the purposes of calculating amounts payable under this Section 2.18 and under
Section 2.19.
2.19 INCREASED COSTS; CAPITAL ADEQUACY. Subject to the provisions of
Section 2.20 (which shall be controlling with respect to the Tax matters), in
the event that any Lender (which term shall include Issuing Bank for purposes of
this Section 2.19) shall reasonably determine (which determination shall, absent
demonstrable error, be final and conclusive and binding upon all parties hereto)
that any law, treaty or governmental rule, regulation or order, or any change
therein or in the interpretation, administration or application thereof
(including the introduction of any new law, treaty or governmental rule,
regulation or order), or any determination of a court or governmental authority,
in each case that becomes effective after the date hereof, or compliance by such
Lender with any guideline, request or directive issued or made after the date
hereof by any central bank or other governmental or quasi-governmental authority
(whether or not having the force of law): (a) imposes, modifies or holds
applicable any reserve (including any marginal, emergency, supplemental, special
or other reserve), special deposit, compulsory loan, FDIC insurance or similar
requirement against assets held by, or deposits or other liabilities in or for
the account of, or advances or loans by, or other credit (including letters of
credit) extended by, or any other acquisition of funds by, any office of such
Lender (other than any such reserve or other requirements with respect to
Eurodollar Rate Loans that are reflected in the definition of Adjusted
Eurodollar Rate); or (b) imposes any other condition (other than with respect to
a Tax matter) on or affecting such Lender (or its applicable lending office) or
its obligations hereunder or the London interbank market; and the result of any
of the foregoing is to increase the cost to such Lender of agreeing to make,
making or maintaining Loans hereunder or to reduce any amount received or
receivable by such Lender (or its applicable lending office) with respect
thereto; then, in any such case, Company shall promptly pay to such Lender, upon
receipt of the statement referred to in the next sentence, such additional
amount or amounts (in the form of an increased rate of, or a different method of
calculating, interest or otherwise as such Lender in its reasonable discretion
shall determine) as may be necessary to compensate such Lender for any such
increased cost or reduction in amounts received or receivable hereunder. Such
Lender shall deliver to Company (with a copy to Administrative Agent) a written
statement, setting forth in reasonable detail the basis for calculating the
additional amounts owed to such Lender under this Section 2.19, which statement
shall be conclusive and binding upon all parties hereto absent demonstrable
error.
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2.20 TAXES; WITHHOLDING, ETC. (a) All sums payable by any Credit Party
hereunder and the other Credit Documents shall (except to the extent required by
law) be paid free and clear of, and without any deduction or withholding on
account of, any Tax (other than a Tax on the overall net income of any Lender or
any Agent), imposed, levied, collected, withheld or assessed by or within the
United States of America or any political subdivision in or of the United States
of America or any other jurisdiction from or to which a payment is made by or on
behalf of any Credit Party or by any federation or organization of which the
United States of America or any such jurisdiction is a member at the time of
payment.
(b) If any Credit Party or any other Person is required by law to make any
deduction or withholding on account of any such Tax from any sum paid or payable
by any Credit Party to Administrative Agent or any Lender under any of the
Credit Documents: (i) Company shall notify Administrative Agent of any such
requirement or any change in any such requirement as soon as Company becomes
aware of it; (ii) Company shall pay any such Tax before the date on which
penalties attach thereto, such payment to be made (if the liability to pay is
imposed on any Credit Party) for its own account or (if that liability is
imposed on Administrative Agent or such Lender, as the case may be) on behalf of
and in the name of Administrative Agent or such Lender; (iii) the sum payable by
such Credit Party in respect of which the relevant deduction, withholding or
payment is required shall be increased to the extent necessary to ensure that,
after the making of that deduction, withholding or payment, Administrative Agent
or such Lender, as the case may be, receives on the due date a net sum equal to
what it would have received had no such deduction, withholding or payment been
required or made; and (iv) within thirty (30) days after paying any sum from
which it is required by law to make any deduction or withholding, and within 30
days after the due date of payment of any Tax which it is required by clause
(ii) above to pay, Company shall deliver to Administrative Agent evidence
reasonably satisfactory to the other affected parties of such deduction,
withholding or payment and of the remittance thereof to the relevant taxing or
other authority; provided, no such additional amount shall be required to be
paid to any Lender or any Agent under clause (iii) above with respect to any
deductions or withholding applicable as of the date hereof (in the case of each
Lender and each Agent listed on the signature pages hereof) or the effective
date of the Assignment Agreement pursuant to which such Lender became a Lender
or the date on which a successor Lender becomes a Lender, or the date a
successor Agent becomes an Agent (in the case of each other Lender or Agent) in
respect of payments to such Lender or such Agent.
(c) Each Lender and each Agent that is not a United States Person (as such
term is defined in Section 7701(a)(30) of the Internal Revenue Code) for U.S.
federal income tax purposes (a "NON-US LENDER") shall, unless previously
delivered pursuant to Section 2.20(c) of the Existing Credit Agreement, deliver
to Administrative Agent for transmission to Company, on or prior to the
Effective Date (in the case of each Lender and each Agent listed on the
signature pages hereof on the Effective Date) or on or prior to the date of the
Assignment Agreement pursuant to which it becomes a Lender or on or prior to the
date a successor Lender becomes a Lender or on or prior to the date a successor
Agent becomes an Agent (in the case of each other Lender and each Agent): (i)
two original copies of Internal Revenue Service Form W-8BEN or W-8ECI (or any
successor forms), properly completed and duly executed by such Non-U.S. Lender,
and such other documentation required under the Internal Revenue Code to
establish that such Non-U.S. Lender is not subject to deduction or withholding
of United States federal income
61
tax with respect to any payments to such Non-U.S. Lender of principal, interest,
fees or other amounts payable under any of the Credit Documents, or (ii) if such
Non-U.S. Lender is not a "bank" or other Person described in Section 881(c)(3)
of the Internal Revenue Code and cannot deliver either Internal Revenue Service
Form W-8BEN or W-8ECI pursuant to clause (i) above, a Certificate re Non-Bank
Status together with two original copies of Internal Revenue Service Form W-8BEN
(or any successor form), properly completed and duly executed by such Non-U.S.
Lender, and such other documentation required under the Internal Revenue Code to
establish that such Non-U.S. Lender is not subject to deduction or withholding
of United States federal income tax with respect to any payments to such
Non-U.S. Lender of interest payable under any of the Credit Documents. Each
Non-U.S. Lender required to deliver any forms, certificates or other evidence
with respect to United States federal income tax withholding matters pursuant to
this Section 2.20(c) hereby agrees, from time to time after the initial delivery
by such Non-U.S. Lender of such forms, certificates or other evidence to
promptly deliver to Administrative Agent for transmission to Company two new
original copies of Internal Revenue Service Form W-8BEN or W-8ECI, or a
Certificate re Non-Bank Status and two original copies of Internal Revenue
Service Form W-8BEN (or successor forms or certificates as shall be adopted from
time to time by the relevant United States taxing authority), as the case may
be, properly completed and duly executed by such Non-U.S. Lender, and such other
documentation required under the Internal Revenue Code to confirm or establish
that such Non-U.S. Lender is not subject to deduction or withholding of United
States federal income tax with respect to payments to such Non-U.S. Lender under
the Credit Documents, (i) on or before the date that any such previously
provided forms, certificates or evidence expires or becomes inaccurate, (ii)
whenever a lapse in time or change in circumstances renders such previously
provided forms, certificates or other evidence obsolete or inaccurate and (iii)
from time to time thereafter if reasonably requested by Company or
Administrative Agent, or to notify Administrative Agent and Company of its
inability to deliver any such forms, certificates or other evidence. Company and
each other Credit Party shall not be required to pay any additional amount to
any Non-US Lender under Section 2.20(b)(iii) if such Non-U.S. Lender shall have
(x) failed to deliver the forms, certificates or other evidence referred to in
this Section 2.20(c), or (y) notified Administrative Agent and Company of its
inability to deliver any such forms, certificates or other evidence, as the case
may be; provided, if such Non-U.S. Lender shall have satisfied the requirements
of the first sentence of this Section 2.20(c) on the Effective Date or on the
date of the Assignment Agreement or the date of succession pursuant to which it
became a Lender or an Agent, as applicable, nothing in this last sentence of
Section 2.20(c) shall relieve Company and each other Credit Party of its
obligation to pay any additional amounts pursuant to this Section 2.20 in the
event that, as a result of any change in any applicable law, treaty or
governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof, such Non-U.S. Lender is no longer
properly entitled to deliver forms, certificates or other evidence at a
subsequent date establishing the fact that such Non-U.S. Lender is not subject
to withholding as described herein.
(d) Each Lender and each Agent that is not a Non-US Lender (a "US LENDER")
shall, unless previously delivered pursuant to Section 2.20(d) of the Existing
Credit Agreement, deliver to Administrative Agent and Company two original
copies of Internal Revenue Service Form W-9 properly completed and duly executed
by such US Lender on or prior to the Effective Date (or on or prior to the date
it becomes a party to this Agreement), certifying that such US Lender is
62
entitled to an exemption from United States backup withholding tax, or any
successor form. Each US Lender required to deliver any forms, certificates or
other evidence with respect to United States backup withholding tax matters
pursuant to this Section 2.20(d) hereby agrees, from time to time after the
initial delivery by such US Lender of such forms, certificates or other
evidence, that such US Lender shall promptly deliver to Administrative Agent for
transmission to Company two new original copies of Internal Revenue Service Form
W-9, properly completed and duly executed by such US Lender, together with any
other certificate or statement of exemption required in order to confirm or
establish that such US Lender is exempt from United States backup withholding
tax with respect to payments to such US Lender under any of the Credit Documents
(i) on or before the date that any such previously provided forms, certificates
or other evidence expires or becomes obsolete, (ii) whenever a lapse in time or
change in circumstances render such previously provided forms, certificates or
other evidence obsolete or inaccurate, and (iii) from time to time thereafter if
reasonably requested by Company or Administrative Agent, or shall notify
Administrative Agent and Company of its inability to deliver any such forms,
certificates or other evidence. Company and each other Credit Party shall not be
required to pay any additional amount to any US Lender under Section
2.20(b)(iii) to the extent deduction or withholding is a result of such US
Lender's failure to provide an Internal Revenue Service Form W-9 establishing
that such US Lender is exempt from United States backup withholding tax;
provided, if such US Lender shall have satisfied the requirements of this
Section 2.20(d) on the Effective Date or on the date of the Assignment Agreement
or on the date of the succession pursuant to which it became a Lender or an
Agent, as applicable, nothing in this last sentence of Section 2.20(d) shall
relieve Company and each other Credit Party of its obligation to pay any
additional amounts otherwise payable pursuant to Section 2.20(b)(iii) in the
event that, as a result of any change in any applicable law, treaty or
governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof, such US Lender is no longer properly
entitled to deliver forms, certificates or other evidence at a subsequent date
establishing the fact that such US Lender is not subject to United States backup
withholding tax as described herein. If such US Lender fails to deliver such
forms, then Company may withhold from any payment to such US Lender an amount
equal to the applicable backup withholding tax imposed by the Internal Revenue
Code.
(e) If any Lender or any Agent determines that it has received a refund in
respect of any Taxes as to which additional amounts have been paid to it by
Company pursuant to Section 2.20(b)(iii), it shall promptly remit such refund
(including any interest included in such refund) to Company, net of all
out-of-pocket expenses of such Lender or such Agent, as the case may be;
provided however, that Company, upon request of such Lender or such Agent, as
the case may be, agrees to promptly return such refund to such party in the
event such party is required to repay such refund to the relevant taxing
authority. Such Lender or such Agent, as the case may be, shall, at Company's
request, provide Company with a copy of any notice of assessment or other
evidence of the requirement to repay such refund received from the relevant
taxing authority (provided that such Lender or such Agent, as the case may be,
may delete any information therein that such Lender or such Agent, as the case
may be, deems confidential).
(f) For purposes of this Section 2.20, the term "Lender" shall include
Issuing Bank.
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2.21 CAPITAL ADEQUACY ADJUSTMENT. If any Lender (which term shall include
Issuing Bank for purposes of this Section 2.21) shall have determined that the
adoption, effectiveness, phase-in or applicability after the date hereof of any
law, rule or regulation (or any provision thereof) regarding capital adequacy,
or any change therein or in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or its
applicable lending office) with any guideline, request or directive regarding
capital adequacy (whether or not having the force of law) of any such
governmental authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of, or with reference to,
such Lender's Loans or Commitments or Letters of Credit or participations
therein or other obligations hereunder with respect to the Loans or the Letters
of Credit to a level below that which such Lender or such controlling
corporation could have achieved but for such adoption, effectiveness, phase-in,
applicability, change or compliance (taking into consideration the policies of
such Lender or such controlling corporation with regard to capital adequacy),
then from time to time, within five (5) Business Days after receipt by Company
from such Lender of the statement referred to in the next sentence, Company
shall pay to such Lender such additional amount or amounts as will compensate
such Lender or such controlling corporation on an after-tax basis for such
reduction. Such Lender shall deliver to Company (with a copy to Administrative
Agent) a written statement, setting forth in reasonable detail the basis of the
calculation of such additional amounts, which statement shall be conclusive and
binding upon all parties hereto absent demonstrable error.
2.22 OBLIGATION TO MITIGATE. Each Lender (which term shall include Issuing
Bank for purposes of this Section 2.22) agrees that, as promptly as practicable
after the officer of such Lender responsible for administering its Loans or
Letters of Credit, as the case may be, becomes aware of the occurrence of an
event or the existence of a condition that would cause such Lender to become an
Affected Lender or that would entitle such Lender to receive payments under
Section 2.19, 2.20 or 2.21, it will, to the extent not inconsistent with the
internal policies of such Lender and any applicable legal or regulatory
restrictions, use reasonable efforts (i) to make, issue, fund or maintain its
Credit Extensions, including any Affected Loans, through another office of such
Lender, or (ii) take such other measures as such Lender may deem reasonable, if
as a result thereof the circumstances which would cause such Lender to be an
Affected Lender would cease to exist or the additional amounts which would
otherwise be required to be paid to such Lender pursuant to Section 2.19, 2.20
or 2.21 would be materially reduced and if, as determined by such Lender in its
sole discretion, the making, issuing, funding or maintaining of such
Commitments, Loans or Letters of Credit through such other office or in
accordance with such other measures, as the case may be, would not otherwise
materially adversely affect such Commitments, Loans or Letters of Credit or the
interests of such Lender; provided, such Lender will not be obligated to utilize
such other office pursuant to this Section 2.22 unless Company agrees to pay all
incremental expenses incurred by such Lender as a result of utilizing such other
office as described in clause (i) above. A certificate as to the amount of any
such expenses payable by Company pursuant to this Section 2.22 (setting forth in
reasonable detail the basis for requesting such amount) submitted by such Lender
to Company (with a copy to Administrative Agent) shall be conclusive absent
demonstrable error. With respect to any Lender's claim for compensation under
Sections 2.19, 2.20 or 2.21, Company shall not be required to compensate
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such Lender for any amount incurred more than ninety (90) days prior to the date
that such Lender becomes aware of the event that gives rise to such claim.
2.23 DEFAULTING LENDERS. Anything contained herein to the contrary
notwithstanding, in the event that any Lender (a "DEFAULTING LENDER") defaults
(a "FUNDING DEFAULT") in its obligation to fund any Revolving Loan (a "DEFAULTED
REVOLVING LOAN") as a result of the appointment of a receiver or conservator
with respect to such Lender at the direction or request of any regulatory agency
or authority, then (a) during any Default Period with respect to such Defaulting
Lender, such Defaulting Lender shall be deemed not to be a "Lender" for purposes
of voting on any matters (including the granting of any consents or waivers)
with respect to any of the Credit Documents; (b) to the extent permitted by
applicable law, until such time as the Default Excess with respect to such
Defaulting Lender shall have been reduced to zero, (i) any voluntary prepayment
of the Revolving Loans shall, if Company so directs at the time of making such
voluntary prepayment, be applied to the Revolving Loans of other Lenders as if
such Defaulting Lender had no Revolving Loans outstanding and the Revolving
Credit Exposure of such Defaulting Lender were zero, and (ii) any mandatory
prepayment of the Revolving Loans shall, if Company so directs at the time of
making such mandatory prepayment, be applied to the Revolving Loans of other
Lenders (but not to the Revolving Loans of such Defaulting Lender) as if such
Defaulting Lender had funded all Defaulted Revolving Loans of such Defaulting
Lender, it being understood and agreed that Company shall be entitled to retain
any portion of any mandatory prepayment of the Revolving Loans that is not paid
to such Defaulting Lender solely as a result of the operation of the provisions
of this clause (b); (c) such Defaulting Lender's Revolving Loan Commitment and
outstanding Revolving Loans and such Defaulting Lender's applicable Pro Rata
Share of the Letter of Credit Usage shall be excluded for purposes of
calculating the commitment fee payable to Lenders pursuant to Section 2.10 in
respect of any day during any Default Period with respect to such Defaulting
Lender, and such Defaulting Lender shall not be entitled to receive any
commitment fee pursuant to Section 2.10 with respect to such Defaulting Lender's
Commitment in respect of any Default Period with respect to such Defaulting
Lender; and (d) the Total Utilization of Revolving Loan Commitments as at any
date of determination shall be calculated as if such Defaulting Lender had
funded all Defaulted Revolving Loans of such Defaulting Lender. No Revolving
Loan Commitment of any Lender shall be increased or otherwise affected, and,
except as otherwise expressly provided in this Section 2.23, performance by
Company of its obligations hereunder and the other Credit Documents shall not be
excused or otherwise modified as a result of any Funding Default or the
operation of this Section 2.23. The rights and remedies against a Defaulting
Lender under this Section 2.23 are in addition to other rights and remedies
which Company may have against such Defaulting Lender with respect to any
Funding Default and which Administrative Agent or any Lender may have against
such Defaulting Lender with respect to any Funding Default.
2.24 REMOVAL OR REPLACEMENT OF A LENDER. Anything contained herein to the
contrary notwithstanding, in the event that: (a) any Lender (an "INCREASED-COST
LENDER") shall give notice to Company that such Lender is an Affected Lender or
that such Lender is entitled to receive payments under Section 2.19, Section
2.20 or Section 2.21, the circumstances which have caused such Lender to be an
Affected Lender or which entitle such Lender to receive such payments shall
remain in effect, and such Lender shall fail to withdraw such notice within five
(5) Business Days after Company's request for such withdrawal; or (b) any Lender
shall become a
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Defaulting Lender, the Default Period for such Defaulting Lender shall remain in
effect, and such Defaulting Lender shall fail to cure the default as a result of
which it has become a Defaulting Lender within five (5) Business Days after
Company's request that it cure such default; or (c) in connection with any
proposed amendment, modification, termination, waiver or consent with respect to
any of the provisions hereof as contemplated by Section 10.5(b) or Section
10.5(c), the consent of Requisite Lenders shall have been obtained but the
consent of one or more of such other Lenders (each a "NON-CONSENTING LENDER")
whose consent is required shall not have been obtained; then, with respect to
each such Increased-Cost Lender, Defaulting Lender or Non-Consenting Lender (the
"TERMINATED LENDER"), Company may, by giving written notice to Administrative
Agent and any Terminated Lender of its election to do so: (i) (1) elect to
terminate the Commitment, if any, of such Terminated Lender upon receipt by such
Terminated Lender of such notice, and (2) prepay on the date of such termination
any outstanding Loans made by such Terminated Lender, together with accrued and
unpaid interest thereon and any other amounts payable to such Terminated Lender
hereunder pursuant to Section 2.18(c), 2.19, 2.20 or 2.21 or otherwise; or (ii)
elect to cause such Terminated Lender (and such Terminated Lender hereby
irrevocably agrees) to assign its outstanding Loans and its Commitment, if any,
in full to one or more Eligible Assignees (each a "REPLACEMENT LENDER") in
accordance with the provisions of Section 10.6 (and no processing or recordation
fee shall be payable under Section 10.6); provided, (1) on the date of such
assignment, Company shall pay any amounts payable to such Terminated Lender
pursuant to Section 2.18(c), 2.19, 2.20 or 2.21 or otherwise as if it were a
prepayment and (2) in the event such Terminated Lender is a Non-Consenting
Lender, each Replacement Lender shall consent, at the time of such assignment,
to each matter in respect of which such Terminated Lender was a Non-Consenting
Lender; provided, (A) Company may not make either of such elections with respect
to any Terminated Lender that is also Issuing Bank unless, prior to the
effectiveness of such election arrangements satisfactory to such Issuing Bank
(including the furnishing of a back-up standby letter of credit in form and
substance, and issued by an issuer reasonably satisfactory to such Issuing Bank
or the depositing of cash collateral into a cash collateral account in amounts
and pursuant to arrangements reasonably satisfactory to such Issuing Bank) have
been made with respect to each outstanding Letter of Credit issued by such
Issuing Bank (or such outstanding Letter of Credit has been cancelled) and (B)
the Lender that acts as the Administrative Agent may not be replaced hereunder
except in accordance with the terms of Section 9.7(a). Upon the prepayment of
all amounts owing to any Terminated Lender and the termination of such
Terminated Lender's Commitment, if any, (a) the definition of "Commitments"
shall be deemed modified to reflect any corresponding changes in the
Commitments, and (b) such Terminated Lender shall no longer constitute a
"Lender" for purposes hereof; provided, any rights of such Terminated Lender to
indemnification hereunder shall survive as to such Terminated Lender.
2.25 INCREMENTAL FACILITIES.
(a) Company may by written notice to GSCP elect to request (A) prior to
the Revolving Commitment Termination Date, an increase to the existing Revolving
Loan Commitments (any such increase, the "NEW REVOLVING LOAN COMMITMENTS")
and/or (B) the establishment of one or more new term loan commitments (the "NEW
TERM LOAN COMMITMENTS"), by an amount not in excess of $100,000,000 in the
aggregate and not less than $5,000,000 individually (or such lesser amount which
shall be approved by Administrative Agent and GSCP or such lesser amount that
shall constitute the difference between $100,000,000
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and all such New Revolving Loan Commitments and New Term Loan Commitments
obtained prior to such date), and integral multiples of $5,000,000 in excess of
that amount. Each such notice shall specify (A) the date (each, an "INCREASED
AMOUNT DATE") on which Company proposes that the New Revolving Loan Commitments
or New Term Loan Commitments, as applicable, shall be effective, which shall be
a date not less than (ten) 10 Business Days after the date on which such notice
is delivered to GSCP and (B) the identity of each Lender or other Person that is
an Eligible Assignee (each, a "NEW REVOLVING LOAN LENDER" or "NEW TERM LOAN
LENDER", as applicable) to whom Company proposes any portion of such New
Revolving Loan Commitments or New Term Loan Commitments, as applicable, be
allocated and the amounts of such allocations; provided that any Lender
approached to provide all or a portion of the New Revolving Loan Commitments or
New Term Loan Commitments may elect or decline, in its sole discretion, to
provide a New Revolving Loan Commitment or a New Term Loan Commitment. Such New
Revolving Loan Commitments or New Term Loan Commitments shall become effective,
as of such Increased Amount Date; provided that (1) no Default or Event of
Default shall exist on such Increased Amount Date before or after giving effect
to such New Revolving Loan Commitments or New Term Loan Commitments, as
applicable; (2) both before and after giving effect to the making of any New
Revolving Loan or Series of New Term Loans, each of the conditions set forth in
Section 3.2 shall be satisfied; (3) Company and its Subsidiaries shall be in
compliance with each of the covenants set forth in Section 6.6 on a Pro Forma
Basis as of the last day of the most recently ended Fiscal Quarter after giving
effect to any Loans made pursuant to such New Revolving Loan Commitments on the
Increased Amount Date or New Term Loan Commitments, as applicable and after
giving effect to use of proceeds thereof; (4) the Leverage Ratio on a Pro Forma
Basis as of the last day of the most recently ended Fiscal Quarter after giving
effect to any Loans made pursuant to such New Revolving Loan Commitments on the
Increased Amount Date or New Term Loan Commitments, as applicable and after
giving effect to use of proceeds thereof, shall be the Leverage Ratio as set
forth for such Fiscal Quarter in Section 6.6(b) minus 0.25; (5) the New
Revolving Loan Commitments or New Term Loan Commitments, as applicable, shall be
effected pursuant to one or more Joinder Agreements executed and delivered by
Company, and GSCP, Administrative Agent, each of which shall be recorded in the
Register and shall be subject to the requirements set forth in Section 2.20(c)
and Section 2.20(d); (6) Company shall make any payments required pursuant to
Section 2.18(c) in connection with the New Revolving Loan Commitments or New
Term Loan Commitments, as applicable; and (7) Company shall deliver or cause to
be delivered any legal opinions or other documents reasonably requested by
Administrative Agent in connection with any such transaction. Any New Term Loans
made on an Increased Amount Date shall be designated, a separate series (a
"SERIES") of New Term Loans for all purposes of this Agreement.
(b) On any Increased Amount Date on which New Revolving Loan Commitments
are effected, subject to the satisfaction of the foregoing terms and conditions,
(a) each of the Revolving Lenders shall assign to each of the New Revolving Loan
Lenders, and each of the New Revolving Loan Lenders shall purchase from each of
the Revolving Loan Lenders, at the principal amount thereof (together with
accrued interest), such interests in the Revolving Loans outstanding on such
Increased Amount Date as shall be necessary in order that, after giving effect
to all such assignments and purchases, such Revolving Loans will be held by
existing Revolving Loan Lenders and New Revolving Loan Lenders ratably in
accordance with their Revolving Loan Commitments after giving effect to the
addition of such New Revolving Loan
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Commitments to the Revolving Loan Commitments, (b) each New Revolving Loan
Commitment shall be deemed for all purposes a Revolving Loan Commitment and each
Loan made thereunder (a "NEW REVOLVING LOAN") shall be deemed, for all purposes,
a Revolving Loan and (c) each New Revolving Loan Lender shall become a Lender
with respect to the New Revolving Loan Commitment and all matters relating
thereto.
(c) On any Increased Amount Date on which any New Term Loan Commitments of
any Series are effective, subject to the satisfaction of the foregoing terms and
conditions, (i) each New Term Loan Lender of any Series shall make a Loan to
Company (a "NEW TERM LOAN") in an amount equal to its New Term Loan Commitment
of such Series, and (ii) each New Term Loan Lender of any Series shall become a
Lender hereunder with respect to the New Term Loan Commitment of such Series and
the New Term Loans of such Series made pursuant thereto.
(d) Administrative Agent shall notify Lenders promptly upon receipt of
Company's notice of each Increased Amount Date and in respect thereof (y) the
New Revolving Loan Commitments and the New Revolving Loan Lenders or the Series
of New Term Loan Commitments and the New Term Loan Lenders of such Series, as
applicable, and (z) in the case of each notice to any Revolving Loan Lender, the
respective interests in such Revolving Loan Lender's Revolving Loans, in each
case subject to the assignments contemplated by this Section 2.25.
(e) The terms and provisions of the New Term Loans and New Term Loan
Commitments of any Series shall be, except as otherwise set forth herein or in
the Joinder Agreement, identical to the Tranche C Term Loans. The terms and
provisions of the New Revolving Loans shall be identical to the Revolving Loans.
In any event (i) the weighted average life to maturity of all New Term Loans of
any Series shall be no shorter than the weighted average life to maturity of the
Tranche C Terms Loans, (ii) the applicable New Term Loan Maturity Date of each
Series shall be no shorter than the final maturity of the Tranche C Term Loans
and (iii) the interest rate margins applicable to the New Term Loans of each
Series shall be determined by Company and the applicable new Lenders and shall
be set forth in each applicable Joinder Agreement; provided however that the
interest rate applicable to the New Term Loans shall not be greater than the
highest interest rate that may, under any circumstances, be payable with respect
to Tranche C Term Loans plus 0.50% per annum unless the interest rate with
respect to the Tranche C Term Loan is increased so as to be equal to or be 0.50%
per annum lower than, the interest rate applicable to the New Term Loans.
SECTION 3. CONDITIONS PRECEDENT
3.1 EFFECTIVE DATE. The obligations of Lenders to make any Credit
Extension to be made on the Effective Date are subject to the satisfaction, or
waiver in accordance with Section 10.5, of the following conditions on or before
the Effective Date:
(a) THIS AGREEMENT. Administrative Agent shall have received sufficient
copies of this Agreement, executed and delivered by (i) each applicable Credit
Party, for each Lender and its counsel; (ii) each Tranche C Term Loan Lender and
Continuing Lender; and (iii) Requisite Lenders as such term is defined in the
Existing Credit Agreement.
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(b) ORGANIZATIONAL DOCUMENTS, ETC. Administrative Agent shall have
received a copy of each of the following documents, originally executed (where
applicable) and delivered by each Credit Party, as applicable: (i) certified
copies of the Certificate or Articles of Incorporation (or equivalent charter
document) of such Person, together with a good standing certificate from the
Secretary of State of its jurisdiction of incorporation or formation, as
applicable and, to the extent generally available, a certificate or other
evidence of good standing as to payment of any applicable franchise or similar
taxes from the appropriate taxing authority of each such jurisdiction, each
dated the Effective Date or a recent date prior thereto; provided that in lieu
of delivery of each of the documents set forth in this Section 3.1(b)(i), the
Company may deliver a certificate executed by an Authorized Officer of such
Credit Party certifying that there have been no material amendments to those
documents previously delivered to the Administrative Agent on the Closing Date
pursuant to Section 3.1(b)(i) of the Existing Credit Agreement; (ii) copies of
the Bylaws (or equivalent operative agreement) of such Person, certified as of
the Effective Date by such Person's corporate secretary or an assistant
secretary; provided that in lieu of delivery of each of the documents set forth
in this Section 3.1(b)(ii), the Company may deliver a certificate executed by an
Authorized Officer of such Credit Party certifying that there have been no
material amendments to those documents previously delivered to the
Administrative Agent on the Closing Date pursuant to Section 3.1(b)(ii) of the
Existing Credit Agreement; (iii) resolutions of the Board of Directors (or
similar governing body) of such Person approving and authorizing the execution,
delivery and performance of the Credit Documents to which it is a party,
certified as of the Effective Date by the corporate secretary or an assistant
secretary of such Person as being in full force and effect without modification
or amendment; and (iv) signature and incumbency certificates of the officers of
such Person executing the Credit Documents to which it is a party, dated the
Effective Date.
(c) GOVERNMENTAL AUTHORIZATIONS AND CONSENTS. Each Credit Party shall have
obtained all material Governmental Authorizations and all material consents of
other Persons, in each case that are necessary in connection with the
transactions contemplated by the Credit Documents and each of the foregoing
shall be in full force and effect. No action, request for stay, petition for
review or rehearing, reconsideration, or appeal with respect to any of the
foregoing shall be pending, and the time for any applicable agency to take
action to set aside its consent on its own motion shall have expired.
(d) OPINIONS OF COUNSEL TO CREDIT PARTIES. Lenders shall have received
executed copies of the favorable written opinion of Weil, Gotshal & Xxxxxx LLP,
in the form of Exhibit D and as to such other matters as Agents may reasonably
request, and otherwise in form and substance reasonably satisfactory to Agents
and Xxxxxx & Xxxxxxx LLP, dated as of the Effective Date.
(e) FEES. Company shall have paid to Administrative Agent, for
distribution (as appropriate) to Agents and Lenders, the fees payable on the
Effective Date referred to in Section 2.10(c) and all expenses (including the
reasonable fees, disbursements and other charges of counsel) for which invoices
have been presented on or prior to the Effective Date.
(f) EFFECTIVE DATE CERTIFICATE. Holdings and Company shall have delivered
to Administrative Agent an Effective Date Certificate.
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(g) NO LITIGATION. There shall not exist any action, suit, investigation,
litigation or proceeding or other legal or regulatory developments, pending or
threatened in any court or before any arbitrator or Governmental Authority that,
to the knowledge of Company, could reasonably be expected to have a Material
Adverse Effect.
Each Agent and Lender, by delivering its signature page to this Agreement,
to the extent applicable, shall be deemed to have acknowledged receipt of, and
consented to and approved (as long as substantially in the form delivered to
such Agent or Lender, as applicable, including any changed pages thereto
delivered to such Agent or Lenders, as applicable), each Credit Document and
each other document required to be approved by Requisite Lenders or Lenders, as
applicable.
3.2 CONDITIONS TO EACH CREDIT EXTENSION. The obligation of each Lender to
make any Credit Extension on any Credit Extension Date, including the Effective
Date, is subject to the following further conditions precedent:
(a) Administrative Agent, Issuing Bank and Swing Line Lender, as the case
may be, shall have received a fully executed and delivered Funding Notice or
Request for Issuance, as the case may be;
(b) as of such Credit Extension Date, the representations and warranties
contained herein and in the other Credit Documents shall be true, correct and
complete in all material respects on and as of that Credit Extension Date to the
same extent as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in which
case such representations and warranties shall have been true, correct and
complete in all material respects on and as of such earlier date;
(c) as of such Credit Extension Date, no event shall have occurred and be
continuing or would result from the consummation of the borrowing contemplated
by such Funding Notice or Letter of Credit contemplated by such Request for
Issuance that would constitute an Event of Default or a Default; and
(d) on or before the date of issuance of any Letter of Credit,
Administrative Agent shall have received all other information required by the
applicable Request for Issuance, and such other documents or information as
Issuing Bank may reasonably require in connection with the issuance of such
Letter of Credit.
Any Notice shall be executed by an Authorized Officer of Company or by the
executive officer thereof designated by an Authorized Officer of Company in a
writing delivered to Administrative Agent. In lieu of delivering a Funding
Notice or Request for Issuance, Company may give Administrative Agent telephonic
notice by the required time of any proposed borrowing, conversion/continuation
or issuance of a Letter of Credit, as the case may be; provided each such notice
or request shall be promptly confirmed in writing by delivery of the applicable
Funding Notice or Request for Issuance to Administrative Agent on or before the
applicable date of borrowing, continuation/conversion or issuance. Neither
Administrative Agent nor any Lender shall incur any liability to Company in
acting upon any telephonic notice referred to above that Administrative Agent
believes in good faith to have been given by a duly authorized officer or other
person authorized on behalf of Company or for otherwise acting in
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good faith in connection with any such notice. Upon conversion or continuation
of the applicable basis for determining the interest rate with respect to any
Loans in accordance with this Agreement or upon funding of Loans by Lenders in
accordance herewith, in either case pursuant to any such telephonic notice,
Company shall have effected a conversion or continuation (as the case may be) or
shall have effected Loans, respectively, hereunder. Company shall notify
Administrative Agent (or Issuing Bank, as the case may be) prior to the funding
of any Loans or the issuance of any Letter of Credit in the event that any of
the matters to which Company is required to certify in the applicable Notice is
no longer true and correct as of the applicable Credit Extension Date, and the
acceptance by Company of the proceeds of any Loans or the issuance of any Letter
of Credit shall constitute a re-certification by Company, as of the applicable
Credit Extension Date, as to the matters to which Company is required to certify
in the applicable Funding Notice or Request for Issuance.
SECTION 4. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders and Issuing Bank to enter into this Agreement
and to make each Credit Extension to be made thereby, Company represents and
warrants to each Lender as follows:
4.1 ORGANIZATION AND POWERS. Each Credit Party is a corporation, limited
liability company or limited partnership, as applicable, duly organized or
formed, as applicable, validly existing and, to the extent such concept applies,
in good standing under the laws of its jurisdiction of incorporation or
formation, as applicable. Each Credit Party has all requisite corporate or other
organizational power and authority to own and operate its properties, to carry
on its business as now conducted and as proposed to be conducted, to enter into
the Credit Documents to which it is a party and to carry out the transactions
contemplated thereby.
4.2 QUALIFICATION AND GOOD STANDING. Each Credit Party is qualified to do
business and in good standing in every jurisdiction where its assets are located
and wherever necessary to carry out its business and operations, except in
jurisdictions where the failure to be so qualified or in good standing has not
had and could not be reasonably be expected to have a Material Adverse Effect.
4.3 SUBSIDIARIES. As of the Effective Date, all of the Subsidiaries of
Holdings are identified in Schedule 4.1. As of the Effective Date, the issued
and outstanding capital stock of each of the Subsidiaries of Holdings identified
in Schedule 4.1 is duly authorized, validly issued, fully paid and nonassessable
and none of such capital stock constitutes Margin Stock. Each of the
Subsidiaries of Holdings is a corporation, limited liability company or limited
partnership, as applicable, duly organized or formed, as applicable, validly
existing, to the extent such concept applies, and in good standing under the
laws of its respective jurisdiction of incorporation or formation, as
applicable, has all requisite corporate power and authority to own and operate
its properties and to carry on its business as now conducted and as proposed to
be conducted, and is qualified to do business and in good standing in every
jurisdiction where its assets are located and wherever necessary to carry out
its business and operations, in each case except where failure to be so
qualified or in good standing or a lack of such corporate power and authority
has not had and could not be reasonably expected to have a Material Adverse
Effect. As of the
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Effective Date, Schedule 4.1 correctly sets forth the ownership interest of
Holdings and each of its Subsidiaries in each of the Subsidiaries of Holdings
identified therein.
4.4 AUTHORIZATION OF BORROWING; NO CONFLICT. The execution, delivery and
performance of the Credit Documents have been duly authorized by all necessary
corporate, limited liability company or limited partnership, as applicable,
action on the part of each Credit Party that is a party thereto. The execution,
delivery and performance by Credit Parties of the Credit Documents to which they
are parties and the consummation of the transactions contemplated by the Credit
Documents do not and will not (a) violate any provision of any law or any
governmental rule or regulation applicable to Holdings or any of its
Subsidiaries, the Certificate or Articles of Incorporation or Bylaws (or
equivalent constituent documents) of Holdings or any of its Subsidiaries or any
order, judgment or decree of any court or other agency of government binding on
Holdings or any of its Subsidiaries, except to the extent such violation could
not be reasonably be expected to have a Material Adverse Effect, (b) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any Contractual Obligation of Holdings or any of its
Subsidiaries, (c) result in or require the creation or imposition of any Lien
upon any of the properties or assets of Holdings or any of its Subsidiaries
(other than any Liens created under any of the Credit Documents in favor of
Collateral Agent on behalf of the Secured Parties), or (d) require any approval
of stockholders or any approval or consent of any Person under any Contractual
Obligation of Holdings or any of its Subsidiaries, except for such approvals or
consents which will be obtained on or before the Effective Date and disclosed in
writing to Lenders and except for any such consents or approvals the failure of
which to obtain would not reasonably be expected to have a Material Adverse
Effect.
4.5 GOVERNMENTAL CONSENTS. The execution, delivery and performance by
Credit Parties of the Credit Documents to which they are parties and the
consummation of the transactions contemplated by the Credit Documents do not and
will not require any registration with, consent or approval of, or notice to, or
other action to, with or by, any federal, state or other governmental authority
or regulatory body except for (a) those with respect to the Collateral
contemplated to be made under the Credit Documents, (b) those otherwise
delivered to the Collateral Agent for filing and/or recordation, (c) such as
have been obtained and are in full force and effect and (d) any such consents or
approvals the failure of which to obtain would not reasonably be expected to
have a Material Adverse Effect.
4.6 BINDING OBLIGATION. Each of the Credit Documents has been duly
executed and delivered by each Credit Party that is a party thereto and is the
legally valid and binding obligation of such Credit Party, enforceable against
such Credit Party in accordance with its respective terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally or by equitable principles
relating to enforceability.
4.7 VALID ISSUANCE OF THE SENIOR SUBORDINATED NOTES. Company has the
corporate power and authority to issue the Senior Subordinated Notes. The Senior
Subordinated Notes, when issued and paid for, will be the legally valid and
binding obligations of Company, enforceable against Company in accordance with
their terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting
72
creditors' rights generally or by equitable principles relating to
enforceability. The subordination provisions of the Senior Subordinated Note
Documents will be enforceable against the holders of the Senior Subordinated
Notes, and the Loans and all other monetary Obligations hereunder are and will
be within the definition of "Senior Debt" included in the Senior Subordinated
Note Documents. The Senior Subordinated Notes, when issued and sold, will either
(a) have been registered or qualified under applicable federal and state
securities laws or (b) be exempt therefrom.
4.8 FINANCIAL CONDITION. Company has heretofore delivered to Lenders the
Historical Financial Statements all of which were prepared in conformity with
GAAP and fairly present, in all material respects, the financial position, on a
consolidated basis, of the entities described in such financial statements as at
the respective dates thereof and the results of operations and cash flows, on a
consolidated basis, of the entities described therein for each of the periods
then ended, subject, in the case of any such unaudited financial statements, to
changes resulting from audit and normal year-end adjustments and, in the case of
interim financial statements, except for the absence of notes thereto.
4.9 NO MATERIAL ADVERSE CHANGE. Since December 31, 2002, no event or
change has occurred that has caused or evidences, either in any case or in the
aggregate, a Material Adverse Effect.
4.10 LITIGATION; ADVERSE FACTS. There are no Adverse Proceedings,
individually or in the aggregate, that could reasonably be expected to result in
a Material Adverse Effect. Neither Holdings nor any of its Subsidiaries (a) is
in violation of any applicable laws (including Environmental Laws) that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect, or (b) is subject to or in default with respect to any
final judgments, writs, injunctions, decrees, rules or regulations of any court
or any federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect.
4.11 PAYMENT OF TAXES. Except in accordance with Section 5.3, all Federal
and material state and other tax returns and reports of Holdings and its
Subsidiaries required to be filed by any of them have been timely filed, and all
Federal and material state and other taxes shown on such tax returns to be due
and payable and all assessments, fees and other governmental charges upon
Holdings and its Subsidiaries and upon their respective properties, assets,
income, businesses and franchises which are due and payable have been paid when
due and payable except those (a) which are not overdue by more than thirty (30)
days or (b) which are being contested by Holdings or such Subsidiary in good
faith and by appropriate proceedings or (c) with respect to which the failure to
make such filings or payment could not reasonably be expected to have a Material
Adverse Effect.
4.12 TITLE TO PROPERTIES; REAL PROPERTY. Company and its Subsidiaries
have, subject to Permitted Liens, (a) good, sufficient and legal title to (in
the case of fee interests in real property); (b) valid leasehold interests in
(in the case of leasehold interests in real or owned personal property); and (c)
good title to (in the case of all other personal property), all of their
respective properties and assets except for defects in title that do not
materially interfere with its
73
ability to conduct its business or to utilize such assets for their intended
purposes or where failure to have such title in the aggregate could not
reasonably be expected to have a Material Adverse Effect. As of the Effective
Date, Schedule 4.12 contains a true, accurate and complete list of all (i) fee
interests of any Credit Party in real property, and (ii) all leases or subleases
(together with all amendments, modifications, supplements, renewals or
extensions of any thereof) affecting or comprising each real property asset of
any Credit Party, regardless of whether such Credit Party is the landlord or
tenant (whether directly or as an assignee or successor in interest) under such
lease or sublease (other than leases or subleases pertaining to the Retail
Business). Except as specified in Schedule 4.12, as of the Effective Date, (x)
each agreement listed in clause (ii) of the immediately preceding sentence is in
full force and effect, (y) Company does not have knowledge of any default that
has occurred and is continuing thereunder, and (z) each such agreement
constitutes the legally valid and binding obligation of each applicable Credit
Party, enforceable against such Credit Party in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors' rights generally
or by equitable principles in each case, except to the extent any of the
foregoing could not reasonably be expected to have a Material Adverse Effect.
4.13 COLLATERAL. (a) Except for the security interest created by the
Collateral Documents, each Credit Party owns the Collateral owned by such Credit
Party free and clear of any Lien other than Permitted Liens. (b) The execution
and delivery of the Collateral Documents by Credit Parties, together with (i)
the actions taken on or prior to the Closing Date pursuant to Section 3 and
Section 5 and (ii) the delivery to Collateral Agent of any Pledged Collateral
not delivered to Collateral Agent at the time of execution and delivery of the
applicable Collateral Document (all of which Pledged Collateral has been so
delivered in accordance with the requirements of the applicable Collateral
Documents) are effective to create in favor of Collateral Agent for the benefit
of the Secured Parties, as security for the respective Secured Obligations (as
defined in the applicable Collateral Document in respect of any Collateral), a
valid and perfected First Priority Lien on all of the Collateral, and all
filings and other actions necessary or desirable to perfect and maintain the
perfection and First Priority Lien status of such Liens have been duly made or
taken and remain in full force and effect, other than the filing of any UCC
financing statements and other filings contemplated to be made on the Effective
Date which have been delivered to Collateral Agent for filing (but not yet
filed), the filing of any Mortgages, the periodic filing of UCC continuation
statements in respect of UCC financing statements filed by or on behalf of
Collateral Agent and the entering into of any deposit account and securities
account control agreements. (c) No authorization, approval or other action by,
and no notice to or filing with, any governmental authority or regulatory body
is required for either (i) the pledge or grant by any Credit Party of the Liens
purported to be created in favor of Collateral Agent, for the benefit of Secured
Parties, pursuant to any of the Collateral Documents or (ii) the exercise by
Collateral Agent of any rights or remedies in respect of any Collateral (whether
specifically granted or created pursuant to any of the Collateral Documents or
created or provided for by applicable law), except for filings or recordings
contemplated by this Section 4.13 and except for consents referred to in
Sections 4.4 and 4.5 and except as may be required, in connection with the
disposition of any Pledged Collateral, by laws generally affecting the offering
and sale of securities and except as may be required in connection with the
foreclosure of any Mortgage. (d) Except such as may have been filed in favor of
Collateral Agent, for the benefit of Secured Parties, as contemplated by this
Section 4.13 or have been filed
74
in connection with Permitted Liens, (i) no effective UCC financing statement,
fixture filing or other instrument similar in effect covering all or any part of
the Collateral is on file in any filing or recording office and (ii) no
effective filing covering all or any part of the Collateral which is
Intellectual Property is on file in the United States Patent and Trademark
Office or the United States Copyright Office or any similar foreign or state
office.
4.14 ENVIRONMENTAL. Neither Holdings nor any of its Subsidiaries nor any
of their respective Facilities or operations are subject to any outstanding
written order, consent decree or settlement agreement with any Person relating
to (a) any Environmental Law, (b) any Environmental Claim, or (c) any Hazardous
Materials Activity that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect. Neither Holdings nor any of its
Subsidiaries has received any letter or request for information under Section
104 of the Comprehensive Environmental Response, Compensation, and Liability Act
(42 U.S.C. Section 9604) or any comparable state law which could reasonably be
expected to have a Material Adverse Effect. There are and, to Company's
knowledge, have been no conditions, occurrences, or Hazardous Materials
Activities which could reasonably be expected to form the basis of an
Environmental Claim against Holdings or any of its Subsidiaries that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect. Neither Holdings nor any of its Subsidiaries nor, to
Company's knowledge, any predecessor of Holdings or any of its Subsidiaries has
treated, stored or disposed of any hazardous waste at any Facility, and none of
Holdings' or any of its Subsidiaries' operations involves the treatment, storage
or disposal of hazardous waste that, in each case, would require a permit under
RCRA. Compliance with all current or reasonably foreseeable future requirements
pursuant to or under Environmental Laws will not, individually or in the
aggregate, have a reasonable possibility of giving rise to a Material Adverse
Effect. Notwithstanding anything in this Section 4.14 to the contrary, no event
or condition has occurred or is occurring with respect to Holdings or any of its
Subsidiaries relating to any Environmental Law, any Release of Hazardous
Materials, or any Hazardous Materials Activity which individually or in the
aggregate has had or could reasonably be expected to have a Material Adverse
Effect.
4.15 NO DEFAULTS. Neither Holdings nor any of its Subsidiaries is in
default in the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any of its Contractual Obligations, and no
condition exists that, with the giving of notice or the lapse of time or both,
would constitute such a default, except, in either case, where the consequences,
direct or indirect, of such default or defaults, if any, could not be reasonably
be expected to have a Material Adverse Effect.
4.16 GOVERNMENTAL REGULATION. Neither Holdings nor any of its Subsidiaries
is subject to regulation under the Public Utility Holding Company Act of 1935,
the Federal Power Act or the Investment Company Act of 1940 or under any other
federal or state statute or regulation which may limit its ability to incur
Indebtedness or which may otherwise render all or any portion of the Obligations
unenforceable.
4.17 MARGIN STOCK. Neither Holdings nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock. No part of
the proceeds of the Loans made to such Credit Party will be used to purchase or
carry any such Margin Stock or to extend credit
75
to others for the purpose of purchasing or carrying any such Margin Stock or for
any purpose that violates, or is inconsistent with, the provisions of Regulation
T, U or X of the Board of Governors of the Federal Reserve System.
4.18 EMPLOYEE MATTERS. There is no strike or work stoppage in existence or
threatened involving Holdings or any of its Subsidiaries that could reasonably
be expected to have a Material Adverse Effect.
4.19 EMPLOYEE BENEFIT PLANS. Company, each of its Subsidiaries and each of
their respective ERISA Affiliates are in compliance with all applicable
provisions and requirements of ERISA and the regulations and published
interpretations thereunder with respect to each Employee Benefit Plan, and have
performed in all material respects all their obligations under each Employee
Benefit Plan, except for such noncompliance which, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
Each Employee Benefit Plan which is intended to qualify under Section 401(a) of
the Internal Revenue Code is so qualified or will be qualified by admission of
such Plan for an IRS determination in a timely fashion, if not already
submitted, and the timely making of such amendments as may be required as a
condition for issuance of a favorable determination. No ERISA Event has occurred
or as of the date hereof is reasonable expected to occur where such Event
individually or in the aggregate would have a Material Adverse Effect. As of the
most recent valuation date for any Pension Plan, any amount of unfunded benefit
liabilities (as defined in Section 4001(a)(18) of ERISA "UNFUNDED BENEFIT
LIABILITIES"), individually or in the aggregate for all Pension Plans (except
for purposes of such computation any Pension Plans with respect to which assets
exceed benefit liabilities), could not reasonably be expected to have a Material
Adverse Effect. Neither Company, its Subsidiaries nor their respective ERISA
Affiliates has completely or partially withdrawn from any Multiemployer Plan, or
incurred termination liability to the PBGC or withdrawal liability to any
Multiemployer Plan. As of the most recent valuation date for each Multiemployer
Plan for which the actuarial report is available, the potential liability of
Company, its Subsidiaries and their respective ERISA Affiliates for a complete
withdrawal from such Multiemployer Plan (within the meaning of Section 4203 of
ERISA), when aggregated with such potential liability for a complete withdrawal
from all Multiemployer Plans, based on information available pursuant to Section
4221(e) of ERISA, could not reasonably be expected to have a Material Adverse
Effect.
4.20 [RESERVED].
4.21 SOLVENCY. Each Credit Party is and, upon the incurrence of any
Obligation by such Credit Party on any date on which this representation and
warranty is made, will be, Solvent.
4.22 CERTAIN RELATED AGREEMENTS. Holdings and Company have delivered to
the Administrative Agent complete and correct copies of the Stock Purchase
Agreement and the Management Agreement and, in each case, of all exhibits and
schedules thereto as of the date hereof.
4.23 [RESERVED].
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4.24 DISCLOSURE. No written information, reports, financial statements,
certificates or exhibits (other than any Projections) furnished to Lenders by or
on behalf of Company or any of its Subsidiaries for use in connection with the
transactions contemplated hereby, when taken as a whole, contained any untrue
statement of a material fact or omitted to state a material fact (known to
Company, in the case of any document not furnished by it) necessary in order to
make the statements contained herein or therein not materially misleading in
light of the circumstances in which the same were made. Any projections and pro
forma financial information (collectively, the "PROJECTIONS") contained in such
materials are based upon good faith estimates and assumptions believed by
Company to be reasonable at the time made, it being recognized by Lenders that
such Projections as to future events are not to be viewed as facts and that
actual results during the period or periods covered by any such projections may
differ from the projected results. There are no facts known to Company (other
than matters of a general economic nature) that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect
and that have not been disclosed herein or in such other documents, certificates
and statements furnished to Lenders for use in connection with the transactions
contemplated hereby.
4.25 INTELLECTUAL PROPERTY. Each of the Credit Parties owns or has the
valid right to use all Intellectual Property free and clear of any and all Liens
other than Permitted Liens. All registrations therefor are in full force and
effect and are valid and enforceable, except as could not be expected to have a
Material Adverse Effect. To each Credit Party's knowledge, the conduct of the
business of each Credit Party as currently conducted, including, but not limited
to, all products, processes, or services, made, offered or sold by each such
Credit Party, does not infringe upon, violate, misappropriate or dilute any
intellectual property of any third party which infringement is likely to have a
Material Adverse Effect. To the Credit Parties' knowledge, no third party is
infringing upon the Intellectual Property in any manner which could reasonably
be expected to have a Material Adverse Effect. There is no pending or, to each
Credit Party's knowledge, threatened claim or litigation contesting any Credit
Party's right to own or use any Intellectual Property or the validity or
enforceability thereof which could reasonably be expected to have a Material
Adverse Effect.
SECTION 5. AFFIRMATIVE COVENANTS
Until the Termination Date has occurred, each of Holdings and Company
shall, and shall (except in the case of the covenants set forth in Section 5.1)
cause each Subsidiary to:
5.1 FINANCIAL STATEMENTS AND OTHER REPORTS. Company will deliver to
Administrative Agent for further distribution (and which Administrative Agent
shall promptly distribute) to each Lender, in form and detail reasonably
satisfactory to Administrative Agent:
(a) as soon as available and in any event within twenty-five (25) days
after the end of each of the first two (2) months of each Fiscal Quarter ending
after the Closing Date (such reports, the "MONTHLY REPORTS"), (i) the
consolidated balance sheet of Company and its Subsidiaries as at the end of such
month and the related consolidated statements of income, stockholders' equity
and cash flows of Company and its Subsidiaries for such month and (ii) for any
Monthly Reports delivered after the first anniversary of the Closing Date, for
the period from the beginning of the then current Fiscal Year to the end of such
month, setting forth beginning
77
with the monthly financial statements for fiscal year 2005, in each case in
comparative form the corresponding figures for the corresponding periods of the
previous Fiscal Year, all in reasonable detail, together with a CFO
Certification and an MD&A with respect to each of the foregoing; provided,
during any period in which the Leverage Ratio as of the last day of the
immediately preceding Fiscal Quarter (determined for any such period by
reference to the most recent Compliance Certificate delivered pursuant to
Section 5.1(d) calculating the Leverage Ratio) is 4.50:1.00 or less, Company
shall not be required to deliver any Monthly Reports required by this Section
5.1(a) for such period;
(b) as soon as available and in any event within forty-five (45) days
after the end of the first three (3) Fiscal Quarters of each Fiscal Year, the
consolidated balance sheet of Company and its Subsidiaries as at the end of such
Fiscal Quarter and the related consolidated statements of income, stockholders'
equity and cash flows of Company and its Subsidiaries for such Fiscal Quarter
and for the period from the beginning of the then current Fiscal Year to the end
of such Fiscal Quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding periods of the previous Fiscal Year
and the corresponding figures from the Financial Plan for the current Fiscal
Year, all in reasonable detail, together with (i) a quarterly accounts
receivable exposure report for such Fiscal Quarter in the form prepared by
management of Company in the ordinary course of business and (ii) a CFO
Certification and an MD&A with respect thereto;
(c) as soon as available and in any event within ninety (90) days after
the end of each Fiscal Year, (i) the consolidated balance sheet of Company and
its Subsidiaries as at the end of such Fiscal Year and the related consolidated
statements of income, stockholders' equity and cash flows of Company and its
Subsidiaries for such Fiscal Year, setting forth in each case in comparative
form the corresponding figures for the previous Fiscal Year and the
corresponding figures from the Financial Plan for the Fiscal Year covered by
such financial statements, in reasonable detail, together with a CFO
Certification and an MD&A with respect thereto; and (ii) in the case of such
consolidated financial statements, a report thereon of PricewaterhouseCoopers
LLP or other independent certified public accountants of recognized national
standing selected by Company and in form and substance reasonably satisfactory
to Administrative Agent;
(d) together with each delivery of financial statements of Company and its
Subsidiaries pursuant to Sections 5.1(b) and 5.1(c), a duly executed and
completed Compliance Certificate;
(e) (i) if, as a result of any change in accounting principles and
policies from those used in the preparation of the Historical Financial
Statements, the consolidated financial statements of Company and its
Subsidiaries delivered pursuant to Section 5.1(a), 5.1(b) or 5.1(c) will differ
in any material respect from the consolidated financial statements that would
have been delivered pursuant to such subdivisions had no such change in
accounting principles and policies been made, then together with the first
delivery of such financial statements after such change, one or more statements
of reconciliation for all such prior financial statements in form and substance
satisfactory to Administrative Agent; and (ii) promptly upon receipt thereof
(unless restricted by applicable professional standards), copies of all final
management letters submitted to Company by independent certified public
accountants in connection with each
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annual, interim or special audit of the financial statements of Company and its
Subsidiaries made by such accountants, including any comment letter submitted by
such accountants to management in connection with their annual audit;
(f) together with each delivery of consolidated financial statements of
Company and its Subsidiaries pursuant to Section 5.1(c), a written statement by
the independent certified public accountants giving the report thereon stating
(i) that their audit examination has included a review of the terms of the
Credit Documents, (ii) whether, in connection therewith, any condition or event
that constitutes an Event of Default with regard to any of the Financial
Performance Covenants has come to their attention and, if such a condition or
event has come to their attention, specifying the nature and period of existence
thereof, it being understood that such audit examination was directed primarily
at accounting matters; and (iii) that nothing has come to their attention that
causes them to believe either or both that the information contained in any
Compliance Certificate is not correct or that the matters set forth in such
Compliance Certificate are not stated in accordance with the terms hereof;
(g) promptly upon their becoming available, copies of (i) all financial
statements, reports, notices and proxy statements sent or made available
generally by Company to its public security holders in such capacity or by any
Subsidiary of Company to its security holders other than Company or another
Subsidiary of Company, and (ii) all regular and periodic reports and all
registration statements (other than on Form S-8 or a similar form) and
prospectuses, if any, filed by Company or any of its Subsidiaries with any
securities exchange or with the Securities and Exchange Commission or any
governmental or private regulatory authority;
(h) promptly upon any Responsible Officer obtaining knowledge (i) of any
condition or event that constitutes a Default or an Event of Default or that
notice has been given to Company with respect thereto; (ii) that any Person has
given any notice to Company or any of its Subsidiaries or taken any other action
with respect to any event or condition set forth in Section 8.1(b); or (iii) of
the occurrence of any event or change that has caused or evidences, either in
any case or in the aggregate, a Material Adverse Effect, a certificate of its
Authorized Officers specifying the nature and period of existence of such
condition, event or change, or specifying the notice given or action taken by
any such Person and the nature of such claimed Event of Default, Default,
default, event or condition, and what action Company has taken, is taking and
proposes to take with respect thereto;
(i) promptly upon any Responsible Officer obtaining knowledge of (i) the
institution of, or any written threat of, any Adverse Proceeding not previously
disclosed in writing by Company to Lenders, or (ii) any material development in
any Adverse Proceeding that, in the case of either (i) or (ii) is reasonably
likely to give rise to a Material Adverse Effect, or seeks to enjoin or
otherwise prevent the consummation of, or to recover any damages or obtain
relief as a result of, the transactions contemplated hereby, written notice
thereof together with such other information as may be reasonably available to
Company to enable Lenders and their counsel to evaluate such matters;
(j) (i) promptly but in any event within twenty (20) days after Company,
any of its Subsidiaries or any of its ERISA Affiliates knows, or has reason to
know, that (1) any ERISA Event with respect to an Employee Benefit Plan has
occurred or will occur, or (2) Company, any
79
of its Subsidiaries or any of their respective ERISA Affiliates has applied for
a waiver of the minimum funding standard under Section 412 of the Code or
Section 302 of ERISA, or (3) the aggregate present value of the Unfunded Benefit
Liabilities under all Pension Plans has in any year increased by to an amount in
excess of $1,000,000, or (4) any ERISA Event occurs with respect to a
Multiemployer Plan which presents a material risk of a partial or complete
withdrawal (as described in Section 4203 or 4205 of ERISA) by Company, any of
its Subsidiaries or any of their respective ERISA Affiliates from a
Multiemployer Plan and such withdrawal is reasonably expected to trigger
withdrawal liability payments in any year in excess of $5,000,000, or (5)
Company, any of its Subsidiaries or any of their respective ERISA Affiliates is
in "default" (as defined in Section 4219(c)(5) of ERISA) with respect to
payments to a Multiemployer Plan, or (6) the potential withdrawal liability (as
determined in accordance with Title IV of ERISA) of Company, any of its
Subsidiaries and their respective ERISA Affiliates with respect to all
Multiemployer Plans has in any year increased to an amount in excess of
$5,000,000, or (7) there is an action brought against Company, any of its
Subsidiaries or any of their respective ERISA Affiliates under Section 502 of
ERISA with respect to its failure to comply with Section 515 of ERISA, a
certificate of the president or chief financial officer of Company setting forth
the details of each of the events described in clauses (1) through (7) above as
applicable and the action which Company, any of its Subsidiaries or their
respective ERISA Affiliates proposes to take with respect thereto, together with
a copy of any notice or filing from the PBGC or which may be required by the
PBGC or other agency of the United States government with respect to each of the
events described in clauses (1) through (7) above, as applicable;
(ii) As soon as possible and in any event within ten (10) Business
Days after the receipt by the Company (or to the knowledge of the Company,
after receipt by any of its Subsidiaries or any of their respective ERISA
Affiliates) of a demand letter from the PBGC notifying the Company, its
Subsidiaries or their respective ERISA Affiliates of its decision finding
liability, a copy of such letter, together with a certificate of the
president or chief financial officer of the Company setting forth the
action which the Company, its Subsidiaries or their respective ERISA
Affiliates proposes to take with respect thereto;
(k) as soon as practicable and in any event no later than sixty (60) days
after the beginning of each Fiscal Year, a consolidated plan and financial
forecast for such Fiscal Year (a "FINANCIAL PLAN"), including (i) a forecasted
consolidated balance sheet and forecasted consolidated statements of income and
cash flows of Company and its Subsidiaries for such Fiscal Year, together with
an explanation of the assumptions on which such forecasts are based, (ii)
forecasted consolidated statements of income and cash flows of Company and its
Subsidiaries for each month of each Fiscal Year, together with an explanation of
the assumptions on which such forecasts are based, and (iii) such other
information and projections as any Lender may reasonably request;
(l) with reasonable promptness, copies of any material amendment,
restatement, supplement or other modification to or waiver of the Stock Purchase
Agreement and the Management Agreement entered into after the date hereof;
(m) in the event that (Y) Credit Party acquires rights in Collateral that
requires delivery of a Pledge Supplement (as such term is defined in the Pledge
& Security Agreement)
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pursuant to Sections 4.2(b)(i), 4.3(c), 4.4.1(a)(i), 4.6(b), 4.7(b) and 4.8(b)
of the Pledge & Security Agreement, then Company shall deliver to the Collateral
Agent such Pledge Supplement, within twenty-five (25) days after the end of any
month in which such Collateral was acquired; and (z) any Credit Party changes
its name, type of organization or jurisdiction of organization, it shall comply
with the requirements set forth in Section 4.1(b) of the Pledge and Security
Agreement; and
(n) with reasonable promptness, such other information and data with
respect to Company or any of its Subsidiaries as from time to time may be
reasonably requested by any Lender (through the Administrative Agent).
5.2 LEGAL EXISTENCE, ETC. Except as permitted under Section 6.7, each
Credit Party will, and will cause each of its Subsidiaries to, at all times
preserve and keep in full force and effect its legal existence and all rights
and franchises material to its business; provided, that neither any Credit Party
nor any of its Subsidiaries shall be required to preserve any such right or
franchise if the preservation thereof is no longer desirable in the conduct of
the business of such Credit Party or such Subsidiary, as the case may be, and
that the loss thereof is not disadvantageous in any material respect to such
Credit Party, such Subsidiary or Lenders.
5.3 PAYMENT OF TAXES AND CLAIMS. Each Credit Party will, and will cause
each of its Subsidiaries to, pay all taxes, assessments and other governmental
charges imposed upon it or any of its properties or assets or in respect of any
of its income, businesses or franchises before any penalty accrues thereon, and
all claims (including claims for labor, services, materials and supplies) for
sums that have become due and payable and that by law have or may become a Lien
upon any of its properties or assets, prior to the time when any penalty or fine
shall be incurred with respect thereto; provided, no such charge or claim need
be paid (a) unless the failure to pay the same could reasonably be expected to
have a Material Adverse Effect or (b) if it is being contested in good faith by
appropriate proceedings so long as (i) such reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have been
made therefor, and (ii) in the case of a charge or claim which has or may become
a Lien against any of the Collateral, such contest proceedings conclusively
operate to stay the sale of any portion of the Collateral to satisfy such charge
or claim. Company will not, nor will it permit any of its Subsidiaries to, file
or consent to the filing of any consolidated, combined or unitary income tax
return with any Person (other than Parent, Holdings or any of Company's
Subsidiaries).
5.4 MAINTENANCE OF PROPERTIES. Each Credit Party will, and will cause each
of its Subsidiaries to, maintain or cause to be maintained in good repair,
working order and condition, ordinary wear and tear and casualty and
condemnation excepted, all material properties used or useful in the business of
Company and its Subsidiaries and from time to time during its useful life will
make or cause to be made all appropriate maintenance payments, repairs, renewals
and replacements thereof in accordance with prudent industry practice.
5.5 INSURANCE. Each Credit Party will and will cause its Subsidiaries to
maintain or cause to be maintained, with financially sound and reputable
insurers (including one or more Captive Insurance Subsidiaries), insurance with
respect to liabilities, losses or damage in respect of the assets, properties
and businesses of Company and its Subsidiary Guarantors as may
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customarily be carried or maintained under similar circumstances by Persons
engaged in similar businesses, in each case in such amounts (giving effect to
self-insurance), with such deductibles, covering such risks and otherwise on
such terms and conditions as shall be customary for Persons similarly situated
in the industry. Each such policy of insurance so insuring assets of any Credit
Party shall (a) name Administrative Agent for the benefit of Lenders as an
additional insured thereunder as its interests may appear and (b) in the case of
each business interruption and casualty insurance policy, contain a loss payable
clause or endorsement, satisfactory in form and substance to Administrative
Agent, that names Administrative Agent for the benefit of Lenders as the loss
payee thereunder for any covered loss in excess of $500,000 and provides for at
least thirty (30) days prior written notice to Administrative Agent of any
cancellation of such policy.
5.6 INSPECTION RIGHTS; LENDER MEETING. Each Credit Party will, and will
cause each of its Subsidiaries to, permit any authorized representatives
designated by any Lender to visit and inspect any of the properties of Company
or of any of its Subsidiaries, to inspect, copy and take copies of extracts from
its and their financial and accounting records, and to discuss its and their
affairs, finances and accounts with its and their officers and independent
public accountants (subject to reasonable requirements of confidentiality)
(provided, Company may, if it so chooses, be present at or participate in any
such discussion), all upon reasonable notice and at such reasonable times during
normal business hours and as often as may reasonably be requested; provided,
that excluding any such visits and inspections during the occurrence and
continuation of an Event of Default, the Lenders shall not exercise such rights
more often than two (2) times during any calendar year absent the existence of
an Event of Default and only one (1) such time shall be at Company's expense
absent the existence of an Event of Default. Company will, upon the request of
Agents or Requisite Lenders, participate in a meeting of Administrative Agent
and Lenders once during each Fiscal Year or, during the continuance of any
Default or Event of Default, as reasonably requested by the Agents or the
Requisite Lenders, to be held at Company's corporate offices (or at such other
location as may be agreed to by Company and Administrative Agent) at such time
as may be agreed to by Company and Administrative Agent.
5.7 COMPLIANCE WITH LAWS, ETC. Each Credit Party will comply, and shall
cause each of its Subsidiaries and, within its control, shall use its
commercially reasonable efforts to cause all other Persons, if any, on or
occupying any Facilities to comply, with the requirements of all applicable
laws, rules, regulations and orders of any governmental authority (including all
Environmental Laws), noncompliance with which could reasonably be expected to
cause, individually or in the aggregate, a Material Adverse Effect.
5.8 ENVIRONMENTAL MATTERS.
(a) Company agrees that Administrative Agent may, from time to time and in
its reasonable discretion, (i) retain, at Company's expense, an independent
professional consultant to review any environmental audits, investigations,
analyses and reports relating to Hazardous Materials prepared by or for Company
which Administrative Agent has requested and which indicates conditions or
circumstances which Administrative Agent reasonably believes may have a
significant impact on the business and operations of Company or its Subsidiaries
and (ii) in the event (a) Administrative Agent reasonably believes that Company
has breached any representation, warranty or covenant contained in Section 4.10,
Section 5.7 (as each such section
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pertains to environmental matters) or Section 4.14 or that there has been a
material violation of Environmental Laws at any Facility or by Company or any of
its Subsidiaries at any other location including the Linden, New Jersey site or
(b) an Event of Default has occurred and is continuing and the repayment of any
amount due hereunder has been accelerated, conduct its own investigation of any
Facility or violation; provided that, in the case of any Facility leased by
Company or any of its Subsidiaries, Company shall only be obligated to use its
reasonable efforts to obtain permission for Administrative Agent's professional
consultant to conduct an investigation of such Facility. For purposes of
conducting such a review and/or investigation, Company hereby grants to
Administrative Agent and its agents, employees, consultants and contractors the
right to enter into or onto any Facilities currently owned, leased, operated or
used by Company or any of its Subsidiaries. Any such investigation of any
Facility shall be conducted, unless otherwise agreed to by Company and
Administrative Agent, during normal business hours, shall be subject to the
terms and conditions of all applicable lease and lease-related documents and to
the requirements of landlords and, to the extent reasonably practicable, shall
be conducted so as not to interfere with the ongoing operations at such Facility
or to cause any damage or loss to any property at such Facility. Administrative
Agent and its agents, employees, consultants and contractors shall not perform
any subsurface investigations of soil or ground water without the prior written
authorization from Company, which authorization shall not be unreasonably
withheld, and, in the case of a leased Facility, without the prior written
authorization of the owner of such Facility. Company and Administrative Agent
hereby acknowledge and agree that any report of any investigation conducted at
the request of Administrative Agent pursuant to this Section 5.8 will be
obtained and shall be used by Administrative Agent and Lenders solely for the
purposes of Lenders' internal credit decisions, to monitor and police the Loans
and to protect Lenders' security interests, if any, created by the Credit
Documents. Administrative Agent agrees to deliver a copy of any such report to
Company with the understanding that Company acknowledges and agrees that (x) it
will indemnify and hold harmless Administrative Agent and each Lender from any
costs, losses or liabilities relating to Company's use of or reliance on such
report, (y) neither Administrative Agent nor any Lender makes any representation
or warranty with respect to such report, and (z) by delivering such report to
Company, neither Administrative Agent nor any Lender is requiring or
recommending the implementation of any suggestions or recommendations contained
in such report.
(b) Company will deliver to Administrative Agent and Lenders: (i) as soon
as practicable following receipt thereof, copies of all environmental audits,
investigations, analyses and reports of any kind or character, whether prepared
by personnel of Company or any of its Subsidiaries or by independent
consultants, governmental authorities or any other Persons, with respect to
significant environmental matters at any Facility which, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect
or with respect to any Environmental Claims which, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect;
(ii) promptly upon the occurrence thereof, written notice describing in
reasonable detail (1) any Release required to be reported to any federal, state
or local governmental or regulatory agency under any applicable Environmental
Laws which could reasonably be expected to have a Material Adverse Effect, (2)
any remedial action taken by Company or any other Person in response to (x) any
Hazardous Materials Activities the existence of which has a reasonable
possibility of resulting in one or more Environmental Claims having,
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individually or in the aggregate, a Material Adverse Effect, or (y) any
Environmental Claims that, individually or in the aggregate, have a reasonable
possibility of resulting in a Material Adverse Effect, and (3) Company's
discovery of any occurrence or condition on any real property adjoining or in
the vicinity of any Facility that is reasonably likely to cause such Facility or
any part thereof to be subject to any material restrictions on the ownership,
occupancy, transferability or use thereof under any Environmental Laws; (iii) as
soon as practicable following the sending or receipt thereof by Company or any
of its Subsidiaries, a copy of any and all written communications of a material
nature with respect to (1) any Environmental Claims that, individually or in the
aggregate, have a reasonable possibility of giving rise to a Material Adverse
Effect, (2) any Release required to be reported to any federal, state or local
governmental or regulatory agency which could reasonably be expected to have a
Material Adverse Effect, and (3) any request for information from any
governmental agency that suggests such agency is investigating whether Company
or any of its Subsidiaries may be potentially responsible for any Hazardous
Materials Activity which could reasonably be expected to have a Material Adverse
Effect; (iv) prompt written notice describing in reasonable detail (1) any
proposed acquisition of stock, assets, or property by Company or any of its
Subsidiaries that could reasonably be expected to (x) expose Company or any of
its Subsidiaries to, or result in, Environmental Claims that could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect or
(y) affect the ability of Company or any of its Subsidiaries to maintain in full
force and effect all material Governmental Authorizations required under any
Environmental Laws for their respective operations and (2) any proposed action
to be taken by Company or any of its Subsidiaries to modify current operations
in a manner that could reasonably be expected to subject Company or any of its
Subsidiaries to any material additional obligations or requirements under any
Environmental Laws that could reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect; and (v) with reasonable promptness,
such other documents and information as from time to time may be reasonably
requested by Administrative Agent in relation to any matters disclosed pursuant
to this Section 5.8.
5.9 SUBSIDIARIES. In the event that any Domestic Subsidiary which was a
Non-Guarantor Subsidiary ceases to be a Non-Guarantor Subsidiary or any Person
becomes a Subsidiary of Company after the date hereof, Company will promptly
notify Administrative Agent thereof and cause such Subsidiary to execute and
deliver to Administrative Agent a Counterpart Agreement and to take all such
further actions and execute all such further documents, instruments, agreements,
opinions and certificates (including those comparable to those described in
Section 3.1(b) and in the definition of Personal Property Collateral Documents)
as may be necessary or, in the reasonable opinion of Administrative Agent,
desirable to create in favor of Collateral Agent, for the benefit of Lenders, a
valid and perfected First Priority Lien on substantially all of the personal
assets of (and the equity Securities of) such Subsidiary required hereby and the
other Credit Documents. With respect to each such Subsidiary, Company shall send
to Administrative Agent written notice setting forth with respect to such Person
(a) the date on which such Person became a Subsidiary of Company, and (b) all of
the data required to be set forth in Schedule 4.1 with respect to all
Subsidiaries of Company. Notwithstanding the foregoing, Company shall not be
required to deliver a Counterpart Agreement or any of the other documents
described in this Section with respect to (w) any Domestic Subsidiary which is
not a Material Subsidiary, (x) any Captive Insurance Subsidiary, (y) the Co-Op
Subsidiary or (z) any
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Foreign Subsidiary; provided, however, that notwithstanding the foregoing at no
time shall (i) the aggregate amount of consolidated revenues of the
Non-Guarantor Subsidiaries (other than Persons referred to in clauses (x)
through (z) above) for the most recent Fiscal Quarter account for more than 5%
of the consolidated revenues of Company and its Subsidiaries for such Fiscal
Quarter or (ii) the aggregate amount of consolidated assets owned by the
Non-Guarantor Subsidiaries (other than Persons referred to in clauses (x)
through (z) above) at the end of the most recent Fiscal Quarter account for more
than 5% of the consolidated assets of Company and its Subsidiaries at the end of
such Fiscal Quarter, and if either such case shall occur, Company shall
immediately come into compliance with this Section 5.9 by notifying
Administrative Agent of the identity of a sufficient number of Non-Guarantor
Subsidiaries who are Domestic Subsidiaries (who shall cease to be Non-Guarantor
Subsidiaries) and causing such Domestic Subsidiaries to execute and deliver to
Administrative Agent a Counterpart Agreement and to take all such further
actions and execute all such further documents, instruments, agreements,
opinions and certificates (including those comparable to those described in
Section 3.1(b) and in the definition of Personal Property Collateral Documents)
as may be necessary or, in the opinion of Administrative Agent, desirable to
create in favor of Administrative Agent, for the benefit of Lenders, a valid and
perfected First Priority Lien on substantially all of the personal assets of
such Subsidiary required hereby and the other Credit Documents or (iii) with
respect to any Foreign Subsidiary that is in existence on the Effective Date or
hereafter acquired or formed, (x) more than 65% of the total outstanding voting
capital stock of any Foreign Subsidiary, the equity Securities of which are held
directly by a Credit Party, be required to be so pledged to secure the
Obligations of any Credit Party and (y) any Foreign Subsidiary be required to
pledge assets or provide guarantees under this Agreement or any other Credit
Document.
5.10 INTEREST RATE PROTECTION. No later than sixty (60) days following the
Closing Date and at all times thereafter until the second anniversary of the
Closing Date, Company shall maintain, or caused to be maintained protection
against fluctuations in interest rates pursuant to Eurodollar Rate Loans under
this Agreement having twelve-month Interest Periods, or otherwise pursuant to
one or more Interest Rate Agreements and otherwise in form and substance
reasonably satisfactory to Administrative Agent, in order to ensure that no less
than 50% of the aggregate principal amount of Consolidated Total Debt for
borrowed money outstanding as of Closing Date is either (i) subject to such
Eurodollar Rate Loans or Interest Rate Agreements or (ii) fixed rate
Indebtedness.
5.11 [RESERVED].
5.12 MATTERS RELATING TO ADDITIONAL REAL PROPERTY COLLATERAL.
(a) From and after the Closing Date, except with respect to any Real
Property Asset with a fair market value of less than $1,000,000 individually or
$5,000,000 in the aggregate from the Closing Date to the applicable date of
determination, in the event that (x) Company or any Subsidiary Guarantor
acquires any fee interest in real property or (y) at the time any Person becomes
a Subsidiary Guarantor, such Person owns or holds any fee interest in real
property, excluding any such Real Property Asset the encumbrancing of which
requires the consent of any applicable third party or (in the case of clause (y)
above) then-existing senior lienholder, where Company and its Subsidiaries are
unable after reasonably commercial efforts to obtain such third party's consent
(any such non-excluded Real Property Asset described in the foregoing clause (x)
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or (y) being an "ADDITIONAL MORTGAGED PROPERTY"), Company or such Subsidiary
Guarantor shall deliver to Collateral Agent, as soon as practicable after such
Person acquires such Additional Mortgaged Property or becomes a Subsidiary
Guarantor, as the case may be, the following: (i) a fully executed and notarized
Mortgage in proper form for recording in all appropriate places in all
applicable jurisdictions, encumbering the interest of such Credit Party in such
Additional Mortgaged Property; (ii) (a) a favorable opinion of counsel to such
Credit Party, in form and substance reasonably satisfactory to Collateral Agent
and its counsel, as to the due authorization, execution and delivery by such
Credit Party of such Mortgage and such other matters as Collateral Agent may
reasonably request, and (b) if required by Collateral Agent, an opinion of
counsel (which counsel shall be reasonably satisfactory to Collateral Agent) in
the state in which such Additional Mortgaged Property is located with respect to
the enforceability of the form of Mortgage to be recorded in such state and such
other matters (including any matters governed by the laws of such state
regarding personal property security interests in respect of any Collateral
located on such Additional Mortgaged Property) as Collateral Agent may
reasonably request, in each case in form and substance reasonably satisfactory
to Collateral Agent; (iii) (a) if reasonably required by Collateral Agent, an
ALTA mortgagee title insurance policy or an unconditional commitment therefor
(an "ADDITIONAL MORTGAGE POLICY") issued by the Title Company with respect to
such Additional Mortgaged Property, in an amount reasonably satisfactory to
Collateral Agent, taking into consideration the interest of the Credit Party in
such Additional Mortgaged Property, insuring Collateral Agent against loss or
damage due to title to such Additional Mortgaged Property being vested in a
Person other than such Credit Party and assuring Collateral Agent that such
Mortgage creates a valid and enforceable First Priority Lien on such Additional
Mortgaged Property, subject only to the standard exceptions, which Additional
Mortgage Policy (1) shall, to the extent available in such jurisdiction, include
an endorsement for mechanics' liens, for future advances under this Agreement
and for any other matters reasonably requested by Collateral Agent and (2) shall
provide for affirmative insurance and such reinsurance as Collateral Agent may
reasonably request, all of the foregoing in form and substance reasonably
satisfactory to Collateral Agent; and (b) evidence satisfactory to Collateral
Agent that such Credit Party has (i) delivered to the Title Company all
certificates and affidavits required by the Title Company in connection with the
issuance of the Mortgage Policy and (ii) paid to the Title Company or to the
appropriate governmental authorities all expenses and premiums of the Title
Company in connection with the issuance of the Additional Mortgage Policy and
all recording and stamp taxes (including mortgage recording and intangible
taxes) payable in connection with recording the Mortgage in the appropriate real
estate records; (v) if no Additional Mortgage Policy is required with respect to
such Additional Mortgaged Property, a title report issued by the Title Company
with respect thereto, dated not more than thirty (30) days prior to the date
such Mortgage is to be recorded (or if not possible to obtain a title report
dated less than thirty (30) days prior to such date, then dated as closely as
possible prior to such date, but in no event more than sixty (60) days prior to
such date) and satisfactory in form and substance to Collateral Agent; (vi)
copies of all recorded documents listed as exceptions to title or otherwise
referred to in the Additional Mortgage Policy or title report delivered pursuant
to clause (v) or (vi) above; and (vii) (a) evidence, which may be in the form of
a certificate from an insurance broker or a municipal engineer, as to (1)
whether such Additional Mortgaged Property is a Flood Hazard Property and (2) if
so, whether the community in which such Flood Hazard Property is located is
participating in the National Flood Insurance Program, (b) if such Additional
Mortgaged Property is a Flood Hazard Property, such Credit Party's written
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acknowledgement of receipt of written notification from Collateral Agent (1)
that such Additional Mortgaged Property is a Flood Hazard Property and (2) as to
whether the community in which such Flood Hazard Property is located is
participating in the National Flood Insurance Program, and (c) in the event such
Additional Mortgaged Property is a Flood Hazard Property that is located in a
community that participates in the National Flood Insurance Program, evidence
that Company has obtained flood insurance in respect of such Flood Hazard
Property to the extent required under the applicable regulations of the Board of
Governors of the Federal Reserve System.
(b) Company shall, and shall cause each of its Subsidiaries to, permit an
independent real estate appraiser satisfactory to Collateral Agent, upon
reasonable notice, to visit and inspect any Additional Mortgaged Property for
the purpose of preparing an appraisal of such Additional Mortgaged Property
satisfying the requirements of any applicable laws and regulations (in each case
to the extent required under such laws and regulations as determined by
Collateral Agent in its discretion).
5.13 FURTHER ASSURANCES. Each of Holdings and Company shall take, and
cause each of its Subsidiaries to take, such actions as Collateral Agent may
reasonably request from time to time (including, without limitation, the
execution and delivery of guaranties, security agreements, pledge agreements,
Mortgages, stock powers, financing statements and other documents, the filing or
recording of any of the foregoing, title insurance with respect to any of the
foregoing that relates to an interest in real property, and the delivery of
stock certificates and other collateral with respect to which perfection is
obtained by possession) to ensure that the Obligations are guarantied by
Guarantors and are secured by substantially all of the assets of Holdings and
the Credit Parties. In the event that any Credit Party creates a new Subsidiary,
all of the equity Securities of such new Subsidiary shall, to the extent
required by Section 5.9, be duly and validly pledged to Collateral Agent for the
benefit of the Secured Parties pursuant to the Collateral Documents, subject to
no other Liens. Notwithstanding the foregoing, the Collateral Agent shall not
take a security interest in those assets as to which the Collateral Agent shall
determine, in its reasonable discretion, that the cost of obtaining such Lien
(including any mortgage, stamp, intangibles or other tax) are excessive in
relation to the benefit to the Lenders of the security afforded thereby.
SECTION 6. NEGATIVE COVENANTS
Until the Termination Date has occurred, Holdings and Company shall not,
nor shall they permit any of their Subsidiaries to, directly or indirectly:
6.1 INDEBTEDNESS. Create, incur, assume or guaranty, or otherwise become
or remain directly or indirectly liable with respect to, any Indebtedness,
except:
(a) each of the Credit Parties may become and remain liable with respect
to its respective Obligations;
(b) Company and its Subsidiaries, as applicable, may remain liable with
respect to Indebtedness described in Schedule 6.1 annexed hereto and any
Permitted Refinancing Indebtedness in respect thereof;
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(c) Permitted Subordinated Indebtedness incurred or issued in an aggregate
amount not to exceed $25,000,000 in any Fiscal Year, unless the proceeds of such
excess amounts are applied to prepay the Loans pursuant to Section 2.13(c), and
Permitted Refinancing Indebtedness in respect thereof (provided that the
proceeds of such Permitted Refinancing Indebtedness in excess of the amount
applied to repay or prepay such Indebtedness are likewise applied to prepay the
Loans pursuant to Section 2.13(c));
(d) Company and its Subsidiaries may become and remain liable with respect
to Indebtedness under Capital Leases and purchase money Indebtedness; provided,
that the aggregate amount of all Indebtedness outstanding under this clause (d)
at any time shall not exceed $20,000,000;
(e) Indebtedness of (i) any Credit Party owing to any other Credit Party
(other than Indebtedness owed to Holdings), (ii) any Subsidiary of Holdings
which is not a Credit Party (1) to any other Subsidiary of Holdings which is not
a Credit Party and (2) to any other Subsidiary of Holdings which is a Credit
Party; provided, that any Indebtedness pursuant to this clause (2) shall have no
scheduled amortization or payments of principal prior to the date that is six
(6) months after the Tranche C Term Loan Maturity Date, (iii) any Credit Party
to any Subsidiary of Holdings which is not a Credit Party in respect of an
Investment permitted by Section 6.3(a)(iii); and (iv) Holdings owed to any of
its Subsidiaries in lieu of, and not in excess of the amount of Restricted
Junior Payments to the extent permitted to be made to Holdings in accordance
with Section 6.5; provided, that all such Indebtedness of any Credit Party
pursuant to this clause (e) must be expressly subordinated to the Obligations on
terms not materially less favorable than those set forth in the Senior
Subordinated Notes;
(f) Indebtedness in respect of the Senior Unsecured Term Loans and
Permitted Refinancing Indebtedness in respect thereof;
(g) [Reserved];
(h) Indebtedness incurred by Company with respect to the Senior
Subordinated Notes and any Permitted Refinancing Indebtedness in respect
thereof;
(i) (i) Indebtedness assumed in connection with Permitted Acquisitions (so
long as such Indebtedness was not incurred in anticipation of any such Permitted
Acquisitions), (ii) Indebtedness of newly acquired Subsidiaries acquired in such
Permitted Acquisitions (so long as such Indebtedness was not incurred in
anticipation of any such Permitted Acquisition); provided, that the aggregate
amount of the Indebtedness incurred pursuant to clauses (i) and (ii) shall not
exceed $25,000,000 in the aggregate at any time outstanding and Permitted
Refinancing Indebtedness in respect thereof, and (iii) Indebtedness owed to the
seller in any Permitted Acquisition constituting part of the purchase price
thereof in an aggregate amount not to exceed $50,000,000 at any time
outstanding; provided that such Indebtedness permitted pursuant to this clause
(iii) (1) does not provide for any prepayment or repayment of all or any portion
of the principal thereof prior to the date of the final scheduled installment of
principal of any of the Loans, (2) is subordinated in right of payment to the
Obligations and (3) upon the assumption or incurrence of Indebtedness permitted
pursuant to this clause (iii), Company and its Subsidiaries will be in
compliance with the covenants set forth in Section 6.6 on a Pro Forma Basis as
of the
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most recent Fiscal Quarter ended, after giving effect to such Permitted
Acquisition and the assumption or incurrence of such Indebtedness in connection
therewith;
(j) Indebtedness of Company and its Subsidiaries in connection with
workmen's compensation obligations and insurance premiums of Company and its
Subsidiaries;
(k) Holdings and its Subsidiaries may incur and permit to remain
outstanding Indebtedness (other than for borrowed money) subject to Liens
permitted by Section 6.2;
(l) Indebtedness of Holdings and its Subsidiaries representing deferred
compensation to employees of Holdings and its Subsidiaries;
(m) Indebtedness incurred by Holdings and its Subsidiaries to current or
former directors, officers and employees, their respective estates, spouses or
former spouses to finance the purchase or redemption of Capital Stock of Parent
or Holdings permitted by Section 6.5;
(n) Indebtedness incurred by Holdings or its Subsidiaries in a Permitted
Acquisition or an Asset Sale with respect to the adjustment of the purchase
price or similar adjustments;
(o) Indebtedness of Holdings or its Subsidiaries in respect of netting
services, overdraft protection and similar arrangements in each case in
connection with deposit accounts;
(p) unsecured Indebtedness of Holdings (and any Permitted Refinancing
Indebtedness in respect thereof) that (i) is not supported by any Contingent
Obligations of or Liens granted by Company or any of its Subsidiaries, (ii) will
not mature prior to the date that is six (6) months after the Tranche C Term
Loan Maturity Date, (iii) does not permit any payments in cash in respect of the
principal thereof for at least five (5) years from the date of the issuance of
incurrence thereof, and (iv) has mandatory prepayment, repurchase or redemption,
covenant, default and remedy provisions customary for senior discount notes of
an issuer that is the parent of a borrower under senior secured credit
facilities, and in any event not materially more restrictive than those
contained in the Senior Subordinated Note Indenture, taken as a whole (the
"HOLDCO NOTES"); provided, that an Authorized Officer of Company shall deliver
to Administrative Agent an officer's certificate demonstrating (w) both before
and after giving effect to the incurrence of such Indebtedness and the
application of proceeds thereof, no Default or Event of Default shall have
occurred and be continuing; (x) Company and its Subsidiaries will be in
compliance on a Pro Forma Basis with the covenants set forth in Section 6.6 as
of the most recently ended Fiscal Quarter, (y) the Total Leverage Ratio and the
Leverage Ratio determined on a Pro Forma Basis as of the most recent Fiscal
Quarter ended shall be less than 6.75:1.00 and 5.50:1.00 respectively, and (z)
the ratings on the Loans shall be at least equal to the rating on the Loans
received by Company from Xxxxx'x on the Closing Date, in the case of each of
clauses (x) through (z) above, after giving effect to the incurrence of such
Indebtedness and the application of the proceeds thereof; provided, further,
that proceeds of such Indebtedness shall be applied by Holdings to refinance
such Debt or make Investments and/or Restricted Junior Payments to the extent
permitted by Section 6.3 and Section 6.5, respectively;
(q) Company and its Subsidiaries may become and remain liable with respect
to Contingent Obligations under Hedge Agreements permitted hereunder;
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(r) Indebtedness constituting Contingent Obligations if the incurrence of
the primary obligation is otherwise permitted by this Section 6.1 (other than
Contingent Obligations by Company and its Subsidiaries with respect to
Indebtedness of Holdings);
(s) Company and its Subsidiaries may become and remain liable with respect
to repurchase obligations with respect to the Floor Plan Sales;
(t) Foreign Subsidiaries may become and remain liable with respect to
Indebtedness in an aggregate principal amount at any time outstanding not
exceeding $30,000,000; and
(u) Indebtedness of Company and its Subsidiaries not otherwise permitted
by this Section 6.1 in an aggregate principal amount at any time outstanding not
exceeding $40,000,000.
6.2 LIENS. Create, incur, assume or permit to exist any Lien on or with
respect to any property or asset of any kind, whether now owned or hereafter
acquired, or file or authorize the filing of, any financing statement under the
UCC of any State or under any similar recording or notice statute, except:
(a) Permitted Encumbrances;
(b) Liens described in Schedule 6.2 annexed hereto and modifications,
replacements, renewals or extensions thereof; provided, that (i) the Lien does
not extend to any additional property other than (a) after-acquired property
that is affixed to or incorporated in the property covered by such Lien or
financed by Indebtedness permitted under Section 6.1(d) and (b) the proceeds and
products thereof and (ii) the modification, replacement, renewal or extension of
the obligations secured or benefited by such Liens is permitted by Section 6.1;
(c) purchase money Liens (including mortgages, conditional sales, Capital
Leases and any other title retention or deferred purchase devices) in real or
tangible personal property of Company or any of its Subsidiaries existing or
created at the time of acquisition thereof or, in the case of tangible and
personal property, within sixty (60) days thereafter, or in the case of real
property, within one hundred twenty (120) days thereafter and the modification,
refinancing, refunding, renewal or extension of any such Liens; provided, that
the Indebtedness secured by or benefited by such Lien is permitted by Section
6.1 hereof;
(d) Liens granted pursuant to the Credit Documents;
(e) Liens on property of any of Company's Foreign Subsidiaries created
solely for the purpose of securing Indebtedness of any Foreign Subsidiary
permitted by Section 6.1;
(f) Liens on property of Company or any of its Subsidiaries created solely
for the purpose of securing Indebtedness permitted by Section 6.1(i)(i) or (ii)
and the proviso to such clauses (so long as such Lien was not incurred in
anticipation of the related acquisition); provided that no such Lien incurred in
connection with such Indebtedness shall extend to or cover other property of
Company or such Subsidiary other than the respective property so acquired and
the proceeds and the products thereof;
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(g) Liens on documents of title and the property covered thereby securing
Indebtedness in respect of commercial letters of credit;
(h) Liens (i) on cash advances in favor of the seller of any property to
be acquired in an Investment permitted by Section 6.3 to be applied against the
purchase price thereof and (ii) consisting of a definitive agreement to dispose
of property in an Asset Sale permitted under Section 6.7;
(i) Liens arising out of conditional sale, title retention, consignment or
similar arrangements for the sale of goods entered into by Company and its
Subsidiaries in the ordinary course of business and permitted hereby;
(j) Liens deemed to exist in connection with Investments in repurchase
agreements permitted under Section 6.3;
(k) Liens in connection with workmen's compensation obligations and
general liability exposure of Company and its Subsidiaries; and
(l) Liens on assets of Company and its Subsidiaries not otherwise
permitted under this Section 6.2, securing Indebtedness or other obligations in
an aggregate principal amount at any time outstanding not in excess of
$40,000,000.
Except with respect to (a) this Agreement, (b) the Senior Unsecured Term Loan
Agreement, (c) specific property encumbered to secure payment of particular
Indebtedness or to be sold pursuant to an executed agreement with respect to an
Asset Sale, (d) the agreements entered into with Net Jet Sales, Inc. for the
purchase of fractional interests in a corporate jet by Company, (e) customary
restrictions contained in leases, subleases, licenses and sublicenses permitted
hereunder and (f) documents evidencing any Indebtedness permitted by Section
6.1, no Credit Party nor any of its Subsidiaries shall enter into any agreement
prohibiting the creation or assumption of any Lien upon any of its properties or
assets, whether now owned or hereafter acquired to secure the Obligations.
6.3 INVESTMENTS. Make or own any Investment in any Person, including any
Joint Venture, except:
(a) Investments by (i) Holdings or any of its Subsidiaries in any Credit
Party (but, in the case of Investments by a Credit Party in Holdings only to the
extent set forth in Section 6.1(e)), including any new Subsidiary which becomes
a Credit Party pursuant to Section 5.9, (ii) by any Subsidiary of Holdings which
is not a Credit Party (1) in any other Subsidiary of Holdings that is also not a
Credit Party and (2) in any Subsidiary of Holdings that is a Credit Party, and
(iii) Holdings and the other Credit Parties in any Subsidiary of Holdings that
is not a Credit Party in an aggregate amount pursuant to this clause (iii) not
to exceed $30,000,000 at any one time outstanding (net of any dividends or
distributions, or prepayments or payments of interest by such Subsidiaries);
(b) Investments existing on the Closing Date and set forth on Schedule 6.3
and any modification, replacement, renewal or extension thereof; provided that
the amount of the original
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Investment is not increased except by the terms of such Investment or as
otherwise permitted by this Section 6.3;
(c) Company and its Subsidiaries may make and own Investments in Cash
Equivalents;
(d) Company and its Subsidiaries may make Consolidated Capital
Expenditures permitted hereunder;
(e) Holdings and its Subsidiaries may acquire the Securities of any Person
or a line of business or division of, or all or substantially all of the
business, property or assets of any Person the Cash consideration for which
constitutes $100,000,000 in the aggregate from the Closing Date to the date of
determination; provided that (i) Company shall give Administrative Agent at
least five (5) days' notice of the proposed transaction, (ii) Company and its
Subsidiaries shall have beneficial ownership of all of the equity Securities of
the Person acquired and shall comply with the provisions of Section 5.9, (iii)
any business acquired shall be located in the United States or if located
outside of the United States and acquired by a Foreign Subsidiary, such
Investment shall be made in compliance with the provisions of this Section 6.3
with respect to Investments in Foreign Subsidiaries and, unless the Leverage
Ratio determined on a Pro Forma Basis as of the most recent Fiscal Quarter
ended, is less than 5.00:1.00 at the time of such acquisition all acquisitions
of Foreign Subsidiaries, foreign properties and foreign assets shall together
not exceed $50,000,000 in the aggregate from the Closing Date to the date of
determination, (iv) Company shall deliver a certificate of an Authorized Officer
to Administrative Agent and Lenders in form and substance reasonably
satisfactory to Administrative Agent, together with the related financial
statements, demonstrating in reasonable detail that, after giving effect to the
acquisition of such Person or such business, property or assets (including any
Indebtedness incurred or assumed therein), Company and its Subsidiaries are
otherwise in compliance on a Pro Forma Basis with the covenants set forth in
Section 6.6 and (v) both before and after giving effect to the consummation of
such acquisition, no Default or Event of Default shall exist;
(f) Holdings and its Subsidiaries may make loans and advances to
directors, officers and employees of Parent and its Subsidiaries in an aggregate
amount not to exceed $5,000,000 outstanding at any time;
(g) Company and its Subsidiaries may make and own Investments consisting
of notes and other non-Cash consideration received in connection with any Asset
Sale permitted by Section 6.7(k), (o) and (p);
(h) Company and its Subsidiaries may make and own Investments received in
connection with the bankruptcy or reorganization of suppliers and customers and
in settlement of delinquent obligations of, and other disputes with, suppliers
and customers arising in the ordinary course of business and upon the
foreclosure with respect to any secured Investment or other transfer of title
with respect to a secured Investment;
(i) Company and its Subsidiaries may make and own Investments in
Subsidiaries created and operated as a captive insurance company (the "CAPTIVE
INSURANCE SUBSIDIARY") in an
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aggregate amount not to exceed $10,000,000 (net of any dividends or
distributions, or prepayments or payments of interest by the Captive Insurance
Subsidiary to Company or any of its Subsidiary Guarantors);
(j) Investments constituting Indebtedness permitted to be incurred under
Sections 6.1, 6.2, 6.5 and 6.7;
(k) Investments in Hedge Agreements permitted hereunder;
(l) [RESERVED];
(m) Investments in the ordinary course of business consisting of (i)
endorsements for collection or deposit and (ii) customary trade arrangements
with customers;
(n) loans and advances to Holdings (and by Holdings to Parent) in lieu of,
and not in excess of the amount of (after giving effect to any other loans,
advances, or Restricted Junior Payments in respect thereof) Restricted Junior
Payments to the extent permitted to be made to Holdings (and by Holdings to
Parent) in accordance with Section 6.5;
(o) Holdings may repurchase Holdings' Securities to the extent permitted
by Section 6.5;
(p) Investments in Co-Op Subsidiary in an amount not to exceed $30,000,000
in the aggregate from the Closing Date to the date of determination; and
(q) Holdings and its Subsidiaries may make and own other Investments not
otherwise permitted under this Section 6.3 in an aggregate principal at any time
outstanding not exceeding $75,000,000; provided that if such Investment is
consummated by Holdings, Holdings shall, immediately following the closing
thereof, cause the assets or Securities acquired to be contributed to Company or
its Subsidiaries or the merger of Company or its Subsidiaries with the Person
formed to consummate or acquire such Investment; provided, further, that such
amount may be increased by an additional $25,000,000 at such time as the
Leverage Ratio is less than 4.50:1.00.
In addition to the Investments permitted pursuant to this Section 6.3, Holdings
and its Subsidiaries may make additional Investments (which shall not be counted
in the limitations set forth above) as follows: Investments consisting of (i)
the reinvestment of the proceeds of issuances of Securities by Holdings not
required to prepay Loans pursuant to Section 2.13(b) (other than Permitted Cure
Securities) or used to make Restricted Junior Payments, (ii) the reinvestment of
that portion of Consolidated Excess Cash Flow not required to be used to make
prepayments pursuant to Section 2.13(d) and (iii) the proceeds received by
Holdings in connection with any Indebtedness incurred by Holdings permitted
pursuant to Section 6.1(p) less any proceeds of such Indebtedness that are
applied to make Restricted Junior Payments permitted pursuant to Section 6.5(o);
provided that, if such Investment is consummated by Holdings, Holdings shall,
immediately following the closing thereof, cause the assets or Securities
acquired to be contributed to Company or its Subsidiaries or the merger of
Company or its Subsidiaries with the Person formed to consummate or acquire such
Investment (other than
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any promissory note of Parent received by Holdings in connection with loans and
advances by Holdings to Parent in lieu of, and not in excess of, the amount of
(after giving effect to any other loans, advances or Restricted Junior Payments
in respect thereof) Restricted Junior Payments to the extent permitted to be
made by Holdings pursuant to Section 6.5).
6.4 [RESERVED].
6.5 RESTRICTED JUNIOR PAYMENTS. Declare, order, pay, make or set apart any
sum for any Restricted Junior Payment, except:
(a) each Subsidiary of Company may make Restricted Junior Payments to
Company and to Subsidiaries of Company and, in the case of a Restricted Junior
Payment by a non-wholly owned Subsidiary, to Company and any Subsidiary and to
each other owner of Securities of such Subsidiary based on their relative
ownership interests;
(b) Company and its Subsidiaries may make regularly scheduled payments of
interest in respect of Subordinated Indebtedness, in each case in accordance
with the terms of, and only to the extent required by, and subject to the
subordination provisions contained in, the indenture or other agreement pursuant
to which such Subordinated Indebtedness was issued, as such indenture or other
agreement may be amended from time to time to the extent permitted under Section
6.11;
(c) Company may make Restricted Junior Payments to Holdings to permit the
payment of Management Fees; provided that, at the time of such Restricted Junior
Payment and immediately after giving effect thereto, no Event of Default shall
have occurred and be continuing under Section 8.1(a), 8.1(f) and 8.1(g);
provided, further that in the event such payment is prohibited by the preceding
proviso, such Management Fees shall continue to accrue and all accrued but
unpaid amounts shall be payable following the waiver of any such Event of
Default;
(d) Company may make Restricted Junior Payments to Holdings, the proceeds
of which will be used (i) to permit Holdings to pay (or to make a Restricted
Junior Payment to Parent to enable it to pay) ordinary operating expenses
(including, without limitation, directors' fees, indemnification obligations,
professional fees and expenses) in an aggregate amount not to exceed $2,000,000
in any Fiscal Year; (ii) by Holdings to pay (or to make a Restricted Junior
Payment to Parent to enable it to pay) its tax liability for the relevant
jurisdiction(s) in respect of consolidated, combined, unitary or affiliated
returns for the relevant jurisdiction of Holdings or Parent, as applicable,
determined as if Company and its Subsidiaries filed separate returns; and (iii)
by Holdings to pay its (or to make a Restricted Junior Payment to Parent to
enable it to pay its) franchise or similar taxes;
(e) Company may make Restricted Junior Payments to Holdings (and Holdings
may make Restricted Junior Payments to Parent) to the extent required for
Holdings to repurchase its capital stock from deceased or retired employees and
from employees whose employment with Parent or any of its Subsidiaries has
terminated for any other reason but only to the extent mandatorily required by
the Internal Revenue Code or ERISA;
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(f) Company may make Restricted Junior Payments to Holdings to permit
Holdings to repurchase its securities (or to make a Restricted Junior Payment to
Parent to enable it to repurchase its Securities) from directors, officers,
employees or members of management of Parent or any Subsidiary (or their estate,
family members, spouse or former spouse); provided, that (i) at the time of such
Restricted Junior Payment and immediately after giving effect thereto, no Event
of Default shall have occurred and be continuing and (ii) the aggregate amount
of Restricted Junior Payments made pursuant to this clause (f) in any Fiscal
Year shall not exceed $3,000,000 plus the proceeds of any key-man life insurance
maintained by Parent or its Subsidiaries and the proceeds of any sale of
Securities to directors, officers, employees or members of management of Parent
or any Subsidiary; provided, that Company may carry-over and make in any
subsequent Fiscal Year or years, in addition to the amount for such Fiscal Year,
the amount not utilized in the prior Fiscal Year or years up to a maximum of
$12,000,000; provided, further that in the event Company or Holdings are not
permitted to not make such Restricted Junior Payments in cash pursuant to this
clause (f), Company may issue to Holdings (and Holdings may issue to Parent and
Parent may issue to the holder of such Securities), as consideration for such
repurchase, either (a) a promissory note payable to the holder of such
Securities or (b) preferred equity Securities (which if issued by Holdings, such
preferred stock shall otherwise be permitted by Section 6.11(c)), in each case
for the balance of any repurchase price which is not permitted to be paid in
cash, it being understood that no payment in cash may be permitted to be made by
Company to Holdings (and by Holdings to Parent) in respect of any such
promissory note or preferred equity Securities unless and until cash payments
are again permitted pursuant to this Section 6.5(f);
(g) Company may make Restricted Junior Payments in respect of any
repurchase, redemption or repayment of the Senior Subordinated Notes; provided,
that (X) at the time of such Restricted Junior Payment and immediately after
giving effect thereto, no Event of Default shall have occurred and be
continuing, and (Y) the aggregate amount of such Restricted Junior Payments made
pursuant to this clause (g) shall not exceed $20,000,000;
(h) Company may make Restricted Junior Payments to Holdings in order to
allow Holdings to make cash payments of interest with respect to the Holdco
Notes so long as (X) after giving effect to such Restricted Junior Payment,
Company's minimum interest coverage ratio is, on a Pro Forma Basis, 0.25% better
than the minimum interest coverage ratio then required to be maintained pursuant
to Section 6.6(a) and (Y) at the time of such Restricted Junior Payment and
immediately after giving effect thereto, no Event of Default shall have occurred
and be continuing;
(i) Company may make Restricted Junior Payments to Holdings to finance any
Investment by Holdings to the extent permitted to be made pursuant to Section
6.3; provided, that such Restricted Junior Payment shall be made concurrently
with the closing of such Investment;
(j) to the extent they constitute Restricted Junior Payments, Company and
its Subsidiaries may enter into the transactions contemplated by Sections 6.7
and 6.10;
(k) Holdings and its Subsidiaries may make repurchases of Securities
deemed to occur upon the non-cash exercise of stock options and warrants;
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(l) [Reserved];
(m) Restricted Junior Payments to Holdings (and by Holdings to Parent),
the proceeds of which will be used to make cash payments in lieu of issuing
fractional shares of Holdings (or Parent) in an aggregate amount not to exceed
$50,000;
(n) so long as no Default or Event of Default shall have occurred and be
continuing or would be caused thereby, Company may make additional Restricted
Junior Payments to Holdings, the proceeds of which may be utilized by Holdings
to make additional Restricted Junior Payments, in an aggregate not to exceed 50%
of the Consolidated Net Income for the period (taken as one accounting period)
from the beginning of the first Fiscal Quarter commencing after the Closing Date
to the end of most recently ended Fiscal Quarter for which internal consolidated
financial statements of Company are available at the time of such Restricted
Junior Payment (or, if such Consolidated Net Income for such period is a
deficit, less 100% of such deficit) less the amount of any Restricted Junior
Payments previously made pursuant to this Section 6.5(n); provided, that
notwithstanding the foregoing, until such time as the Leverage Ratio determined
on a Pro Forma Basis is less than 5.00:1.00 at any date of determination, all
such Restricted Junior Payments shall accumulate, but shall not be payable or
paid;
(o) in addition to the foregoing, Restricted Junior Payments, so long as
no Default or Event of Default shall have occurred and be continuing or be
caused thereby, Holdings may make additional Restricted Junior Payments with the
proceeds of (y) the Holdco Notes less, any proceeds of such Indebtedness that
are applied to make Investments permitted pursuant to Section 6.3 and (z) with
the proceeds of any issuances of Securities not required to prepay the Loans
pursuant to Section 2.13(b) (other than Permitted Cure Securities) or used to
make Investments; and
(p) in the event that the net proceeds of the Parent IPO are at least
$125,000,000, Company may make Restricted Junior Payments funded with such net
proceeds in respect of either (i) any repurchase, redemption or repayment of the
Senior Subordinated Notes, (ii) any repayment of the Senior Unsecured Term Loans
and/or (iii) any repurchase, redemption or repayment of any Holdco Notes; and
Any Restricted Junior Payments by Company to Holdings permitted under this
Section 6.5 shall be applied by Holdings for the purposes specified in this
Section 6.5.
6.6 FINANCIAL COVENANTS.
(a) MINIMUM CASH INTEREST COVERAGE RATIO. Permit the ratio of (i)
Consolidated Adjusted EBITDA to (ii) Consolidated Cash Interest Expense for any
four-Fiscal Quarter period ending on the dates set forth below to be less than
the correlative ratio indicated, provided that for purposes of calculating
Consolidated Cash Interest Expense in this Section 6.6(a), Consolidated Cash
Interest Expense shall be equal to (i) for the period ending MARCH 31, 2004,
Consolidated Cash Interest Expense for the Fiscal Quarter ended MARCH 31, 2004
multiplied by 4, (ii) for the period ending JUNE 30, 2004, Consolidated Cash
Interest Expense for the two Fiscal Quarters ended JUNE 30, 2004 multiplied by
2, and (iii) for the period ending SEPTEMBER
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30, 2004, Consolidated Cash Interest Expense for the three Fiscal Quarters ended
SEPTEMBER 30, 2004 multiplied by one and one-third:
MINIMUM CASH INTEREST CHARGE
FOUR FISCAL QUARTER PERIOD ENDING COVERAGE RATIO
-----------------------------------------------------------------------------------
March 31, 2004 2.25:1.00
June 30, 2004 2.25:1.00
September 30, 2004 2.25:1.00
December 31, 2004 2.25:1.00
March 31, 2005 2.30:1.00
June 30, 2005 2.30:1.00
September 30, 2005 2.30:1.00
December 31, 2005 2.30:1.00
March 31, 2006 2.40:1.00
June 30, 2006 2.40:1.00
September 30, 2006 2.40:1.00
December 31, 2006 2.40:1.00
March 31, 2007 2.55:1.00
June 30, 2007 2.55:1.00
September 30, 2007 2.55:1.00
December 31, 2007 2.55:1.00
March 31, 2008 2.75:1.00
June 30, 2008 2.75:1.00
September 30, 2008 2.75:1.00
December 31, 2008 2.75:1.00
March 31, 2009 3.00:1.00
June 30, 2009 3.00:1.00
September 30, 2009 3.00:1.00
December 31, 2009 3.00:1.00
and each Fiscal Quarter ending thereafter
(b) MAXIMUM LEVERAGE RATIO. Permit the Leverage Ratio as of the last day
of any Fiscal Quarter ending on the dates set forth below to exceed the
correlative ratio indicated:
DATE MAXIMUM LEVERAGE RATIO
--------------------------------------------------------------------------------------
March 31, 2004 6.85:1.00
June 30, 2004 6.85:1.00
September 30, 2004 6.85:1.00
December 31, 2004 6.85:1.00
March 31, 2005 6.50:1.00
June 30, 2005 6.50:1.00
September 30, 2005 6.50:1.00
December 31, 2005 6.50:1.00
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DATE MAXIMUM LEVERAGE RATIO
--------------------------------------------------------------------------------------
March 31, 2006 6.00:1.00
June 30, 2006 6.00:1.00
September 30, 2006 5.75:1.00
December 31, 2006 5.75:1.00
March 31, 2007 5.00:1.00
June 30, 2007 5.00:1.00
September 30, 2007 5.00:1.00
December 31, 2007 5.00:1.00
March 31, 2008 4.50:1.00
June 30, 2008 4.50:1.00
September 30, 2008 4.50:1.00
December 31, 2008 4.50:1.00
March 31, 2009 4.00:1.00
June 30, 2009 4.00:1.00
September 30, 2009 4.00:1.00
December 31, 2009 4.00:1.00
and each Fiscal Quarter ending thereafter
(c) CERTAIN CALCULATIONS. With respect to any period during which a
Permitted Acquisition or a PF Asset Sale has occurred, for purposes of
determining compliance with the financial covenants set forth in this Section
6.6 (but not for purposes of determining the Applicable Commitment Fee
Percentage or the Applicable Margin), Consolidated Adjusted EBITDA shall be
calculated with respect to such period on a Pro Forma Basis giving effect to
such Permitted Acquisition or PF Asset Sale.
6.7 FUNDAMENTAL CHANGES; ASSET SALES. Except to the extent otherwise
permitted under this Agreement, alter the corporate, capital or legal structure
(except in a way that does not have a Material Adverse Effect) of Holdings,
Company or any of its Subsidiaries, consummate any transaction of merger or
consolidation, or liquidate, wind-up or dissolve itself (or suffer any
liquidation or dissolution), or consummate any Asset Sale except:
(a) any Subsidiary of Company may be merged with or into Company or any
Subsidiary of Company, or be liquidated, wound up or dissolved into, or all or
any part of its business, property or assets may be conveyed, sold, leased,
transferred or otherwise disposed of, in one transaction or a series of
transactions, to Company or any Subsidiary of Company; provided that, (i) in the
case of such a merger involving Company, Company shall be the continuing or
surviving Person or the surviving Person shall be a Person organized under the
laws of the United States of America and expressly assume the obligations of
Company pursuant to documents reasonably acceptable to Administrative Agent,
(ii) when any Guarantor is merging with any other Subsidiary (a) Guarantor shall
be the surviving Person or (b) such transaction shall constitute an Investment
which Investment must otherwise be permitted under Section 6.3 and (iii) in the
case of any Asset Sale, such assets shall be transferred to Company or its
Subsidiaries or such transaction shall constitute an Investment which Investment
must otherwise be permitted under Section 6.3;
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(b) any Subsidiary may merge with any other Person in order to effect an
Investment permitted under Section 6.3; provided that (i) the surviving Person
shall be a Subsidiary which, to the extent required, shall have complied with
Section 5.9 or (ii) to the extent constituting an Investment, such Investment
must otherwise be permitted under Section 6.3;
(c) any merger, consolidation, liquidation, wind-up or dissolution, the
purpose of which is to effect a disposition otherwise permitted by this Section
6.7;
(d) inventory sold in the ordinary course of business;
(e) obsolete, worn out or surplus property sold in the ordinary course of
business or, properties which are no longer useful or necessary in Company's or
its Subsidiaries' business), whether now owned or hereafter acquired;
(f) property sold, transferred or disposed of, to the extent that (i) such
property is exchanged for credit against the purchase price of similar
replacement property or (ii) the proceeds of such property is promptly applied
to the purchase price of such replacement property;
(g) sales and transfers permitted by Section 6.5 with respect to issuances
of Securities of Holdings;
(h) the sale, transfer or disposition of Cash Equivalents;
(i) the sale, transfer or disposition of accounts in connection with the
collection or compromise thereof in the ordinary course of business;
(j) the licensing or sublicensing of Intellectual Property in the ordinary
course of business on customary terms;
(k) Asset Sales by and among Company and its Subsidiaries in the ordinary
course of business; provided, that with respect to any Asset Sale by a Credit
Party to a Subsidiary of Company that is not a Credit Party, not less than 75%
of the consideration received therefor shall be Cash;
(l) leases, subleases, licenses or sublicenses of property in the ordinary
course of business and which do not materially interfere with the business of
Holdings and its Subsidiaries;
(m) consignment or similar arrangements for the sale of assets in the
ordinary course of business;
(n) Floor Plan Sales;
(o) Company and its Subsidiaries may make Asset Sales in any single Fiscal
Year of assets that have, in the aggregate, a fair market value not in excess of
$50,000,000; provided that (x) the consideration received for such assets shall
be in an amount at least equal to the fair market value thereof; (y) not less
than 75% of the consideration received therefor shall be Cash; and (z) the
proceeds of such Asset Sales shall be applied as required by Section 2.13(a);
and
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(p) In addition to the Asset Sales permitted pursuant to Section 6.7(o)
Company and its Subsidiaries may make Asset Sales with respect to the sale of
the Retail Business; provided, that (x) the consideration received for such
Asset Sale shall be in an amount at least equal to the fair market value
thereof; (y) the consideration received therefor shall be consideration that is
permitted to be received pursuant to the terms and provisions of the Senior
Subordinated Note Indenture; and (z) the proceeds of such Asset Sales shall be
applied as required by Section 2.13(a).
6.8 CONSOLIDATED CAPITAL EXPENDITURES. Make or incur Consolidated Capital
Expenditures during any Fiscal Year in an aggregate amount in excess of (1)
$30,000,000 (as adjusted in accordance with the provisos hereto, the "MAXIMUM
CONSOLIDATED CAPITAL EXPENDITURES AMOUNT"), plus (2) the amount of any
Consolidated Capital Expenditures made or incurred during such Fiscal Year in
connection with the construction and outfitting of one new production facility
in the United States (provided that the amount of all Consolidated Capital
Expenditures permitted by this clause (2) during the term of this Agreement
shall not exceed $10,000,000 in the aggregate); provided that the Maximum
Consolidated Capital Expenditures Amount for any such Fiscal Year shall be
increased by an amount equal to the excess, if any, of the Maximum Consolidated
Capital Expenditures Amount for the previous Fiscal Year (other than Fiscal Year
2003) (prior to adjustment in accordance with this proviso) over the actual
amount of Consolidated Capital Expenditures for such previous Fiscal Year;
provided, further, that the Maximum Consolidated Capital Expenditures Amount for
each Fiscal Year shall be increased (1) with the proceeds of any issuances of
Securities not required to prepay the Loans (other than Permitted Cure
Securities) pursuant to Section 2.13(b) received by Company or any of its
Subsidiaries during such Fiscal Year or used to make Restricted Junior Payments;
and (2) by that part of Consolidated Excess Cash Flow calculated for the
immediately preceding Fiscal Year not required to be used to prepay the Loans
pursuant to Section 2.13(d); provided, further, that the Maximum Consolidated
Capital Expenditures Amount for any Fiscal Year shall be further increased upon
the consummation of a Permitted Acquisition by an amount equal to 5% of the
enterprise value of the assets acquired in connection with such Permitted
Acquisition.
6.9 SALES AND LEASE-BACKS. Become or remain liable as lessee with respect
to any lease, entered into after the date hereof, whether an Operating Lease or
a Capital Lease, of any property (whether real, personal or mixed), which
Company or any of its Subsidiaries has sold or transferred or is to sell or to
transfer to any other Person (other than Company or any of its Subsidiaries) (a
"PERMITTED SALE LEASE-BACK TRANSACTION"); provided, Company and its Subsidiaries
may become and remain liable as lessee with respect to any such lease if and to
the extent that Company or any of its Subsidiaries would be otherwise permitted
to enter into (or not otherwise be prohibited from), and remain liable under,
such lease hereunder; provided, further (i) the aggregate amount of all such
Permitted Sale/Lease-Back Transactions consummated after the date hereof shall
not exceed $20,000,000 at any time outstanding and (ii) the proceeds of such
Permitted Sale Lease-Back Transaction shall be applied as required by Section
2.13(a).
6.10 TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES. Enter into or permit
to exist any transaction (including the purchase, sale, lease or exchange of any
property or the rendering of any service) with any Affiliate of Company, on
terms that are less favorable to Company or that Subsidiary, as the case may be,
than those that might be obtained at the time from Persons
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who are not such an Affiliate; provided, the foregoing restriction shall not
apply, subject to the other covenants contained hereunder, (a) to any
transaction between Parent and any of its Subsidiaries or between any of its
Subsidiaries, (b) to the payment of reasonable and customary fees paid to
members of the Boards of Directors of Parent and its Subsidiaries and
reimbursement of reasonable out-of-pocket expenses of directors, (c) to the
payment of Management Fees, (d) to the consummation of the transactions
contemplated by the Related Agreements and the payment of Transaction Costs, and
(e) in respect of employment and severance arrangements with directors,
officers, employees and members of management of Parent or any of its
Subsidiaries in the ordinary course of business, (f) transactions between
Holdings and any of its Subsidiaries with Co-Op Subsidiary or any Captive
Insurance Subsidiary and (g) the transactions by Parent and its Subsidiaries to
the extent permitted under this Section 6.
6.11 AMENDMENTS OR WAIVERS OF CERTAIN DOCUMENTS.
(a) AMENDMENTS OF ORGANIZATIONAL DOCUMENTS, MANAGEMENT AGREEMENT AND
UNSECURED TERM LOAN AGREEMENT. (i) Amend any of the organizational or
constituent documents of any Credit Party in a manner materially adverse to the
Administrative Agent or the Lenders; (ii) amend, modify or supplement the
Management Agreement or waive or otherwise consent to any change or departure
from any of the terms or conditions of the Management Agreement, in each case,
in any manner that increases the fees or other amounts payable thereunder; and
(iii) amend or modify the Unsecured Term Loan Agreement or waive or otherwise
consent to any change or departure from any of the terms or conditions of the
Unsecured Term Loan Agreement in any manner that is materially adverse to the
Administrative Agent or the Lenders.
(b) AMENDMENTS OF DOCUMENTS RELATING TO SUBORDINATED INDEBTEDNESS. Amend
or otherwise change the redemption, prepayment, repurchase or defeasance
provisions of any Subordinated Indebtedness, change the subordination provisions
thereof (or of any guaranty thereof), or amend or change any other term if the
effect of such amendment or change, together with all other amendments or
changes made, is to increase materially the obligations of the obligor
thereunder or to confer any additional rights on the holders of such
Subordinated Indebtedness (or trustee or other representative on their behalf)
which would be materially adverse to Company or Lenders (other than the
execution and delivery by Holdings and/or any of its Subsidiaries of a
supplemental agreement pursuant to which such Subsidiary becomes a guarantor
thereunder so long as such Subsidiary is also a Guarantor hereunder).
(c) PREFERRED STOCK. Without the prior written approval of Requisite
Lenders, issue any preferred stock or permit any of its Subsidiaries to issue
any preferred stock; provided, however, that Holdings or Company shall be
permitted to issue preferred stock which does not provide for any payment or
redemption with respect thereto prior to the date of the final payment in full
in Cash of all of the non-contingent Obligations under this Agreement, provided
that immediately prior to and immediately after the issuance of such preferred
stock no Event of Default or Default under Section 8.1(k) shall have occurred
and be continuing.
6.12 CONDUCT OF COMPANY BUSINESS. From and after the Closing Date, Company
shall not, nor shall it permit any of its Subsidiaries to, engage in any
business other than the
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businesses engaged in by Company and its Subsidiaries on the Closing Date and
any businesses reasonably related or ancillary thereto.
6.13 SPECIAL COVENANTS OF HOLDINGS. From and after the Closing Date,
Holdings shall:
(a) engage in no business or activities other than (i) owning 100% of the
issued and outstanding capital stock of Company, (ii) holding Cash and Cash
Equivalents, (iii) activities incidental thereto, (iv) as otherwise required by
mandatory provisions of law, (v) the transactions contemplated by the Related
Agreements, (vi) entering into the Related Agreements to which it is a party,
and (vii) as otherwise specifically permitted hereunder; and
(b) not own or acquire any assets other than (i) 100% of the issued and
outstanding equity Securities of Company and (ii) as specifically permitted
hereunder.
6.14 FISCAL YEAR. Change its Fiscal Year-end from the final Saturday in
the calendar year, provided, however, that Company may change its Fiscal
Year-end to December 31.
6.15 SECURITIES OF COMPANY AND SUBSIDIARIES; RESTRICTIONS ON SUBSIDIARIES.
(a) Create, incur, assume or suffer to exist any Lien on any equity
Securities of Company (other than non-consensual Liens arising solely by
operation of law) and the Liens contemplated by the Credit Documents.
(b) Create or otherwise cause or suffer to exist or become effective any
consensual encumbrance or restriction of any kind on the ability of any such
Subsidiary to (w) pay dividends or make any other distributions on any of such
Subsidiary's equity Securities owned by Company or any other Subsidiary of
Company, (x) repay or prepay any Indebtedness owed by such Subsidiary to Company
or any other Subsidiary of Company, (y) make loans or advances to Company or any
other Subsidiary of Company, or (z) transfer any of its property or assets to
Company or any other Subsidiary of Company except for any agreement (A) in
effect on the Closing Date, (B) in existence at the time a Subsidiary becomes a
Subsidiary of Company so long as such agreement was not entered into solely in
contemplation of such Person becoming a Subsidiary, (C) in existence at the time
any assets were acquired by Company or any Subsidiary of Company so long as such
agreement was not entered into solely in contemplation of the acquisition of
such assets, (D) representing Indebtedness which is permitted by Section 6.1;
(E) in connection with any Asset Sale or other sale of assets permitted
hereunder, or (F) customary restrictions contained in leases, subleases,
licenses and sublicenses permitted hereunder.
6.16 DESIGNATED SENIOR DEBT. Designate any other Indebtedness of Company
or any of its Subsidiaries as "Designated Senior Debt" (or any comparable term)
under, and as defined in, the Senior Subordinated Note Indenture or any other
applicable documentation governing Subordinated Indebtedness. Notwithstanding
any of the foregoing to the contrary, upon the Termination Date, Company may
designate Indebtedness with respect to the Senior Unsecured Term Loan as
"Designated Senior Debt" (or any comparable term) under and as defined in, the
Senior Subordinated Note Indenture or any other applicable documentation
governing Subordinated Indebtedness.
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SECTION 7. GUARANTY
7.1 GUARANTY OF THE OBLIGATIONS. Subject to the provisions of Section 7.2,
Guarantors jointly and severally hereby irrevocably and unconditionally guaranty
the due and punctual payment in full of all Obligations (including Hedge
Agreements) of Company when the same shall become due, whether at stated
maturity, by required prepayment, declaration, acceleration, demand or
otherwise, including amounts that would become due but for the operation of the
automatic stay under Section 362(a) or any other provision of the Bankruptcy
Code (the "GUARANTEED OBLIGATIONS").
7.2 LIMITATION ON AMOUNT GUARANTIED. (a) Anything contained herein to the
contrary notwithstanding, if any Fraudulent Transfer Law (as hereinafter
defined) is determined by a court of competent jurisdiction to be applicable to
the obligations of any Guarantor hereunder, such obligations of such Guarantor
hereunder shall be limited to a maximum aggregate amount equal to the largest
amount that would not render its obligations hereunder subject to avoidance as a
fraudulent transfer or conveyance under Section 548 of Title 11 of the United
States Code or any applicable provisions of comparable state law (collectively,
the "FRAUDULENT TRANSFER LAWS"), in each case after giving effect to all other
liabilities of such Guarantor, contingent or otherwise, that are relevant under
the Fraudulent Transfer Laws (specifically excluding, however, any liabilities
of such Guarantor (x) in respect of intercompany indebtedness to Company or
other affiliates of Company to the extent that such indebtedness would be
discharged in an amount equal to the amount paid by such Guarantor hereunder and
(y) under any guaranty of Subordinated Indebtedness which guaranty contains a
limitation as to maximum amount similar to that set forth in this Section
7.2(a), pursuant to which the liability of such Guarantor hereunder is included
in the liabilities taken into account in determining such maximum amount) and
after giving effect as assets to the value (as determined under the applicable
provisions of the Fraudulent Transfer Laws) of any rights to subrogation,
reimbursement, indemnification or contribution of such Guarantor pursuant to
applicable law or pursuant to the terms of any agreement (including any such
right of contribution hereunder).
(b) Guarantors under this Guaranty, together desire to allocate among
themselves, in a fair and equitable manner, their obligations arising under this
Guaranty. Accordingly, in the event any payment or distribution is made on any
date by any Guarantor under this Guaranty (a "FUNDING GUARANTOR") that exceeds
its Fair Share (as defined below) as of such date, that Funding Guarantor shall
be entitled to a contribution from each of the other Guarantors in the amount of
such other Guarantor's Fair Share Shortfall (as defined below) as of such date,
with the result that all such contributions will cause each Guarantor's
Aggregate Payments (as defined below) to equal its Fair Share as of such date.
"FAIR SHARE" means, with respect to a Guarantor as of any date of determination,
an amount equal to (i) the ratio of (x) the Adjusted Maximum Amount (as defined
below) with respect to such Guarantor to (y) the aggregate of the Adjusted
Maximum Amounts with respect to all Guarantors multiplied by (ii) the aggregate
amount paid or distributed on or before such date by all Funding Guarantors
under this Guaranty in respect of the obligations guarantied. "FAIR SHARE
SHORTFALL" means, with respect to a Guarantor as of any date of determination,
the excess, if any, of the Fair Share of such Guarantor over the Aggregate
Payments of such Guarantor. "ADJUSTED MAXIMUM AMOUNT" means, with respect to a
Guarantor as of any date of determination, the maximum aggregate amount of the
obligations of
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such Guarantor under this Guaranty determined as of such date, in the case of
any Guarantor, in accordance with Section 7.2(a); provided that, solely for
purposes of calculating the "Adjusted Maximum Amount" with respect to any
Guarantor for purposes of this Section 7.2(b), any assets or liabilities of such
Guarantor arising by virtue of any rights to subrogation, reimbursement or
indemnification or any rights to or obligations of contribution hereunder shall
not be considered as assets or liabilities of such Guarantor. "AGGREGATE
PAYMENTS" means, with respect to a Guarantor as of any date of determination, an
amount equal to (i) the aggregate amount of all payments and distributions made
on or before such date by such Guarantor in respect of this Guaranty (including
in respect of this Section 7.2(b)) minus (ii) the aggregate amount of all
payments received on or before such date by such Guarantor from the other
Guarantors as contributions under this Section 7.2(b). The amounts payable as
contributions hereunder shall be determined as of the date on which the related
payment or distribution is made by the applicable Funding Guarantor. The
allocation among Guarantors of their obligations as set forth in this Section
7.2(b) shall not be construed in any way to limit the liability of any Guarantor
hereunder.
7.3 PAYMENT BY GUARANTORS. Subject to Section 7.2(a), Guarantors hereby
jointly and severally agree, in furtherance of the foregoing and not in
limitation of any other right which any Beneficiary may have at law or in equity
against any Guarantor by virtue hereof, that upon the failure of Company to pay
any of the Guaranteed Obligations when and as the same shall become due, whether
at stated maturity, by required prepayment, declaration, acceleration, demand or
otherwise (including amounts that would become due but for the operation of the
automatic stay under Section 362(a) or any other provision of the Bankruptcy
Code), Guarantors will upon demand pay, or cause to be paid, in Cash, to
Administrative Agent for the ratable benefit of Beneficiaries, an amount equal
to the sum of the unpaid principal amount of all Guaranteed Obligations then due
as aforesaid, accrued and unpaid interest on such Guaranteed Obligations
(including interest which, but for the filing of a petition in bankruptcy with
respect to Company, would have accrued on such Guaranteed Obligations, whether
or not a claim is allowed against Company for such interest in the related
bankruptcy proceeding) and all other Guaranteed Obligations then owed to
Beneficiaries as aforesaid.
7.4 LIABILITY OF GUARANTORS ABSOLUTE. Each Guarantor agrees that, to the
maximum extent permitted by applicable law, its obligations hereunder are
irrevocable, absolute, independent and unconditional, and constitute primary
obligations of such Guarantor and not a contract of surety, and shall not be
affected by any circumstance which constitutes a legal or equitable discharge of
a guarantor or surety other than payment in full in Cash of the Guaranteed
Obligations. In furtherance of the foregoing and without limiting the generality
thereof, each Guarantor agrees that, to the maximum extent permitted by
applicable law,
(a) this Guaranty is a guaranty of payment when due and not of
collectibility;
(b) the obligations of each Guarantor hereunder are independent of the
obligations of Company and the obligations of any other guarantor (including any
other Guarantor) of the obligations of Company, and a separate action or actions
may be brought and prosecuted against such Guarantor whether or not any action
is brought against Company or any of such other guarantors and whether or not
Company is joined in any such action or actions;
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(c) payment by any Guarantor of a portion, but not all, of the Guaranteed
Obligations shall in no way limit, affect, modify or abridge any Guarantor's
liability for any portion of the Guaranteed Obligations which has not been paid.
Without limiting the generality of the foregoing, if Administrative Agent is
awarded a judgment in any suit brought to enforce any Guarantor's covenant to
pay a portion of the Guaranteed Obligations, such judgment shall not be deemed
to release such Guarantor from its covenant to pay the portion of the Guaranteed
Obligations that is not the subject of such suit, and such judgment shall not,
except to the extent satisfied by such Guarantor, limit, affect, modify or
abridge any other Guarantor's liability hereunder in respect of the Guaranteed
Obligations;
(d) any Beneficiary, upon such terms as it deems appropriate, without
notice or demand and without affecting the validity or enforceability hereof or
giving rise to any reduction, limitation, impairment, discharge or termination
of any Guarantor's liability hereunder, from time to time may (i) renew, extend,
accelerate, increase the rate of interest on, or otherwise change the time,
place, manner or terms of payment of the Guaranteed Obligations; (ii) settle,
compromise, release or discharge, or accept or refuse any offer of performance
with respect to, or substitutions for, the Guaranteed Obligations or any
agreement relating thereto and/or subordinate the payment of the same to the
payment of any other obligations; (iii) request and accept other guaranties of
the Guaranteed Obligations and take and hold security for the payment of this
Guaranty or the Guaranteed Obligations; (iv) release, surrender, exchange,
substitute, compromise, settle, rescind, waive, alter, subordinate or modify,
with or without consideration, any security for payment of the Guaranteed
Obligations, any other guaranties of the Guaranteed Obligations, or any other
obligation of any Person (including any other Guarantor) with respect to the
Guaranteed Obligations (provided that no Credit Document to which such Guarantor
is a party may be amended without its written consent); (v) enforce and apply
any security now or hereafter held by or for the benefit of such Beneficiary in
respect of this Guaranty or the Guaranteed Obligations and direct the order or
manner of sale thereof, or exercise any other right or remedy that such
Beneficiary may have against any such security, in each case as such Beneficiary
in its discretion may determine consistent with this Agreement or the applicable
Hedge Agreement and any applicable security agreement, including foreclosure on
any such security pursuant to one or more judicial or nonjudicial sales, whether
or not every aspect of any such sale is commercially reasonable, and even though
such action operates to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of any Guarantor against Company or any
security for the Guaranteed Obligations; and (vi) exercise any other rights
available to it under the Credit Documents or the applicable Hedge Agreements;
and
(e) this Guaranty and the obligations of Guarantors hereunder shall be
valid and enforceable and shall not be subject to any reduction, limitation,
impairment, discharge or termination for any reason (other than payment in full
in Cash of the Guaranteed Obligations), including the occurrence of any of the
following, whether or not any Guarantor shall have had notice or knowledge of
any of them: (i) any failure or omission to assert or enforce or agreement or
election not to assert or enforce, or the stay or enjoining, by order of court,
by operation of law or otherwise, of the exercise or enforcement of, any claim
or demand or any right, power or remedy (whether arising under the Credit
Documents or the Hedge Agreements, at law, in equity or otherwise) with respect
to the Guaranteed Obligations or any agreement relating thereto, or with respect
to any other guaranty of or security for the payment of the Guaranteed
Obligations;
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(ii) any rescission, waiver, amendment or modification of, or any consent to
departure from, any of the terms or provisions (including provisions relating to
events of default) of this Agreement, any of the other Credit Documents, any of
the Hedge Agreements or any agreement or instrument executed pursuant thereto,
or of any other guaranty or security for the Guaranteed Obligations, in each
case whether or not in accordance with the terms of this Agreement or such
Credit Document, such Hedge Agreement or any agreement relating to such other
guaranty or security (provided that no Credit Document to which such Guarantor
is a party may be amended without its written consent); (iii) the Guaranteed
Obligations, or any agreement relating thereto, at any time being found to be
illegal, invalid or unenforceable in any respect; (iv) the application of
payments received from any source (other than payments received pursuant to the
other Credit Documents or any of the Hedge Agreements or from the proceeds of
any security for the Guaranteed Obligations, except to the extent such security
also serves as collateral for indebtedness other than the Guaranteed
Obligations) to the payment of indebtedness other than the Guaranteed
Obligations, even though any Beneficiary might have elected to apply such
payment to any part or all of the Guaranteed Obligations; (v) any Beneficiary's
consent to the change, reorganization or termination of the corporate structure
or existence of Company or any of its Subsidiaries and to any corresponding
restructuring of the Guaranteed Obligations; (vi) any failure to perfect or
continue perfection of a security interest in any collateral which secures any
of the Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims
which Company may allege or assert against any Beneficiary in respect of the
Guaranteed Obligations, including failure of consideration, breach of warranty,
statute of frauds, statute of limitations, accord and satisfaction and usury;
and (viii) any other act or thing or omission, or delay to do any other act or
thing, which may or might in any manner or to any extent vary the risk of any
Guarantor as an obligor in respect of the Guaranteed Obligations.
7.5 WAIVERS BY GUARANTORS. Each Guarantor hereby waives, for the benefit
of Beneficiaries, to the maximum extent permitted by applicable law: (a) any
right to require any Beneficiary, as a condition of payment or performance by
such Guarantor, to (i) proceed against Company, any other guarantor (including
any other Guarantor) of the Guaranteed Obligations or any other Person, (ii)
proceed against or exhaust any security held from Company, any such other
guarantor or any other Person, (iii) proceed against or have resort to any
balance of any deposit account or credit on the books of any Beneficiary in
favor of Company or any other Person, or (iv) pursue any other remedy in the
power of any Beneficiary whatsoever; (b) any defense arising by reason of the
incapacity, lack of authority or any disability or other defense of Company
including any defense based on or arising out of the lack of validity or the
unenforceability of the Guaranteed Obligations or any agreement or instrument
relating thereto or by reason of the cessation of the liability of Company from
any cause other than payment in full in Cash of the Guaranteed Obligations; (c)
any defense based upon any statute or rule of law which provides that the
obligation of a surety must be neither larger in amount nor in other respects
more burdensome than that of the principal; (d) any defense based upon any
Beneficiary's errors or omissions in the administration of the Guaranteed
Obligations, except behavior which amounts to gross negligence or willful
misconduct or bad faith; (e) (i) any principles or provisions of law, statutory
or otherwise, which are or might be in conflict with the terms hereof and any
legal or equitable discharge of such Guarantor's obligations hereunder, (ii) the
benefit of any statute of limitations affecting such Guarantor's liability
hereunder or the enforcement hereof, (iii) any rights to set-offs, recoupments
and counterclaims, and (iv)
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promptness, diligence and any requirement that any Beneficiary protect, secure,
perfect or insure any security interest or lien or any property subject thereto;
(f) notices, demands, presentments, protests, notices of protest, notices of
dishonor and notices of any action or inaction, including acceptance hereof,
notices of default under this Agreement, the Hedge Agreements or any agreement
or instrument related thereto, notices of any renewal, extension or modification
of the Guaranteed Obligations or any agreement related thereto, notices of any
extension of credit to Company and notices of any of the matters referred to in
Section 7.4 and any right to consent to any thereof; and (g) any defenses or
benefits that may be derived from or afforded by law which limit the liability
of or exonerate guarantors or sureties, or which may conflict with the terms
hereof (other than payment in full in Cash of the Guaranteed Obligations).
7.6 GUARANTORS' RIGHTS OF SUBROGATION, CONTRIBUTION, ETC. Each Guarantor
hereby waives, until the Termination Date, any claim, right or remedy, direct or
indirect, that such Guarantor now has or may hereafter have against Company or
any of its assets in connection herewith or the performance by such Guarantor of
its obligations hereunder, in each case whether such claim, right or remedy
arises in equity, under contract, by statute under common law or otherwise and
including (a) any right of subrogation, reimbursement or indemnification that
such Guarantor now has or may hereafter have against Company, (b) any right to
enforce, or to participate in, any claim, right or remedy that any Beneficiary
now has or may hereafter have against Company, and (c) any benefit of, and any
right to participate in, any collateral or security now or hereafter held by any
Beneficiary. In addition, until the Termination Date, each Guarantor shall
withhold exercise of any right of contribution such Guarantor may have against
any other guarantor (including any other Guarantor) of the Guaranteed
Obligations (including any such right of contribution under Section 7.2(b)).
Each Guarantor further agrees that, to the extent the waiver or agreement to
withhold the exercise of its rights of subrogation, reimbursement,
indemnification and contribution as set forth herein is found by a court of
competent jurisdiction to be void or voidable for any reason, any rights of
subrogation, reimbursement or indemnification such Guarantor may have against
Company or against any collateral or security, and any rights of contribution
such Guarantor may have against any such other guarantor, shall be junior and
subordinate to any rights any Beneficiary may have against Company, to all
right, title and interest any Beneficiary may have in any such collateral or
security, and to any right any Beneficiary may have against such other
guarantor. If any amount shall be paid to any Guarantor on account of any such
subrogation, reimbursement, indemnification or contribution rights at any time
when the Termination Date shall not have occurred, such amount shall be held in
trust for Administrative Agent on behalf of Beneficiaries and shall forthwith be
paid over to Administrative Agent for the benefit of Beneficiaries to be
credited and applied against the Guaranteed Obligations, whether matured or
unmatured, in accordance with the terms hereof.
7.7 SUBORDINATION OF OTHER OBLIGATIONS. Any Indebtedness of Company or any
Guarantor now or hereafter held by any Guarantor (the "OBLIGEE GUARANTOR") is
hereby subordinated in right of payment to the Guaranteed Obligations, and any
such indebtedness collected or received by the Obligee Guarantor after an Event
of Default has occurred and is continuing shall be held in trust for
Administrative Agent on behalf of Beneficiaries and shall forthwith be paid over
to Administrative Agent for the benefit of Beneficiaries to be credited and
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applied against the Guaranteed Obligations but without affecting, impairing or
limiting in any manner the liability of the Obligee Guarantor under any other
provision hereof.
7.8 CONTINUING GUARANTY. This Guaranty is a continuing guaranty and shall
remain in effect until the Termination Date. Each Guarantor hereby irrevocably
waives any right to revoke this Guaranty as to future transactions giving rise
to any Guaranteed Obligations.
7.9 AUTHORITY OF GUARANTORS OR COMPANY. It is not necessary for any
Beneficiary to inquire into the capacity or powers of any Guarantor or Company
or the officers, directors or any agents acting or purporting to act on behalf
of any of them.
7.10 FINANCIAL CONDITION OF COMPANY AND GUARANTORS. Any Credit Extension
may be granted to Company or continued from time to time, and any Hedge
Agreements may be entered into from time to time, in each case without notice to
or authorization from any Guarantor regardless of the financial or other
condition of Company or any other Guarantor at the time of any such grant or
continuation or at the time such Hedge Agreement is entered into, as the case
may be. No Beneficiary shall have any obligation to disclose or discuss with any
Guarantor its assessment, or any Guarantor's assessment, of the financial
condition of Company or any other Guarantor. Each Guarantor has adequate means
to obtain information from Company and each other Guarantor on a continuing
basis concerning the financial condition of Company or such other Guarantor and
its ability to perform its obligations under the Credit Documents and the Hedge
Agreements, and each Guarantor assumes the responsibility for being and keeping
informed of the financial condition of Company and each other Guarantor and of
all circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations. Each Guarantor hereby waives and relinquishes any duty on the part
of any Beneficiary to disclose any matter, fact or thing relating to the
business, operations or conditions of Company or any other Guarantor now known
or hereafter known by any Beneficiary.
7.11 BANKRUPTCY, ETC. (a) The obligations of Guarantors hereunder shall
not be reduced, limited, impaired, discharged, deferred, suspended or terminated
by any proceeding, voluntary or involuntary, involving the bankruptcy,
insolvency, receivership, reorganization, liquidation or arrangement of Company
or by any defense which Company may have by reason of the order, decree or
decision of any court or administrative body resulting from any such proceeding.
(b) Each Guarantor acknowledges and agrees that any interest on any
portion of the Guaranteed Obligations which accrues after the commencement of
any proceeding referred to in clause (a) above (or, if interest on any portion
of the Guaranteed Obligations ceases to accrue by operation of law by reason of
the commencement of said proceeding, such interest as would have accrued on such
portion of the Guaranteed Obligations if said proceedings had not been
commenced) shall be included in the Guaranteed Obligations because it is the
intention of Guarantors and Beneficiaries that the Guaranteed Obligations which
are guarantied by Guarantors pursuant hereto should be determined without regard
to any rule of law or order which may relieve Company of any portion of such
Guaranteed Obligations. Guarantors will permit any trustee in bankruptcy,
receiver, debtor in possession, assignee for the benefit of creditors or similar
person to pay Administrative Agent, or allow the claim of Administrative
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Agent in respect of, any such interest accruing after the date on which such
proceeding is commenced.
(c) In the event that all or any portion of the Guaranteed Obligations are
paid by Company, the obligations of Guarantors hereunder shall continue and
remain in full force and effect or be reinstated, as the case may be, in the
event that all or any part of such payment(s) are rescinded or recovered
directly or indirectly from any Beneficiary as a preference, fraudulent transfer
or otherwise, and any such payments which are so rescinded or recovered shall
constitute Guaranteed Obligations for all purposes hereunder; provided that
interest or fees on any such reinstated Guaranteed Obligations shall not be
payable for the period during which the Beneficiaries were paid such funds until
the date such funds were returned.
7.12 DISCHARGE OF GUARANTY UPON SALE OF GUARANTOR. If all of the stock of
any Guarantor or any of its successors in interest hereunder shall be sold or
otherwise disposed of (including by merger or consolidation) in an Asset Sale
not prohibited by this Agreement or otherwise consented to by Requisite Lenders,
the Guaranty of such Guarantor or such successor in interest, as the case may
be, hereunder shall automatically be discharged and released without any further
action by any Beneficiary or any other Person effective as of the time of such
Asset Sale.
SECTION 8. EVENTS OF DEFAULT
8.1 EVENTS OF DEFAULT. If any one or more of the following conditions or
events shall occur:
(a) failure by Company to pay (i) any installment of principal of any Loan
when due, whether at stated maturity, by acceleration, by notice of voluntary
prepayment, by mandatory prepayment or otherwise; (ii) when due any amount
payable to Issuing Bank in reimbursement of any drawing under a Letter of
Credit; or (iii) any interest on any Loan or any fee or any other amount due
hereunder within five (5) days after the date due; or
(b) (i) failure of Holdings, Company or any of its Subsidiaries to pay
when due any principal of or interest on or any other amount payable in respect
of one or more items of Indebtedness (other than Indebtedness referred to in
Section 8.1(a)) with an aggregate principal amount of $20,000,000 or more beyond
the end of any grace period provided therefor; or (ii) breach or default by
Holdings, Company or any of its Subsidiaries with respect to any other material
term of (1) one or more items of Indebtedness in the aggregate principal amount
referred to in clause (i) above or (2) any loan agreement, mortgage, indenture
or other agreement relating to such item(s) of Indebtedness, if the effect of
such breach or default is to cause, or to permit the holder or holders of that
Indebtedness (or a trustee on behalf of such holder or holders) to cause, that
Indebtedness to become or be declared due and payable prior to its stated
maturity (upon the giving or receiving of notice, lapse of time, both, or
otherwise); or
(c) failure of Company to perform or comply with any term or condition
contained in Section 2.5, Section 5.1(h), Section 5.2 (with respect to Holdings
or the Company only), Section 5.10 or Section 6 hereof; provided that any Event
of Default under Section 6.6 is subject to cure as contemplated by Section 8.3;
or
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(d) any representation, warranty or certification made or deemed made by
Holdings, Company or any of its Subsidiaries in any Credit Document or in any
statement or certificate at any time given by Holdings, Company or any of its
Subsidiaries in writing pursuant hereto or thereto or in connection herewith or
therewith shall be false in any material respect on the date as of which made or
deemed made; or
(e) any Credit Party shall default in the performance of or compliance
with any term contained herein or in any of the other Credit Documents, other
than any such term referred to in any other provision of this Section 8.1, and
such default shall not have been remedied or waived within thirty (30) days
after receipt by Company of notice from Administrative Agent or any Lender of
such default; or
(f) (i) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of Holdings, Company or any of its Material
Subsidiaries (or any group of Company's Subsidiaries that, taken as a whole,
would constitute a Material Subsidiary) in an involuntary case under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar
law now or hereafter in effect, which decree or order is not stayed; or any
other similar relief shall be granted under any applicable federal or state law;
or (ii) an involuntary case shall be commenced against Holdings, Company or any
of its Material Subsidiaries (or any group of Company's Subsidiaries that, taken
as a whole, would constitute a Material Subsidiary) under the Bankruptcy Code or
under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect; or a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator, trustee,
custodian or other officer having similar powers over Holdings, Company or any
of its Material Subsidiaries (or any group of Company's Subsidiaries that, taken
as a whole, would constitute a Material Subsidiary), or over all or a
substantial part of its property, shall have been entered; or there shall have
occurred the involuntary appointment of an interim receiver, trustee or other
custodian of Holdings, Company or any of its Material Subsidiaries (or any group
of Company's Subsidiaries that, taken as a whole, would constitute a Material
Subsidiary) for all or a substantial part of its property; or a warrant of
attachment, execution or similar process shall have been issued against any
substantial part of the property of Holdings, Company or any of its Material
Subsidiaries (or any group of Company's Subsidiaries that, taken as a whole,
would constitute a Material Subsidiary), and any such event described in this
clause (ii) shall continue for sixty (60) days unless dismissed, bonded or
discharged; or
(g) (i) Holdings, Company or any of its Material Subsidiaries (or any
group of Company's Subsidiaries that, taken as a whole, would constitute a
Material Subsidiary) shall have an order for relief entered with respect to it
or commence a voluntary case under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in effect, or
shall consent to the entry of an order for relief in an involuntary case, or to
the conversion of an involuntary case to a voluntary case, under any such law,
or shall consent to the appointment of or taking possession by a receiver,
trustee or other custodian for all or a substantial part of its property and
such appointment continues undischarged or unstayed for sixty (60) days; or
Holdings, Company or any of its Material Subsidiaries (or any group of Company's
Subsidiaries that, taken as a whole, would constitute a Material Subsidiary)
shall make any assignment for the benefit of creditors; or (ii) Holdings,
Company or any of its
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Material Subsidiaries (or any group of Company's Subsidiaries that, taken as a
whole, would constitute a Material Subsidiary) shall be unable, or shall fail
generally, or shall admit in writing its inability, to pay its debts as such
debts become due; or the Board of Directors of Holdings, Company or any of its
Material Subsidiaries (or any group of Company's Subsidiaries that, taken as a
whole, would constitute a Material Subsidiary) (or any committee thereof) shall
adopt any resolution or otherwise authorize any action to approve any of the
actions referred to in this Section 8.1(g); or
(h) any money judgment, writ or warrant of attachment or similar process
involving individually or in the aggregate at any time an amount in excess of
$20,000,000 (in either case not adequately covered by insurance as to which the
insurance company has not denied coverage) shall be entered or filed against
Holdings, Company or any of its Subsidiaries or any of their respective assets
and shall remain undischarged, unvacated, unbonded or unstayed for a period of
sixty (60) days; or
(i) any order, judgment or decree shall be entered against Holdings,
Company or any of its Subsidiaries decreeing the dissolution or split up of
Holdings, Company or that Subsidiary and such order shall remain undischarged or
unstayed for a period in excess of thirty (30) days; or
(j) (i) the Company and any of its Subsidiaries or ERISA Affiliates are
required to contribute or pay during any year an aggregate amount to one or more
Multiemployer Plans which could reasonably be expected to have a Material
Adverse Effect; (ii) there shall occur one or more ERISA Events, other than any
ERISA Events with respect of Multiemployer Plans, which individually or in the
aggregate result in liability of Company, any of its Subsidiaries or any of
their respective ERISA Affiliates in excess of $15,000,000 during the term
hereof; (iii) there shall exist an amount of Unfunded Benefit Liabilities
individually or in the aggregate for all Pension Plans (excluding for purposes
of such computation any Pension Plans with respect to which assets exceed
liabilities), which exceeds $15,000,000; or (iv) circumstances exist which may
reasonably give rise to a lien under ERISA with respect to any Pension Plan; or
(k) a Change of Control shall have occurred; or
(l) at any time after the execution and delivery thereof, (i) the
Guaranty, for any reason other than the satisfaction in full of all
non-contingent Obligations in Cash, ceases to be in full force and effect or is
declared to be null and void or any Credit Party denies in writing that it has
any further liability, including with respect to future advances by Lenders,
under any Credit Document to which it is a party, or (ii) any Collateral
Document shall cease to be in full force and effect (other than by reason of a
release of Collateral thereunder in accordance with the terms hereof or thereof,
the satisfaction in full in Cash of the non-contingent Obligations or any other
termination of such Collateral Document in accordance with the terms hereof or
thereof) or shall be declared null and void; or the validity or enforceability
thereof shall be contested in writing by any Credit Party; or Collateral Agent
shall not have or shall cease to have a valid security interest in any
Collateral purported to be covered thereby, perfected and with the priority
required by the relevant Collateral Document subject to Permitted Liens, for any
reason other than the failure of Collateral Agent or any Lender to take any
action within its control, subject only to Permitted Liens;
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THEN (1) upon the occurrence of any Event of Default described in Section 8.1(f)
or 8.1(g), each of (A) the unpaid principal amount of and accrued interest on
the Loans, (B) an amount equal to the maximum amount that may at any time be
drawn under all Letters of Credit then outstanding (whether or not any
beneficiary under any such Letter of Credit shall have presented, or shall be
entitled at such time to present, the drafts or other documents or certificates
required to draw under such Letter of Credit), and (C) all other Obligations
shall automatically become immediately due and payable, without presentment,
demand, protest or other requirements of any kind, all of which are hereby
expressly waived by each Credit Party, and the obligation of each Lender to make
any Loan, the obligation of Issuing Bank to issue any Letter of Credit and the
right of any Lender to issue any Letter of Credit hereunder shall thereupon
terminate, and (2) upon the occurrence and during the continuation of any other
Event of Default, Administrative Agent shall, upon the written request or with
the written consent of Requisite Lenders, by written notice to Company, declare
all or any portion of the amounts described in clauses (a) through (c) above to
be, and the same shall forthwith become, immediately due and payable, and the
obligation of each Lender to make any Loan, the obligation of Issuing Bank to
issue any Letter of Credit and the right of any Lender to issue any Letter of
Credit hereunder shall thereupon terminate; provided, the foregoing shall not
affect in any way the obligations of Lenders under Section 2.3 or the
obligations of Lenders to purchase participations in any unpaid Swing Line Loans
as provided in Section 2.2(c).
Company shall at such time deposit any amounts described in clause (b)
above in one or more cash collateral accounts opened by the Administrative
Agent. Company hereby grants to the Administrative Agent, for the benefit of the
Issuing Bank and each Lender with a participation in such Letters of Credit, a
security interest in such cash collateral to secure all Obligations. Any amounts
held in such cash collateral account shall be applied by the Administrative
Agent to the payment of drafts drawn under such Letters of Credit issued for the
account of Company, and the unused portion thereof after all such Letters of
Credit shall have expired, been fully drawn upon or back-stopped, if any, shall
(i) to the extent an Event of Default then exists, be applied to repay the other
Obligations or (ii) shall otherwise be immediately returned to Company. After
all such Letters of Credit shall have expired, been fully drawn upon or
back-stopped and all non-contingent Obligations shall have been satisfied and
paid in full in Cash, the balance, if any, in such cash collateral account shall
be returned to Company. Company shall execute and deliver to the Administrative
Agent, for the account of the relevant Issuing Bank and the Lenders with
participations in such Letters of Credit, such further documents and instruments
as the Administrative Agent may request to evidence the creation and perfection
of the within security interest in such cash collateral account.
8.2 CERTAIN OPTION OF LENDERS. Notwithstanding anything contained in
Section 8.1, if at any time within sixty (60) days after an acceleration of the
Loans pursuant to such Section, Company shall pay all arrears of interest and
all payments on account of principal which shall have become due otherwise than
as a result of such acceleration (with interest on principal and, to the extent
permitted by law, on overdue interest, at the rates specified herein) and all
Events of Default and Defaults (other than non-payment of the principal of and
accrued interest on the Loans, in each case which is due and payable solely by
virtue of acceleration) shall be remedied or waived pursuant to Section 10.5,
then Requisite Lenders, by written notice to Company, may at their option
rescind and annul such acceleration and its consequences; but such action shall
not
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affect any subsequent Event of Default or Default or impair any right consequent
thereon. The provisions of this Section 8.2 are intended merely to bind Lenders
to a decision which may be made at the election of Requisite Lenders and are not
intended, directly or indirectly, to benefit Company, and such provisions shall
not at any time be construed so as to grant Company the right to require Lenders
to rescind or annul any acceleration hereunder or to preclude Administrative
Agent or Lenders from exercising any of the rights or remedies available to them
under any of the Credit Documents, even if the conditions set forth in this
Section 8.2 are met.
8.3 Company's Right to Cure Financial Performance Covenants.
Notwithstanding anything to the contrary contained in Section 8.1, in the event
that Company fails to comply with the requirements of any Financial Performance
Covenant, until the 10th day subsequent to delivery of the related Compliance
Certificate, Holdings shall have the right, but in any event no more than (i)
two (2) times in any twelve-month period and (ii) four (4) times from the
Closing Date to the date of determination, to issue Permitted Cure Securities
for cash or otherwise receive cash contributions to the capital of Holdings, in
either case in an aggregate amount equal to the lesser of (a) the amount
necessary to cure the relevant failure to comply with all the Financial
Performance Covenants and (b) $20,000,000, and, in each case, to contribute any
such cash to the capital of Company (collectively, the "CURE RIGHT"), and upon
the receipt by Company of such cash (the "CURE AMOUNT") pursuant to the exercise
by Holdings of such Cure Right such Financial Performance Covenant shall be
recalculated giving effect to the following pro forma adjustments:
(i) Consolidated EBITDA shall be increased, in accordance with the
definition thereof, solely for the purpose of measuring the Financial
Performance Covenants and not for any other purpose under this Agreement,
by an amount equal to the Cure Amount;
(ii) if, after giving effect to the foregoing recalculations,
Company shall then be in compliance with the requirements of all Financial
Performance Covenants, Company shall be deemed to have satisfied the
requirements of the Financial Performance Covenants as of the relevant
date of determination with the same effect as though there had been no
failure to comply therewith at such date, and the applicable breach or
default of the Financial Performance Covenants which had occurred shall be
deemed cured for all purposes of the Agreement; and
(iii) to the extent that the Cure Amount proceeds are used to repay
Indebtedness, such Indebtedness shall not be deemed to have been repaid
for purposes of calculating the Leverage Ratio for the period with respect
to which such Compliance Certificate applies.
SECTION 9. AGENTS
9.1 APPOINTMENT OF AGENTS. GSCP is hereby appointed Co-Syndication Agent
and a Joint Lead Arranger hereunder, and each Lender hereby authorizes
Co-Syndication Agent and such Joint Lead Arranger to act as its agent in
accordance with the terms hereof and the other Credit Documents. UBSS is hereby
appointed a Co-Syndication Agent and a Joint Lead Arranger hereunder and each
Lender hereby authorizes such Joint Lead Arranger to act as its
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agent in accordance with the terms hereof and the other Credit Documents. Each
of GE Capital and CIT is hereby appointed a Co-Documentation Agent hereunder and
each Lender hereby authorizes such Documentation Agent to act as its agent in
accordance with the terms hereof and the other Credit Documents. DBNY is hereby
appointed Administrative Agent hereunder and under the other Credit Documents
and each Lender hereby authorizes Administrative Agent to act as its agent in
accordance with the terms hereof and the other Credit Documents. Each Agent
hereby agrees to act upon the express conditions contained herein and in the
other Credit Documents, as applicable. The provisions of this Section 9 are
solely for the benefit of Agents and Lenders and no Credit Party shall have any
rights as a third party beneficiary of any of the provisions thereof, except as
provided in Sections 9.7 and 9.8. In performing its functions and duties
hereunder, each Agent shall act solely as an agent of Lenders and does not
assume and shall not be deemed to have assumed any obligation towards or
relationship of agency or trust with or for Holdings, Company or any of their
respective Subsidiaries, except as provided in Section 2.6 as to Administrative
Agent with respect to maintaining the Register. Co-Syndication Agents and
Co-Documentation Agents, without consent of or notice to any party hereto, may
assign any and all of their respective rights or obligations hereunder to any of
their respective Affiliates. As of the Closing Date, neither GSCP, in its
capacity as Co-Syndication Agent and a Joint Lead Arranger, UBSS as
Co-Syndication Agent and a Joint Lead Arranger, nor GE Capital and CIT as
Co-Documentation Agents shall have any obligations but shall be entitled to all
benefits of this Section 9.
9.2 POWERS AND DUTIES. Each Lender irrevocably authorizes each Agent to
take such action on such Lender's behalf and to exercise such powers, rights and
remedies hereunder and under the other Credit Documents as are specifically
delegated or granted to such Agent by the terms hereof and thereof, together
with such powers, rights and remedies as are reasonably incidental thereto. Each
Agent shall have only those duties and responsibilities that are expressly
specified herein and in the other Credit Documents. Each Agent may exercise such
powers, rights and remedies and perform such duties by or through its agents or
employees. No Agent shall have, by reason hereof or of any of the other Credit
Documents, a fiduciary relationship in respect of any Lender; and nothing herein
or in any of the other Credit Documents, expressed or implied, is intended to or
shall be so construed as to impose upon any Agent any obligations in respect
hereof or of any of the other Credit Documents except as expressly set forth
herein or therein.
9.3 GENERAL IMMUNITY. (a) No Agent shall be responsible to any Lender for
the execution, effectiveness, genuineness, validity, enforceability,
collectibility or sufficiency hereof or of any other Credit Document or for any
representations, warranties, recitals or statements made herein or therein or
made in any written or oral statements or in any financial or other statements,
instruments, reports or certificates or any other documents furnished or made by
any Agent to Lenders or by or on behalf of Company to any Agent or any Lender in
connection with the Credit Documents and the transactions contemplated thereby
or for the financial condition or business affairs of any Credit Party or any
other Person liable for the payment of any Obligations, nor shall any Agent be
required to ascertain or inquire as to the performance or observance of any of
the terms, conditions, provisions, covenants or agreements contained in any of
the Credit Documents or as to the use of the proceeds of the Loans or as to the
existence or possible existence of any Event of Default or Default. Anything
contained herein to the contrary
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notwithstanding, Administrative Agent shall not have any liability arising from
confirmations of the amount of outstanding Loans or the Letter of Credit Usage
or the component amounts thereof.
(b) None of Agents nor any of their respective officers, partners,
directors, employees or agents shall be liable to Lenders for any action taken
or omitted by any Agent under or in connection with any of the Credit Documents
except to the extent caused by such Agent's gross negligence or willful
misconduct. Each Agent shall be entitled to refrain from any act or the taking
of any action (including the failure to take an action) in connection herewith
or with any of the other Credit Documents or from the exercise of any power,
discretion or authority vested in it hereunder or thereunder unless and until
such Agent shall have received instructions in respect thereof from Requisite
Lenders (or such other Lenders as may be required to give such instructions
under Section 10.5) and, upon receipt of such instructions from Requisite
Lenders (or such other Lenders, as the case may be), such Agent shall be
entitled to act or (where so instructed) refrain from acting, or to exercise
such power, discretion or authority, in accordance with such instructions.
Without prejudice to the generality of the foregoing, (i) each Agent shall be
entitled to rely, and shall be fully protected in relying, upon any
communication, instrument or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and shall be
entitled to rely and shall be protected in relying on opinions and judgments of
attorneys (who may be attorneys for Company and its Subsidiaries), accountants,
experts and other professional advisors selected by it; and (ii) no Lender shall
have any right of action whatsoever against any Agent as a result of such Agent
acting or (where so instructed) refraining from acting hereunder or under any of
the other Credit Documents in accordance with the instructions of Requisite
Lenders (or such other Lenders as may be required to give such instructions
under Section 10.5).
9.4 AGENT ENTITLED TO ACT AS LENDER. The agency hereby created shall in no
way impair or affect any of the rights and powers of, or impose any duties or
obligations upon, any Agent in its individual capacity as a Lender hereunder.
With respect to its participation in the Loans and the Letters of Credit, each
Agent shall have the same rights and powers hereunder as any other Lender and
may exercise the same as though it were not performing the duties and functions
delegated to it hereunder, and the term "Lender" or "Lenders" or any similar
term shall, unless the context clearly otherwise indicates, include each Agent
in its individual capacity. Any Agent and its Affiliates may accept deposits
from, lend money to and generally engage in any kind of banking, trust,
financial advisory or other business with Company or any of its Affiliates as if
it were not performing the duties specified herein, and may accept fees and
other consideration from Company for services in connection herewith and
otherwise without having to account for the same to Lenders.
9.5 LENDERS' REPRESENTATIONS AND WARRANTIES.
(a) Each Lender, by delivering its signature page to this Agreement or a
Joinder Agreement and funding its Tranche C Term Loan and/or Revolving Loans on
the Effective Date or by the funding of any New Loans, as the case may be, shall
be deemed to have acknowledged receipt of, and consented to and approved, each
Credit Document and each other document required to be approved by any Agent,
Requisite Lenders or Lenders, as applicable on the Effective Date or as of the
date of funding of such New Loans.
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(b) Each Lender represents and warrants that it has made its own
independent investigation of the financial condition and affairs of Company and
its Subsidiaries in connection with the Credit Extensions thereof hereunder and
that it has made and shall continue to make its own appraisal of the
creditworthiness of Company and its Subsidiaries. No Agent shall have any duty
or responsibility, either initially or on a continuing basis, to make any such
investigation or any such appraisal on behalf of Lenders or to provide any
Lender with any credit or other information with respect thereto, whether coming
into its possession before the making of the Loans or at any time or times
thereafter, and no Agent shall have any responsibility with respect to the
accuracy of or the completeness of any information provided to Lenders.
9.6 RIGHT TO INDEMNITY. Each Lender, in proportion to its Pro Rata Share,
severally agrees to indemnify each Agent, to the extent that such Agent shall
not have been reimbursed by Company, for and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including counsel fees and disbursements) or disbursements of any kind
or nature whatsoever which may be imposed on, incurred by or asserted against
such Agent in exercising its powers, rights and remedies or performing its
duties hereunder or under the other Credit Documents or otherwise in its
capacity as such Agent in any way relating to or arising out hereof or of the
other Credit Documents; provided, no Lender shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from such Agent's gross
negligence or willful misconduct. If any indemnity furnished to any Agent for
any purpose shall, in the opinion of such Agent, be insufficient or become
impaired, such Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished; provided, in no event shall this sentence require any Lender to
indemnify any Agent against any liability, obligation, loss, damage, penalty,
action, judgment, suit, cost, expense or disbursement in excess of such Lender's
Pro Rata Share thereof; and provided further, this sentence shall not be deemed
to require any Lender to indemnify any Agent against any liability, obligation,
loss, damage, penalty, action, judgment, suit, cost, expense or disbursement
described in the proviso in the immediately preceding sentence.
9.7 SUCCESSOR ADMINISTRATIVE AGENT AND SWING LINE LENDER. (a)
Administrative Agent may resign at any time by giving 30 days' prior written
notice thereof to Lenders and Company, and Administrative Agent may be removed
at any time with or without cause by an instrument or concurrent instruments in
writing delivered to Company and Administrative Agent and signed by Requisite
Lenders. Upon any such notice of resignation or any such removal, Requisite
Lenders shall have the right, upon five Business Days' notice to Company, to
appoint a successor Administrative Agent, provided that Company shall have the
right to approve any such successor Administrative Agent unless an Event of
Default then exists under Sections 8.1(a), 8.1(f) or 8.1(g). Upon the approval
by Company (if required hereunder) acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, that
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring or removed
Administrative Agent and the retiring or removed Administrative Agent shall be
discharged from its duties and obligations hereunder. After any retiring or
removed Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Section 9 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent hereunder.
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(b) Swing Line Lender may resign at any time by giving 30 days' prior
written notice thereof to Lenders and Company. Upon any such notice of
resignation Administrative Agent shall have the right, upon five Business Days'
notice to Company, to appoint a successor Swing Line Lender from among the
Lenders, provided that Company shall have the right to approve any such
successor Administrative Agent unless an Event of Default then exists under
Sections 8.1(a), 8.1(f) or 8.1(g). Upon the acceptance of any appointment as
Swing Line Lender hereunder by a successor Swing Line Lender, that successor
Swing Line Lender shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Swing Line Lender and the
retiring Swing Line Lender shall be discharged from its duties and obligations
hereunder. In such event (i) Company shall prepay any outstanding Swing Line
Loans made by the retiring Swing Line Lender, (ii) upon such prepayment, the
retiring Swing Line Lender shall surrender the Swing Line Note held by it to
Company for cancellation, and (iii) Company shall issue a new Swing Line Note to
the successor Swing Line Lender, in the principal amount of the Swing Line Loan
Commitment then in effect and with other appropriate insertions.
9.8 COLLATERAL DOCUMENTS AND GUARANTIES. (a) Each Lender hereby further
authorizes Administrative Agent or Collateral Agent, as applicable, on behalf of
and for the benefit of the Secured Parties, to enter into each Collateral
Document as secured party and to be the agent for and representative of Lenders
with respect to the Guaranty and the Collateral, and each Lender agrees to be
bound by the terms of each Collateral Document. Subject to Section 10.5, without
further written consent or authorization from Lenders, Administrative Agent or
Collateral Agent, as applicable, may execute any documents or instruments
necessary to (i) release any Lien encumbering any item of Collateral that is the
subject of a sale or other disposition of assets permitted hereby or to which
Requisite Lenders (or such other Lenders as may be required to give such consent
under Section 10.5) have otherwise consented or (ii) release any Subsidiary
Guarantor from the Guaranty if any of the capital stock of such Subsidiary
Guarantor is sold to any Person (other than an Affiliate of Company) pursuant to
a sale or other disposition permitted hereunder or to which Requisite Lenders
(or such other Lenders as may be required to give such consent under Section
10.5) have otherwise consented and as a result such Person ceases to be a
Subsidiary hereunder or (iii) subordinate any Lien on any property granted to or
held by Collateral Agent under the Credit Documents to the holder of any Lien on
such property that is permitted under (x) Section 6.2(c), (y) Section 6.2(f) and
(z) any other Section of Section 6.2, so long as such Lien is granted in
connection with the issuance or incurrence Indebtedness permitted by Section 6.1
and the proceeds of such Indebtedness are used to purchase assets (including by
means of a Capital Lease) or to refinance Indebtedness which was previously used
to purchase assets (including any Capital Lease); provided that such
subordination shall only cover the respective property so acquired and the
proceeds and products thereof.
(b) Anything contained in any of the Credit Documents to the contrary
notwithstanding, Company, Administrative Agent, Collateral Agent and each Lender
hereby agree that (i) no Lender shall have any right individually to realize
upon any of the Collateral or to enforce the Guaranty, it being understood and
agreed that all powers, rights and remedies hereunder and under the Collateral
Documents may be exercised solely by Administrative Agent for the benefit of
Lenders in accordance with the terms hereof, and (ii) in the event of a
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foreclosure by Collateral Agent on any of the Collateral pursuant to a public or
private sale, Collateral Agent or any Lender may be the purchaser of any or all
of such Collateral at any such sale and Collateral Agent, as agent for and
representative of Lenders (but not any Lender or Lenders in its or their
respective individual capacities unless Requisite Lenders shall otherwise agree
in writing) shall be entitled, for the purpose of bidding and making settlement
or payment of the purchase price for all or any portion of the Collateral sold
at any such public sale, to use and apply any of the Obligations as a credit on
account of the purchase price for any collateral payable by Collateral Agent at
such sale.
(c) It is the purpose hereof and of the other Credit Documents that there
shall be no violation of any law of any jurisdiction denying or restricting the
right of banking corporations or associations to transact business as agent or
trustee in such jurisdiction. It is recognized that in case of litigation
hereunder or under any of the other Credit Documents, and in particular in case
of the enforcement of any of the Credit Documents, or in case Collateral Agent
deems that by reason of any present or future law of any jurisdiction it may not
exercise any of the rights, powers or remedies granted herein or in any of the
other Credit Documents or take any other action which may be desirable or
necessary in connection therewith, it may be necessary that Collateral Agent
appoint an additional individual or institution as a separate trustee,
co-trustee, collateral agent or collateral co-agent (a "SUPPLEMENTAL COLLATERAL
AGENT"). In the event that Collateral Agent appoints a Supplemental Collateral
Agent with respect to any Collateral, (i) each and every right, power, privilege
or duty expressed or intended hereby or by any of the other Credit Documents to
be exercised by or vested in or conveyed to Collateral Agent with respect to
such Collateral shall be exercisable by and vest in such Supplemental Collateral
Agent to the extent, and only to the extent, necessary to enable such
Supplemental Collateral Agent to exercise such rights, powers and privileges
with respect to such Collateral and to perform such duties with respect to such
Collateral, and every covenant and obligation contained in the Credit Documents
and necessary to the exercise or performance thereof by such Supplemental
Collateral Agent shall run to and be enforceable by either Collateral Agent or
such Supplemental Collateral Agent, and (ii) the provisions of this Section 9
and of Sections 10.2 and 10.3 that refer to Collateral Agent shall inure to the
benefit of such Supplemental Collateral Agent and all references therein to
Collateral Agent shall be deemed to be references to Collateral Agent and/or
such Supplemental Collateral Agent, as the context may require. Should any
instrument in writing from Company or any other Credit Party be required by any
Supplemental Collateral Agent so appointed by Collateral Agent for more fully
and certainly vesting in and confirming to him or it such rights, powers,
privileges and duties, Company shall, or shall cause such Credit Party to,
execute, acknowledge and deliver any and all such instruments promptly upon
request by Collateral Agent. In case any Supplemental Collateral Agent, or a
successor thereto, shall die, become incapable of acting, resign or be removed,
all the rights, powers, privileges and duties of such Supplemental Collateral
Agent, to the extent permitted by law, shall vest in and be exercised by
Administrative Agent until the appointment of a new Supplemental Collateral
Agent.
(d) Company and each Guarantor hereby authorize the Collateral Agent to
file any financing statements or continuation statements, and amendments to
financing statements in any jurisdictions and with any filing offices as the
Collateral Agent may determine, in its sole discretion, are necessary or
advisable to perfect or to maintain the perfection of the first priority
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security interest granted to Collateral Agent under any of the Credit Documents.
Such financing statements may describe the Collateral in the same manner as
described in the Pledge and Security Agreement or may contain an indication or
description of collateral that describes such property in any other manner as
the Collateral Agent may determine, in its sole discretion, is necessary,
advisable or prudent to ensure the perfection of the security interest in the
Collateral granted to the Collateral Agent under any of the Credit Documents,
including, without limitation, describing such property as "all assets" or "all
personal property, whether now owned or hereafter acquired." Collateral Agent
will provide Company with file-stamped copies of any such filings made by it.
SECTION 10. MISCELLANEOUS
10.1 NOTICES. Unless otherwise specifically provided herein, any notice or
other communication herein required or permitted to be given shall be in writing
and may be personally served, telexed or sent by telefacsimile (and confirmed by
telephone) or United States mail or courier service and shall be deemed to have
been given when delivered in person or by courier service, upon receipt of
telefacsimile (and confirmed by telephone) or telex, or three (3) Business Days
after depositing it in the United States mail with postage prepaid and properly
addressed; provided, notices to Agents shall not be effective until received.
For the purposes hereof, the address of each party hereto shall be as set forth
under such party's name on the signature pages hereof or (i) as to Company and
Administrative Agent, such other address as shall be designated by such Person
in a written notice delivered to the other parties hereto and (ii) as to each
other party, such other address as shall be designated by such party in a
written notice delivered to Administrative Agent and Company.
10.2 EXPENSES. Whether or not the transactions contemplated hereby shall
be consummated, Company agrees to pay promptly (a) all the actual and reasonable
costs and expenses of Administrative Agent and the Co-Syndication Agents in
connection with the preparation of the Credit Documents and any consents,
amendments, waivers or other modifications thereto; (b) all the costs of
furnishing all opinions by counsel for Company (including any opinions requested
by Lenders as to any legal matters arising hereunder) and of Company's
performance of and compliance with all agreements and conditions on its part to
be performed or complied with hereunder and under the other Credit Documents
including with respect to confirming compliance with environmental, insurance
and solvency requirements; (c) the reasonable fees, expenses and disbursements
of a single law firm acting as counsel to Agents in connection with the
negotiation, preparation, execution and administration of the Credit Documents
and any consents, amendments, waivers or other modifications thereto and any
other documents or matters requested by Company; (d) all the actual costs and
reasonable expenses of Collateral Agent in connection with creating and
perfecting Liens in favor of Collateral Agent on behalf of the Secured Parties
pursuant to the Collateral Documents and pursuant hereto, including filing and
recording fees, expenses and stamp or documentary taxes or similar taxes, search
fees, title insurance premiums and reasonable fees, expenses and disbursements
of counsel to Agents and of a single counsel providing any opinions that
Co-Syndication Agents, Administrative Agent or Requisite Lenders may reasonably
request in respect of the Collateral Documents or the Liens created pursuant
hereto and thereto; (e) all the actual costs and reasonable expenses (including
the reasonable fees, expenses and disbursements) of any auditors,
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consultants, accountants, agents or appraisers retained by any Agent with the
prior consent of Company (not to be unreasonably withheld); (f) all the actual
costs and reasonable expenses (including the reasonable fees, expenses and
disbursements of any consultants, advisors and agents employed or retained by
Collateral Agent and its counsel) of Agents in connection with the custody or
preservation of any of the Collateral; (g) all other actual and reasonable costs
and expenses incurred by Co-Syndication Agents or Administrative Agent in
connection with the syndication of the Commitments and the negotiation,
preparation and execution of the Credit Documents and any consents, amendments,
waivers or other modifications thereto and the transactions contemplated
thereby; and (h) after the occurrence of an Event of Default, all costs and
expenses (including reasonable attorneys' fees of a single counsel to Agents and
Lenders) and costs of settlement, incurred by Co-Syndication Agents,
Administrative Agent and Lenders in enforcing any Obligations of or in
collecting any payments due from any Credit Party hereunder or under the other
Credit Documents by reason of such Event of Default (including in connection
with the sale of, collection from, or other realization upon any of the
Collateral or the enforcement of the Guaranty) or in connection with any
refinancing or restructuring of the credit arrangements provided hereunder in
the nature of a "work-out" or pursuant to any insolvency or bankruptcy
proceedings.
10.3 INDEMNITY. (a) In addition to the payment of expenses pursuant to
Section 10.2, whether or not the transactions contemplated hereby shall be
consummated, Company and each Guarantor agree to defend (subject to Indemnitees'
selection of counsel, which shall be reasonably satisfactory to Company),
indemnify, pay and hold harmless Agents and Lenders, and the officers, partners,
directors, trustees, employees, agents and affiliates of any of Agents and
Lenders (each, an "INDEMNITEE"), from and against any and all Indemnified
Liabilities; provided, neither the Company nor any Guarantor shall have any
obligation to any Indemnitee hereunder with respect to any Indemnified
Liabilities (i) to the extent such Indemnified Liabilities arise from the gross
negligence or willful misconduct or bad faith of that Indemnitee or (ii) to the
extent such Indemnified Liabilities relate to Taxes (and any liabilities
relating thereto), the indemnity for which shall be governed solely and
exclusively by Section 2.20. To the extent that the undertakings to defend,
indemnify, pay and hold harmless set forth in this Section 10.3 may be
unenforceable in whole or in part because they are violative of any law or
public policy, Company and the Guarantors shall contribute the maximum portion
that it is permitted to pay and satisfy under applicable law to the payment and
satisfaction of all Indemnified Liabilities incurred by Indemnitees or any of
them.
(b) Company and each Guarantor agree that neither it nor any of its
Subsidiaries will settle, compromise or consent to the entry of any judgment in
any pending or threatened claim, action or proceeding in respect of which
indemnification or contribution could be sought under subsection (a) of this
section (whether or not any Indemnitee is an actual or potential party to such
claim, action or proceeding) without the prior written consent of the applicable
Indemnitees, unless such settlement, compromise or consent includes an
unconditional release of such Indemnitee from all liability arising out of such
claim, action or proceeding, which consent shall not be unreasonably withheld or
delayed.
(c) If an Indemnitee is requested or required to appear as a witness in
any action brought by or on behalf of or against Company, any Guarantor or any
Affiliate thereof in which
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such Indemnitee is not named as a defendant, Company agrees to reimburse such
Indemnitee for all reasonable expenses incurred by it in connection with such
Indemnitee's appearing and preparing to appear as such a witness, including,
without limitation, the reasonable fees and disbursements of its legal counsel.
10.4 SET-OFF. In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon the
occurrence of any Event of Default each Lender is hereby authorized by each
Credit Party at any time or from time to time subject to the consent of
Administrative Agent, without notice to any Credit Party or to any other Person
(other than Administrative Agent), any such notice being hereby expressly
waived, to set off and to appropriate and to apply any and all deposits (general
or special, including Indebtedness evidenced by certificates of deposit, whether
matured or unmatured, but not including trust accounts) and any other
Indebtedness at any time held or owing by such Lender to or for the credit or
the account of such Credit Party against and on account of the obligations and
liabilities of such Credit Party to such Lender hereunder, the Letters of Credit
and participations therein and the other Credit Documents, including all claims
of any nature or description arising out of or connected herewith, the Letters
of Credit and participations therein or any other Credit Document, irrespective
of whether or not (a) such Lender shall have made any demand hereunder or (b)
the principal of or the interest on the Loans or any amounts in respect of the
Letters of Credit or any other amounts due hereunder shall have become due and
payable pursuant to Section 2 and although said obligations and liabilities, or
any of them, may be contingent or unmatured. Each Lender agrees promptly to
notify Company and Administrative Agent after any such set-off and application
made by such Lender; provided, however, that the failure to give such notice
shall not affect the validity of such set-off and application. Each Credit Party
hereby further grants to Administrative Agent and each Lender a security
interest in all deposits and accounts (other than trust accounts) maintained
with Administrative Agent or such Lender as security for the Obligations.
10.5 AMENDMENTS AND WAIVERS. (a) Subject to Section 10.5(b), Section
10.5(c) and Section 10.5(d), no amendment, modification, supplement or waiver of
any provision of the Credit Documents, or consent to any departure by any Credit
Party therefrom, shall in any event be effective without the written concurrence
of Requisite Lenders.
(b) No amendment, modification, supplement or waiver of any provision of
the Credit Documents, or consent to any departure by any Credit Party therefrom,
shall extend the scheduled final maturity of any Loan or Note, or waive, reduce
or postpone any scheduled repayment set forth in Section 2.11, or extend the
stated expiration date of any Letter of Credit beyond the Revolving Loan
Commitment Termination Date, or postpone the scheduled date of expiration of any
Commitment or reduce the rate of interest on any Loan (other than any waiver of
any increase in the interest rate applicable to any Loan pursuant to Section
2.9) or any commitment fees or letter of credit fees payable hereunder, or
extend the time for payment of any such interest or fees, or reduce the
principal amount of any Loan or any reimbursement obligation in respect of any
Letter of Credit, or shall amend any provision of the Credit Documents providing
for pro rata treatment of Lenders in any such case without the written consent
of each Lender with Obligations affected thereby (it being understood that any
change to
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the definition of Leverage Ratio or in the component definitions thereof shall
not constitute a reduction in any interest rate or any such fee).
(c) No amendment, modification, supplement or waiver of any provision of
the Credit Documents, or consent to any departure by any Credit Party therefrom,
shall (i) amend, modify, supplement or waive any provision of this Section 10.5,
(ii) reduce the percentage specified in the definition of "Requisite Lenders" or
the definition of "Pro Rata Share" (it being understood that, with the consent
of Requisite Lenders, additional extensions of credit pursuant to this Agreement
may be included in the determination of "Requisite Lenders" and "Pro Rata Share"
on substantially the same basis as the Term Loan amounts, the Term Loans, the
Revolving Loan Commitments and the Revolving Loans are included on the Closing
Date), (iii) release all or substantially all of the Collateral or Holdings or
all or substantially all of the other Guarantors from the Guaranty except as
expressly provided in the Credit Documents, or (iv) consent to the assignment or
transfer by Company of any of its rights and obligations hereunder, in each case
without the written consent of each Lender.
(d) No amendment, modification, supplement or waiver of any provision of
the Credit Documents, or consent to any departure by any Credit Party therefrom,
shall: (i) increase the Commitments of any Lender over the amount thereof then
in effect for such Lender without the consent of such Lender (it being
understood that no amendment, modification or waiver of any condition precedent,
covenant, Default or Event of Default, and no increase in the available portion
of any Commitment of any Lender or the rescission of any acceleration pursuant
to Section 8.2, shall constitute an increase in the Commitment of any Lender);
(ii) amend, modify, terminate or waive any provision hereof relating to the
Swing Line Loan Commitment or the Swing Line Loans without the consent of Swing
Line Lender; (iii) reduce the percentage specified in the definition of
"Requisite Class Lenders" with respect to a particular Class without the consent
of each Lender of the affected Class, or otherwise amend the definition of
"Requisite Class Lenders" without the consent of Requisite Class Lenders of each
Class (it being understood that, with the consent of Requisite Lenders,
additional extensions of credit pursuant to this Agreement may be included in
the determination of "Requisite Class Lenders" on substantially the same basis
as the Term Loan amounts, the Term Loans, the Revolving Loan Commitments and the
Revolving Loans are included on the Closing Date); (iv) alter the required
application of any repayments or prepayments as between Classes pursuant to
Section 2.14 without the consent of Requisite Class Lenders of each Class which
is being allocated a lesser repayment or prepayment as a result thereof
(although Requisite Lenders may waive, in whole or in part, any mandatory
prepayment so long as the application, as between Classes, of any portion of
such prepayment which is still required to be made is not altered); (v) amend,
modify, terminate or waive any obligation of Lenders relating to the purchase of
participations in Letters of Credit as provided in Section 2.3(e) without the
written consent of Administrative Agent and of Issuing Bank; or (vi) amend,
modify, terminate or waive any provision of Section 9 as the same applies to any
Agent, or any other provision hereof as the same applies to the rights or
obligations of any Agent without the consent of such Agent.
(e) Administrative Agent may, but shall have no obligation to, with the
concurrence of any Lender, execute amendments, modifications, waivers or
consents on behalf of such Lender. Any waiver or consent shall be effective only
in the specific instance and for the
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specific purpose for which it was given. No notice to or demand on any Credit
Party in any case shall entitle any Credit Party to any other or further notice
or demand in similar or other circumstances. Any amendment, modification,
termination, waiver or consent effected in accordance with this Section 10.5
shall be binding upon each Lender at the time outstanding, each future Lender
and, if signed by a Credit Party, on such Credit Party.
(f) Notwithstanding anything to the contrary contained herein, this
Agreement may be amended with the written consent of the Administrative Agent,
Company, the holders of not less than 50.0% of the Revolving Credit Exposure and
the Lenders providing the relevant Replacement Term Loans to permit the
refinancing of all outstanding Tranche C Term Loans or any Series of New Term
Loans (the "REFINANCED TERM LOAN") with a replacement term loan tranche
hereunder (the "REPLACEMENT TERM LOANS"), provided that (a) the aggregate
principal amount of such Replacement Term Loans shall not exceed the aggregate
principal amount of such Refinanced Term Loan, (b) the interest rate for such
Replacement Term Loans shall not be higher than the interest rate for such
Refinanced Term Loan, (c) the weighted average life to maturity of such
Replacement Term Loans shall not be shorter than the weighted average life to
maturity of such Refinanced Term Loan at the time of such refinancing and (d)
all other terms applicable to such Replacement Term Loans shall be substantially
identical to, or less favorable to the Lenders providing such Replacement Term
Loans than those applicable to such Refinanced Term Loan, except to the extent
necessary to provide for covenants and other terms applicable to any period
after the latest final maturity of the Term Loans in effect immediately prior to
such refinancing.
10.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS. (a) This Agreement shall be
binding upon the parties hereto and their respective successors and assigns and
shall inure to the benefit of the parties hereto and the successors and assigns
of Lenders. Neither any Credit Party's rights or obligations hereunder nor any
interest therein may be assigned or delegated by any Credit Party without the
prior written consent of all Lenders.
(b) No assignment or transfer of any Commitment or Loan shall be
effective, in each case unless and until an Assignment Agreement effecting the
assignment or transfer thereof shall have been accepted by Administrative Agent
and recorded in the Register. Prior to such recordation, all amounts owed with
respect to the applicable Commitment or Loan shall be owed to the Lender listed
in the Register as the owner thereof, and any request, authority or consent of
any Person who, at the time of making such request or giving such authority or
consent, is listed in the Register as a Lender shall be conclusive and binding
on any subsequent holder, assignee or transferee of the corresponding
Commitments or Loans.
(c) Each Lender shall have the right at any time to sell, assign or
transfer, in whole or in part, any Commitment, Loan, Letter of Credit or any
other Obligation: (i) upon the giving of notice to Administrative Agent, to
another Lender, or to an Affiliate of the assigning Lender (or if such assigning
Lender is a fund that invests in commercial or bank loans, another such
investment fund managed or advised by the same investment advisor or an
Affiliate thereof) or another Lender; or (ii) in the case of Term Loans (unless
otherwise covered by clause (i) hereof), with the consent of Company and
Administrative Agent (which consent of Company and Administrative Agent shall
not be unreasonably withheld or delayed) to any other Eligible Assignee
(treating any two or more investment funds that invest in commercial loans and
that are
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managed or advised by the same investment advisor or by an Affiliate of such
investment advisor as a single Eligible Assignee), in an aggregate amount of not
less than $1,000,000 (or such lesser amount as shall constitute the aggregate
amount of the Tranche C Term Loan, New Term Loans and other Obligations of the
assigning Lender); or (iii) in each other case, with the consent of Company and
Administrative Agent (which consent of Company and Administrative Agent shall
not be unreasonably withheld or delayed) to any other Eligible Assignee
(treating any two or more investment funds that invest in commercial loans and
that are managed or advised by the same investment advisor or by an Affiliate of
such investment advisor as a single Eligible Assignee), in an aggregate amount
of not less than $5,000,000 (or such lesser amount as shall constitute the
aggregate amount of the Commitments, Loans, Letters of Credit and participations
therein, and other Obligations of the assigning Lender); provided, however, that
upon the occurrence and during the continuance of an Event of Default with
respect to Sections 8.1(a), 8.1(f) and 8.1(g), the consent of Company shall not
be required under clauses (ii) and (iii) above. Notwithstanding the foregoing,
the Swing Line Loan Commitment and the Swing Line Loans of Swing Line Lender may
not be sold, assigned or transferred except to the extent contemplated by
Section 9.7(b).
(d) The assigning Lender and the assignee thereof shall execute and
deliver to Administrative Agent an Assignment Agreement, together with a
processing and recordation fee of $2,000 (treating any two or more investment
funds that invest in commercial loans and that are managed or advised by the
same investment advisor or by an Affiliate of such investment advisor as a
single Eligible Assignee) and such forms, certificates or other evidence, if
any, with respect to United States federal income tax withholding matters as the
assignee under such Assignment Agreement may be required to deliver to
Administrative Agent pursuant to Section 2.20(c) and Section 2.20(d); provided,
that notwithstanding the foregoing to the contrary, no processing fee shall be
required to be paid with respect to assignments made pursuant to clause (ii) of
the definition of "Eligible Assignee". Subject to Section 10.6(b), upon its
receipt of a duly executed and completed Assignment Agreement, together with the
processing and recordation fee referred to herein and any forms, certificates or
other evidence that such assignee may be required hereunder to deliver to
Administrative Agent, Administrative Agent shall, if Administrative Agent and
Company have consented to the assignment evidenced thereby (in each case to the
extent such consent is required hereunder), (i) accept such Assignment Agreement
by executing a counterpart thereof as provided therein (which acceptance shall
evidence any required consent of Administrative Agent to such assignment), (ii)
record the information contained therein in the Register, and (iii) give prompt
notice thereof to Company. Administrative Agent shall maintain a copy of each
Assignment Agreement delivered to and accepted by it as provided in this Section
10.6(d). Anything contained herein to the contrary notwithstanding, in the case
of an assignment to an Affiliate of the assigning Lender, such assignment shall
be effective between such assigning Lender and its Affiliate immediately without
compliance with the conditions for assignment under Sections 10.6(b) through
(d), but shall not be effective with respect to any Credit Party, Administrative
Agent, any other Agent, any Issuing Bank, any Swing Line Lender or any Lender,
and each Credit Party, Administrative Agent, each other Agent, each Issuing
Bank, each Swing Line Lender and each Lender shall be entitled to deal solely
and directly with such assigning Lender under any such assignment, in each case,
until the conditions for assignment under Sections 10.6(b) through (d) have been
complied with.
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(e) Each Lender listed on the signature pages hereof hereby represents and
warrants, and each Lender executing and delivering an Assignment Agreement shall
be deemed to represent and warrant as of the effective date of such Assignment
Agreement, that (i) it is an Eligible Assignee; (ii) it has experience and
expertise in the making or purchasing of loans such as the Loans; and (iii) it
will make or purchase, as the case may be, its Loans for its own account in the
ordinary course of its business and without a view to distribution of such Loans
within the meaning of the Securities Act or the Exchange Act or other federal
securities laws (it being understood that, subject to the provisions of this
Section 10.6, the disposition of such Loans or any interests therein shall at
all times remain within its exclusive control).
(f) Subject to the terms and conditions of this Section 10.6, as of the
effective date specified in such Assignment Agreement: (i) the assignee
thereunder shall have the rights and obligations of a "Lender" hereunder to the
extent such rights and obligations hereunder have been assigned to it pursuant
to such Assignment Agreement and shall thereafter be a party hereto and a
"Lender" for all purposes hereof; (ii) the assigning Lender thereunder shall, to
the extent that rights and obligations hereunder have been assigned thereby
pursuant to such Assignment Agreement, relinquish its rights (other than any
rights which survive the termination hereof under Section 10.8) and be released
from its obligations hereunder (and, in the case of an Assignment Agreement
covering all or the remaining portion of an assigning Lender's rights and
obligations hereunder, such Lender shall cease to be a party hereto; provided,
anything contained in any of the Credit Documents to the contrary
notwithstanding, Issuing Bank shall continue to have all rights and obligations
as Issuing Bank with respect to Letters of Credit issued by it until the
cancellation or expiration of such Letters of Credit and the reimbursement of
any amounts drawn thereunder); (iii) the Commitments shall be modified to
reflect the Commitment of such assignee and any remaining Commitment of such
assigning Lender; and (iv) if any such assignment occurs after the issuance of
the Notes hereunder, the assigning Lender shall, upon the effectiveness of such
assignment or as promptly thereafter as practicable, surrender its applicable
Notes to Administrative Agent for cancellation, and thereupon new Notes shall be
issued to the assignee and/or to the assigning Lender, with appropriate
insertions, to reflect the new Commitments and/or outstanding Loans of the
assignee and/or the assigning Lender.
(g) In addition to the assignments and participations permitted under the
provisions of this Section 10.6, any Lender may assign and pledge all or any
portion of its Loans, the other Obligations owed to such Lender, and its Notes
to any Federal Reserve Bank as collateral security pursuant to Regulation A of
the Board of Governors of the Federal Reserve System and any operating circular
issued by such Federal Reserve Bank, and any Lender which is an investment fund
may pledge all or any portion of its Notes or Loans to its trustee (unless such
trustee is Highland Capital Management, L.P. or any of its Affiliates or
Subsidiaries) in support of its obligations to such trustee or to its indenture
trustee in support of its obligations to noteholders on whose behalf such
indenture trustee is acting; provided, (i) no Lender shall, as between Company
and such Lender, be relieved of any of its obligations hereunder as a result of
any such assignment and pledge and (ii) in no event shall such Federal Reserve
Bank or trustee be considered to be a "Lender" or be entitled to require the
assigning Lender to take or omit to take any action hereunder.
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(h) Each Lender shall have the right at any time to sell one or more
participations to any Person (other than Highland Capital Management, L.P. or
any of its Affiliates or Subsidiaries) in, all or any part of its Commitments,
Loans or Letters of Credit or participations therein or any other interest
herein or in any other Obligation. The holder of any participation, other than
an Affiliate of the Lender granting such participation, shall not be entitled to
require such Lender to take or omit to take any action hereunder except action
directly affecting (i) the extension of the regularly scheduled maturity of any
portion of the principal amount of or interest on any Loan or fees allocated to
such participation or (ii) a reduction of the principal amount of or the rate of
interest payable on any Loan or fees (other than any waiver of any increase in
the interest rate applicable to any Loan pursuant to Section 2.9) allocated to
such participation (it being understood that any change to the definition of
Leverage Ratio or in the component definitions thereof shall not constitute a
reduction in any interest rate), and all amounts payable by any Credit Party
hereunder (including amounts payable to such Lender pursuant to Section 2.18(c),
Section 2.19 or Section 2.20) shall be determined as if such Lender had not sold
such participation. Each Credit Party and each Lender hereby acknowledge and
agree that, solely for purposes of Sections 2.17 and Section 10.4, (1) any
participation will give rise to a direct obligation of each Credit Party to the
participant and (2) the participant shall be considered to be a "Lender".
10.7 INDEPENDENCE OF COVENANTS. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted
by any of such covenants, the fact that it would be permitted by an exception
to, or would otherwise be within the limitations of, another covenant shall not
avoid the occurrence of a Default or an Event of Default if such action is taken
or condition exists.
10.8 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties and agreements made herein shall survive the
execution and delivery of this Agreement and the making of any Credit Extension.
Notwithstanding anything herein or implied by law to the contrary, the
agreements of each Credit Party set forth in Sections 2.18(c), 2.19, 2.20, 10.2
and 10.3 and the agreements of Lenders set forth in Sections 9.3, 9.6 and 2.17
shall survive the Termination Date.
10.9 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the part of
Administrative Agent or any Lender in the exercise of any power, right or
privilege hereunder or under any other Credit Document shall impair such power,
right or privilege or be construed to be a waiver of any default or acquiescence
therein, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other power,
right or privilege. The rights, powers and remedies given to Beneficiaries
hereby are cumulative and shall be in addition to and independent of all rights,
powers and remedies existing by virtue of any statute or rule of law or in any
of the other Credit Documents or in any of the Hedge Agreements. Any forbearance
or failure to exercise, and any delay in exercising, any right, power or remedy
hereunder shall not impair any such right, power or remedy or be construed to be
a waiver thereof, nor shall it preclude the further exercise of any such right,
power or remedy.
10.10 MARSHALLING; PAYMENTS SET ASIDE. Neither Administrative Agent nor
any Lender shall be under any obligation to marshal any assets in favor of any
Credit Party or any other Person or against or in payment of any or all of the
Obligations. To the extent that any
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Credit Party makes a payment or payments to Administrative Agent or Lenders (or
to Administrative Agent for the benefit of Lenders), or Administrative Agent or
Lenders enforce any security interests or exercise their rights of setoff, and
such payment or payments or the proceeds of such enforcement or setoff or any
part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver or
any other party under any bankruptcy law, any other state or federal law, common
law or any equitable cause, then, to the extent of such recovery, the obligation
or part thereof originally intended to be satisfied, and all Liens, rights and
remedies therefor or related thereto, shall be revived and continued in full
force and effect as if such payment or payments had not been made or such
enforcement or setoff had not occurred, provided that with respect to
calculating interest on any Obligation that is so reinstated, interest shall
accrue from the date that such Obligation is first reinstated and not from the
previous date of payment.
10.11 SEVERABILITY. In case any provision herein or obligation hereunder
or the Notes shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
10.12 OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS' RIGHTS. The
obligations of Lenders hereunder are several and no Lender shall be responsible
for the obligations or Commitments of any other Lender hereunder. Nothing
contained herein or in any other Credit Document, and no action taken by Lenders
pursuant hereto or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a joint venture or any other kind of entity. The
amounts payable at any time hereunder to each Lender shall be a separate and
independent debt, and, subject to Section 9.8(b), each Lender shall be entitled
to protect and enforce its rights arising out hereof and it shall not be
necessary for any other Lender to be joined as an additional party in any
proceeding for such purpose.
10.13 HEADINGS. Section headings herein are included herein for
convenience of reference only and shall not constitute a part hereof for any
other purpose or be given any substantive effect.
10.14 APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING NEW YORK GENERAL
OBLIGATIONS LAW SECTION 5-1401).
10.15 CONSENT TO JURISDICTION AND SERVICE OF PROCESS. ALL JUDICIAL
PROCEEDINGS BROUGHT AGAINST ANY PARTY HERETO ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT, OR ANY OF THE OBLIGATIONS THEREUNDER,
MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN XXX
XXXXX, XXXXXX XXX XXXX XX XXX XXXX. BY EXECUTING AND DELIVERING THIS AGREEMENT,
EACH PARTY HERETO, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY
(a) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND
VENUE OF SUCH COURTS; (b) WAIVES ANY
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DEFENSE OF FORUM NON CONVENIENS; (c) AGREES THAT SERVICE OF ALL PROCESS UPON ANY
CREDIT PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE UPON SUCH
CREDIT PARTY BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE
APPLICABLE PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 10.1; (d)
AGREES THAT SERVICE AS PROVIDED IN CLAUSE (c) ABOVE IS SUFFICIENT TO CONFER
PERSONAL JURISDICTION OVER THE APPLICABLE PARTY IN ANY SUCH PROCEEDING IN ANY
SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY
RESPECT; (e) AGREES THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY CREDIT PARTY IN THE
COURTS OF ANY OTHER JURISDICTION; AND (f) AGREES THAT THE PROVISIONS OF THIS
SECTION RELATING TO JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO
THE FULLEST EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION
5-1402 OR OTHERWISE.
10.16 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES TO
WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER CREDIT DOCUMENTS
OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN
TRANSACTION OR THE LENDER/COMPANY RELATIONSHIP THAT IS BEING ESTABLISHED. The
scope of this waiver is intended to be all-encompassing of any and all disputes
that may be filed in any court and that relate to the subject matter of this
transaction, including contract claims, tort claims, breach of duty claims and
all other common law and statutory claims. Each party hereto acknowledges that
this waiver is a material inducement to enter into a business relationship, that
each has already relied on this waiver in entering into this Agreement, and that
each will continue to rely on this waiver in their related future dealings. Each
party hereto further warrants and represents that it has reviewed this waiver
with its legal counsel and that it knowingly and voluntarily waives its jury
trial rights following consultation with legal counsel. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING
(OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION
10.16 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY
TO ANY SUBSEQUENT AMENDMENTS, RESTATEMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY
OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. In the event
of litigation, this Agreement may be filed as a written consent to a trial by
the court.
10.17 CONFIDENTIALITY. Each Lender, Issuing Bank and Agent shall hold all
non-public information obtained pursuant to the terms hereof in accordance with
such Lender's customary procedures for handling confidential information of such
nature and in accordance with prudent lending or investing practices, it being
understood and agreed by Company that in any event a Lender may make disclosures
to Affiliates of such Lender and such Lender's and Affiliates' directors,
officers, employees and agents in connection with the administration of this
Agreement and the preservation, exercise or enforcement of the rights of the
Agents and the Lenders under
128
this Agreement (it being understood that the Persons to whom such disclosure is
made will be informed of the confidential nature of such information and
instructed to keep such information confidential) or disclosures reasonably
required by any bona fide assignee, transferee or participant in connection with
the contemplated assignment or transfer by such Lender of any Loans or any
participations therein or by any direct or indirect contractual counterparties
(or the professional advisors thereto) in swap agreements (provided, any such
potential assignee, transferee, participant or swap counterparties and advisors
are advised of and agree to be bound by the provisions of this Section 10.17) or
disclosures required or requested by any governmental agency or representative
thereof or by the National Association of Insurance Commissioners or pursuant to
legal process; provided, unless specifically prohibited by applicable law or
court order, each Lender shall use reasonable efforts to notify Company of any
request by any governmental agency or representative thereof (other than any
such request in connection with any routine examination of such Lender by such
governmental agency) for disclosure of any such non-public information prior to
disclosure of such information; and provided further, in no event shall any
Lender be obligated or required to return any materials furnished by Company or
any of its Subsidiaries. Notwithstanding anything to the contrary set forth
herein (or in any Credit Document), each party (and each of their respective
employees, representatives or other agents) may disclose to any and all persons,
without limitations of any kind, the tax treatment and tax structure of the
transactions contemplated by this Agreement and the other Credit Documents and
all materials of any kind (including opinions and other tax analyses) that are
provided to any such party relating to such tax treatment and tax structure.
However, any information relating to the tax treatment or tax structure shall
remain subject to the confidentiality provisions hereof (and the foregoing
sentence shall not apply) to the extent reasonably necessary to enable the
parties hereto, their respective Affiliates, and their and their respective
Affiliates' directors officers, employees and agents to comply with applicable
securities laws. For this purpose, "tax structure" means any facts relevant to
understanding the federal income tax treatment of the transactions contemplated
by this Agreement and the other Credit Documents but does not include
information relating to the identity of any of the parties hereto or any of
their respective Affiliates.
10.18 COUNTERPARTS; EFFECTIVENESS. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument. This Agreement shall become effective upon the
execution of a counterpart hereof by each of the parties hereto and receipt by
Company and Administrative Agent of written or telephonic notification of such
execution and authorization of delivery thereof.
10.19 MAXIMUM AMOUNT. It is the intention of Company and the Lenders to
conform strictly to the usury and similar laws relating to interest from time to
time in force, and all agreements between the Credit Parties and their
respective Subsidiaries and the Lenders, whether now existing or hereafter
arising and whether oral or written, are hereby expressly limited so that in no
contingency or event whatsoever, whether by acceleration of maturity hereof or
otherwise, shall the amount paid or agreed to be paid in the aggregate to the
Lenders as interest (whether or not designated as interest, and including any
amount otherwise designated but deemed to constitute interest by a court of
competent jurisdiction) hereunder or under the other Credit Documents or in any
other agreement given to secure the indebtedness of Company to the
129
Lenders, or in any other document evidencing, securing or pertaining to the
indebtedness evidenced hereby, exceed the maximum amount permissible under
applicable usury or such other laws (the "MAXIMUM AMOUNT"). If under any
circumstances whatsoever fulfillment of any provision hereof, or any of the
other Credit Documents, at the time performance of such provision shall be due,
shall involve exceeding the Maximum Amount, then, ipso facto, the obligation to
be fulfilled shall be reduced to the Maximum Amount. For purposes of calculating
the actual amount of interest paid and/or payable hereunder in respect of laws
pertaining to usury or such other laws, all sums paid or agreed to be paid
hereunder or under any other Credit Document for the use, forbearance or
detention of the indebtedness of Company evidenced hereby or by any other Credit
Document, outstanding from time to time shall, to the extent permitted by
applicable law, be amortized, pro-rated, allocated and spread from the date of
disbursement of the proceeds of the Loans until payment in full of all of such
indebtedness, so that the actual rate of interest on account of such
indebtedness is uniform through the term hereof. The terms and provisions of
this subsection shall control and supersede every other provision of all
agreements between Holdings, Company, or any of their respective Subsidiaries or
any endorser of the Notes and the Lenders.
10.20 REAFFIRMATION AND GRANT OF SECURITY INTEREST. (a) Each Credit Party
has (i) guarantied the Obligations and (ii) created Liens in favor of Lenders on
certain Collateral to secure its obligations under Section 7 of the Existing
Credit Agreement. Each Credit Party hereby acknowledges that it has reviewed the
terms and provisions of this Agreement and consents to the amendment and
restatement of the Existing Credit Agreement effected pursuant to this
Agreement. Each Credit Party hereby (i) confirms that each Credit Document to
which it is a party or is otherwise bound and all Collateral encumbered thereby
will continue to guarantee or secure, as the case may be, to the fullest extent
possible in accordance with the Credit Documents, the payment and performance of
all Guaranteed Obligations under this Agreement and the Secured Obligations (as
such term is defined in the Pledge and Security Agreement) under the Pledge and
Security Agreement, as the case may be, including without limitation the payment
and performance of all such Guaranteed Obligations under this Agreement and the
Secured Obligations under the Pledge and Security Agreement which are joint and
several obligations of each grantor now or hereafter existing, and (ii) grants
to the Collateral Agent for the benefit of the Secured Parties a continuing Lien
on and security interest in and to such Credit Party's right, title and interest
in, to and under all Collateral as collateral security for the prompt payment
and performance in full when due of the Guaranteed Obligations under this
Agreement and the Secured Obligations under the Pledge and Security Agreement
(whether at stated maturity, by acceleration or otherwise).
(b) Each Credit Party acknowledges and agrees that any of the Credit
Documents to which it is a party or otherwise bound shall continue in full force
and effect and that all of its obligations thereunder shall be valid and
enforceable and shall not be impaired or limited by the execution or
effectiveness of the amendment and restatement of the Existing Credit Agreement.
Each Credit Party represents and warrants that all representations and
warranties contained in the Credit Documents to which it is a party or otherwise
bound are true, correct and complete in all material respects on and as of the
Effective Date to the same extent as though made on and as of that date, except
to the extent such representations and warranties specifically relate to an
earlier
130
date, in which case they were true, correct and complete in all material
respects on and as of such earlier date.
10.21 AMENDMENT AND RESTATEMENT. It is the intention of each of the
parties hereto that the Existing Credit Agreement be amended and restated so as
to preserve the perfection and priority of all security interests securing
indebtedness and obligations under the Existing Credit Agreement and that all
Indebtedness and Obligations of Company and its Subsidiaries hereunder and
thereunder shall be secured by the Collateral Documents and that this Agreement
does not constitute a novation of the obligations and liabilities existing under
the Existing Credit Agreement. In addition, unless specifically amended hereby,
each of the Credit Documents, the Exhibits and Schedules to the Existing Credit
Agreement shall continue in full force and effect and that, from and after the
Effective Date, all references to the "Credit Agreement" contained therein shall
be deemed to refer to this Agreement.
[The remainder of this page is intentionally left blank.]
131
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
XXXXXXX BEDDING COMPANY,
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
NOTICE ADDRESS:
Xxxxxxx Bedding Company
Xxx Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Telephone: 000-000-0000
Fax: 000-000-0000
WITH A COPY TO:
Xxxxxx X. Xxx Partners, LP
00 Xxxxx Xxxxxx, Xxxxx 00
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
AND:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telephone: 000-000-0000
Fax: 000-000-0000
S-1
THL-SC BEDDING COMPANY,
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
NOTICE ADDRESS:
c/x Xxxxxxx Company
Xxx Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Telephone: 000-000-0000
Fax: 000-000-0000
WITH A COPY TO:
Xxxxxx X. Xxx Partners, LP
00 Xxxxx Xxxxxx, Xxxxx 00
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
AND:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telephone: 000-000-0000
Fax: 000-000-0000
S-2
THE SIMMONS MANUFACTURING CO., LLC
WORLD OF SLEEP OUTLETS, LLC
SIMMONS CONTRACT SALES, LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
NOTICE ADDRESS:
c/x Xxxxxxx Company
Xxx Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Telephone: 000-000-0000
Fax: 000-000-0000
WITH A COPY TO:
Xxxxxx X. Xxx Partners, LP
00 Xxxxx Xxxxxx, Xxxxx 00
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
AND:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telephone: 000-000-0000
Fax: 000-000-0000
S-3
WINDSOR BEDDING CO., LLC
SC HOLDINGS, INC.
SLEEP COUNTRY USA, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President
NOTICE ADDRESS:
c/x Xxxxxxx Company
Xxx Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Telephone: 000-000-0000
Fax: 000-000-0000
WITH A COPY TO:
Xxxxxx X. Xxx Partners, LP
00 Xxxxx Xxxxxx, Xxxxx 00
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
AND:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telephone: 000-000-0000
Fax: 000-000-0000
S-4
DREAMWELL, LTD.
XXXXXXX CAPITAL MANAGEMENT, LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President
NOTICE ADDRESS:
c/x Xxxxxxx Company
Xxx Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Telephone: 000-000-0000
Fax: 000-000-0000
WITH A COPY TO:
Xxxxxx X. Xxx Partners, LP
00 Xxxxx Xxxxxx, Xxxxx 00
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
AND:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telephone: 000-000-0000
Fax: 000-000-0000
S-5
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
individually, as Sole Bookrunner, a Joint Lead
Arranger, a Co-Syndication Agent and as Lender
By: /s/ Xxxxxxxxx Xxxxxxx
----------------------------------------
Authorized Signatory
NOTICE ADDRESS:
Xxxxxxx Xxxxx Credit Partners L.P.
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxxx Xxxxxxx
Telecopy: (000) 000-0000
S-6
UBS LOAN FINANCE LLC,
as a Lender
By: /s/
----------------------------------------
Name:
Title:
By: /s/
----------------------------------------
Name:
Title:
NOTICE ADDRESS:
000 Xxxxxxxxxx Xxxxxxxxx
0xx xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Vladimira Holeckova
Facsimile: 000-000-0000
S-7
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Administrative Agent
By: /s/ Xxxx Xxx Xxxxx
----------------------------------------
Name: Xxxx Xxx Xxxxx
Title:
By: ________________________________________
Name:
Title:
NOTICE ADDRESS:
00 Xxxx Xxxxxx, 00xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxx Xxxxx
Telecopy: (000) 000-0000
DEUTSCHE BANK A.G., CAYMAN ISLANDS BRANCH,
individually as a Lender
By: /s/ Xxxx Xxx Xxxxx
----------------------------------------
Name: Xxxx Xxx Xxxxx
Title:
By: ________________________________________
Name:
Title:
NOTICE ADDRESS:
00 Xxxx Xxxxxx, 00xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxx Xxxxx
Telecopy: (000) 000-0000
S-8
GENERAL ELECTRIC CAPITAL CORPORATION,
as Co-Documentation Agent and a Lender
By: /s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title: Duly Authorized Signatory
NOTICE ADDRESS:
0 Xxxx Xxxxx Xxxx, Xxxxxxxx 0X
Xxxxxxxx, XX 00000-0000
Attn: _______________
Facsimile: __________
S-9
CIT LENDING SERVICES CORPORATION,
as Co-Documentation Agent and a Lender
By: /s/
-----------------------------------
Name:
Title:
NOTICE ADDRESS:
c/o CIT Group Inc.
Business Credit/Corporate Finance Group
0 XXX Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxx X. Xxxxxxxx, Vice President
Facsimile: (000) 000-0000
with a copy to:
c/o CIT Group Inc.
Corporate Legal Department
0 XXX Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxx X. Xxxxxx, XX,
Vice President & Assistant Chief Counsel
Facsimile: (000) 000-0000 or (000) 000-0000
S-10
SCHEDULE 1.1(b)
TERM LOAN AMOUNTS, REVOLVING LOAN
COMMITMENTS AND PRO RATA SHARES
TRANCHE C
TERM LOAN COMMITMENTS
LENDER TERM LOAN COMMITMENT PRO RATA SHARE
----------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxx Credit Partners L.P. $ 96,715,866.01 24%
Continuing Lenders $299,884,133.99 76%
REVOLVING COMMITMENTS
LENDER REVOLVING COMMITMENT PRO RATA SHARE
----------------------------------------------------------------------------------------------------------------
Xxxxxxx Sachs Credit Partners L.P. $20,000,000 26.7%
Deutsche Bank AG, New York Branch $15,000,000 20%
UBS Loan Finance LLC $15,000,000 20%
General Electric Capital Corporation $15,000,000 20%
CIT Lending Services Corporation $10,000,000 13.3%
Total $75,000,000 100%
SCHEDULE 2.1(a)
CONTINUING LENDERS
ACM INCOME FUND
ALLIANCE - GLOBAL STRAT INCOME
ALLIANCE - NEW GLOBAL CDO LTD
AMEX - CENTURION CDO II
AMEX - CENTURION CDO VII
AMEX - CENTURION VI
AMEX - CERTIFICATE CO
AMEX - IDS LIFE INS
AMEX - KZH CYPRESSTREE-1
AMEX - KZH STERLING LLC
AMEX - SEQUILS - CENTURION V
XXXXXX XXXXXX - NORTHWOODS IV
BABSON - APEX(IDM)
BABSON - ELC (CAY) 1999-II
BABSON - ELC (CAY) 1999-III
BABSON - ELC (CAY) 2000-1
XXXXXX - XXXXX CLO
XXXXXX CLO LTD. 2003-1
BEAR XXXXXXX - OLYMPIC CLO I
BEAR XXXXXXX-XXXXXXXX CLO
BLACKSTONE - MONUMENT PARK
XXXXXXX XX PARTNERS
XXXXXXX XX PARTNERS II
XXXXXXX XX PARTNERS III
XXXXXXX XX PARTNERS IV
CARLYLE LOAN OPPORTUNITY FUND
Canadian Imperial Bank of Commerce (CIBC)
CIT LENDING SERVICES
CONTINENTAL ASSURANCE RE (E)
COOKSMILL
CSAM - ATRIUM II
CSAM FUNDING III
DRESDNER BANK AG, NY
XXXXX XXXXX - BIG SKY
XXXXX XXXXX - BIG SKY III
XXXXX XXXXX - SFRT
XXXXX XXXXX CDO V, LTD
XXXXX XXXXX CDO VI
XXXXX XXXXX FLTG RTE INC TRUST
XXXXX XXXXX XXXXXXX & CO
XXXXX XXXXX INST'L SENIOR
XXXXX XXXXX LIMITED DURATION
XXXXX XXXXX OXFORD
XXXXX XXXXX SNR INC TRT
XXXXX XXXXX SR DEBT PORT
XXXXX XXXXX VT FLOATING
FIRST DOMINION FDG II
FIRST DOMINION FDG III
FRANKLIN CLO I LTD
FRANKLIN CLO II LTD
FRANKLIN CLO III, LTD
FRANKLIN FLOAT RATE XX
XXXXXXXX FLOAT RATE TRUST
FRANKLIN FLOATING DAILY
GE CAPITAL CORP.
GM WELFARE (XXXXXXXX)
GMAM TRUST (XXXXXXXX)
GOLDENTREE LOAN OPP I
GOLDENTREE LOAN OPP II
HARTFORD - TRUMBULL
HARTFORD- STANWICH LOAN
INDOSUEZ - RIVIERA
INDOSUEZ CAPITAL VI
ING INV-PRIME RATE TRUST
ING INV-SNR INCOME FUND
INVESCO-AIM FLOATING RATE
INVESCO-AVALON CAPITAL II
INVESCO-CHARTER VIEW PORT
INVESCO-DCP
INVESCO-EURO CDO I
INVESCO-SAGAMORE CLO LTD.
INVESCO-SARATOGA CLO I, LTD
INVESCO-SEQUILS LIBERTY
MASS MUTUAL - XXXX & XXXXXXX
MASS MUTUAL - SIMSBURY
XXXXXXX-FLTG RATE INC STRAT FD
MJX - VENTURE III CDO
MOUNTAIN CAPITAL CLO II, LTD
MOUNTAIN CAPITAL CLO III LTD.
NORINCHUKIN
NY LIFE INS
NY LIFE INS & XXX
NYLIM FLATIRON CLO 2003
NYLIM FLATIRON CLO 2004-1 LTD
XXXXXXXXXXX - HARBOURVIEW V
XXXXXXXXXXX SR FLTG RTE FD
REGIMENT -PRES AND FELLS/ HARV
REGIMENT CAP LTD
SAI - GALAXY CLO 2003
SAI - KZH SOLEIL
SAI - KZH SOLEIL-2
SANKATY - XXXXX POINT
SANKATY - XXXXX POINT II
SANKATY - CASTLE HILL I
SANKATY - CASTLE HILL II
SANKATY - CASTLE HILL III
SANKATY - RACE POINT
SANKATY - RACE POINT II CLO
XXXXXXX-XXXXX XXXXX 0000-0
XXXXXXX-XXXXXXX XXXX XXX LLC
SPIRET IV LOAN TRUST 2003-B
XXXXXXXXX - RMF TRANSATLANTIC
XXXXXXXXX - XXXXXXX LOAN
XXXXXXXXX ARBITRAGE CDO
XXXXXXXXX CARRERA
XXXXXXXXX QUATTRO CLO, LTD.
XXXXXXXXX-XXXXXXXX CDO
XXXXXXXXX-SUNAMERICA SNR FLT
SUNAMERICA LIFE
TCW - KZH CRESCENT-3 LLC
TORONTO DOM (NY)
TRAVELERS CITIGROUP INV
TRAVELERS COLUMBUS LOAN FUND
UBS AG, STAMFORD
SCHEDULE 4.1
SUBSIDIARIES OF HOLDINGS
JURISDICTION OF AUTHORIZED OUTSTANDING SOLE
NAME ORGANIZATION OR FORMATION CAPITAL STOCK CAPITAL STOCK SHAREHOLDER OR MEMBER
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Bedding Company Delaware 3,000 shares 100 shares THL-SC Bedding Company
$0.01 par value Common Stock
Common Stock
Xxxxxxx Caribbean Bedding, Inc.* Puerto Rico 10,000 shares 400 shares Xxxxxxx Bedding Company
no par value Common Stock
Common Stock
SC Holdings, Inc. Delaware 100 shares 100 shares Xxxxxxx Bedding Company
$0.01 par value Common Stock
Common Stock
Sleep Country USA, Inc. Delaware 3,000 shares 3,000 shares SC Holdings, Inc.
$0.01 par value Common Stock
Common Stock
Simmons I.P. Inc.* Ontario Unlimited number of 2,121,100 shares Xxxxxxx Bedding Company
shares of Common Stock Common Stock
Unlimited number of
shares of Class A Stock
Info Establishment* Liechtenstein 10,000 S. Frs. 10,000 S. Frs. Xxxxxxx Bedding Company
Simmons International Ltd.* Bahama Islands, B.V.I. 5,000 shares N/A Xxxxxxx Bedding Company
[dissolution pending] $1.00 par value
Common Stock
688363 Ontario Limited* Ontario Unlimited number of 10 shares Xxxxxxx Bedding Company
[dissolution pending] shares of Ordinary Stock Ordinary Stock
Unlimited number of 16,300 shares
shares of Third Preference Stock
First Preference Stock
Unlimited number of
shares of Second
Preference Stock
Unlimited number of
shares of
Third Preference Stock
The Simmons Manufacturing Co., LLC Delaware N/A N/A Xxxxxxx Bedding Company
Simmons Contract Sales, LLC Delaware N/A N/A Xxxxxxx Bedding Company
Schedule 4.11 - Page 1
JURISDICTION OF AUTHORIZED OUTSTANDING SOLE
NAME ORGANIZATION OR FORMATION CAPITAL STOCK CAPITAL STOCK SHAREHOLDER OR MEMBER
------------------------------------------------------------------------------------------------------------------------------------
World of Sleep Outlets, LLC Delaware N/A N/A Xxxxxxx Bedding Company
Dreamwell, Ltd. Nevada N/A N/A Xxxxxxx Bedding Company
Simmons Capital Management, LLC Nevada N/A N/A Xxxxxxx Bedding Company
Windsor Bedding Co., LLC Delaware N/A N/A Xxxxxxx Bedding Company
Simmons Juvenile Company, LLC Delaware N/A N/A Xxxxxxx Bedding Company
* Non-Guarantor Subsidiary
Schedule 4.11 - Page 2
SCHEDULE 4.12
REAL PROPERTY ASSETS
OWNED REAL PROPERTY
The Simmons Manufacturing Co., LLC
0000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxx.
LEASED PROPERTY
Corporate
1. Lease Agreement, as amended, between Concourse I, Ltd. and Simmons Company
for the property located at Xxx Xxxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx, dated
April 20, 2000.
2. Lease, as amended, by and between St. Xxxx Properties, Inc. and Simmons
Company for the property located at 0000 Xxxxxx Xxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxx, dated as of October 25, 2002.
3. Standard Lease, as amended, by and between Xxxxxxxx Company, LLC and
Simmons Company for the property located at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxx
Xxxxxx, Xxxxxxx, dated as of September 20, 2002.
4. Lease Agreement, as amended, by and between St. Xxxx Properties, Inc. and
Simmons Company for the property located at 0000 Xxxxxx Xxxxx Xxxxxx,
Xxxxxxxx Xxxxxx, Xxxxxxx, dated as of October 19, 1994.
5. Lease Agreement, as amended, by and between The Simmons Manufacturing Co.,
LLC ("TSMC") and World Market Center Tower I, LLC for the property located
at World Market Center, Las Vegas, Nevada, dated as of February 5, 2003.
6. Lease Agreement, as amended, by and between TSMC and Weston MartCo d/b/a
San Francisco Mart for the property located at 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx, dated as of December 10, 2002.
7. Lease Agreement between PS Executive Centers, Inc. and Simmons Company for
the property located at 0000 Xxxxx Xx., Xxxxx 000, Xxxxxx XX, dated as of
May 1, 2004.
Plant Leases
1. Lease Agreement, as amended, by and between CK-Childress Xxxxx #8 Limited
Partnership and Simmons Company for the property located at 0000 Xxxx X.X.
Xxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx, dated May 5, 1993, assigned
to TSMC on December 29, 2001.
2. Building Lease Agreement by and between Building Ten, LLC, successor to
Gateway Park II, LLC, and Simmons Company, dated October 18, 1997 for the
property located at 00000 Xxxx 00xx Xxxxx, Xxxxxx, Xxxxxxxx, assigned to
TSMC on December 29, 2001.
3. Commercial and Industrial Lease Agreement, as amended, by and between
Bluefin Associates and Simmons Company for the property located at 000
Xxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx, dated December 4, 1987, assigned to
TSMC on December 29, 2001.
Schedule 4.12 - Page 1
4. Lease Agreement, as amended, by and between 20100 S. Alameda Property
Company successor to Xxxxxxx, Xxxxx & Associates, Inc., successor in
interest to Debu/Flair, Inc., and Xxxxxxx Company for the property located
at 00000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx, dated March 12, 1974,
assigned to TSMC on December 29, 2001.
5. Lease Agreement by and between CP REPROP Phoenix III Corporation and
Xxxxxxx Company, dated March 12, 1997 for the property located at 000
Xxxxx 000xx Xxxxxx, Xxxxxxxx, Xxxxxxx, assigned to TSMC on December 29,
2001.
6. Agreement of Lease, as amended, by and between 000 Xxxxxxxxxx Xxxx and
Xxxxxxx Company for the property located at 000 Xxxxx Xxxxxxxxxxxxx Xxxx,
Xxxxxxxxxx, Xxx Xxxxxx, dated September 16, 1988, assigned to TSMC on
December 29, 2001.
7. Lease Agreement by and between ProLogis Development Services Incorporated
by assignment from ProLogis Trust f/k/a Security Capital Industrial Trust
and Xxxxxxx Company, dated May 29, 1998, for the property located at
Crossroads Corporate Center, Indiana Avenue, Salt Lake City, Utah,
assigned to TSMC on December 29, 2001.
8. Deed of Lease, as amended, by and between Simmons Associates, L.P. and
Xxxxxxx Company for the property located at Commerce Place, Xxx Xxxx
District, Spotsylvania Country, Virginia, dated October 7, 1994, assigned
to TSMC on December 29, 2001.
9. Lease Agreement, as amended, by and between Black Development Corporation,
Kurisu & Fergus, and Xxxxxxx X. Xxxxxx as Trustee under that certain
unrecorded Revocable Living Trust of Xxxxxxx X. Xxxxxx dated October 1,
1991, as successor landlord to Xxxxxxx X.X. Xxxx as Trustee of the Xxxxxxx
X.X. Xxxx Revocable Trust, dated February 12, 1982, and Xxxxxxx Company
for the property located at Xxxxxxxx Industrial Park, Honolulu, Hawaii,
dated November 30, 1992, assigned to TSMC on December 29, 2001.
10. Lease Agreement, as amended, between Xxxx X. Xxxxxx and Xxxxxxx Company
for the property located in Discovery Park, Xxxx County, Georgia, dated
October 23, 1991, assigned to TSMC on December 29, 2001.
11. Industrial Lease Agreement by and between DFW Trade Center I Limited
Partnership and Xxxxxxx Company for the property located at 0000 Xxxxxxx
Xxxxx, Xxxxxxx, Xxxxx, dated February 18, 1998, assigned to TSMC on
December 29, 2001.
12. Lease Agreement, as amended, by and between Orbit Property Corporation,
d/b/a 0000 Xxxxxxx Xxxxx Associates, and Xxxxxxx Company, dated September
30, 1992, for the property located at 0000 Xxxxxxx Xxxxx, Xxx Xxxxxxx,
Xxxxxxxxxx, assigned to TSMC on December 29, 2001.
13. Industrial/Office NNN Lease for Rainier Park of Industry between Panattoni
Development Company, LLC and TSMC for the property located at 00xx Xxxxxx
Xxxx, Xxxxxx, Xxxxxxxxxx, dated as of January 22, 2003.
14. Industrial/Office NNN Lease, dated August 25, 2003, by and between TSMC
and Xxxxxxx 000 Xxx Xxxxx, LLC for the property located at 000 Xxx Xxxxx
Xxxx (1 Xxxxxxx Drive), Humboldt Industrial Park, Xxxxx Township, Luzerne
County, Pennsylvania.
15. Lease Agreement, dated December 1, 1996, by and between The City of
Shawnee, Kansas and Xxxxxxx Company, assigned to TSMC on December 29,
2001.
Schedule 4.12 - Page 2
16. Sublease Agreement by and between Okefenokee Area Development Authority
(as sublessor) and TSMC (as sublessee), dated as of October 15, 2003, with
respect to certain property located at 0000 Xxxxxxxx Xxxxx, Xxxxxxxx,
Xxxxxxx.
17. Lease Agreement between The Xxxxxxx Manufacturing Co., LLC and Waycross
and Xxxx County Development Authority dated as of June 1, 2004 with
respect to the Waycross and Xxxx County Development Authority Taxable
Revenue Bonds (The Simmons Manufacturing Co., LLC Project), Series 2004 in
an authorized aggregate principal amount not to exceed $12,850,000.
World of Sleep Outlets, LLC ("WOS")
1. Lease Agreement, dated June 15, 1995, between D&B No. 6, LLP, successor in
interest to Indcon, L.P. and Xxxxxxx Company, as amended, for the property
located at 0000 Xxxxxxxxxxxxx Xxx., Xxxxxxx, Xxxxxxx, assigned to WOS on
December 29, 2001.
2. Standard Commercial Triple Net Lease, dated May 28, 1997, between A & E
Partners, L.P. and Xxxxxxx Company, for the property located at Meadow
Business Park, 0000-X Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx, assigned to WOS
on December 29, 2001.
3. Lease, dated October 22, 2001, between MG Patchogue II Limited Partnership
and Xxxxxxx Company, for the property located at Prime Outlets, 00 Xxxxxx
Xxxxx, Xxxxx # 0, Xxxxxxxx, Xxx Xxxx, assigned to WOS on December 29,
2001. CLOSED IN NOVEMBER 2003.
4. Standard Retail Lease between Vantage Management Company, as agent for
Westvan Properties, Ltd., and Xxxxxxx Company, dated as of October 1,
1999, for the property located at Trinity Service Center, 0000 Xxxxxxxx
Xxxx, Xxxxxx, Xxxxx, assigned to WOS on December 29, 2001.
5. Shopping Center Standard Lease, dated September 28, 2001, between NNN
Empire Center, LLC and Xxxxxxx Company, for the property located at 00000
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx, assigned to WOS on December 29, 2001.
6. Lease Agreement, dated August 14, 2000, between Belton SC, GN, LLC,
successor in interest to South Five Associates, LLC, and Simmons d/b/a
World of Sleep Mattress Outlet, for the property located at 0000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxx Xxxxxxxx, assigned to WOS on December 29, 2001.
7. Lease Agreement, dated October, 1997, between American National Insurance
Company and Xxxxxxx Company, for the property located at Grandview Plaza
Shopping Center, 12905-X X, South 00 Xxxxxxx, Xxxxxxxxx, Xxxxxxxx,
assigned to WOS on December 29, 2001. This lease is currently
month-to-month. The Company is considering renewing the lease based on
performance after Q1 2004.
8. Lease Agreement, dated as of March 7, 2003, by and between WOS and Thrift
Brothers, Inc. for the premises located at 000 Xxxxxx Xxxxxx, Xxxxxxx
Xxxxx, Xxxxxx Xxxxxx, Xxxxx Xxxxxxxx.
9. Home Furnishings Factory Outlet Lease, dated February 21, 1996, between
Xxxxxx X. Xxxxxxx, ultimate successor to Royce Realty, Inc., and Xxxxxxx
Company, trading
Schedule 4.12 - Page 3
as Xxxxxxx Beautyrest Factory Outlet, as amended, for the property located
at 0000 Xxxxxxxxxx Xxxx, Xxx 000, Xxxxxxxxxx, Xxxxxxxxxxxx, assigned to
WOS on December 29, 2001.
10. Retail Lease, dated June 17, 1999, between 3701 Investors, L.L.C. and
Xxxxxxx Company, for the property located at 0000 XX Xxxxx Xxxx.,
Xxxxxxxx, Xxxxxx, assigned to WOS on December 29, 2001.
11. Standard Shopping Center Lease, dated June 17, 1999, between Arapaho Ace
Limited Liability Company and Xxxxxxx Mattress Company, for the property
located at 0000 X. Xxxxx Xxxx, Xxxxx #000, Xxxxxxxxxx, Xxxxx, assigned to
WOS on December 29, 2001.
12. Shopping Center Lease between Xxxxx X. Xxxxx, predecessor to Xxxxxx
Crossing, and Simmons dated November 1, 1999, as amended, for the property
located at the Xxxxx Crossing Shopping Center, 0000 Xxxxxxx Xxxxxxx, Xxxxx
000, Xxxxxx, Xxxxxxx, assigned to WOS on December 29, 2001.
13. Lease Contract, dated September 5, 1996, between Xxxxxxxxxx Realty
Investors and Xxxxxxx Company, for the property located at Westbrooke
Village Shopping Center, 0000 Xxxxxxx Xxxx, Xxxxxxx, Xxxxxx, assigned to
WOS on December 29, 2001.
14. Pacific Business Park Lease, dated October 14, 1997, between Desert West
Investors, L.L.C., and Xxxxxxx Company, as amended, for the property
located at 0000 Xxxxx 000xx Xxxxxx, Xxxx, Xxxxxxxxxx, assigned to WOS on
December 29, 2001.
15. Bay Ridge Shopping Center Lease Agreement, dated April 10, 2001, between
Bank of Waukegan, as Trustee under a Trust Agreement dated the June 16,
1990, and known as Trust No. 3554 and Xxxxxxx Company, for the property
located at 000 X. Xxxxx Xxx Xx., Xxxxxxxx, Xxxxxxxx, assigned to WOS on
December 29, 2001.
16. Lease Agreement, dated March 28, 1996, between Simmons and Regency
Business Park Office L.L.C., successor in interest to Security Capital
industrial Trust, as amended, for the property located at 0000 Xxxxx
Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx, assigned to WOS on
December 29, 2001.
17. Lease Agreement, dated as of August 28, 2003, between Prologis and WOS for
the property located at 000 Xxxxx Xxxx Xxxx, Xxxxx 000, Xxxx, Xxxxxx.
18. WOS plans to enter into a new lease with Xxxxx Group for property located
at 0000 XxXxxxxx Xx., Xxxx 0000, Xxxxxxxxxxxxxx, Xxxx in November 2003.
19. Lease Agreement, dated as of July 30, 2004, between World of Sleep
Outlets, LLC and South Xxxxxxx Corporation, for the property located at
Xxxx 0, Xxxxx Xxxxx, 000 Xxxxxxxx, Xxxxxxxx City, IN 46363.
20. Lease Agreement, dated August 23, 2004, between WOS and Abbeville Shopping
Center, L.L.C. for the property located at 00 Xxxxxx, Xxxxx 00, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000.
Schedule 4.12 - Page 4
Dreamwell, Ltd. ("Dreamwell")
Nevada Subsidiaries:
1. Sublease & Administrative Services Agreement, dated as of December 6,
2001, by & between Dreamwell (as sublessee) & Entity Services Nevada, LLC
(as sublessor).
2. Sublease & Administrative Services Agreement, dated as of December 6,
2001, by & between Xxxxxxx Capital Management, LLC (as sublessee) & Entity
Services Nevada, LLC (as sublessor).
Subleases (as Sublessor)
l. Sublease, dated as of September 1, 2002, by and between Xxxxxxx Company
(as sublessor) and Corporate Risk Solutions, Inc. (as sublessee), with
respect to certain property located at Xxx Xxxxxxxxx Xxxxxxx, Xxxxxxx,
Xxxxxxx.
Schedule 4.12 - Page 5
SCHEDULE 6.1
CERTAIN EXISTING INDEBTEDNESS
Per Schedule 1.3(e) of Stock Purchase Agreement:
City of Janesville, Wisconsin IRB $9.7M, 7%, 11/12/92; due 10/15/17 $ 9,700,000.00
Slumberland Note pay $500,000, 6%, 09/17/03; due 09/17/04 $ 500,000.00
SCUSA cap leases: $ 309,162.00
CIT software equip
Telephone system
Office furniture
Ford truck
Cambridge software
Puerto Rico cap leases: $ 44,762.39
Small truck $ 12,825.82
Auto - Chrysler $ 12, 901.23
Xerox copier $19,035.34
Waycross, Georgia capital lease
City of Shawnee, Kansas IRB $5.0M, floating, 12/23/96; due 12/01/16 $ 4,000,000.00
Banco Santander Construction Loan $3.2M, floating, 12/12/97; due 12/01/12 $ 2,115,587.89
Premium Financing @ 3.10% (AFCO and A1 Credit 03/04 Policy period) $ 2,827,136.03
Undrawn Letters of Credit: $ 10,443,235.00
Greenwich Insurance 96/97 Policy period $ 350,625.00
National Union Fire Ins. 01/02 Policy period $ 2,700,000.00
National Union Fire Ins. 02/03 Policy period $ 2,200,000.00
National Union Fire Ins. 03/04 Policy period $ 1,192,610.00
KC IRB - Shawnee, KS plant $ 4,000,000.00
----------------
Total $ 10,443,235.00
================
SCHEDULE 6.2
CERTAIN EXISTING LIENS
SEE ATTACHED.
SCHEDULE 6.2
CERTAIN EXISTING LIENS
Secured Party/Amended or Jurisdiction-
Debtor Assigned Name Filing Office Type of Filing File Number File Date Collateral Description/Comments
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Caribbean Xxxxxxx & Xxxxx, Puerto Rico UCC-1 2002026239 4/10/02 Consigned inventory
Bedding, Inc. Incorporated -Secretary located at Las Xxxxxx
Las Xxxxxx Ind. Xx. 0 Xxxxxxx Xxxx of State Ind. Center, Xxx 0, Xxxx 0000,
Xxxxxx, Xxx Xxxxxxxx, XX 00000 XX 0.0, Xxxxxxxx Xxxx, XX 00000
6, Xxxx 0000, XX 0.0
Xxxxxxxx Xxxx,
XX 00000
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company X. X. Xxxxxx Lumber California UCC-1 199608960284 3/27/96 All cut to size box
0000 Xxxxxxx Xxxxx Company, Inc. -Secretary spring lumber delivered
San Leandro, 000 Xxxxxx Xxxxx, xx Xxxxx to Xxxxxxx Company by
CA 94577 Ste. 240 UCC-3 2000288C0037 10/03/00 X.X. Xxxxxx Lumber
Xxxxxxxxxx, XX 00000-0000 Continuation Company, Inc. and not
yet billed to Xxxxxxx
Company (the consigned
inventory).
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Crown Credit Company California UCC-1 199806360092 2/27/98 Crown Lift Truck, Deka
0000 Xxxxxxx Xxxxx 40 X. Xxxxxxxxxx Street -Secretary Battery,
San Leandro, CA Xxx Xxxxxx, XX 00000 of State Hobart Charger.
94577
UCC-3 1998174C0224 6-19-98 Amend truck model,
Amendment battery and serial
numbers.
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Crown Credit Company California UCC-1 199814060518 5/18/98 Crown Lift Truck, Deka
0000 Xxxxxxx Xxxxx 00 X. Xxxxxxxxxx Xxxxxx -Secretary Battery, Hobart
San Leandro, CA Xxx Xxxxxx, XX 00000 of State Charger.
94577
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Co. Xerox Corp. 2200 California- UCC-1 199818860147 7/03/98 One Xerox 5895 Copier.
00000 X. Xxxxxxx 0000 Xxxx XxXxxxxx Secretary of
Street Compton. Avenue Santa Xxx, State
CA 90221 CA 92705
----------------------------------------------------------------------------------------------------------------------------------
SECURED PARTY/AMENDED OR JURISDICTION-
DEBTOR ASSIGNED NAME FILING OFFICE TYPE OF FILING FILE NUMBER FILE DATE COLLATERAL DESCRIPTION/COMMENTS
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Safeco Credit Co. California UCC-1 199900860867 1/04/99 One 1998 Xxxx
000 Xxxxxxxx Xxxxx Inc. DBA SAFELINE -Secretary Skidsteer Loader,
Scotts Valley, CA Leasing 10915 of State Model SL563DXT.
95066-3247 Willows Road NE
Add'l Lessee: Xxxxxxx, XX 00000
Xxxxxxx Xxxxxxx
Same address
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Toyota Motor California UCC-1 199912360283 4/26/99 Certain Equipment.
20100 South Credit Corp. P.O. -Secretary
Alameda Compton, Box 3457 Torrance, of State
CA 90220 CA 90510
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Toyota Motor California UCC-1 199912360291 4/26/99 Certain Equipment.
20100 South Credit Corp. P.O. -Secretary
Alameda Compton, Box 3457 Torrance, of State
XX 00000 XX 00000
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Newcourt California UCC-1 199917260148 6/16/99 Equipment located at
One Concourse Communications -Secretary 00000 Xxxxx Xxxxxxx,
Xxxxxxx Atlanta, Finance Corporation of State Xxxxxxx, XX 00000.
GA 30328 0 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Toyota Motor California UCC-1 199917760523 6/21/99 One new Toyota Forklift
20100 South Credit Corp. P.O. -Secretary Model 42-6FGCU25, 189"
Alameda Compton, Box 3457 Torrance, of State Mast, 60" Xxxxx,
XX 00000 CA 90510 Sideshifter.
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Bankvest Capital California UCC-1 199922560379 8/2/99 One Recond, Articulating
20100 South Alameda Corp. 200 -Secretary Boom Lift.
Street Compton, CA Xxxxxxxxx Road of State
90220 Xxxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
2
SECURED PARTY/AMENDED OR JURISDICTION-
DEBTOR ASSIGNED NAME FILING OFFICE TYPE OF FILING FILE NUMBER FILE DATE COLLATERAL DESCRIPTION/COMMENTS
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company X. X. Xxxxxx Lumber California UCC-1 200028460865 9/28/00 All cut to size box
20100 S. Alameda Company, Inc. 300 -Secretary spring lumber delivered
Xxxxxxx, XX 00000 Xxxxxx Plaza, Suite of State to Xxxxxxx Company by C.
000 Xxxxxxxxxx, XX lapsed X. Xxxxxx Lumber Company,
15236-1520 filing for Inc., and not yet billed
Finance St to Xxxxxxx Company (the
#9520960667 consigned inventory).
originally
filed
7/26/95
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Fleet Capital California UCC-1 200101760514 1/16/01 Certain Equipment.
One Concourse Corporation (for -Secretary
Parkway, Suite 800 itself and/or as of State
Xxxxxxx, XX 00000 agent) 00 Xxxxxxx
Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Assigned to: UCC-3 2001078C0585 3/16/01 Assigned to General
General Electric Assignment Electric Capital
Capital Corporation Corporation.
0000 Xxxxxxxx Xxxxx,
Xxxxx 000 Xxxx
Xxxxxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Fleet Capital California UCC-1 200101760669 1/16/01 Certain Equipment.
One Concourse Corporation (for -Secretary
Parkway, Suite 800 itself and/or as of State
Xxxxxxx, XX 00000 agent) 00 Xxxxxxx
Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Assigned to: UCC-3 2001078C0432 3/16/01 Assigned to General
General Electric Capital Assignment Electric Capital
Corporation 1301 Corporation.
Xxxxxxxx Xxxxx,
Xxxxx 000 Xxxx
Xxxxxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
3
SECURED PARTY/AMENDED OR JURISDICTION-
DEBTOR ASSIGNED NAME FILING OFFICE TYPE OF FILING FILE NUMBER FILE DATE COLLATERAL DESCRIPTION/COMMENTS
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Xxxxxxx Financial California UCC-1 200107260348 3/12/01 One Xxxxxxx Model 8300-3072
00000 Xxxxx Xxxxxxx Services 4333 -Secretary Sweeper/Scrubber.
Street Compton, CA Edgewood Rd. N.E. of State
90220 Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company CIT Communications California UCC-1 200110060558 4/05/01 Equipment located at
One Concourse Finance Corporation -Secretary 0000 Xxxxxxx Xxxxx, Xxx
Xxxxxxx Xxxxxxx, 000 XXX Xxxxx xx Xxxxx Xxxxxxx, XX 00000.
GA 30328 Xxxxxxxxxx, XX 00000
Assigned to: UCC-3 2001179C0704 6/27/01
General Electric Assignment
Capital Corporation
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Fleet Capital California UCC-1 200122060427 8/07/01 Equipment: quilting machines,
One Concourse Corporation (for -Secretary border machines, pocket
Parkway, Suite 800 itself and/or as of State machines.
Xxxxxxx, XX 00000 agent) Xxx Xxxxxxxxx
Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Assigned to: UCC-3 2001339C0381 12/04/01 Assignment.
Transamerica Assignment
Equipment Financial
Services Corporation
0000 Xxxxxxxx Xxxxx,
Xxxxx 0000X Xxxxxxx,
XX 00000
----------------------------------------------------------------------------------------------------------------------------------
4
SECURED PARTY/AMENDED OR JURISDICTION-
DEBTOR ASSIGNED NAME FILING OFFICE TYPE OF FILING FILE NUMBER FILE DATE COLLATERAL DESCRIPTION/COMMENTS
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Fleet Capital California UCC-1 200122260355 8/10/01 Equipment: quilting machines,
One Concourse Corporation (for -Secretary border machines, pocket
Parkway, Suite 800 itself and/or as of State machines.
Xxxxxxx, XX 00000 agent) Xxx Xxxxxxxxx
Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Assigned to: 2001339C0353 12/04/01
Transamerica
Equipment Financial
Services Corporation
0000 Xxxxxxxx Xxxxx,
Xxxxx 0000X Xxxxxxx,
XX 00000
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company, Safeco Credit Co. Delaware UCC-1 10655048 7/9/01 Equipment Leases - one
Inc. 1 Concourse Inc. DBA SAFELINE -Secretary Yard Spotter
Parkway Suite 600 Leasing 10915 of State
Atlanta, GA 30328 Xxxxxxx Xxxx XX
Xxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Crown Credit Delaware UCC-1 10861414 8/3/01 Equipment - two Fork Lift
One Concourse Company 44 S -Secretary Trucks
Parkway Xxxxxxx, Xxxxxxxxxx Xxx xx Xxxxx
XX 00000 Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
5
SECURED PARTY/AMENDED OR JURISDICTION-
DEBTOR ASSIGNED NAME FILING OFFICE TYPE OF FILING FILE NUMBER FILE DATE COLLATERAL DESCRIPTION/COMMENTS
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Fleet Capital Delaware UCC-1 10869615 8/6/01 Equipment-- quilting machines,
One Concourse Corporation (for -Secretary border machines,
Parkway, Ste 800 itself and/or as of State pocket machines
Xxxxxxx, XX 00000 agent) Xxx Xxxxxxxxx
Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Assignor: UCC-3 11786974 12/27/01
Transamerica assignment
Equipment Financial
Services Corporation
0000 Xxxxxxxx Xxxxx
Xxxxx 0000X
Xxxxxxx,XX 00000
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Fleet Capital Delaware UCC-1 10890207 8/8/01 Equipment - quilting machines,
One Concourse Corporation (for -Secretary border machines, pocket
Parkway, Ste 800 itself and/or as of State machines
Xxxxxxx, XX 00000 agent) Xxx Xxxxxxxxx
Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Crown Credit Delaware UCC-1 10896709 8/9/01 Equipment - one Crown Lift
One Concourse Company 44 S -Secretary Truck
Parkway Atlanta, Washington of State
GA 30329 Street Xxx
Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
6
Secured Party/Amended or Jurisdiction- Collateral
Debtor Assigned Name Filling Office Type of Filing File Number File Date Description/Comments
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company CIT Communications Finance Delaware- UCC-1 10916424 Master Equipment Lease for
One Concourse Parkway Corporation Secretary of In-Lieu 8/27/01 Janesville,
Xxxxxxx, XX 00000 000 XXX Xxxxx Xxxxx XX (in-lieu of
Xxxxxxxxxx, XX 00000 continuation statement
remaining effective with
Assignor: Wisconsin SOS)
General Electric Capital UCC-3 10916465 8/27/01
Corporation assignment
0000 Xxxxxxxx Xxxxx,
Xxx 000
Xx. Xxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Xxxxxxx & Xxxxx, Delaware - UCC-1 11024939 9/17/01 Consigned inventory
0000 Xxxxxxx Xxxxx, Incorporated Secretary of located at 4255 Patriot
Ste 100 No. 1 Xxxxxxx Road Xxxxx Xxxxx , Xxxxx 000,
Xxxxxxxxx, XX 00000 X.X. Xxx 000 Xxxxxxxxx , XX 00000
Xxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Xxxxxxx & Xxxxx, Delaware - UCC-1 11024996 9/17/01 Consigned inventory
0000 Xxxxxxxxx Xxxx Incorporated Secretary of located at 0000 Xxxxxxxxx
Xxxxxxxx, XX 00000 No. 0 Xxxxxxx Xxxx Xxxxx Xxxx, Xxxxxxxx, XX 00000
X.X. Xxx 000
Xxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company 0000 Xxxxxxx & Xxxxx, Xxxxxxxx - UCC-1 11025076 9/17/01 Consigned inventory
0000 Xxxxxxxx Xxxxx Incorporated Secretary of located at 0000 Xxxxxxxx
Xxxxx Xxxx, XX 00000 Xx. 0 Xxxxxxx Xxxx Xxxxx Xxxxx, Xxxxx Xxxx,
X.X. Xxx 000 XX 00000
Xxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Xxxxxxx & Xxxxx, Delaware- UCC-1 11076624 9/24/01 Consigned inventory
000 Xxxxx 000xx Xxxxxx, Incorporated Secretary of located at 101 North
Ste A No. 1 Xxxxxxx Road Xxxxx 000xx Xxxxxx, Xxx X,
Xxxxxxxx, XX 00000 X.X. Xxx 000 Xxxxxxxx, XX 00000
Xxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
7
Secured Party/Amended or Jurisdiction Collateral
Debtor Assigned Name -Filing Office Type of Filing File Number File Date Description/Comments
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Xxxxxxx & Xxxxx, Delaware - UCC-1 11076681 9/24/01 Consigned inventory
000 X. Xxxxxxxxxxxxx Xx. Incorporated Secretary of located at 000 X.
Xxxxxxxxxx, XX 00000 Xx. 0 Xxxxxxx Xxxx X.X. Xxx Xxxxx Xxxxxxxxxxxxx Xx.,
X.X. Xxx 000 Xxxxxxxxxx, XX 00000
Xxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company The CIT Group/Equipment Delaware - UCC-1 11106389 9/5/01 Equipment - 3 BT Prime Mo
000 Xxxxxx Xxxx Financing, Inc. Secretary of PMX 2760, including
Xxxxxx, XX 00000 X.X. Xxx 00000 State leases, chattel paper,
Xxxxx, XX 00000-0000 documents, general
intangibles, instruments,
accounts, rental &
contract rights now
existing or hereafter
arising with respect to
the foregoing and all cash
& non-cash proceeds
thereof.
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Xxxxxxx Financial Services Delaware - UCC-1 11111736 9/6/01 Equipment - one Xxxxxxx
20100 Xxxxx Xxxxxxx 00 Xxxxxxxxx Xxxxx Secretary of Model 0000-0000
Xxxxxx Xxxxxxx, XX 00000 Xxxxx Xxxxxxx/Xxxxxxxx
Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Xxxxxxx & Xxxxx, Delaware - UCC-1 11194005 10/10/01 Consigned inventory
0000 Xxxx Xxxxxx Incorporated Secretary of located at 0000 Xxxx
Xxxxxxxxxx, XX 00000 Xx. 0 Xxxxxxx Xxxx Xxxxx Xxxxxx Janesville,
X.X. Xxx 000 XX 00000
Xxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
8
Secured Party/Amended or Jurisdiction Collateral
Debtor Assigned Name Filing Office Type of Filing File Number File Date Description/Comments
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Fleet Capital Corporation Delaware - UCC-1 11219844 10/12/01 Textile equipment,
Xxx Xxxxxxxxx Xxxxxxx, Xxx Financial Plaza, 5th Secretary of including proceeds in the
Xxx 000 Xxxxx Xxxxxxxxxx, XX 00000 State form of goods, accounts,
Xxxxxxx, XX 00000 chattel paper, documents,
Assignor: UCC-3 11605554 12/04/01 instruments, general
Transamerica Equipment assignment intangibles, investment
Financial Services property, deposit
Corporation 5080 Spectrum accounts, letter of credit
Drive Suite 1100 Addison,TX rights and supporting
75001 obligations.
Note: the assignment
refers to financing no.
11219844 but references an
incorrect file date of
10/19/01 for the original
financing no.
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Fleet Capital Corporation Delaware - UCC-1 11219877 10/12/01 Textile equipment,
Xxx Xxxxxxxxx Xxxxxxx, Xxx Financial Plaza, 5th Secretary of including proceeds in the
Xxx 000 Xxxxx Xxxxxxxxxx, XX 00000 State form of goods, accounts,
Xxxxxxx, XX 00000 chattel paper, documents,
Assignor: UCC-3 11605570 12/04/01 instruments, general
Transamerica Equipment assignment intangibles, investment
Financial Services property, deposit
Corporation 5080 Spectrum accounts, letter of credit
Drive Suite 1100 Addison, TX rights and supporting
75001 obligations.
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Xxxxxxx & Xxxxx, Delaware-- UCC-1 11237093 10/16/01 Consigned inventory
000 X Xxxxxx, X.X. Incorporated Secretary of located at 000 X Xxxxxx,
Xxxxxx, XX 00000 Xx. 0 Xxxxxxx Xxxx P.O. Box State N.W., Auburn,
757 Xxxxxxxx, XX 00000 WA 98001-3908
------------------------------------------------------------------------------------------------------------------------------------
9
Secured Party/Amended or Jurisdiction- Collateral
Debtor Assigned Name Filling Office Type of Filing File Number File Date Description/Comments
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Xxxxxxx & Xxxxx, Delaware - UCC-1 11273106 10/19/01 Consigned inventory
000 Xxxxxx Xxxx Incorporated Secretary of located at 320
Xxxxxx, XX 00000 Xx. 0 Xxxxxxx Xxxx P.O. State Xxxxxx Road, Agawam, MA
Xxx 000
Xxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Crown Credit Company Delaware - UCC-1 11308951 10/3/01 Equipment - 1 Crown Lift
One Concourse Parkway 44 S Washington New Secretary of Truck
Xxxxxxx, XX 00000 Xxxxxx, XX 00000 State
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company The CIT Group/Equipment Delaware - UCC-1 11395586 10/15/01 Equipment- 1 truck
000 Xxxxxx Xxxx Financing, Inc. X.X. Xxx Xxxxxxxxx xx
Xxxxxx, XX 00000 00000 Xxxxx, XX 85285- State
7248
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Crown Credit Company 44 Delaware - UCC-1 11689269 11/13/01 Equipment - 3 Crown Lift
One Concourse Parkway S Washington Street New Secretary of Trucks
Xxxxxxx, XX 00000 Xxxxxx, XX 00000 State
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Inc. Safeco Credit Co. Inc. Delaware - UCC-1 11803951 11/26/01 Equipment - one Commando
0 Xxxxxxxxx Xxxxxxx DBA SAFELINE Leasing Secretary of Yard Spotter
Suite 600 Atlanta, GA 10915 Willows Road NE State
30328 Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Crown Credit Company Delaware - UCC-1 20088926 12/05/01 Equipment - 2 Crown Lift
Xxx Xxxxxxxxx Xxxxxxx 00 X Xxxxxxxxxx Xxxxxx Secretary of Trucks
Xxxxxxx, XX 00000 Xxx Xxxxxx, XX 00000 State
------------------------------------------------------------------------------------------------------------------------------------
10
Secured Party/Amended or Jurisdiction -
Debtor Assigned Name Filing Office Type of Filing
-------------------------------------------------------------------------------------------------
Xxxxxxx Company UMB Bank & Trust, n.a. f/k/a Delaware - UCC-1
One Concourse Parkway, State Street Bank and Trust Secretary of State In-Lieu
Ste 600 Company of Missouri, N.A.
Xxxxxxx, XX 00000-0000 0 X. Xxxxxxxx, Xxx 000
Xx. Xxxxx, XX 00000
-------------------------------------------------------------------------------------------------
Xxxxxxx Company X.X. Xxxxxx Lumber Co., Inc. Delaware - UCC-1
c/o Corporation Service Co. 000 Xxxxxx Xxxxx, Xxx 000 Secretary of State Consignment
0000 Xxxxxxxxxxx Xxxx Xxxxxxxxxx, XX 00000-0000 In-Lieu
Xxxxx 000
Xxxxxxxxxx, XX 00000
UCC-3
amendment
-------------------------------------------------------------------------------------------------
Xxxxxxx Company X.X. Xxxxxx Lumber Co., Inc. Delaware-- UCC-1
c/o Corporation Service Co. 000 Xxxxxx Xxxxx, Xxx 000 Secretary of State Consignment
0000 Xxxxxxxxxxx Xxxx Xxxxxxxxxx, XX 00000-0000 In-Lieu
Xxxxx 000
Xxxxxxxxxx, XX 00000
-------------------------------------------------------------------------------------------------
Xxxxxxx Company Crown Credit Company Delaware - UCC-1
One Concourse Parkway 44 S Washington Street Secretary of State
Xxxxxxx, XX 00000 Xxx Xxxxxx, XX 00000
-------------------------------------------------------------------------------------------------
Xxxxxxx Company Crown Credit Company Delaware - UCC-1
One Concourse Parkway 44 S Washington Street Secretary of State
Xxxxxxx, XX 00000 Xxx Xxxxxx, XX 00000
-------------------------------------------------------------------------------------------------
Xxxxxxx Company Crown Credit Company Delaware - UCC-1
One Concourse Parkway 44 S Washington Street Secretary of State
Xxxxxxx, XX 00000 Xxx Xxxxxx, XX 00000
-------------------------------------------------------------------------------------------------
Debtor File Number File Date Collateral Description/Comments
-------------------------------------------------------------------------------------------
Xxxxxxx Company 20207419 12/26/01 Equipment for Project Building
One Concourse Parkway, from bond proceeds. In-lieu of
Ste 600 continuation for Kansas SOS filing
Xxxxxxx, XX 00000-0000
-------------------------------------------------------------------------------------------
Xxxxxxx Company 20281034 1/7/02 All cut to size Box Spring /lumber
c/o Corporation Service Co. deliver to Xxxxxxx Company by X.X.
0000 Xxxxxxxxxxx Xxxx Xxxxxx Xxxxxx Company, Inc. and
Suite 400 not yet billed to Xxxxxxx Company.
Xxxxxxxxxx, XX 00000
21135338 4/17/02 Amendment corrected "in lieu of"
filing.
-------------------------------------------------------------------------------------------
Xxxxxxx Company 20281315 1/7/02 All cut to size Box Spring /lumber
c/o Corporation Service Co. deliver to Xxxxxxx Company by X.X.
0000 Xxxxxxxxxxx Xxxx Xxxxxx Xxxxxx Company, Inc. and
Suite 400 not yet billed to Xxxxxxx Company
Xxxxxxxxxx, XX 00000
-------------------------------------------------------------------------------------------
Xxxxxxx Company 20493977 1/31/02 Equipment - 1 Crown Lift Truck
Xxx Xxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
-------------------------------------------------------------------------------------------
Xxxxxxx Company 20559587 2/8/02 Equipment - 3 Crown Lift Trucks
Xxx Xxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
-------------------------------------------------------------------------------------------
Xxxxxxx Company 20981971 3/27/02 Equipment - 1 Crown Lift Truck
Xxx Xxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
-------------------------------------------------------------------------------------------
11
Secured Party/Amended or Jurisdiction-
Debtor Assigned Name Filing Office Type of Filing
--------------------------------------------------------------------------------------
Xxxxxxx Company Crown Credit Company Delaware - UCC-1
One Concourse Parkway 44 S Washington Street Secretary of State
Xxxxxxx XX 00000 Xxx Xxxxxx, XX 00000
--------------------------------------------------------------------------------------
Xxxxxxx Company CIT Communications Finance Delaware - UCC-1
One Concourse Parkway Corporation Secretary of State
Xxxxxxx, XX 00000 0 XXX Xxxxx
Xxxxxxxxxx, XX 00000
--------------------------------------------------------------------------------------
Xxxxxxx Company Crown Credit Company Delaware - UCC-1
One Concourse Parkway 44 S Washington Street Secretary of State
Xxxxxxx, XX 00000 Xxx Xxxxxx, XX 00000
--------------------------------------------------------------------------------------
Xxxxxxx Company Crown Credit Company Delaware - UCC-1
One Concourse Parkway 44 S Washington Street Secretary of State
Xxxxxxx, XX 00000 Xxx Xxxxxx, XX 00000
--------------------------------------------------------------------------------------
Xxxxxxx Company Crown Credit Company Delaware - UCC-1
One Concourse Parkway 44 S Washington Street Secretary of State
Xxxxxxx, XX 00000 Xxx Xxxxxx, XX 00000
--------------------------------------------------------------------------------------
Xxxxxxx Company Crown Credit Company Delaware-- UCC-1
One Concourse Parkway 44 S Washington Street Secretary of State
Xxxxxxx, XX 00000 Xxx Xxxxxx, XX 00000
--------------------------------------------------------------------------------------
Xxxxxxx Company Crown Credit Company Delaware - UCC-1
One Concourse Parkway 44 S Washington Street Secretary of State
Xxxxxxx, XX 00000 Xxx Xxxxxx, XX 00000
--------------------------------------------------------------------------------------
Xxxxxxx Company Crown Credit Company Delaware - UCC-1
One Concourse Parkway 44 S Washington Street Secretary of State
Xxxxxxx, XX 00000 Xxx Xxxxxx, XX 00000
--------------------------------------------------------------------------------------
Xxxxxxx Company Crown Credit Company Delaware - UCC-1
One Concourse Parkway 44 S Washington Street Secretary of State
Xxxxxxx, XX 00000 Xxx Xxxxxx, XX 00000
--------------------------------------------------------------------------------------
Debtor File Number File Date Collateral Description/Comments
--------------------------------------------------------------------------------
Xxxxxxx Company 21293202 5/2/02 Equipment - 1 Crown Lift Truck
Xxx Xxxxxxxxx Xxxxxxx
Xxxxxxx XX 00000
--------------------------------------------------------------------------------
Xxxxxxx Company 21391782 5/13/02 Equipment Lease
Xxx Xxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
--------------------------------------------------------------------------------
Xxxxxxx Company 21744139 6/18/02 Equipment - 5 Crown Lift Trucks
Xxx Xxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
--------------------------------------------------------------------------------
Xxxxxxx Company 21933021 7/12/02 Equipment - 1 Crown Lift Truck
Xxx Xxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
--------------------------------------------------------------------------------
Xxxxxxx Company 21976335 7/23/02 Equipment - 1 Crown Lift Truck
Xxx Xxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
--------------------------------------------------------------------------------
Xxxxxxx Company 22051674 8/7/02 Equipment - 1 Crown Lift Truck
Xxx Xxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
--------------------------------------------------------------------------------
Xxxxxxx Company 22161226 8/21/02 Equipment - 1 Crown Lift Truck
Xxx Xxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
--------------------------------------------------------------------------------
Xxxxxxx Company 22161234 8/21/02 Equipment - 2 Crown Lift Trucks
Xxx Xxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
--------------------------------------------------------------------------------
Xxxxxxx Company 22163206 8/21/02 Equipment - 2 Crown Lift Trucks
Xxx Xxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
--------------------------------------------------------------------------------
12
Secured Party/Amended or Jurisdiction -
Debtor Assigned Name Filing Office Type of Filing
-------------------------------------------------------------------------------------------------
Xxxxxxx Company Crown Credit Company 44 S Delaware - UCC-1
One Concourse Parkway Washington Street Secretary of State
Xxxxxxx, XX 00000 Xxx Xxxxxx, XX 00000
-------------------------------------------------------------------------------------------------
Xxxxxxx Company Crown Credit Company 44 S Delaware - UCC-1
One Concourse Parkway Washington Street Secretary of State
Xxxxxxx, XX 00000 Xxx Xxxxxx, XX 00000
-------------------------------------------------------------------------------------------------
Xxxxxxx Company Crown Credit Company 44 S Delaware - UCC-1
One Concourse Parkway Washington Street Secretary of State
Xxxxxxx, XX 00000 Xxx Xxxxxx, XX 00000
-------------------------------------------------------------------------------------------------
Xxxxxxx Company CIT Communications Finance Delaware - UCC-1
One Concourse Parkway Corporation Secretary of State
Xxxxxxx, XX 00000 0 XXX Xxxxx
Xxxxxxxxxx, XX 00000
-------------------------------------------------------------------------------------------------
Xxxxxxx Company CIT Communications Finance Delaware - UCC-1
One Concourse Parkway Corporation Secretary of State
Xxxxxxx, XX 00000 0 XXX Xxxxx
Xxxxxxxxxx, XX 00000
-------------------------------------------------------------------------------------------------
Debtor File Number File Date Collateral Description/Comments
----------------------------------------------------------------------------------------
Xxxxxxx Company 22281842 9/5/02 Equipment - 2 Crown Lift Trucks
Xxx Xxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
----------------------------------------------------------------------------------------
Xxxxxxx Company 22467995 9/25/02 Equipment - 3 Crown Lift Trucks
Xxx Xxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
----------------------------------------------------------------------------------------
Xxxxxxx Company 22471468 9/25/02 Equipment - 1 Crown Lift Truck
Xxx Xxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
----------------------------------------------------------------------------------------
Xxxxxxx Company 23102716 12/12/02 Equipment Lease
Xxx Xxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
----------------------------------------------------------------------------------------
Xxxxxxx Company 23103078 12/12/02 Equipment Lease
Xxx Xxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
----------------------------------------------------------------------------------------
13
Secured Party/Amended Jurisdiction-
Debtor or Assigned Name Filing Office Type of Filing File Number File Date Collateral Description/Comments
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company GATX Technology Delaware- UCC-1 30322035 1/22/03 Master Equipment Lease -
One Concourse Services Corporation Secretary computer equipment
Parkway, Ste 600 2502 North Rocky of State
Atlanta, GA 00000 Xxxxx Xxxxx
Xxxxx 000
Xxxxx, XX 00000
Assignor: UCC-3 32156423 8/4/03
Pullman Bank and Trust assignment
Company
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company GE Capital Delaware- UCC-1 30333453 1/28/03 Equipment - 3 Copier
000 Xxxxxx Xxxx X.X. Xxx 000000 Secretary Systems
Springfield, Xxxxxxx, XX 00000 xx Xxxxx
XX 00000
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company GATX Technology Delaware- UCC-1 30470602 2/13/03 Master Equipment Lease -
One Concourse Services Corporation Secretary computer equipment
Parkway, Ste 600 2502 North Rocky of State
Atlanta, GA 00000 Xxxxx Xxxxx Xxxxx
000 Xxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company GATX Technology Delaware- UCC-1 30470800 2/13/03 Master Equipment Lease -
One Concourse Services Corporation Secretary computer equipment
Parkway, Ste 600 2502 North Rocky of State
Atlanta, GA 00000 Xxxxx Xxxxx Xxxxx
000 Xxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Crown Credit Company Delaware- UCC-1 30682289 2/27/03 Equipment - 1 Crown Lift
One Concourse 00 X Xxxxxxxxxx Xxxxxx Secretary Truck
Parkway Atlanta, New Bremen, OH 45869 of State
GA 30329
----------------------------------------------------------------------------------------------------------------------------------
14
Secured Party/Amended Jurisdiction-
Debtor or Assigned Name Filing Office Type of Filing File Number File Date Collateral Description/Comments
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company GATX Technology Delaware- UCC-1 30724784 3/7/03 Master Equipment Lease
One Concourse Services Corporation Secretary -computer equipment
Parkway, Ste 600 2502 North Rocky of State
Atlanta, GA 00000 Xxxxx Xxxxx
Xxxxx 000
Xxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company GATX Technology Delaware- UCC-1 31125965 4/21/03 Master Equipment Lease -
One Concourse Services Corporation Secretary computer equipment
Parkway, Ste 600 2502 North Rocky of State
Atlanta, GA 00000 Xxxxx Xxxxx
Xxxxx 000
Xxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Crown Credit Delaware- UCC-1 31380065 6/2/03 Equipment - 1 Crown Lift
One Concourse Company 44 S Secretary Truck
Parkway Atlanta, Washington Street of State
GA 30329 Xxx Xxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Crown Credit Delaware- UCC-1 31380164 6/2/03 Equipment - 4 Crown Lift
One Concourse Company 44 S Secretary Trucks
Parkway Atlanta, Washington Street of State
GA 30329 Xxx Xxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company GATX Technology Delaware- UCC-1 31424210 6/5/03 Master Equipment Lease -
One Concourse Services Corporation Secretary computer equipment
Parkway,Ste 600 2502 North Rocky of State
Atlanta, GA 00000 Xxxxx Xxxxx
Xxxxx 000
Xxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company General Electric Delaware- UCC-1 31495038 5/12/03 Various Trailers and
One Concourse Capital Corporation Secretary equipment
Parkway, Ste 600 0 Xxxxx Xxxx Xxxxx, xx Xxxxx
Xxxxxxx, XX 00000 Xxx 000
Xxxx Xxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
15
Secured Party/Amended Jurisdiction-
Debtor or Assigned Name Filing Office Type of Filing File Number File Date Collateral Description/Comments
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Crown Credit Company Delaware- UCC-1 31533598 6/17/03 Equipment - 2 Crown Lift Trucks
0 Xxxxxxxxx Xxxxxxx 00 X Xxxxxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000 Xxx Xxxxxx, XX 00000 of State
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company CIT Communications Delaware- UCC-1 31596496 6/24/03 Equipment Lease
0 Xxxxxxxxx Xxxxxxx Finance Corporation Xxxxxxxxx
XX Xxxxxxx, 0 XXX Xxxxx xx Xxxxx
XX 00000 Xxxxxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company GATX Technology Delaware- UCC-1 31629677 5/27/03 Master Equipment Lease -
One Concourse Services Corporation Secretary computer equipment
Parkway, Ste 600 2502 North Rocky of State
Atlanta, GA 00000 Xxxxx Xxxxx Xxxxx
000 Xxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Safeco Credit Co. Inc. Delaware- UCC-1 31829822 7/17/03 Equipment Lease
0000-X Xxxx XX 00000 Xxxxxxx Xxxx XX Secretary
Xxxxxx Blvd Redmond, WA 98052 of State
Xxxxxxxxx,
XX 00000
Additional secured
party:
---------------------
Safeline Leasing
00000 Xxxxxxx Xxxx XX
Xxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
16
---------------------------------------------------------------------------------------------------------------------
Secured Jurisdiction-
Party/Amended or Filing Type of Collateral
Debtor Assigned Name Office Filing File Number File Date Description/Comments
---------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Safeco Credit Co. Inc. Delaware-- UCC-1 31854184 7/21/03 Equipment Lease
0 Xxxxxxxxx Xxxxxxx, 00000 Xxxxxxx Xxxx XX Xxxxxxxxx
Xxx 000 Xxxxxxx, XX 00000 of State
Xxxxxxx, XX 00000
Additional secured
Party:
Safeline Leasing
00000 Xxxxxxx
Xxxx XX Xxxxxxx,
XX 00000
---------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Safeco Credit Co. Inc. Delaware-- UCC-1 31854192 7/21/03 Equipment Lease
0000 X Xxxx XX Xxxxxx 00000 Willows Road NEtary
Blvd Redmond, WA 98052 of State
Xxxxxxxxx, XX 00000
Additional secured
party:
Safeline Leasing
00000 Xxxxxxx
Xxxx XX Xxxxxxx,
XX 00000
---------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company OCE-USA, Inc. Delaware-- UCC-1 32080318 8/11/03 Equipment Lease
0000 Xxxxxxxx Xx 0000 Xxxxx Xxxxxxxxx
Xxxxx Xxxx, XX Cumberland of State
43123 Xxxxxxx, XX 00000-000
---------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company GATX Technology Delaware-- UCC-1 32442500 9/22/03 Master Equipment
One Concourse Services Corporation Secretary Lease - computer
Parkway, Ste 600 2502 North Rocky of State equipment
Atlanta, GA 00000 Xxxxx Xxxxx Xxxxx 000
Xxxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------
17
--------------------------------------------------------------------------------------------------------------------------
Secured Jurisdiction -
Party/Amended or Filing Type of Collateral
Debtor Assigned Name Office Filing File Number File Date Description/Comments
--------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company GATX Technology Delaware- UCC-1 32445875 9/22/03 Master Equipment
One Concourse Services Secretary Lease - computer
Parkway, Corporation of State equipment
Xxx 000 0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000 Xxxxx Xxxxx
Xxxxx 000
Xxxxx, XX 00000
--------------------------------------------------------------------------------------------------------------------------
Xxxxxxx U.S.A. C. J. Hodder Lumber North UCC-1 1248415 7/27/95 All cut to size box
5100-R West Company, Inc. Carolina - spring lumber
X.X.Xxxxxx 000 Xxxxxx Xxxxx, Xxxxxxxxx delivered to Xxxxxxx
Bvd. Suite 240 of State Company by
Charlotte, Pittsburgh, X.X. Xxxxxx Lumber
NC 28269-1898 PA 15236-1520 Company Inc.
and not yet billed to
Xxxxxxx Company (the
consigned
inventory).
Xxxxxxx Company UCC-3 1315098 3/4/06 Xxxxxxx U.S.A. name
Same address Amendment change to
Xxxxxxx Company.
UCC-3 20000071567 7/17/00
Continuation
--------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company AT&T Credit North UCC-1 001530255 1/12/98 Equipment located at
One Concourse Pkwy Corporation Carolina - 0000-X Xxxx X
Xxxxxxx, XX 00000 0 Xxxxxxxx Xxxxx Secretary T Xxxxxx Blvd,
Parsigpany, NJ 07054 of State Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Safeco Credit Co. North UCC-1 19980095182 12/14/98 One 1998 Yale
5100-R West WT Inc. Carolina - expires forklift model
Xxxxxx Blvd. DBA SAFELINE Leasing Secretary 12/14/03 ERC050RFN36SE082
Xxxxxxxxx, XX 00000 00000 Xxxxxxx Xxxx xx Xxxxx Electric Sit down
NE lift truck with
Xxxxxxx, XX 00000 battery & charger;
Lease No./Application
001-40807.
--------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company, Safeco Credit Co. North UCC-1 19980099943 12/29/98 Two Yale
Inc. Inc. Carolina - ESC040ZAN36T,
5100 R West WT DBA SAFELINE Leasing Secretary electric sit down
Xxxxxx Blvd. 10915 Willows Road of State cushion tire lift
Xxxxxxxxx, XX 00000 Xxxxxxx, XX 00000 xxxxx w/side shift;
Lease
No./Application
001-16807.
--------------------------------------------------------------------------------------------------------------------------
18
----------------------------------------------------------------------------------------------------------------------------------
Secured Jurisdiction -
Party/Amended or Filing Type of Collateral
Debtor Assigned Name Office Filing File Number File Date Description/Comments
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company, Inc. Safeco Credit Co. Inc. North Carolina - UCC-1 20000062411 6/20/00 One 2000 Yale
5100R West XX Xxxxxx DBA SAFELINE Leasing Secretary of Forklift, Model
Blvd. 00000 Xxxxxxx Xxxx XX Xxxxx ERP040TGN with battery
Xxxxxxxxx, XX 00000 Xxxxxxx, XX 00000 and charger and
additional battery;
Lease No./Application
001-46807.
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Safeco Credit Co. Inc. North Carolina - UCC-1 20000066934 7/3/00 One 2000 Stratolift
5100 R West XX Xxxxxx DBA SAFELINE Leasing Secretary of Scissorlift, Model
Blvd. 00000 Xxxxxxx Xxxx XX Xxxxx MRX-25N; Lease
Xxxxxxxxx, XX 00000 Xxxxxxx, XX 00000 No./Application
001-46807.
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Fleet Capital Corporation North Xxxxxxxx - UCC-1 20010507722C 8/2/01 Equipment: quilting
One Concourse Parkway, (for itself and/or as Secretary of machines, border
Suite 800 agent) One Financial State machines and pocket
Xxxxxxx, XX 00000 Plaza, 5th Floor machines.
Xxxxxxxxxx, XX 00000
Assigned to: UCC-3 20020003269L 1/7/02 Assignment from Fleet
Transamerica Equipment Assignment Capital Corporation to
Financial Services Transamerica Equipment
Corporation Financial Services
0000 Xxxxxxxx Xxxxxxxxxxx.
Xxxxx, Xxxxx 0000X
Xxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
19
----------------------------------------------------------------------------------------------------------------------------------
Secured Jurisdiction -
Party/Amended or Filing Type of Collateral
Debtor Assigned Name Office Filing File Number File Date Description/Comments
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Fleet Capital North Carolina - UCC-1 20010507405G 8/02/01 Equipment: quilting
One Concourse Parkway, Corporation (for Secretary of machines, border
Suite 800 itself and/or as State machines and pocket
Xxxxxxx, XX 00000 agent) One Financial machines.
Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Assigned to: UCC-3 20010553010A 12//04/01 Assignment from Fleet
Transamerica Equipment Assignment Capital Corporation to
Financial Services Transamerica Equipment
Corporation Financial Services
0000 Xxxxxxxx Xxxxx, Xxxxxxxxxxx.
Xxxxx 0000X
Xxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Crown Credit Company Utah - Secretary UCC-1 130084200121 10/22/98 Crown Lift Truck, Deka
1130 South 3800 West 00 X. Xxxxxxxxxx xx Xxxxx xxxxxxx Xxxxxxx, Xxxxxx Charger
Salt Lake City, Street New Bremen, Old File No. 10/22/03
Utah 84104 OH 45869 98-622207
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company 1130 Crown Credit Company Utah-Secretary UCC-1 130383200123 10/26/98 Crown Lift Truck, Deka
South 3800 West 00 X. Xxxxxxxxxx xx Xxxxx xxxxxxx Xxxxxxx, Xxxxxx Charger
Xxxx Xxxx Xxxx, Xxxxxx Xxx Xxxx Xx. 00/00/00
Xxxx 00000 Xxx Xxxxxx, XX 00000 98-622583
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Crown Credit Company Utah-Secretary UCC-1 134198200136 12/14/98 Crown Lift Truck, Deka
1130 South 3800 West 00 X. Xxxxxxxxxx xx Xxxxx xxxxxxx Xxxxxxx, Xxxxxx Charger
Salt Lake City, Street New Bremen, Old File No. 12/14/03
Xxxx 00000 XX 00000 98-627672
----------------------------------------------------------------------------------------------------------------------------------
20
----------------------------------------------------------------------------------------------------------------------------------
Secured Jurisdiction -
Party/Amended or Filing Type of Collateral
Debtor Assigned Name Office Filing File Number File Date Description/Comments
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company As Newcourt Communications Utah-Secretary UCC-1 134810200128 12/22/98 Equipment located at
Lessee Finance Corporation As of State expires 1130 S. 3800 W, Salt
One Concourse Parkway Lessor Xxx Xxxx Xx. 00/00/00 Xxxx Xxxx, XX 00000
Atlanta, GA 0 Xxxxxxxx Xxxxx 98-628450
30328 Xxxxxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company X. X. Xxxxxx Lumber Utah-Secretary UCC-1 140911200123 3/15/99 All cut to size box
1130 South 3800 West Company, Inc. of State spring lumber delivered
Salt Lake City, Utah 000 Xxxxxx Xxxxx, Xxx File No. to Xxxxxxx Company by
84104 Suite 240 Pittsburgh, 99-636381 X. X. Xxxxxx Xxxxxx
XX 00000-0000 Company, Inc., and not
yet billed to Xxxxxxx
Company (the consigned
inventory).
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Fleet Capital Utah-Secretary UCC-1 205206200219 12/13/02 Certain equipment.
Corporation Xxx xx Xxxxx
Xxxxxxxxx Xxxxx,
0xx Xxxxx Xxxxxxxxxx,
XX 00000
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Fleet Capital Utah-Secretary UCC-1 205208200221 12/13/02 Certain equipment.
Corporation Xxx xx Xxxxx
Xxxxxxxxx Xxxxx,
0xx Xxxxx Xxxxxxxxxx,
XX 00000
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Fleet Capital Wisconsin UCC-1 010001902719 8/06/01 Equipment: quilting
One Concourse Parkway, Corporation (for -Dept. of machines, border machines,
Suite 800 itself and/or as Financial and pocket machines.
Xxxxxxx, XX 00000 agent) One Financial Institutions
Plaza, 5th Floor UCC-3 020000474318 1/02/02 Assignment from
Xxxxxxxxxx, XX 00000 Assignment Fleet Capital Corporation
to Transamerica
Assigned to: Equipment Financial
Transamerica Equipment Services Corporation.
Financial Services
Corporation 0000
Xxxxxxxx Xxxxx,
Xxxxx 0000X
Xxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
21
----------------------------------------------------------------------------------------------------------------------------------
Secured Jurisdiction -
Party/Amended or Filing Type of Collateral
Debtor Assigned Name Office Filing File Number File Date Description/Comments
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company CIT Communications Wisconsin - UCC-1 07502059534 5/01/01 Equipment located at
One Concourse Parkway Finance Corporation Dept. of 0000 Xxxx Xxxxxx,
Xxxxxxx, XX 00000 000 XXX Xxxxx Xxxxxxxxx Xxxxxxxxxx, XX 00000.
Xxxxxxxxxx, XX 00000 Institutions
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Safeco Credit Co. Inc. Wisconsin - UCC-1 07502047542 3/26/01 One Ottawa Commando
1809 AdelSt. DBA SAFELINE Leasing Dept. of Truck, Model #C-30;
Xxxxxxxxxx, XX 00000 00000 Xxxxxxx Xxxx XX Financial Lease No./ Application
Xxxxxxx, XX 00000 Institutions 001-46807.
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Fleet Capital Wisconsin - UCC-1 07502026643 1/16/01 Equipment: 17 Precision
One Concourse Parkway, Corporation (for Dept. of pocket machines.
Suite 800 itself and/or as Financial
Xxxxxxx, XX 00000 agent) 00 Xxxxxxx Xxxxxxxxxxxx
Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Assigned to: UCC-3 07502044753 3/16/01 Assignment from Fleet
General Electric Assignment Capital Corporation to
Capital Corporation General Electric Capital
0000 Xxxxxxxx Xxxxx, Xxxxxxxxxxx.
Xxxxx 000 Xxxx
Xxxxxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Fleet Capital Wisconsin - UCC-1 07502026645 1/16/01 Equipment: 6 Reliance
One Concourse Parkway, Corporation (for Dept. of and 5 Paragon quitters.
Suite 800 itself and/or as Financial
Xxxxxxx, XX 00000 agent) 00 Xxxxxxx Xxxxxxxxxxxx
Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Assigned to: UCC-3 07502044754 3/16/01 Assignment from Fleet
General Electric Assignment Capital Corporation to
Capital Corporation General Electric Capital
0000 Xxxxxxxx Xxxxx, Xxxxxxxxxxx.
Xxxxx 000 Xxxx
Xxxxxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
22
----------------------------------------------------------------------------------------------------------------------------------
Secured Jurisdiction -
Party/Amended or Filing Type of Collateral
Debtor Assigned Name Office Filing File Number File Date Description/Comments
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Material Handling Wisconsin - UCC-1 07502008749 11/13/00 Certain equipment.
0000 Xxxx Xxxxxx Xxxxxxxx, Xxx. Xxxx. xx
Xxxxxxxxxx, XX 00000 000 X. Xxxxxxxxx Financial
Avenue Institutions
Xxxxx Xxxxxx, XX 00000
Assignee:
Old Second National
Bank
00 X. Xxxxx Xxxxxx
Xxxxxx, XX 00000-0000
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Material Handling Wisconsin - UCC-1 07501992502 9/18/00 Certain equipment.
0000 Xxxx Xxxxxx Xxxxxxxx, Xxx. Xxxx. xx
Xxxxxxxxxx, XX 00000 000 X. Xxxxxxxxx Xxxxxx Xxxxxxxxx
Xxxxx Xxxxxx, XX 00000 Institutions
Assignee:
Old Second National
Bank
00 X. Xxxxx Xxxxxx
Xxxxxx, XX 00000-0000
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Material Handling Wisconsin - UCC-1 07501984771 8/21/00 Certain equipment.
0000 Xxxx Xxxxxx Xxxxxxxx, Xxx. Xxxx. xx
Xxxxxxxxxx, XX 00000 000 X. Xxxxxxxxx Xxxxxx Xxxxxxxxx
Xxxxx Xxxxxx, XX 00000 Institutions
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Company Advance Acceptance Wisconsin - UCC-1 07501941060 3/30/00 Certain equipment.
0000 Xxxx Xxxxxx Xxxxxxxxxxx Xxxx. xx
Xxxxxxxxxx, XX 00000 00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx Xxxxxxxx, XX Institutions
55441
----------------------------------------------------------------------------------------------------------------------------------
23
----------------------------------------------------------------------------------------------------------------------------------
Secured Jurisdiction-
Party/Amended or Filing Type of Collateral
Debtor Assigned Name Office Filing File Number File Date Description/Comments
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx The Xxxxx Group,Inc. Wisconsin - UCC-1 07501891168 10/19/99 Certain equipment.
000 X. Xxxxxx X.X. Xxx 00000 Xxxx. xx
Xxx Xxxxxx, XX 00000 0000 X. XX Xxxxxxxxxx Financial
Rd. Institutions
Xxxxxxxxx,
XX 00000-0000
----------------------------------------------------------------------------------------------------------------------------------
The Xxxxxxx General Electric Delaware - UCC-1 22410656 9/19/02 Certain equipment.
Manufacturing, Co., LLC Capital Corporation Secretary of
One Concourse Parkway, 0 Xxxxx Xxxx Xxxxx, Xxxxx
Xxx 000 Suite 500 Xxxx
Atlanta, GA 30328 Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
The Xxxxxxx General Electric Delaware - UCC-1 22967580 1 Certain equipment.
Manufacturing Co., LLC Capital Corporation Secretary of 1/13/02
One Concourse Parkway 0 Xxxxx Xxxx Xxxxx, Xxxxx
Xxxxxxx, XX Suite 000 Xxxx
00000 Xxxxxx, XX 00000
Additional secured
party:
The CIT
Group/Equipment
Financing, Inc.
0000 Xxxx
Xxxxxxxxxxxx
Xxxxxxx Xxxxx, XX
00000
----------------------------------------------------------------------------------------------------------------------------------
The Xxxxxxx Emigrant Business Delaware - UCC-1 30114937 1/14/03 Equipment Lease,
Manufacturing Co., Credit Corporation Secretary of including proceeds in
LLC One Concourse 101 State Executive the form of goods,
Parkway Xxxxxxx, XX Xxxx. Xxxxxxxx, XX accounts, chattel
30328 10523 paper, documents,
instruments, general
intangibles, investment
property, deposit
accounts, letter of
credit rights and
supporting obligations.
----------------------------------------------------------------------------------------------------------------------------------
24
----------------------------------------------------------------------------------------------------------------------------------
Secured Jurisdiction -
Party/Amended or Filing Type of Collateral
Debtor Assigned Name Office Filing File Number File Date Description/Comments
----------------------------------------------------------------------------------------------------------------------------------
The Xxxxxxx Fleet Capital Delaware - UCC-1 32465493 9/4/03 Equipment Lease,
Manufacturing Co., LLC Corporation One Secretary of including proceeds in
Xxx Xxxxxxxxx Xxxxxxx Xxxxxxxxx Xxxxx, 0xx Xxxxx the form of goods,
Xxxxxxx, XX 00000 FL. Providence, RI accounts, chattel paper,
02903 documents, instruments,
general intangibles,
investment property,
deposit accounts, letter
of credit rights and
supporting obligations.
----------------------------------------------------------------------------------------------------------------------------------
The Xxxxxxx Fleet Capital Delaware - UCC-1 32535204 9/16/03 Equipment Lease,
Manufacturing Co., LLC Corporation One Secretary of including proceeds in
Xxx Xxxxxxxxx Xxxxxxx Xxxxxxxxx Xxxxx, 0xx Xxxxx the form of goods,
Xxxxxxx, XX 00000 FL. Providence, RI accounts, chattel paper,
02903 documents, instruments,
general intangibles,
investment property,
deposit accounts, letter
of credit rights and
supporting obligations.
----------------------------------------------------------------------------------------------------------------------------------
The Xxxxxxx Fleet Capital Delaware - UCC-I 32729435 10/8/03 Equipment Lease,
Manufacturing Co., LLC Corporation One Secretary of including proceeds in
One Concourse Parkway Financial Plaza, State the form of goods,
Xxxxxxx, XX 00000 0xx XX. Xxxxxxxxxx, xxxxxxxx, xxxxxxx
XX 00000 paper, documents,
instruments, general
intangibles, investment
property, deposit
accounts, letter of
credit rights and
supporting obligations.
----------------------------------------------------------------------------------------------------------------------------------
25
Mortgage filings pertaining to the mortgages executed in connection with that
certain Credit and Guaranty Agreement, dated as of October 29, 1998 (as amended,
supplemented or otherwise modified to the date hereto), by and among Xxxxxxx
Company, Xxxxxxx Holdings, Inc., the subsidiary guarantors party thereto,
Xxxxxxx Sachs Credit Partners L.P., as joint lead arranger and syndication
agent, the financial institutions from time to time parties thereto (the
"Lenders"), Warburg Dillon Read LLC, as joint lead arranger, and UBS A.G.,
Stamford Branch, as administrative agent for the Lenders (which such
Indebtedness has been repaid and discharged). Such filings shall be terminated
as soon as practicable following the Closing Date.
1. Charlotte Plant
0000 Xxxx X.X. Xxxxxx Xxxx.
Xxxxxxxxx, XX 00000
2. Honolulu Plant
00-000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
3. San Leandro Plant
0000 Xxxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
4. Salt Lake City, Utah
Crossroads Corporate Center #1
0000 Xxxxx 0000 Xxxx
Xxxx Xxxx Xxxx, XX 00000
26
SCHEDULE 6.3
EXISTING INVESTMENTS
Investments described on Schedule 4.1.
Other existing investments:
Allmerica Financial Corporation 3,854 shares
Federal Department stores 2,421 shares
Existing 12.50% interest in corporate jet pursuant to agreement with NetJet
Sales, Inc.
EXHIBIT A-1 TO
CREDIT AND GUARANTY AGREEMENT
FUNDING NOTICE
Reference is made to the Credit and Guaranty Agreement, dated as of
December 19, 2003 (as it may be amended, supplemented or otherwise modified, the
"CREDIT AGREEMENT"; the terms defined therein and not otherwise defined herein
being used herein as therein defined), by and among THL-SC BEDDING COMPANY
("HOLDINGS"), XXXXXXX COMPANY (as successor to THL Bedding Company) ("COMPANY"),
certain Subsidiaries of Company, as Guarantors, the Lenders party thereto from
time to time, XXXXXXX XXXXX CREDIT PARTNERS L.P., as Sole Bookrunner, Joint Lead
Arranger and Co-Syndication Agent, UBS SECURITIES, LLC, as Joint Lead Arranger
and Co-Syndication Agent, DEUTSCHE BANK AG, NEW YORK BRANCH, as Administrative
Agent and as Collateral Agent, GENERAL ELECTRIC CAPITAL CORPORATION, as
Co-Documentation Agent, and CIT LENDING SERVICES CORPORATION, as
Co-Documentation Agent.
Pursuant to Section 2.2 of the Credit Agreement, Company desires that
Lenders make the following Loans to Company in accordance with the applicable
terms and conditions of the Credit Agreement on [MM/DD/YY] (the "CREDIT
EXTENSION DATE"):
1. Revolving Loans
[ ] Base Rate Loans: $[__,__,__]
[ ] Eurodollar Rate Loans, with an Initial
Interest Period of______ Month(s):
$[__,__,__]
2. Swing Line Loans: $[__,__,__]
Company hereby certifies that:
(i) after making the Loans requested on the Credit
Extension Date, the Total Utilization of Revolving Loan Commitments
shall not exceed the Revolving Loan Commitments then in effect;
(ii) as of the Credit Extension Date, the representations
and warranties contained in each of the Credit Documents are true,
correct and complete in all material respects on and as of such Credit
Extension Date to the same extent as though made on and as of such
date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case such
representations and warranties are true, correct and complete in all
material respects on and as of such earlier date; and
(iii) as of the Credit Extension Date, no event has
occurred and is continuing or would result from the consummation of the
borrowing contemplated hereby that would constitute an Event of Default
or a Default.
EXHIBIT A-1-1
EXHIBITS TO
CREDIT AND GUARANTY AGREEMENT EXECUTION
443102-New York Server 5A
Date: [MM/DD/YY] XXXXXXX COMPANY
By:_______________________
Name:_____________________
Title:____________________
EXHIBIT A-1-2
EXHIBITS TO
CREDIT AND GUARANTY AGREEMENT EXECUTION
443102-New York Server 5A
EXHIBIT A-2 TO
CREDIT AND GUARANTY AGREEMENT
CONVERSION/CONTINUATION NOTICE
Reference is made to the Credit and Guaranty Agreement, dated as of
December 19, 2003 (as it may be amended, supplemented or otherwise modified, the
"CREDIT AGREEMENT"; the terms defined therein and not otherwise defined herein
being used herein as therein defined), by and among THL-SC BEDDING COMPANY
("HOLDINGS"), XXXXXXX COMPANY (as successor to THL Bedding Company) ("COMPANY"),
certain Subsidiaries of Company, as Guarantors, the Lenders party thereto from
time to time, XXXXXXX SACHS CREDIT PARTNERS L.P., as Sole Bookrunner, Joint Lead
Arranger and Co-Syndication Agent, UBS SECURITIES, LLC, as Joint Lead Arranger
and Co-Syndication Agent, DEUTSCHE BANK AG, NEW YORK BRANCH, as Administrative
Agent and as Collateral Agent, GENERAL ELECTRIC CAPITAL CORPORATION, as
Co-Documentation Agent, and CIT LENDING SERVICES CORPORATION, as
Co-Documentation Agent.
Pursuant to Section 2.8 of the Credit Agreement, Company desires to
convert or to continue the following Loans, each such conversion and/or
continuation to be effective as of [MM/DD/YY]:
1. TRANCHE B TERM LOANS:
$[__,__,__] Eurodollar Rate Loans to be continued with
Interest Period of _____ month(s)
$[__,__,__] Base Rate Loans to be converted to
Eurodollar Rate Loans with Interest Period
of ______ month(s)
$[__,__,__] Eurodollar Rate Loans to be converted to
Base Rate Loans
2. REVOLVING LOANS:
$[__,__,__] Eurodollar Rate Loans to be continued with
Interest Period of _____ month(s)
$[__,__,__] Base Rate Loans to be converted to
Eurodollar Rate Loans with Interest Period
of ______ month(s)
$[__,__,__] Eurodollar Rate Loans to be converted to
Base Rate Loans
Company hereby certifies that as of the date hereof, no event has
occurred and is continuing or would result from the consummation of the
conversion and/or continuation contemplated hereby that would constitute an
Event of Default or a Default.
Date: [MM/DD/YY] XXXXXXX COMPANY
EXHIBIT A-2-1
EXHIBITS TO
CREDIT AND GUARANTY AGREEMENT EXECUTION
443102-New York Server 5A
By:_______________________
Name:_____________________
Title:____________________
EXHIBIT A-2-2
EXHIBITS TO
CREDIT AND GUARANTY AGREEMENT EXECUTION
443102-New York Server 5A
EXHIBIT A-3 TO
CREDIT AND GUARANTY AGREEMENT
ISSUANCE NOTICE
Reference is made to the Credit and Guaranty Agreement, dated as of
December 19, 2003 (as it may be amended, supplemented or otherwise modified, the
"CREDIT AGREEMENT"; the terms defined therein and not otherwise defined herein
being used herein as therein defined), by and among THL-SC BEDDING COMPANY
("HOLDINGS"), XXXXXXX COMPANY (as successor to THL Bedding Company) ("COMPANY"),
certain Subsidiaries of Company, as Guarantors, the Lenders party thereto from
time to time, XXXXXXX XXXXX CREDIT PARTNERS L.P., as Sole Bookrunner, Joint Lead
Arranger and Co-Syndication Agent, DEUTSCHE BANK AG, NEW YORK BRANCH, as
Administrative Agent and as Collateral Agent, GENERAL ELECTRIC CAPITAL
CORPORATION, as Co-Documentation Agent, and CIT LENDING SERVICES CORPORATION, as
Co-Documentation Agent.
Pursuant to Section 2.3 of the Credit Agreement, Company desires a
Letter of Credit to be issued in accordance with the terms and conditions of the
Credit Agreement on [MM/DD/YY] (the "CREDIT EXTENSION DATE") in an aggregate
face amount of $[__,__,___].
Attached hereto for each such Letter of Credit are the following:
(a) the stated amount of such Letter of Credit;
(b) the name and address of the beneficiary;
(c) the expiration date; and
(d) either (i) the verbatim text of such
proposed Letter of Credit, or (ii) a description of the proposed terms
and conditions of such Letter of Credit, including a precise
description of any documents to be presented by the beneficiary which,
if presented by the beneficiary prior to the expiration date of such
Letter of Credit, would require the Issuing Bank to make payment under
such Letter of Credit.
Company hereby certifies that:
(i) after issuing such Letter of Credit requested on the
Credit Extension Date, the Total Utilization of Revolving Loan
Commitments shall not exceed the Revolving Loan Commitments then in
effect;
(ii) after issuing such Letter of Credit requested on the
Credit Extension Date, the Letter of Credit Usage shall not exceed the
Letter of Credit Sublimit then in effect;
(iii) as of the Credit Extension Date, the representations
and warranties contained in each of the Credit Documents are true,
correct and complete in all material respects on and as of such Credit
Extension Date to the same extent as though made on and as of such
date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case such
representations and warranties are true, correct and complete in all
material respects on and as of such earlier date; and
(iv) as of such Credit Extension Date, no event has
occurred and is continuing or would result from the consummation of the
issuance contemplated hereby that would constitute an Event of Default
or a Default.
EXHIBIT A-3-1
EXHIBITS TO
CREDIT AND GUARANTY AGREEMENT EXECUTION
443102-New York Server 5A
Date: [MM/DD/YY] XXXXXXX COMPANY
By: ___________________________
Name: _________________________
Title: ________________________
EXHIBIT A-3-2
EXHIBITS TO
CREDIT AND GUARANTY AGREEMENT EXECUTION
443102-New York Server 5A
EXHIBIT B-1 TO
CREDIT AND GUARANTY AGREEMENT
TRANCHE B TERM LOAN NOTE
$[___,___,___]
DECEMBER 19, 0000
Xxx Xxxx, Xxx Xxxx
FOR VALUE RECEIVED, XXXXXXX COMPANY (as successor to THL Bedding
Company), a Delaware corporation ("Company"), promises to pay [NAME OF LENDER]
("Payee") or its registered assigns the principal amount of [DOLLARS]
($[__,__,__]) in the installments referred to below.
Company also promises to pay interest on the unpaid principal amount
hereof, from the date hereof until paid in full, at the rates and at the times
which shall be determined in accordance with the provisions of that certain
Credit and Guaranty Agreement, dated as of December 19, 2003 (as it may be
amended, supplemented or otherwise modified, the "CREDIT AGREEMENT"; the terms
defined therein and not otherwise defined herein being used herein as therein
defined), by and among THL-SC BEDDING COMPANY ("HOLDINGS"), COMPANY, certain
Subsidiaries of Company, as Guarantors, the Lenders party thereto from time to
time, XXXXXXX SACHS CREDIT PARTNERS L.P., as Sole Bookrunner, Joint Lead
Arranger and Co-Syndication Agent, UBS SECURITIES, LLC, as Joint Lead Arranger
and Co-Syndication Agent, DEUTSCHE BANK AG, NEW YORK BRANCH, as Administrative
Agent and as Collateral Agent, GENERAL ELECTRIC CAPITAL CORPORATION, as
Co-Documentation Agent, and CIT LENDING SERVICES CORPORATION, as
Co-Documentation Agent.
Company shall make scheduled principal payments on this Note as set
forth in Section 2.11 of the Credit Agreement.
This Note is one of the "Tranche B Term Loan Notes" representing a
portion of the Tranche B Term Loans in the aggregate principal amount of
$405,000,000 and is issued pursuant to and entitled to the benefits of the
Credit Agreement, to which reference is hereby made for a more complete
statement of the terms and conditions under which the Tranche B Term Loan
evidenced hereby was made and is to be repaid.
All payments of principal and interest in respect of this Note shall be
made in lawful money of the United States of America in same day funds at the
principal office of Administrative Agent or at such other place as shall be
designated in writing for such purpose in accordance with the terms of the
Credit Agreement. Unless and until an Assignment Agreement effecting the
assignment or transfer of the obligations evidenced hereby shall have been
accepted by Administrative Agent and Company (to the extent required) and
recorded in the Register, Company, each Agent and Lenders shall be entitled to
deem and treat Payee as the owner and holder of this Note and the obligations
evidenced hereby. Payee hereby agrees, by its acceptance hereof, that before
disposing of this Note or any part hereof it will make a notation hereon of all
principal payments previously made hereunder and of the date to which interest
hereon has been paid; provided, the failure to make a notation of any payment
made on this Note shall not limit or otherwise affect the obligations of Company
hereunder with respect to payments of principal of or interest on this Note.
This Note is subject to mandatory prepayment and to prepayment at the
option of Company, each as provided in the Credit Agreement.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY AND PAYEE HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
EXHIBIT B-1-1
EXHIBITS TO
CREDIT AND GUARANTY AGREEMENT EXECUTION
443102-New York Server 5A
THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES THEREOF.
Upon the occurrence of an Event of Default, the unpaid balance of the
principal amount of this Note, together with all accrued and unpaid interest
thereon, may become, or may be declared to be, due and payable in the manner,
upon the conditions and with the effect provided in the Credit Agreement.
The terms of this Note are subject to amendment only in the manner
provided in the Credit Agreement.
No reference herein to the Credit Agreement and no provision of this
Note or the Credit Agreement shall alter or impair the obligations of Company,
which are absolute and unconditional, to pay the principal of and interest on
this Note at the place, at the respective times, and in the currency prescribed
in the Credit Agreement.
Company promises to pay all costs and expenses, including reasonable
attorneys' fees, all as provided in the Credit Agreement, incurred in the
collection and enforcement of this Note. Company and any endorsers of this Note
hereby consent to renewals and extensions of time at or after the maturity
hereof, without notice, and hereby waive diligence, presentment, protest, demand
notice of every kind and the right to plead any statute of limitations as a
defense to any demand hereunder, in each case to the full extent permitted by
law.
[The remainder of this page is intentionally left blank.]
EXHIBIT B-1-2
EXHIBITS TO
CREDIT AND GUARANTY AGREEMENT EXECUTION
443102-New York Server 5A
IN WITNESS WHEREOF, Company has caused this Note to be duly executed
and delivered by its officer thereunto duly authorized as of the date and at the
place first written above.
XXXXXXX COMPANY
By: ___________________________
Name: _________________________
Title: ________________________
EXHIBIT B-1-3
EXHIBITS TO
CREDIT AND GUARANTY AGREEMENT EXECUTION
443102-New York Server 5A
EXHIBIT B-2 TO
CREDIT AND GUARANTY AGREEMENT
NEW TERM LOAN NOTE
$[1][__,__,__]
[2][MM/DD/YY]
New York, New York
FOR VALUE RECEIVED, XXXXXXX COMPANY (as successor to THL Bedding
Company), a Delaware corporation ("Company"), promises to pay [NAME OF LENDER]
("Payee") or its registered assigns the principal amount of [1][DOLLARS]
($[1][__,__,__]) in the installments referred to below.
Company also promises to pay interest on the unpaid principal amount
hereof, from the date hereof until paid in full, at the rates and at the times
which shall be determined in accordance with the provisions of that certain
Credit and Guaranty Agreement, dated as of December 19, 2003 (as it may be
amended, supplemented or otherwise modified, the "CREDIT AGREEMENT"; the terms
defined therein and not otherwise defined herein being used herein as therein
defined), by and among THL-SC BEDDING COMPANY ("HOLDINGS"), COMPANY, certain
Subsidiaries of Company, as Guarantors, the Lenders party thereto from time to
time, XXXXXXX XXXXX CREDIT PARTNERS L.P., as Sole Bookrunner, Joint Lead
Arranger and Co-Syndication Agent, UBS SECURITIES, LLC, as Joint Lead Arranger
and Co-Syndication Agent, DEUTSCHE BANK AG, NEW YORK BRANCH, as Administrative
Agent and as Collateral Agent, GENERAL ELECTRIC CAPITAL CORPORATION, as
Co-Documentation Agent, and CIT LENDING SERVICES CORPORATION, as
Co-Documentation Agent.
Company shall make principal payments on this Note as set forth in
Section 2.11 of the Credit Agreement and in the applicable Joinder Agreement.
This Note is one of the "New Term Loan Notes" representing a portion of
a Series of New Term Loans in the aggregate principal amount of $[__,__,__] and
is issued pursuant to and entitled to the benefits of the Credit Agreement, to
which reference is hereby made for a more complete statement of the terms and
conditions under which the applicable Series of New Term Loans evidenced hereby
was made and is to be repaid.
All payments of principal and interest in respect of this Note shall be
made in lawful money of the United States of America in same day funds at the
principal office of Administrative Agent or at such other place as shall be
designated in writing for such purpose in accordance with the terms of the
Credit Agreement. Unless and until an Assignment Agreement effecting the
assignment or transfer of the obligations evidenced hereby shall have been
accepted by Administrative Agent and Company (to the extent required) and
recorded in the Register, Company, each Agent and Lenders shall be entitled to
deem and treat Payee as the owner and holder of this Note and the obligations
evidenced hereby. Payee hereby agrees, by its acceptance hereof, that before
disposing of this Note or any part hereof it will make a notation hereon of all
principal payments previously made hereunder and of the date to which interest
hereon has been paid; provided, the failure to make a notation of any payment
made on this Note shall not limit or otherwise affect the obligations of Company
hereunder with respect to payments of principal of or interest on this Note.
------------------
[1] Lender's New Term Loan Commitment
[2] Date of Issuance
EXHIBIT B-2-1
EXHIBITS TO
CREDIT AND GUARANTY AGREEMENT EXECUTION
443102-New York Server 5A
This Note is subject to mandatory prepayment and to prepayment at the
option of Company, each as provided in the Credit Agreement.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY AND PAYEE HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES THEREOF.
Upon the occurrence of an Event of Default, the unpaid balance of the
principal amount of this Note, together with all accrued and unpaid interest
thereon, may become, or may be declared to be, due and payable in the manner,
upon the conditions and with the effect provided in the Credit Agreement.
The terms of this Note are subject to amendment only in the manner
provided in the Credit Agreement.
No reference herein to the Credit Agreement and no provision of this
Note or the Credit Agreement shall alter or impair the obligations of Company,
which are absolute and unconditional, to pay the principal of and interest on
this Note at the place, at the respective times, and in the currency prescribed
in the Credit Agreement.
Company promises to pay all costs and expenses, including reasonable
attorneys' fees, all as provided in the Credit Agreement, incurred in the
collection and enforcement of this Note. Company and any endorsers of this Note
hereby consent to renewals and extensions of time at or after the maturity
hereof, without notice, and hereby waive diligence, presentment, protest, demand
notice of every kind and the right to plead any statute of limitations as a
defense to any demand hereunder, in each case to the full extent permitted by
law.
[The remainder of this page is intentionally left blank.]
EXHIBIT B-2-2
EXHIBITS TO
CREDIT AND GUARANTY AGREEMENT EXECUTION
443102-New York Server 5A
IN WITNESS WHEREOF, Company has caused this Note to be duly executed
and delivered by its officer thereunto duly authorized as of the date and at the
place first written above.
XXXXXXX COMPANY
By: ___________________________
Name: _________________________
Title: ________________________
EXHIBIT B-2-3
EXHIBITS TO
CREDIT AND GUARANTY AGREEMENT EXECUTION
443102-New York Server 5A
EXHIBIT B-3 TO
CREDIT AND GUARANTY AGREEMENT
REVOLVING LOAN NOTE
$[___,___,___]
DECEMBER 19, 0000
Xxx Xxxx, Xxx Xxxx
FOR VALUE RECEIVED, XXXXXXX COMPANY (as successor to THL Bedding
Company), a Delaware corporation ("COMPANY"), promises to pay [NAME OF LENDER]
("PAYEE") or its registered assigns, on or before December 19, 2009, the lesser
of (a) [DOLLARS] ($[__,___,___]) and (b) the unpaid principal amount of all
advances made by Payee to Company as Revolving Loans under the Credit Agreement
referred to below.
Company also promises to pay interest on the unpaid principal amount
hereof, from the date hereof until paid in full, at the rates and at the times
which shall be determined in accordance with the provisions of that certain
Credit and Guaranty Agreement, dated as of December 19, 2003 (as it may be
amended, supplemented or otherwise modified, the "CREDIT AGREEMENT"; the terms
defined therein and not otherwise defined herein being used herein as therein
defined), by and among THL-SC BEDDING COMPANY, COMPANY, certain Subsidiaries of
Company, as Guarantors, the Lenders party thereto from time to time, XXXXXXX
XXXXX CREDIT PARTNERS L.P., as Sole Bookrunner, Joint Lead Arranger and
Co-Syndication Agent, UBS SECURITIES, LLC, as Joint Lead Arranger and
Co-Syndication Agent, DEUTSCHE BANK AG, NEW YORK BRANCH, as Administrative Agent
and as Collateral Agent, GENERAL ELECTRIC CAPITAL CORPORATION, as
Co-Documentation Agent, and CIT LENDING SERVICES CORPORATION, as
Co-Documentation Agent.
This Note is one of the "Revolving Loan Notes" representing a portion
of the Revolving Loan Commitments in the aggregate principal amount of up to
$75,000,000 and is issued pursuant to and entitled to the benefits of the Credit
Agreement, to which reference is hereby made for a more complete statement of
the terms and conditions under which the Revolving Loans evidenced hereby were
made and are to be repaid.
All payments of principal and interest in respect of this Note shall be
made in lawful money of the United States of America in same day funds at the
principal office of Administrative Agent or at such other place as shall be
designated in writing for such purpose in accordance with the terms of the
Credit Agreement. Unless and until an Assignment Agreement effecting the
assignment or transfer of the obligations evidenced hereby shall have been
accepted by Administrative Agent and Company (to the extent required) and
recorded in the Register, Company, each Agent and Lenders shall be entitled to
deem and treat Payee as the owner and holder of this Note and the obligations
evidenced hereby. Payee hereby agrees, by its acceptance hereof, that before
disposing of this Note or any part hereof it will make a notation hereon of all
principal payments previously made hereunder and of the date to which interest
hereon has been paid; provided, the failure to make a notation of any payment
made on this Note shall not limit or otherwise affect the obligations of Company
hereunder with respect to payments of principal of or interest on this Note.
This Note is subject to mandatory prepayment and to prepayment at the
option of Company, each as provided in the Credit Agreement.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY AND PAYEE HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES THEREOF.
EXHIBIT B-3-1
EXHIBITS TO
CREDIT AND GUARANTY AGREEMENT EXECUTION
443102-New York Server 5A
Upon the occurrence of an Event of Default, the unpaid balance of the
principal amount of this Note, together with all accrued and unpaid interest
thereon, may become, or may be declared to be, due and payable in the manner,
upon the conditions and with the effect provided in the Credit Agreement.
The terms of this Note are subject to amendment only in the manner
provided in the Credit Agreement.
No reference herein to the Credit Agreement and no provision of this
Note or the Credit Agreement shall alter or impair the obligations of Company,
which are absolute and unconditional, to pay the principal of and interest on
this Note at the place, at the respective times, and in the currency prescribed
in the Credit Agreement.
Company promises to pay all costs and expenses, including reasonable
attorneys' fees, all as provided in the Credit Agreement, incurred in the
collection and enforcement of this Note. Company and any endorsers of this Note
hereby consent to renewals and extensions of time at or after the maturity
hereof, without notice, and hereby waive diligence, presentment, protest, demand
notice of every kind and the right to plead any statute of limitations as a
defense to any demand hereunder, in each case to the full extent permitted by
law.
[The remainder of this page is intentionally left blank.]
EXHIBIT B-3-2
EXHIBITS TO
CREDIT AND GUARANTY AGREEMENT EXECUTION
443102-New York Server 5A
IN WITNESS WHEREOF, Company has caused this Note to be duly executed
and delivered by its officer thereunto duly authorized as of the date and at the
place first written above.
XXXXXXX COMPANY
By: ___________________________
Name: _________________________
Title: ________________________
EXHIBIT B-3-3
EXHIBITS TO
CREDIT AND GUARANTY AGREEMENT EXECUTION
443102-New York Server 5A
TRANSACTIONS ON
REVOLVING LOAN NOTE
Amount of Loan Amount of Principal Outstanding Principal Notation
Date Made This Date Paid This Date Balance This Date Made By
---- -------------- ------------------- --------------------- --------
EXHIBIT B-3-4
EXHIBITS TO
CREDIT AND GUARANTY AGREEMENT EXECUTION
443102-New York Server 5A
EXHIBIT B-4 TO
CREDIT AND GUARANTY AGREEMENT
SWING LINE NOTE
$10,000,000
DECEMBER 19, 0000 Xxx Xxxx, Xxx Xxxx
FOR VALUE RECEIVED, XXXXXXX COMPANY (as successor to THL Bedding
Company), a Delaware corporation ("Company"), promises to pay to DEUTSCHE BANK
A.G., CAYMAN ISLANDS BRANCH, as Swing Line Lender ("Payee"), on or before
December 19, 2009, the lesser of (a) TEN MILLION AND NO/100 DOLLARS
($10,000,000) and (b) the unpaid principal amount of all advances made by Payee
to Company as Swing Line Loans under the Credit Agreement referred to below.
Company also promises to pay interest on the unpaid principal amount
hereof, from the date hereof until paid in full, at the rates and at the times
which shall be determined in accordance with the provisions of that certain
Credit and Guaranty Agreement, dated as of December 19, 2003 (as it may be
amended, supplemented or otherwise modified, the "CREDIT AGREEMENT"; the terms
defined therein and not otherwise defined herein being used herein as therein
defined), by and among THL-SC BEDDING COMPANY, COMPANY, certain Subsidiaries of
Company, as Guarantors, the Lenders party thereto from time to time, XXXXXXX
XXXXX CREDIT PARTNERS L.P., as Sole Bookrunner, Joint Lead Arranger and
Co-Syndication Agent, UBS SECURITIES, LLC, as Joint Lead Arranger and
Co-Syndication Agent, DEUTSCHE BANK AG, NEW YORK BRANCH, as Administrative Agent
and as Collateral Agent, GENERAL ELECTRIC CAPITAL CORPORATION, as
Co-Documentation Agent, and CIT LENDING SERVICES CORPORATION, as
Co-Documentation Agent.
This Note is the "Swing Line Note" and is issued pursuant to and
entitled to the benefits of the Credit Agreement, to which reference is hereby
made for a more complete statement of the terms and conditions under which the
Swing Line Loans evidenced hereby were made and are to be repaid.
All payments of principal and interest in respect of this Note shall be
made in lawful money of the United States of America in same day funds at the
principal office of Swing Line Lender or at such other place as shall be
designated in writing for such purpose in accordance with the terms of the
Credit Agreement.
This Note is subject to mandatory prepayment and to prepayment at the
option of Company, each as provided in the Credit Agreement.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY AND PAYEE HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES THEREOF.
Upon the occurrence of an Event of Default, the unpaid balance of the
principal amount of this Note, together with all accrued and unpaid interest
thereon, may become, or may be declared to be, due and payable in the manner,
upon the conditions and with the effect provided in the Credit Agreement.
The terms of this Note are subject to amendment only in the manner
provided in the Credit Agreement.
No reference herein to the Credit Agreement and no provision of this
Note or the Credit Agreement shall alter or impair the obligations of Company,
which are absolute and unconditional, to pay the principal of and interest on
this Note at the place, at the respective times, and in the currency prescribed
in the Credit Agreement.
EXHIBIT B-4-1
EXHIBITS TO
CREDIT AND GUARANTY AGREEMENT EXECUTION
443102-New York Server 5A
Company promises to pay all costs and expenses, including reasonable
attorneys' fees, all as provided in the Credit Agreement, incurred in the
collection and enforcement of this Note. Company and any endorsers of this Note
hereby consent to renewals and extensions of time at or after the maturity
hereof, without notice, and hereby waive diligence, presentment, protest, demand
notice of every kind and the right to plead any statute of limitations as a
defense to any demand hereunder, in each case to the full extent permitted by
law.
[The remainder of this page is intentionally left blank.]
EXHIBIT B-4-2
EXHIBITS TO
CREDIT AND GUARANTY AGREEMENT EXECUTION
443102-New York Server 5A
IN WITNESS WHEREOF, Company has caused this Note to be duly executed
and delivered by its officer thereunto duly authorized as of the date and at the
place first written above.
XXXXXXX COMPANY
By: ___________________________
Name: _________________________
Title: ________________________
EXHIBIT B-4-3
EXHIBITS TO
CREDIT AND GUARANTY AGREEMENT EXECUTION
443102-New York Server 5A
TRANSACTIONS ON
SWING LINE NOTE
Amount of Loan Amount of Principal Outstanding Principal Notation
Date Made This Date Paid This Date Balance This Date Made By
---- -------------- ------------------- --------------------- --------
EXHIBIT B-4-4
EXHIBITS TO
CREDIT AND GUARANTY AGREEMENT EXECUTION
443102-New York Server 5A
EXHIBIT C TO
CREDIT AND GUARANTY AGREEMENT
COMPLIANCE CERTIFICATE
THE UNDERSIGNED HEREBY CERTIFIES AS FOLLOWS:
1. I am the Executive Vice President and Chief Financial Officer of
XXXXXXX COMPANY (as successor to THL Bedding Company) ("Company").
2. I have reviewed the terms of that certain Credit and Guaranty
Agreement, dated as of December 19, 2003(as it may be amended, supplemented or
otherwise modified, the "Credit Agreement"; the terms defined therein and not
otherwise defined herein being used herein as therein defined), by and among
THL-SC BEDDING COMPANY, Company, certain Subsidiaries of Company, as Guarantors,
the Lenders party thereto from time to time, XXXXXXX SACHS CREDIT PARTNERS
L.P., as Sole Bookrunner, Joint Lead Arranger and Co-Syndication Agent, UBS
SECURITIES, LLC, as Joint Lead Arranger and Co-Syndication Agent, DEUTSCHE BANK
AG, NEW YORK BRANCH, as Administrative Agent and as Collateral Agent, GENERAL
ELECTRIC CAPITAL CORPORATION, as Co-Documentation Agent, and CIT LENDING
SERVICES CORPORATION, as Co-Documentation Agent, and I have made, or have caused
to be made under my supervision, a review in reasonable detail of the
transactions and condition of Company and its Subsidiaries during the accounting
period covered by the attached financial statements.
3. The examination described in paragraph 2 above did not disclose, and
I have no knowledge of, the existence of any condition or event which
constitutes an Event of Default or Default as of the date of this Certificate,
except as set forth in a separate attachment, if any, to this Certificate,
describing in detail, the nature of the condition or event, the period during
which it has existed and the action which Company has taken, is taking, or
proposes to take with respect to each such condition or event.
The foregoing certifications, together with the computations set forth
in the Annex A hereto and the financial statements delivered with this
Certificate in support hereof, are made and delivered on behalf of Company, and
not individually, [MM/DD/YY] pursuant to Section 5.1(d) of the Credit Agreement.
XXXXXXX COMPANY
By: __________________________________
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
EXHIBIT C-l
EXHIBITS TO
CREDIT AND GUARANTY AGREEMENT EXECUTION
443102-New York Server 5A
ANNEX A TO
COMPLIANCE CERTIFICATE
FOR THE FISCAL [QUARTER] [YEAR] ENDING [MM/DD/YY].
1. Consolidated Adjusted EBITDA: (i) - (ii) = $[ ___ , ___ , ___ ]
(i) (a) Consolidated Net Income: $[ ___ , ___ , ___ ]
(b) Consolidated Interest Expense: $[ ___ , ___ , ___ ]
(c) provisions for taxes based on income: $[ ___ , ___ , ___ ]
(d) total depreciation expense: $[ ___ , ___ , ___ ]
(e) total amortization expense: $[ ___ , ___ , ___ ]
(f) Management Fees: $[ ___ , ___ , ___ ]
(g) ESOP expenses: $[ ___ , ___ , ___ ]
(h) fees, costs and cash expenses in connection with the consummation of
the Acquisition (including, without limitation, bonus and option
payments): $[ ___ , ___ , ___ ]
(i) other non-cash items reducing Consolidated Net Income[l*]: $[ ___ , ___ , ___ ]
(j) Cure Amount: $[ ___ , ___ , ___ ]
(k) any extraordinary, unusual or non-recurring gains or losses or
charges or credits, including, but not limited to, any expenses relating
to the Acquisition, the Mergers and the Related Agreements: $[ ___ , ___ , ___ ]
(l) any reasonable expenses or charges related to any issuance of
Securities, Investments permitted under Section 6.3 of the Credit
Agreement, Permitted Acquisitions, recapitalizations. Asset Sales
permitted by Section 6.7 of the Credit Agreement or Indebtedness
permitted to be incurred under Section 6.1 of the Credit Agreement: $[ ___ , ___ , ___ ]
(ii) other non-cash items increasing Consolidated Net Income[2*]: $[ ___ , ___ , ___ ]
2. Consolidated Capital Expenditures:
(i) expenditures (whether paid in cash or other consideration or accrued
as a liability and including that portion of Capital Leases which is
capitalized on the consolidated balance sheet of Company and its
Subsidiaries) by Company and its Subsidiaries during such period that,
in conformity with
------------------
[1*] Including without limitation non-Cash purchase accounting adjustments and
debt extinguishment costs but excluding accruals of expenses and the
establishment of reserves in the ordinary course of business.
[2*] Excluding any such non-Cash item to the extent that it represents an
accrual of revenue or reversal of reserves in the ordinary course of
business.
GAAP, are included in "additions to property, plant or equipment" or
comparable items reflected in the consolidated statement of cash flows
of Company and its Subsidiaries [3*]: $[ ___ , ___ , ___ ]
3. Consolidated Cash Interest Expense: (i) - (ii) = $[ ___ , ___ , ___ ]
(i) Consolidated Interest Expense: $[ ___ , ___ , ___ ]
(ii) (a) interest expense not payable in Cash (including amortization of
discount and amortization of debt issuance costs), but excluding,
however, any amounts referred to in Section 2.10 of the Credit Agreement
payable on or before the Closing Date and (b) any costs associated with
xxxx-to-market changes in Interest Rate Agreements and any other charges
or payments related to any Interest Rate Agreements, in each case, shall
be excluded from the calculation of Consolidated Cash Interest Expense: $[ ___ , ___ , ___ ]
4. Consolidated Current Assets:
(i) total assets of Company and its Subsidiaries on a consolidated basis
that may properly be classified as current assets in conformity with
GAAP[4*]: $[ ___ , ___ , ___ ]
5. Consolidated Current Liabilities:
(i) total liabilities of Company and its Subsidiaries on a consolidated
basis that may properly be classified as current liabilities in
conformity with GAAP, excluding any current liabilities with respect
to long-term Indebtedness and excluding any liabilities associated with
the Retail Business that are held for sale: $[ ___ , ___ , ___ ]
6. Consolidated Excess Cash Flow: (i) - (ii) = $[ ___ , ___ , ___ ]
(i) (a) Consolidated Adjusted EBITDA: $[ ___ , ___ , ___ ]
(b) Consolidated Working Capital Adjustment [5*] $[ ___ , ___ , ___ ]
(ii) (a) voluntary prepayments (including repurchases of Term Loans
made pursuant to Section 2.12 of the Credit Agreement),
mandatory prepayments pursuant to Section 2.13(d) of the
Credit Agreement and scheduled repayments of Consolidated
Total Debt[6*]: $[ ___ , ___ , ___ ]
------------------
[3*] Excluding (i) any expenditures by Company or any of its Subsidiaries
during that period in connection with a Permitted Acquisition or, (ii)
capital expenditures arising from deployment of any Proposed Reinvestment
Proceeds or the Net Cash Proceeds of any issuance of Securities not
otherwise required to repay the Loans pursuant to Section 2.13(b) of the
Credit Agreement or (iii) any expenditures made with respect to the
original acquisition of any property that has been transferred pursuant to
a Permitted Sale/Lease-Back Transaction permitted by Section 6.9 of the
Credit Agreement.
[4*] Excluding (i) Cash and Cash Equivalents, (ii) assets (other than
inventory) that are held for sale and (iii) assets pertaining to the
Retail Business (including Inventory pertaining to the Retail Business)
that are held for sale.
[5*] Excluding any non-Cash adjustments to Consolidated Working Capital
Adjustments.
[6*] Excluding repayments of Revolving Loans or Swing Line Loans except to the
extent the Revolving Loan Commitments are permanently reduced in
connection with such repayments.
2
(b) Consolidated Capital Expenditures [7*]: $[ ___ , ___ , ___ ]
(c) Consolidated Cash Interest Expense (without giving effect
to the proviso set forth in footnote [4*] hereof): $[ ___ , ___ , ___ ]
(d) the provision for current taxes based on income of Company and
its Subsidiaries and payable in cash with respect to such
period: $[ ___ , ___ , ___ ]
(e) Management Fees actually paid in cash: $[ ___ , ___ , ___ ]
(f) the cash portion of any purchase price payments made during
such period by Company or any of its Subsidiaries in
connection with any Permitted Acquisition or Investments (net
of the proceeds of any related debt or equity financings with
respect to such Investments): $[ ___ , ___ , ___ ]
(g) the cash portion of any purchase price payments made during
such period by Company or any of its Subsidiaries in
connection with the acquisition of any Intellectual Property
(net of the proceeds of any related financings with respect to
such expenditures): $[ ___ , ___ , ___ ]
(h) the cash portion of any Restricted Junior Payments made during
such period pursuant to Section 6.5 of the Credit Agreement
(net of the proceeds of any related financings with respect to
such Restricted Junior Payments): $[ ___ , ___ , ___ ]
(i) cash expenses and charges added to Consolidated Net Income for
purposes of determining Consolidated Adjusted EBITDA pursuant
to (k) and (l) of Consolidated Adjusted EBITDA above: $[ ___ , ___ , ___ ]
(j) Cure Amount: $[ ___ , ___ , ___ ]
7. Consolidated Interest Expense:
(i) total interest expense (including that portion attributable to Capital
Leases in accordance with GAAP and capitalized interest) of Company and
its Subsidiaries on a consolidated basis with respect to all outstanding
Indebtedness of Company and its Subsidiaries, including all commissions,
discounts and other fees and charges owed with respect to letters of
credit and bankers' acceptance financing but excluding net costs under
Interest Rate Agreements (and for purposes of clarity, excluding
interest income): $[ ___ , ___ , ___ ]
8. Consolidated Net Income: (i) - (ii) = $[ ___ , ___ , ___ ]
(i) the net income (or loss) of Company and its Subsidiaries on a
consolidated basis for such period determined in conformity with GAAP: $[ ___ , ___ , ___ ]
---------------
[7*] Net of any proceeds of any related financings with respect to such
expenditures.
3
(ii) (a) the income (or loss) of any Person (other than a Subsidiary of
Company) in which any other Person (other than Company or any
of its Subsidiaries) has a joint interest, except to the
extent of the amount of dividends or other distributions
actually paid to Company or any of its Subsidiaries by such
Person during such period: $[ ___ , ___ , ___ ]
(b) the income (or loss) of any Person accrued prior to the date
it becomes a Subsidiary of Company or is merged into or
consolidated with Company or any of its Subsidiaries or that
Person's assets are acquired by Company or any of its
Subsidiaries: $[ ___ , ___ , ___ ]
(c) the income of any Subsidiary of Company to the extent that the
declaration or payment of dividends or similar distributions
by that Subsidiary of that income is not at the time permitted
by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary: $[ ___ , ___ , ___ ]
(d) any after-tax gains or losses attributable to Asset Sales or
returned surplus assets of any Pension Plan: $[ ___ , ___ , ___ ]
(e) to the extent not included in clauses (ii)(a) through (d)
above, any net non-cash extraordinary gains or net non-cash
extraordinary losses: $[ ___ , ___ , ___ ]
9. Consolidated Total Debt:
(i) the aggregate stated balance sheet amount of all Indebtedness
pertaining to (a) all indebtedness for borrowed money or (b)
that portion of obligations with respect to Capital Leases
that is properly classified as a liability on a balance sheet
in conformity with GAAP of Company and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP: $[ ___ , ___ , ___ ]
10. Consolidated Working Capital: (i) - (ii) = $[ ___ , ___ , ___ ]
(i) Consolidated Current Assets: $[ ___ , ___ , ___ ]
(ii) Consolidated Current Liabilities: $[ ___ , ___ , ___ ]
11. Consolidated Working Capital Adjustment: (i) - (ii) = $[ ___ , ___ , ___ ]
(i) Consolidated Working Capital as of the beginning of such period
(excluding any pro forma effects of changes in the classification of
assets held for sale): $[ ___ , ___ , ___ ]
4
(ii) Consolidated Working Capital as of the end of such period
(excluding any pro forma effects of changes
in the classification of assets held for sale): $[ ___ , ___ , ___ ]
12. Cash Interest Coverage Ratio: (i)/(ii) =
(i) Consolidated Adjusted EBITDA[8*]
for the four-Fiscal Quarter Period then ended: $[ ___ , ___ , ___ ]
(ii) Consolidated Cash Interest Expense
for such four-Fiscal Quarter Period[9*]: $[ ___ , ___ , ___ ]
Actual: _,_:1.00
Required: _,_:1.00
13. Leverage Ratio: (i)/(ii) =
(i) (a) Consolidated Total Debt: $[ ___ , ___ , ___ ]
(b) Cash and Cash Equivalents of Company and its
Subsidiaries not in excess of $30,000,000: $[ ___ , ___ , ___ ]
(a)-(b): $[ ___ , ___ , ___ ]
(ii) Consolidated Adjusted EBITDA[10*]
for the four-Fiscal Quarter period then ended: $[ ___ , ___ , ___ ]
Actual: _,_:1.00
Required: _,_:1.00
------------------
[8*] Provided, with respect to any period during which a Permitted
Acquisition or a PF Asset Sale has occurred, Consolidated Adjusted
EBITDA shall be calculated with respect to such period on a Pro Forma
Basis giving effect to such Permitted Acquisition or PF Asset Sale.
[9*] Provided, that for purposes of calculating Consolidated Cash
Interest Expense, Consolidated Cash Interest Expense shall be equal to
(i) for the period ending MARCH 31, 2004, Consolidated Cash Interest
Expense for the Fiscal Quarter ended MARCH 31, 2004 multiplied by 4,
(ii) for the period ending JUNE 30, 2004, Consolidated Cash Interest
Expense for the two Fiscal Quarters ended JUNE 30, 2004 multiplied by 2,
and (iii) for the period ending SEPTEMBER 30, 2004, Consolidated Cash
Interest Expense for the three Fiscal Quarters ended SEPTEMBER 30, 2004
multiplied by one and one-third.
[10*] Provided, with respect to any period during which a Permitted
Acquisition or a PF Asset Sale has occurred, Consolidated Adjusted
EBITDA shall be calculated with respect to such period on a Pro Forma
Basis giving effect to such Permitted Acquisition or PF Asset Sale.
5
WEIL, GOTSHAL & XXXXXX LLP
000 XXXXX XXXXXX XXXXXX
XXX XXXX, XX 00000 BOSTON
(000) 000-0000 BRUSSELS
FAX: (000) 000-0000 BUDAPEST
DALLAS
FRANKFURT
HOUSTON
LONDON
MIAMI
PARIS
WRITER'S DIRECT LINE PRAGUE
SILICON VALLEY
AUGUST 27, 2004 SINGAPORE
WARSAW
WASHINGTON, D.C.
Deutsche Bank AG, New York Branch,
as administrative agent
and each of the Lenders party to the
Amended and Restated Credit and Guaranty Agreement
referred to below
Ladies and Gentlemen:
We have acted as special counsel to Xxxxxxx Bedding Company, a Delaware
corporation (the "Borrower"), THL-SC Bedding Company, a Delaware corporation
("Holdings"), and each of the entities listed on Schedule 1 hereto (together
with the Borrower and Holdings, the "Credit Parties") in connection with the
preparation, execution and delivery of, and the consummation of the transactions
contemplated, by the Amended and Restated Credit and Guaranty Agreement dated as
of the date hereof (the "Credit Agreement"), by and among the Borrower, Holdings
and certain other entities party thereto, as guarantors, the financial
institutions listed on the signature pages thereto (the "Lenders"), Xxxxxxx
Sachs Credit Partners L.P., as sole bookrunner, joint lead arranger and as
co-syndication agent, UBS Securities LLC , as joint lead arranger and
co-syndication agent, Deutsche Bank AG, New York Branch, as administrative agent
for the Lenders (in such capacity, the "Administrative Agent") and as collateral
agent for the Lenders, and the other Agents named therein. Capitalized terms
defined in the Credit Agreement and used (but not otherwise defined) herein are
used herein as so defined. This opinion is delivered pursuant to Section 3.1(d)
of the Credit Agreement.
In so acting, we have examined originals or copies (certified or otherwise
identified to our satisfaction and, unless otherwise noted, each dated as of the
date hereof) of the Credit Agreement and such corporate and limited liability
company records, agreements, documents and other instruments, and such
certificates or comparable documents of public officials and of officers and
representatives of the Credit Parties, and have made such inquiries of such
officers and representatives, as we have deemed relevant and necessary as a
basis for the opinions hereinafter set forth.
WEIL, GOTSHAL & XXXXXX LLP
August 27, 2004
Page 2
In such examination, we have assumed the genuineness of all signatures,
the legal capacity of all natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents. As to all questions of
fact material to these opinions that have not been independently established, we
have relied upon certificates or comparable documents of officers and
representatives of the Credit Parties and upon the representations and
warranties of the Credit Parties contained in the Credit Agreement. We have also
assumed (i) the valid existence and good standing of Dreamwell, Ltd.
("Dreamwell") and Xxxxxxx Capital Management, LLC (together with Dreamwell, the
"Nevada Credit Parties") under the laws of the State of Nevada, (ii) that each
of the Nevada Credit Parties has the requisite corporate or limited liability
company, as the case may be, power and authority to own, lease and operate its
properties and to carry on its business as now being conducted, (iii) that each
of the Nevada Credit Parties has the requisite corporate or limited liability
company, as the case may be, power and authority to execute and deliver the
Credit Agreement and (iv) the due authorization, execution and delivery by each
of the Nevada Credit Parties of the Credit Agreement. As used herein, "to our
knowledge" and "of which we are aware" mean the conscious awareness of facts or
other information by any lawyer in our firm actively involved in the
transactions contemplated by the Credit Agreement.
Based on the foregoing, and subject to the qualifications stated herein,
we are of the opinion that:
1. Each Credit Party (other than the Nevada Credit Parties) (collectively,
the "Delaware Credit Parties") is a corporation or a limited liability company,
as the case may be, validly existing and in good standing under the laws of the
State of Delaware. Each of the Delaware Credit Parties has all requisite
corporate or limited liability company, as the case may be, power and authority
to own, lease and operate its properties and to carry on its business as now
being conducted.
2. Each of the Delaware Credit Parties has all requisite corporate or
limited liability company, as the case may be, power and authority to execute
and deliver the Credit Agreement and to perform its obligations thereunder. The
execution, delivery and performance by the Delaware Credit Parties of the Credit
Agreement have been duly authorized by all necessary corporate or limited
liability company, as the case may be, action on the part of the Delaware Credit
Parties. The Credit Agreement has been duly and validly executed and delivered
by each Delaware Credit Party. Assuming the due authorization, execution and
delivery thereof by the parties thereto, other than the Delaware Credit Parties,
the Credit Agreement constitutes the legal, valid and binding obligation of each
Credit Party, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and remedies generally,
and
WEIL, GOTSHAL & XXXXXX LLP
August 27, 2004
Page 3
subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law or in equity) and except
that (A) rights to indemnification and contribution thereunder may be limited by
federal or state securities laws or public policy relating thereto, (B) no
opinion is expressed with respect to any right of set-off granted to a Lender
pursuant to Section 10.4 of the Credit Agreement and to any participant under
the Credit Documents and (C) certain remedial provisions of the Credit Agreement
are or may be unenforceable in whole or in part under the laws of the State of
New York, but the inclusion of such provisions does not affect the validity of
the Credit Agreement, and the Credit Agreement contains adequate provisions for
the practical realization of the rights and benefits afforded thereby.
3. The execution and delivery by each Delaware Credit Party of the Credit
Agreement and the performance by such Delaware Credit Party of its obligations
thereunder will not conflict with, constitute a default under or violate (i) any
of the terms, conditions or provisions of the Certificate of Incorporation or
Certificate of Formation, as the case may be, or by-laws or operating agreement,
as the case may be, of any Delaware Credit Party, (ii) any of the terms,
conditions or provisions of any document, agreement or other instrument set
forth on Schedule 2 hereto to which any Delaware Credit Party is a party or by
which it is bound, (iii) any New York, Delaware corporate or limited liability
company or federal law or regulation (other than federal and state securities or
blue sky laws, as to which we express no opinion in this paragraph), or (iv) any
judgment, writ, injunction, decree, order or ruling of any court or governmental
authority binding on the Delaware Credit Parties of which we are aware.
4. No consent, approval, waiver, license or authorization or other action
by or filing with any New York, Delaware corporate or limited liability company
or federal governmental authority is required in connection with the execution
and delivery by each Credit Party of the Credit Agreement, the consummation by
such Credit Party of the transactions contemplated thereby or the performance by
each Credit Party of its obligations thereunder, except for (i) filings in
connection with perfecting security interests, (ii) consents or filings which
have already been made or obtained, (iii) those which the failure to make or
obtain would not reasonably be expected to have a Material Adverse Effect and
(iv) federal and state securities or blue sky laws, in each case, as to which we
express no opinion in this paragraph.
5. To our knowledge, there is no litigation, proceeding or governmental
investigation pending or overtly threatened against the Credit Parties that
relates to any of the transactions contemplated by the Credit Agreement.
6. None of the Credit Parties is an "investment company" within the
meaning of the Investment Company Act of 1940, as amended. None of the Credit
Parties is a "holding company", or a "subsidiary company" of a "holding
company", or
WEIL, GOTSHAL & XXXXXX LLP
August 27, 2004
Page 4
an "affiliate" of a "holding company", within the meaning of, or is otherwise
subject to regulation under, the Public Utility Holding Company Act of 1935, as
amended.
7. The making of the extensions of credit under the Credit Agreement and
the application of the proceeds thereof as provided in the Credit Agreement does
not violate Regulations T, U or X of the Board of Governors of the Federal
Reserve System.
The opinions expressed herein are limited to the laws of the State of New
York, the corporate and limited liability company laws of the State of Delaware
and the federal laws of the United States, and we express no opinion as to the
effect on the matters covered by this letter of the laws of any other
jurisdiction.
The opinions expressed herein are rendered solely for your benefit and the
benefit of your successors and permitted assigns in connection with the
transactions described herein. Those opinions may not be used or relied upon by
any other person, nor may this letter or any copies hereof be furnished to a
third party, filed with a governmental agency, quoted, cited or otherwise
referred to without our prior written consent, other than to bank regulatory
authorities or successors and permitted assigns of any Lender.
Very truly yours,
[WEIL, GOTSHAL & XXXXXX LLP]
WEIL, GOTSHAL & XXXXXX LLP
Schedule 1
Entity Jurisdiction of Organization
------ ----------------------------
1. The Simmons Delaware
Manufacturing Co., LLC
2. World of Sleep Outlets, Delaware
LLC
3. Simmons Contract Sales, Delaware
LLC
4. Windsor Bedding Co., LLC Delaware
5. SC Holdings, Inc. Delaware
6. Sleep Country USA, Inc. Delaware
7. Simmons Juvenile Delaware
Company, LLC
8. Dreamwell, Ltd. Nevada
9. Xxxxxxx Capital Nevada
Management, LLC
WEIL, GOTSHAL & XXXXXX LLP
Schedule 2
1. Senior Unsecured Term Loan and Guaranty Agreement, dated as of December
19, 2003, among Borrower, Holdings, the guarantors named therein and the
financial institutions party thereto, and all agreements constituting
exhibits to or required to be executed pursuant thereto.
2. Indenture, dated as of December 19, 2003 (the "Indenture"), between
Borrower and Xxxxx Fargo Bank Minnesota, National Association, as trustee
(the "Trustee"), and the other guarantors named therein.
3. Employment Agreement among Xxxxxxx Company (the "Company"), the Borrower
and Xxxxxxx X. Xxxxx, dated as of December 19, 2003.
4. Employment Agreement among the Company, the Borrower and Xxxxxxx X.
Xxxxxxxxx, dated as of December 19, 2003.
5. Employment Agreement among the Company, the Borrower and Xxxxxx X.
Xxxxxxx, dated as of December 19, 2003.
6. Employment Agreement among the Company, the Borrower and Xxxxxx X. Xxxxxx,
dated as of December 19, 2003.
7. Labor Agreement between the Borrower and The United Steel Workers of
America, Local No. 13-02, in the Shawnee, Kansas plant of the Borrower
excluding executives, sales employees, office workers, supervisors, time
keepers, and mechanics for the period from April 19, 2004 to April 21,
2007.
8. Labor Agreement between the Borrower and The United Steel Workers, Local
No. 422 for all production and maintenance employees at the Dallas, Texas
plant of the Company excluding supervisors, foremen, factory clerks,
office employees, time keepers, watchmen or persons in any way identified
with management for the period from October 16, 2001 to October 15, 2004.
9. Labor Agreement between the Borrower and The United Steel Workers, Local
No. 2401 for all production at the Atlanta, Georgia plant of the Borrower
excluding office workers, supervisors, foremen, inspectors, watchmen,
plant guards, departmental coordinators, carload checkers or persons in
any way identified with management for the period from October 16, 2001 to
October 15, 2005.
10. Labor Agreement between the Borrower and The United Steel Workers, Local
No. 515U for all employees at the Los Angeles, California plant of the
Borrower excluding executives, sales employees, office workers, and
supervisors for the period from October 16, 2001 to October 15, 2005 (2001
10-K).
11. Labor Agreement between the Borrower and The United Steel Workers, Local
No. 420 for employees at the Piscataway, New Jersey plant of the Borrower
WEIL, GOTSHAL & XXXXXX LLP
excluding watchmen, office janitors, maintenance department employees,
truck drivers, tool makers, machinists, supervisors, porters, matrons,
main office, clerical, and maintenance helpers for the period of October
16, 2001 to October 15, 2005.
12. Labor Agreement between the Borrower and The United Steel Workers, Local
No. 424 for all production employees at the Columbus, Ohio plant of the
Borrower excluding executives, sales employees, office workers,
timekeepers, watchmen, office janitors, maintenance department employees,
truck drivers, foremen, supervisors, private chauffeurs, main office,
clerical, and engine room and power plant employees for the period from
October 16, 2001 to October 15, 2004.
13. Loan Agreement, dated as of November 1, 1982, between the City of
Janesville, Wisconsin and the Borrower, as successor by merger to Xxxxxxx
Manufacturing Company, Inc., relating to $9,700,000 City of Janesville,
Wisconsin Industrial Development Revenue Bond, Series A.
14. Loan Agreement between the City of Shawnee and the Borrower relating to
the Indenture of Trust between City of Shawnee, Kansas and State Street
Bank and Trust Company of Missouri, N.A., as Trustee, dated December 1,
1996 relating to $5,000,000 Private Activity Revenue Bonds, Series 1996.
EXHIBIT E TO
CREDIT AND GUARANTY AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT(1)
This Assignment and Assumption Agreement (this "ASSIGNMENT"), is dated
as of the Effective Date set forth below and is entered into by and between
[the] [each] Assignor identified in item [1] [item 3] below ([the] [each an]
"ASSIGNOR") and [the] [each] Assignee identified in [item 2] [item 3] below
([the] [each an] "ASSIGNEE"). [It is understood and agreed that the rights and
obligations of such Assignee [Assignor] hereunder are several and not joint.]
Capitalized terms used herein but not defined herein shall have the meanings
given to them in the Credit Agreement identified below (as amended, supplemented
or otherwise modified from time to time, the "CREDIT AGREEMENT"), receipt of a
copy of which is hereby acknowledged by [the] [each] Assignee. The Standard
Terms and Conditions set forth in Annex 1 hereto (the "STANDARD TERMS AND
CONDITIONS") are hereby agreed to and incorporated herein by reference and made
a part of this Assignment as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to [the] [each] Assignee, and [the] [each] Assignee hereby irrevocably
purchases and assumes from [the] [each such] Assignor, subject to and in
accordance with the Standard Terms and Conditions and the Credit Agreement, as
of the Effective Date inserted by the Administrative Agent as contemplated
below, the interest in and to all of the Assignor's rights and obligations under
the Credit Agreement and any other documents or instruments delivered pursuant
thereto that represents the amount and percentage interest identified below of
all of the Assignor's outstanding rights and obligations under the respective
facilities identified below (including, to the extent included in any such
facilities, Letters of Credit and Swingline Loans) (the "ASSIGNED INTEREST").
[Each] [Such] sale and assignment is without recourse to [the] [each such]
Assignor and, except as expressly provided in this Assignment, without
representation or warranty by [the] [each such] Assignor.
1. Assignor: ________________________
2. Assignee: _______________________ (2)
[2] [3]. Credit Agreement: $480,000,000 Credit
Agreement, dated as of December 19,
2003, by and among THL-SC BEDDING
COMPANY, XXXXXXX COMPANY (as successor
to THL Bedding Company, "COMPANY"),
certain Subsidiaries of Company, as
Guarantors, the Lenders party thereto
from time to time, XXXXXXX SACHS CREDIT
PARTNERS L.P., as Sole Bookrunner, Joint
Lead Arranger and Co-Syndication Agent,
UBS SECURITIES, LLC, as Joint Lead
Arranger and Co-Syndication Agent,
DEUTSCHE BANK AG, NEW YORK BRANCH, as
Administrative Agent and as Collateral
Agent, GENERAL ELECTRIC CAPITAL
CORPORATION, as Co-Documentation Agent,
and CIT LENDING SERVICES CORPORATION, as
Co-Documentation Agent.
--------------------
1 This Assignment and Assumption Agreement should be used by for an assignment
to or from a single Assignee or to or from funds managed by the same or
related investment managers.
2 Item 1 and Item 2 should be filled in as appropriate. In the case of an
assignment to or from funds managed by the same or related investment
managers, the Assignees or Assignors should be listed in bracketed item 3 as
applicable.
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[3. Assigned Interest:(3)
Facility Aggregate Amount of Amount of Commitment/Loans Percentage Assigned of
Assignee assigned Commitment/Loans for all Lenders Assigned Commitment/Loans(4)
------------------------------------------------------------------------------------------------------------------------
[Name of Assignee] ___________ ___________ _________%
------------------------------------------------------------------------------------------------------------------------
[Name of Assignee] ___________ ___________ _________%
------------------------------------------------------------------------------------------------------------------------
[4. Assigned Interest:(5)
Aggregate Amount of Amount of Commitment/Loans Percentage Assigned
Facility assigned Commitment/Loans for all Lenders Assigned of Commitment/Loans(6)
---------------------------------------------------------------------------------------------------------------------
Tranche B Term Loans $________________ $______________ %______________
---------------------------------------------------------------------------------------------------------------------
New Term Loans $________________ $______________ %______________
---------------------------------------------------------------------------------------------------------------------
Revolving Loans $________________ $______________ %______________
---------------------------------------------------------------------------------------------------------------------
[insert additional rows as applicable]
Effective Date__________,__, 200_
ASSIGNOR INFORMATION
Payment Instructions: _______________
_______________
_______________
_______________
Reference:
Notice Instructions:
_______________
_______________
--------------------
3 Insert this chart if this Form of Assignment and Assumption Agreement
is being used for assignment to or from funds managed by the same or
related investment managers.
4 Set forth, to at least 9 decimals, as a percentage of the
Commitment/Loans of all Lenders thereunder.
5 Insert this chart if this Form of Assignment and Assumption Agreement
is being used by a Lender for an assignment to a single Assignee.
6 Set forth, to at least 9 decimals, as a percentage of the
Commitment/Loans of all Lenders thereunder.
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_______________
Reference:
ASSIGNEE INFORMATION
Payment Instructions: _______________
_______________
_______________
_______________
Reference:
Notice Instructions:
_______________
_______________
_______________
Reference:
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The terms set forth in this Assignment are hereby agreed to:
ASSIGNOR ASSIGNEE
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE](7)
By:____________________________________ By:_______________________________
Name: Name:
Title: Title:
[Consented to:](8)
XXXXXXX COMPANY
By:____________________________________
Name:
Title:
[Consented to and](9) Accepted:
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Administrative Agent
By:____________________________________
Name:
Title:
---------------------
7 Add additional signature blocks, as needed, if this Assignment and
Assumption Agreement is being used by funds managed by the same or
related investment managers.
8 Consent of Company is not required upon the occurrence and during the
continuance of an Event of Default with respect to Sections 8.1 (a),
8.1(f) and 8.1(g) of the Credit Agreement.
9 Consent of Administrative Agent and Company is not required for
assignments to another Lender or to an Affiliate of the assigning
Lender (or if such assigning Lender is a fund that invests in
commercial or bank loans, another such investment fund managed or
advised by the same investment advisor or an Affiliate thereof) or
another Lender.
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ANNEX 1
STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT
AND ASSUMPTION AGREEMENT
1. Representations and Warranties.
1.1 Assignor. [Each] [The] Assignor (a) represents and
warrants that (i) it is the legal and beneficial
owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance
or other adverse claim and (iii) it has full power
and authority, and has taken all action necessary, to
execute and deliver this Assignment and to consummate
the transactions contemplated hereby; and (b) assumes
no responsibility with respect to (i) any statements,
warranties or representations made in or in
connection with any Credit Document, (ii) the
execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit
Agreement, any other Credit Document or any other
instrument or document delivered pursuant thereto,
other than this Assignment, or any collateral
thereunder, (iii) the financial condition of Holdings
or any of its Subsidiaries or Affiliates or any other
Person obligated in respect of any Credit Document or
(iv) the performance or observance by Holdings or any
of its Subsidiaries or Affiliates or any other Person
of any of their respective obligations under any
Credit Documents.
1.2 Assignee. [Each] [The] Assignee (a) represents and
warrants that (i) it has full power and authority,
and has taken all action necessary, to execute and
deliver this Assignment and to consummate the
transactions contemplated hereby and to become a
Lender under the Credit Agreement, (ii) it meets all
requirements of an Eligible Assignee under the Credit
Agreement, (iii) from and after the Effective Date,
it shall be bound by the provisions of the Credit
Agreement and, to the extent of the Assigned
Interest, shall have the obligations of a Lender
thereunder, (iv) it has received a copy of the Credit
Agreement, together with copies of the most recent
financial statements delivered pursuant to Section
5.1 thereof, as applicable, and such other documents
and information as it has deemed appropriate to make
its own credit analysis and decision to enter into
this Assignment and to purchase the Assigned Interest
on the basis of which it has made such analysis and
decision and (v) attached to this Assignment is any
documentation required to be delivered by it pursuant
to the terms of the Credit Agreement, duly completed
and executed by [the] [each such] Assignee; and (b)
agrees that (i) it will, independently and without
reliance on the Administrative Agent, [the] [each
such] Assignor or any other Lender, and based on such
documents and information as it shall deem
appropriate at the time, continue to make its own
credit decisions in taking or not taking action under
the Credit Documents, (ii) appoints and authorizes
each of the Administrative Agent and the Collateral
Agent to take such action as agent on its behalf and
to exercise such powers under the Credit Agreement
and the other Credit Documents as are delegated to or
otherwise conferred upon the Administrative Agent by
the terms thereof, together with such powers as are
reasonably incidental thereto; and (iii) it will
perform in accordance with their terms all of the
obligations which by the terms of the Credit
Documents are required to be performed by it as a
Lender.
2. Payments. From and after the Effective Date, the Administrative Agent
shall make all payment in respect to the Assigned Interest (including
payments of principal, interest, fees and other amounts) to [the] [each
EXHIBIT E-5
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such] Assignor for amounts which have accrued to but excluding the
Effective Date and to [the] [each] Assignee for amounts which have
accrued from and after the Effective Date.
3. General Provisions. This Assignment shall be binding upon, and inure to
the benefit of, the parties hereto and their respective successors and
assigns. This Assignment may be executed in any number of counterparts,
which together shall constitute one instrument. Delivery of an executed
counterpart of a signature page of this Assignment by telecopy shall be
effective as delivery of a manually executed counterpart of the
Assignment. THIS ASSIGNMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
(INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS).
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EXHIBIT F TO
CREDIT AND GUARANTY AGREEMENT
CERTIFICATE RE NON-BANK STATUS
Reference is made to the Credit and Guaranty Agreement, dated
as of December 19, 2003 (as it may be amended, supplemented or otherwise
modified, the "CREDIT AGREEMENT"; the terms defined therein and not otherwise
defined herein being used herein as therein defined), by and among THL-SC
BEDDING COMPANY, XXXXXXX COMPANY (as successor to THL Bedding Company)
("COMPANY"), certain Subsidiaries of Company, as Guarantors, the Lenders party
thereto from time to time, XXXXXXX SACHS CREDIT PARTNERS L.P., as Sole
Bookrunner, Joint Lead Arranger and Co-Syndication Agent, UBS SECURITIES, LLC,
as Joint Lead Arranger and Co-Syndication Agent, DEUTSCHE BANK AG, NEW YORK
BRANCH, as Administrative Agent and as Collateral Agent, GENERAL ELECTRIC
CAPITAL CORPORATION, as Co-Documentation Agent, and CIT LENDING SERVICES
CORPORATION, as Co-Documentation Agent. Pursuant to Section 2.20(c) of the
Credit Agreement, the undersigned hereby certifies that it is not a "bank" or
other Person described in Section 881(c)(3) of the Internal Revenue Code of
1986, as amended.
[NAME OF LENDER]
By:_____________________________
Name:
Title:
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EXHIBIT G TO
CREDIT AND GUARANTY AGREEMENT
SOLVENCY CERTIFICATE
THE UNDERSIGNED HEREBY CERTIFIES AS FOLLOWS:
1. I am the Executive Vice President and Chief Financial Officer of
XXXXXXX COMPANY (as successor to THL Bedding Company), a Delaware corporation
("COMPANY").
2. Reference is made to that certain Credit and Guaranty Agreement,
dated as of December 19, 2003 (as it may be amended, supplemented or otherwise
modified, the "CREDIT AGREEMENT"; the terms defined therein and not otherwise
defined herein being used herein as therein defined), by and among THL-SC
BEDDING COMPANY, COMPANY, certain Subsidiaries of Company, as Guarantors, the
Lenders party thereto from time to time, XXXXXXX SACHS CREDIT PARTNERS L.P., as
Sole Bookrunner, Joint Lead Arranger and Co-Syndication Agent, UBS SECURITIES,
LLC, as Joint Lead Arranger and Co-Syndication Agent, DEUTSCHE BANK AG, NEW YORK
BRANCH, as Administrative Agent and as Collateral Agent, GENERAL ELECTRIC
CAPITAL CORPORATION, as Co-Documentation Agent, and CIT LENDING SERVICES
CORPORATION, as Co-Documentation Agent. Further reference is made to that
certain Senior Unsecured Term Loan and Guaranty Agreement, dated as of December
19, 2003 (as it may be amended, supplemented or otherwise modified, the "SENIOR
UNSECURED TERM LOAN AGREEMENT"), by and among THL-SC BEDDING COMPANY, COMPANY,
certain Subsidiaries of Company, as Guarantors, the Lenders party thereto from
time to time, XXXXXXX XXXXX CREDIT PARTNERS L.P., as Sole Bookrunner, Joint Lead
Arranger and Co-Syndication Agent, UBS SECURITIES, LLC, as Joint Lead Arranger
and Co-Syndication Agent, DEUTSCHE BANK AG, NEW YORK BRANCH, as Administrative
Agent, GENERAL ELECTRIC CAPITAL CORPORATION, as Co-Documentation Agent, and CIT
LENDING SERVICES CORPORATION, as Co-Documentation Agent
3. I have reviewed the Credit Agreement and the Senior Unsecured Term
Loan Agreement, respectively, and have made, or have caused to be made, such
examination or investigation as is necessary to enable me to express an informed
opinion as to the matters referred to herein.
4. Based upon the review and examination described in paragraph 3
above, I hereby certify, on behalf of Company and not individually, that as of
the date hereof, after giving effect to the consummation of the Acquisition, the
related financings and the other transactions contemplated by the Credit
Documents and the Related Agreements, each Credit Party is Solvent.
The foregoing certifications are made and delivered as of December 19,
2003.
XXXXXXX COMPANY
____________________________________
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
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EFFECTIVE DATE CERTIFICATE
August 27, 2004
THE UNDERSIGNED HEREBY CERTIFIES AS FOLLOWS:
1. I am a Responsible Officer of THL-SC BEDDING COMPANY ("HOLDINGS") and
XXXXXXX BEDDING COMPANY ("COMPANY").
2. Pursuant to Section 2.1 of the Amended and Restated Credit and Guaranty
Agreement, dated as of the date hereof (as it may be amended, supplemented or
otherwise modified, the "CREDIT AGREEMENT"; the terms defined therein and not
otherwise defined herein being used herein as therein defined), by and among
COMPANY, HOLDINGS, certain Subsidiaries of Company, as Guarantors, the Lenders
party thereto from time to time, XXXXXXX SACHS CREDIT PARTNERS L.P., as Sole
Bookrunner, Joint Lead Arranger and Co-Syndication Agent, UBS SECURITIES, LLC,
as Joint Lead Arranger and Co-Syndication Agent, DEUTSCHE BANK AG, NEW YORK
BRANCH, as Administrative Agent, GENERAL ELECTRIC CAPITAL CORPORATION, as
Co-Documentation Agent, and CIT LENDING SERVICES CORPORATION, as
Co-Documentation Agent, Company requests that (i) Lenders make Tranche C Term
Loans to Company and (ii) Continuing Lenders continue to make Existing Tranche B
Terms Loans as Tranche C Term Loans to Company, in each case on the date hereof
(the "EFFECTIVE DATE"), the interest rates for which shall be determined in the
same manner and with the same Interest Period as the Existing Tranche B Loans
Term Loans as follows:
(a) $325,000,000 with an Adjusted Eurodollar Rate equal to 1.375%
with an Interest Period that expires on January 26, 2005;
(b) $35,000,000 with an Adjusted Eurodollar Rate equal to 1.9375%
with an Interest Period that expires on January 26, 2005;
(c) $25,000,000 with an Adjusted Eurodollar Rate equal to 1.6875%
with an Interest Period that expires on October 26, 2004; and
(d) $11,600,000 with an Adjusted Eurodollar Rate equal to 1.375%
with an Interest Period that expires on September 7, 2004.
3. I have reviewed the Credit Agreement and I have made, or have caused to
be made such examination or investigation as is necessary to enable me to
express an informed opinion as to the matters referred to herein.
4. Based upon the review and examination described in paragraph 3 above, I
hereby certify, on behalf of Company and Holdings, and not individually, that as
of the date hereof:
(i) as of the Effective Date, the representations and warranties
contained in each of the Credit Documents are true, correct and complete
in all respects on and as of the Effective Date to the same extent as
though made on and as of such date, except to the extent such
representations and warranties specifically relate to an earlier date, in
which case such representations and warranties are true, correct and
complete in all respects on and as of such earlier date;
(ii) as of the Effective Date, no action, suit, investigation,
litigation or proceeding or other legal or regulatory developments,
pending or threatened in any court or before any arbitrator or
Governmental Authority exists that, to the knowledge of Company, could
reasonably be expected to have a Material Adverse Effect; and
(iii) as of the Effective Date, no event has occurred and is
continuing or would result from the consummation of the borrowing
contemplated hereby that would constitute an Event of Default or a
Default.
5. Each Credit Party has requested Weil, Gotshal & Xxxxxx LLP to deliver
to Agents and Lenders on the Effective Date favorable written opinions setting
forth substantially the matters in the opinions designated in Exhibit D annexed
to the Credit Agreement, and as to such other matters as Agents may reasonably
request.
[Remainder of page intentionally left blank.]
The foregoing certifications are made and delivered as of the date first
set forth above.
THL-SC BEDDING COMPANY
XXXXXXX BEDDING COMPANY
/s/ Xxxxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
[SIGNATURE PAGE TO EFFECTIVE DATE CERTIFICATE]
EXHIBIT I TO
CREDIT AND GUARANTY AGREEMENT
COUNTERPART AGREEMENT
This COUNTERPART AGREEMENT, dated [mm/dd/yy] (this "COUNTERPART
AGREEMENT") is delivered pursuant to that certain Credit and Guaranty Agreement,
dated as of December 19, 2003 (as it may be amended, supplemented or otherwise
modified, the "CREDIT AGREEMENT"; the terms defined therein and not otherwise
defined herein being used herein as therein defined), by and among THL-SC
BEDDING COMPANY, XXXXXXX COMPANY (as successor to THL Bedding Company)
("COMPANY"), certain Subsidiaries of Company, as Guarantors, the Lenders party
thereto from time to time, XXXXXXX SACHS CREDIT PARTNERS L.P., as Sole
Bookrunner, Joint Lead Arranger and Co-Syndication Agent, UBS SECURITIES, LLC,
as Joint Lead Arranger and Co-Syndication Agent, DEUTSCHE BANK AG, NEW YORK
BRANCH, as Administrative Agent and as Collateral Agent, GENERAL ELECTRIC
CAPITAL CORPORATION, as Co-Documentation Agent, and CIT LENDING SERVICES
CORPORATION, as Co-Documentation Agent.
SECTION 1. Pursuant to Section 5.9 of the Credit Agreement, the
undersigned Subsidiary of Company hereby:
(a) agrees that this Counterpart Agreement may be
attached to the Credit Agreement and that by the execution and delivery
hereof, the undersigned becomes a Guarantor under the Credit Agreement
and agrees to be bound by all of the terms thereof;
(b) represents and warrants that each of the
representations and warranties set forth in the Credit Agreement and
each other Credit Document and applicable to the undersigned is true
and correct in all material respects both before and after giving
effect to this Counterpart Agreement, except to the extent that any
such representation and warranty relates solely to any earlier date, in
which case such representation and warranty is true and correct in all
material respects as of such earlier date;
(c) certifies that no event has occurred or is continuing
as of the date hereof, or will result from the transactions
contemplated hereby on the date hereof, that would constitute an Event
of Default or a Default;
(d) agrees to irrevocably and unconditionally guaranty
the due and punctual payment in full of all Obligations when the same
shall become due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise (including amounts that
would become due but for the operation of the automatic stay under
Section 362(a) of the Bankruptcy Code and in accordance with Section 7
of the Credit Agreement; and
(e) (i) agrees that this counterpart may be attached to
the Pledge and Security Agreement, (ii) agrees that the undersigned
will comply with all the terms and conditions of the Pledge and
Security Agreement as if it were an original signatory thereto, (iii)
grants to the Collateral Agent, for the benefit of the Secured Parties,
a security interest in all of the undersigned's right, title and
interest in and to all "Collateral" (as such term is defined in the
Pledge and Security Agreement) of the undersigned, in each case whether
now or hereafter existing or in which the undersigned now has or
hereafter acquires an interest and wherever the same may be located and
(iv) delivers to Collateral Agent supplements to all schedules attached
to the Pledge and Security Agreement. All such Collateral shall be
deemed to be part of the "Collateral" and hereafter subject to each of
the terms and conditions of the Pledge and Security Agreement.
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SECTION 2. The undersigned agrees from time to time, upon request of
Administrative Agent, to take such additional actions and to execute and deliver
such additional documents and instruments as Administrative Agent may request to
effect the transactions contemplated by, and to carry out the intent of, this
Counterpart Agreement. Neither this Counterpart Agreement nor any term hereof
may be changed, waived, discharged or terminated, except by an instrument in
writing signed by the party (including, if applicable, any party required to
evidence its consent to or acceptance of this Counterpart Agreement) against
whom enforcement of such change, waiver, discharge or termination is sought. Any
notice or other communication herein required or permitted to be given shall be
given in pursuant to Section 10.1 of the Credit Agreement, and all for purposes
thereof, the notice address of the undersigned shall be the address as set forth
on the signature page hereof. In case any provision in or obligation under this
Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
THIS COUNTERPART AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
[The remainder of this page is intentionally left blank.]
EXHIBIT I-2
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IN WITNESS WHEREOF, the undersigned has caused this Counterpart
Agreement to be duly executed and delivered by its duly authorized officer as of
the date above first written.
[NAME OF SUBSIDIARY]
By:_______________________
Name:
Title:
Address for Notices:
_______________
_______________
_______________
Attention:
Telecopier
with a copy to:
_______________
_______________
_______________
Attention:
Telecopier
ACKNOWLEDGED AND ACCEPTED,
as of the date above first written:
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Administrative Agent and Collateral Agent
By:_______________________
Name:
Title:
EXHIBIT I-3
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EXHIBIT J TO
CREDIT AND GUARANTY AGREEMENT
PLEDGE AND SECURITY AGREEMENT
See TAB 4
EXHIBIT X-x
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443102-New York Server 5A
MORTGAGE, SECURITY
AGREEMENT, ASSIGNMENT OF
Document Number RENTS AND LEASES
AND FIXTURE FILING
(WISCONSIN)
RECORDING AREA
NAME AND RETURN ADDRESS
Skadden, Arps, Slate, Xxxxxxx &
Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxx, Esq.
--------------------------
241 0412200031
PARCEL IDENTIFICATION NUMBER (PIN)
(ROCK COUNTY, COMPUTER NUMBER)
MORTGAGE, SECURITY AGREEMENT, AND FIXTURE FILING
(WISCONSIN)
THIS ADJUSTABLE RATE MORTGAGE, SECURITY AGREEMENT, AND FIXTURE
FILING (WISCONSIN) (this "MORTGAGE") is dated as of December ________, 2003 by
and from THE XXXXXXX MANUFACTURING CO., LLC, a Delaware corporation
("MORTGAGOR") to DEUTSCHE BANK AG, NEW YORK BRANCH, as Administrative Agent
(collectively, the "ADMINISTRATIVE AGENT") for the Lenders listed in the Credit
Agreement (defined below) and all successor Administrative Agents and assigns
(the Administrative Agent and all successor Administrative Agents and assigns,
"MORTGAGEE".
THE SECURED PARTY (MORTGAGEE) DESIRES THIS FIXTURE FILING TO
BE INDEXED AGAINST THE RECORD OWNER OF THE REAL ESTATE DESCRIBED HEREIN.
ARTICLE 1
DEFINITIONS
SECTION 1.1 Definitions. All capitalized terms used herein
without definition shall have the respective meanings ascribed to them in that
certain Credit and Guaranty Agreement dated as of even date herewith (as
amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT") by and among Xxxxxxx Company, as Borrower ("BORROWER"), and certain
subsidiaries of Borrower, as Guarantors, Xxxxxxx Xxxxx Credit Partners L.P., as
sole bookrunner, joint lead arranger and as Co-Syndication Agent, UBS Securities
LLC, as joint lead arranger and as Co-Syndicaiion Agent and Deutsche Bank AG,
New York Branch, as Administrative Agent, and the financial institutions listed
on the signature pages attached thereto (the "Lenders"). As used herein, the
following terms shall have the following meanings:
(a) "INDEBTEDNESS": All (i) principal indebtedness of
Borrower to Mortgagee and the Lenders, together with interest thereon, under the
Tranche B Term Loans, the Revolving Loans and the Swing Line Loans, as evidenced
by the Register or the Tranche B Term Loan Notes, the Revolving Notes and the
Swing Line Notes of even date herewith (such Register and Notes and any and all
modifications, substitutions, extensions, renewals and replacements thereof are
collectively referred to herein as the "MORTGAGE NOTES"), and (ii) other amounts
evidenced or secured by the Credit Documents, including, without limitation,
reimbursement obligations in respect of Letters of Credit, together with
interest thereon and other amounts payable with respect thereto, and (iii)
principal, interest and other amounts which may hereafter be loaned by Mortgagee
or the Lenders or any of them under or in connection with the Credit Agreement
or any of the other Credit Documents, whether evidenced by a promissory note or
other instrument which, by its terms, is secured hereby. Pursuant to the Credit
Agreement, the Lenders have agreed to provide Borrower with a revolving credit
facility, which permits Borrower to borrow certain principal amounts, repay all
or a portion of such principal amounts, and reborrow the amounts previously paid
to the Lenders, all upon satisfaction of certain conditions stated in the Credit
Agreement. The amount of
1
such revolving credit facility may increase and decrease from time to time as
the Lenders advance, Borrower repays, and the Lenders readvance sums on account
of the revolving credit, all as more fully described in the Credit Agreement.
Additionally, pursuant to the Credit Agreement, Borrower will enter into
Interest Rate Agreements. The term "Indebtedness" includes without limitation
all advances and readvances under the revolving credit feature of the Credit
Agreement and all amounts under Interest Rate Agreements entered into with one
or more of the Lenders or any Affiliates thereof.
(b) "MORTGAGED PROPERTY": All of Mortgagor's right,
title interest and estate in (1) the fee interest in the real property described
in Exhibit A attached hereto and incorporated herein by this reference, together
with any greater or additional estate therein as hereafter may be acquired by
Mortgagor (the "LAND"), (2) all improvements now owned or hereafter acquired by
Mortgagor, now or at any time situated, placed or constructed upon the Land (the
"IMPROVEMENTS"; the Land and Improvements are collectively referred to as the
"PREMISES"), (3) all materials, supplies, equipment, apparatus and other items
of personal property now owned or hereafter acquired by Mortgagor and now or
hereafter attached to or installed in any of the Improvements or the Land, and
water, gas, electrical, telephone, storm and sanitary sewer facilities and all
other utilities now owned or hereafter acquired by Mortgagor, whether or not
situated in easements (the "FIXTURES"), (4) all leases, licenses, concessions,
occupancy agreements or other agreements (written or oral, now or at any time in
effect) which grant to any Person a possessory interest in, or the right to use,
all or any part of the Mortgaged Property, together with all related security
and other deposits (the "LEASES"), (5) all of the rents, revenues, royalties,
income, proceeds, profits, security and other types of deposits, and other
benefits paid or payable by parties to the Leases for using, leasing, licensing
possessing, operating from, residing in, selling or otherwise enjoying the
Mortgaged Property (the "RENTS"), (6) all rights, privileges, tenements,
hereditaments, rights-of-way, easements, appendages and appurtenances
appertaining to the foregoing, (7) all property tax refunds (the "TAX REFUNDS"),
(8) all accessions, replacements and substitutions for any of the foregoing and
all proceeds thereof (the "PROCEEDS"), and (9) all of Mortgagor's right, title
and interest in and to any awards, damages, remunerations, reimbursements,
settlements or compensation heretofore made or hereafter to be made by any
governmental authority pertaining to the Land, Improvements or Fixtures (the
"CONDEMNATION AWARDS"). As used in this Mortgage, the term "MORTGAGED PROPERTY"
shall mean all or, where the context permits or requires, any portion of the
above or any interest therein.
(c) "OBLIGATIONS": All of the agreements, covenants,
conditions, warranties, representations and other Obligations of Mortgagor
(including, without limitation, the obligation to repay the Indebtedness) under
the Credit Agreement and the other Credit Documents.
(d) "UCC": The Uniform Commercial Code of Wisconsin
or, if the creation, perfection and enforcement of any security interest herein
granted is governed by the laws of a state other than Wisconsin, then, as to the
matter in question, the Uniform Commercial Code in effect in that state.
2
ARTICLE II
GRANT
SECTION 2.1 GRANT. To secure the full and timely payment of
the Indebtedness and the full and timely performance of the Obligations,
Mortgagor MORTGAGES, GRANTS, BARGAINS, ASSIGNS, SELLS and CONVEYS, to Mortgagee
the Mortgaged Property, subject, however, to the Permitted Encumbrances, TO HAVE
AND TO HOLD the Mortgaged Property to Mortgagee, and Mortgagor does hereby bind
itself, its successors and assigns to WARRANT AND FOREVER DEFEND the title to
the Mortgaged Property unto Mortgagee, subject to Permitted Encumbrances.
ARTICLE III
WARRANTIES, REPRESENTATIONS AND COVENANTS
Mortgagor warrants, represents and covenants to Mortgagee as
follows:
SECTION 3.1 TITLE TO MORTGAGED PROPERTY AND LIEN OF THIS
INSTRUMENT. Mortgagor owns the Mortgaged Property free and clear of any liens,
claims or interests, except the Permitted Encumbrances. This Mortgage creates a
valid, enforceable first priority lien and security interest against the
Mortgaged Property, subject to Permitted Encumbrances.
SECTION 3.2 FIRST LIEN STATUS. Except as otherwise provided in
the Credit Agreement, Mortgagor shall preserve and protect the first lien and
security interest status of this Mortgage. If any lien or security interest
other than the Permitted Encumbrances or this Mortgage is asserted against the
Mortgaged Property, Mortgagor shall promptly, and at its expense, (a) give
Mortgagee a detailed written notice of such lien or security interest (including
origin, amount and other terms), and (b) pay the underlying claim in full or
take such other action so as to cause it to be released or contest the same in
compliance with the requirements of the Credit Agreement (including the
requirement of providing a bond or other security satisfactory to Mortgagee).
SECTION 3.3 REPLACEMENT OF FIXTURES AND PERSONALTY. Except as
otherwise provided in the Credit Agreement, Mortgagor shall not, without the
prior written consent of Mortgagee, permit any of the Fixtures to be removed at
any time from the Land or Improvements, unless the removed item is removed
temporarily for maintenance and repair or, if removed permanently, is replaced
by an article of equal or better suitability and value, owned by Mortgagor
subject to the liens and security interests of this Mortgage and the other
Credit Documents, and free and clear of any other lien or security interest
except such as may be permitted under the Credit Agreement or first approved in
writing by Mortgagee.
SECTION 3.4 INSPECTION. Mortgagor shall permit Mortgagee, the
Lenders and their respective agents, representatives and employees, upon
reasonable prior notice to Mortgagor, to inspect the Mortgaged Property and all
books and records of Mortgagor located thereon, and to conduct such engineering
studies as Mortgagee or the Lenders may reasonably require, provided that such
inspections and studies shall be at
3
Lender's cost and expense and shall not materially interfere with the use and
operation of the Mortgaged Property.
SECTION 3.5 OTHER COVENANTS.
(a) Condemnation Awards and Insurance Proceeds.
(b) Condemnation Awards. Mortgagor assigns all awards
and compensation to which it is entitled for any condemnation or other taking,
or any purchase in lieu thereof, to Mortgagee and authorizes Mortgagee to
collect and receive such awards and compensation and to give proper receipts and
acquittances therefor, except to the extent otherwise provided by the terms of
the Credit Agreement.
(c) Insurance Proceeds. To the extent provided by the
Credit Agreement. Mortgagor assigns to Mortgagee all of Mortgagor's right, title
and interest in all proceeds of any insurance policies insuring against loss or
damage to the Mortgaged Property. If required under the Credit Agreement.
Mortgagor authorizes Mortgagee to collect and receive such proceeds and
authorize and direct the issuer of each of such insurance policies to make
payment for all such losses directly to Mortgagee, instead of to Mortgagor and
Mortgagee jointly.
ARTICLE IV
[INTENTIONALLY OMITTED]
ARTICLE V
DEFAULT AND FORECLOSURE
SECTION 5.1 REMEDIES. Upon the occurrence and during the
continuance of an Event of Default, Mortgagee may, at Mortgagee's election,
exercise any or all of the following rights, remedies and recourses:
(a) Acceleration. The Indebtedness shall
automatically become immediately due and payable, if required by the Credit
Agreement and in accordance with the Credit Agreement, or if the Credit
Agreement does not require automatic acceleration, Mortgagee may declare the
Indebtedness to be immediately due and payable, pursuant to and in accordance
with the Credit Agreement, without further notice, presentment, protest, notice
of intent to accelerate, notice of acceleration, demand or action of any nature
whatsoever (each of which hereby is expressly waived by Mortgagor), whereupon
the same shall become immediately due and payable.
(b) Entry on Mortgaged Property. To the extent
permitted by applicable law, enter the Mortgaged Property and take exclusive
possession thereof and of all books, records and accounts relating thereto or
located thereon. If Mortgagor remains in possession of the Mortgaged Property
after an Event of Default and without Mortgagee's prior written consent,
Mortgagee may invoke any legal remedies to dispossess Mortgagor.
4
(c) Operation of Mortgaged Property. To the extent
permitted by applicable law, hold, lease, develop, manage, operate or otherwise
use the Mortgaged Property upon such terms and conditions as Mortgagee may deem
reasonable under the circumstances (making such repairs, alterations, additions
and improvements and taking other actions, from time to time, as Mortgagee deems
necessary or desirable), and apply all Rents and other amounts collected by
Mortgagee in connection therewith in accordance with the provisions of Section
5.7.
(d) Foreclosure and Sale. Institute proceedings for
the complete foreclosure of this Mortgage, either by judicial action or by power
of sale, in which case the Mortgaged Property may be sold for cash or credit in
one or more parcels. With respect to any notices required or permitted under the
UCC, Mortgagor agrees that ten (10) days' prior written notice shall be deemed
commercially reasonable. At any such sale by virtue of any judicial proceedings,
power of sale, or any other legal right, remedy or recourse, the title to and
right of possession of any such property shall pass to the purchaser thereof,
and to the fullest extent permitted by law, Mortgagor shall be completely and
irrevocably divested of all of its right, title, interest, claim, equity, equity
of redemption, and demand whatsoever, either at law or in equity, in and to the
property sold and such sale shall be a perpetual bar both at law and in equity
against Mortgagor, and against all other Persons claiming or to claim the
property sold or any part thereof by, through or under Mortgagor. Mortgagee or
any of the Lenders may be a purchaser at such sale and if Mortgagee is the
highest bidder, Mortgagee may credit the portion of the purchase price that
would be distributed to Mortgagee against the Indebtedness in lieu of paying
cash. In the event this Mortgage is foreclosed by judicial action, appraisement
of the Mortgaged Property is waived to the extent permitted by applicable law.
(e) Receiver. To the extent permitted by applicable
law, make application to a court of competent jurisdiction for, and obtain from
such court as a matter of strict right and without notice to Mortgagor or regard
to the adequacy of the Mortgaged Property for the repayment of the Indebtedness,
the appointment of a receiver of the Mortgaged Property, and Mortgagor
irrevocably consents to such appointment. Any such receiver shall have all the
usual powers and duties of receivers in similar cases, including the full power
to rent, maintain and otherwise operate the Mortgaged Property upon such terms
as may be approved by the court, and shall apply such Rents in accordance with
the provisions of Section 5.7.
(f) Other. Exercise all other rights, remedies and
recourses granted under the Credit Documents against Mortgagor.
SECTION 5.2 SEPARATE SALES. The Mortgaged Property may be sold
in one or more parcels and in such manner and order as Mortgagee in its sole
discretion may elect; the right of sale arising out of any Event of Default
shall not be exhausted by any one or more sales.
SECTION 5.3 REMEDIES CUMULATIVE, CONCURRENT AND NONEXCLUSIVE.
Mortgagee and the Lenders shall have all rights, remedies and recourses against
the Mortgaged Property granted in the Credit Documents and available at law or
5
equity (including the UCC), which rights (a) shall be cumulated and concurrent,
(b) may be pursued separately, successively or concurrently against Mortgagor,
or against the Mortgaged Property, at the sole discretion of Mortgagee or the
Lenders, (c) may be exercised as often as occasion therefor shall arise, and the
exercise or failure to exercise any of them shall not be construed as a waiver
or release thereof or of any other right, remedy or recourse, and (d) are
intended to be, and shall be, nonexclusive. No action by Mortgagee or the
Lenders in the enforcement of any, rights, remedies or recourses under the
Credit Documents or otherwise at law or equity shall be deemed to cure any Event
of Default.
SECTION 5.4 RELEASE OF AND RESORT TO COLLATERAL. Mortgagee may
release, regardless of consideration and without the necessity for any notice to
or consent by the holder of any subordinate lien on the Mortgaged Property, any
part of the Mortgaged Property without, as to the remainder, in any way
impairing, affecting, subordinating or releasing the lien or security interest
created in or evidenced by the Credit Documents or their status as a first and
prior lien and security interest in and to the Mortgaged Property. For payment
of the Indebtedness, Mortgagee may resort to any other security in such order
and manner as Mortgagee may elect.
SECTION 5.5 WAIVER OF REDEMPTION, NOTICE AND MARSHALLING OF
ASSETS. To the fullest extent permitted by law, Mortgagor hereby irrevocably and
unconditionally waives and releases (a) all benefit that might accrue to
Mortgagor by virtue of any present or future law or judicial decision exempting
the Mortgaged Property from attachment, levy or sale on execution or providing
for any stay of execution, exemption from civil process, redemption or extension
of time for payment, (b) except as provided in the Credit Agreement, all notices
of any Event of Default or of Mortgagee's election to exercise or the actual
exercise of any right, remedy or recourse provided for under the Credit
Documents, and (c) any right to a marshalling of assets or a sale in inverse
order of alienation.
SECTION 5.6 DISCONTINUANCE OF PROCEEDINGS. If Mortgagee or the
Lenders shall have proceeded to invoke any right, remedy or recourse permitted
under the Credit Documents and shall thereafter elect to discontinue or abandon
it for any reason, Mortgagee or the Lenders shall have the unqualified right to
do so, to the extent permitted by applicable law, and, in such an event, to the
extent permitted by applicable law, Mortgagor and Mortgagee or the Lenders shall
be restored to their former positions with respect to the Indebtedness, the
Obligations, this Mortgage, the Mortgaged Property and otherwise, and the
rights, remedies, recourses and powers of Mortgagee or the Lenders hereunder
shall continue as if the right, remedy or recourse had never been invoked, but
no such discontinuance or abandonment shall waive any Event of Default which may
then exist or the right of Mortgagee or the Lenders thereafter to exercise any
right, remedy or recourse under this Mortgage for such Event of Default.
(a) Application of Proceeds. After the occurrence and
during the continuance of any Event of Default, subject to the terms of the
Credit Agreement, the proceeds of any sale of, and the Rents and other amounts
generated by the holding, leasing, management, operation or other use of the
Mortgaged Property, shall be applied
6
by Mortgagee (or the receiver, if one is appointed) in the order provided
therefor in the Credit Agreement unless otherwise required by applicable law:
SECTION 5.7 OCCUPANCY AFTER FORECLOSURE. Any sale of the
Mortgaged Property or any part thereof in accordance with Section 5.1(d) will
divest all right, title and interest of Mortgagor in and to the property sold.
Subject to applicable law, any purchaser at a foreclosure sale will receive
immediate possession of the property purchased. If Mortgagor retains possession
of such property or any part thereof subsequent to such sale, Mortgagor will be
considered a tenant at sufferance of the purchaser, and will, if Mortgagor
remains in possession after demand to remove, be subject to eviction and
removal, forcible or otherwise, with or without process of law.
SECTION 5.8 ADDITIONAL ADVANCES AND DISBURSEMENTS; COSTS OF
ENFORCEMENT.
(a) Upon the occurrence and during the continuance of
any Event of Default, if allowed under the Credit Agreement, Mortgagee and each
of the Lenders shall have the right, but not the obligation, to cure such Event
of Default pertaining to the Mortgaged Property in the name and on behalf of
Mortgagor. All reasonable sums advanced and expenses incurred at any time by
Mortgagee or any Lender under this Section 5.9, or otherwise under this Mortgage
shall bear interest from the date that such sum is advanced or expense incurred,
to and including the date of reimbursement, computed at the rate or rates at
which interest is then computed on the Indebtedness, and all such sums, together
with interest thereon, shall be secured by this Mortgage.
(b) Mortgagor shall pay all reasonable expenses
(including reasonable attorneys' fees and expenses) of or incidental to the
perfection and enforcement of this Mortgage, or the enforcement, compromise or
settlement of the Indebtedness under this Mortgage and for the curing thereof,
or for defending or asserting the rights and claims of Mortgagee or the Lenders
in respect of this Mortgage by litigation or otherwise.
SECTION 5.9 NO MORTGAGEE IN POSSESSION. To the extent
permitted by applicable law, neither the enforcement of any of the remedies
under this Article 5, the assignment of the Rents and Leases under Article 6,
the security interests under Article 7, nor any other remedies afforded to
Mortgagee or the Lenders under the Credit Documents, at law or in equity shall
cause Mortgagee or any Lender to be deemed or construed to be a mortgagee in
possession of the Mortgaged Property, to obligate Mortgagee or any Lender to
lease the Mortgaged Property or attempt to do so, or to take any action, incur
any expense, or perform or discharge any obligation, duty or liability
whatsoever under any of the Leases or otherwise.
ARTICLE V1
ASSIGNMENT OF RENTS AND LEASES
7
SECTION 6.1 ASSIGNMENT. In furtherance of and in addition to
the assignment made by Mortgagor in Section 2.1 of this Mortgage, Mortgagor
hereby absolutely and unconditionally assigns, sells, transfers and conveys to
Mortgagee all of its right, title and interest in and to all Leases, whether now
existing or hereafter entered into, and all of its right, title and interest in
and to all Rents. This assignment is an absolute assignment and not an
assignment for additional security only. So long as no Event of Default shall
have occurred and be continuing. Mortgagor shall have a revocable license from
Mortgagee to exercise all rights extended to the landlord under the Leases,
including the right to receive and collect all Rents and to hold the Rents in
trust for use in the payment and performance of the Obligations and to otherwise
use the same. The foregoing license is granted subject to the conditional
limitation that no Event of Default shall have occurred and be continuing. Upon
the occurrence and during the continuance of an Event of Default, whether or not
legal proceedings have commenced, and without regard to waste, adequacy of
security for the Obligations or solvency of Mortgagor, the license herein
granted shall automatically expire and terminate, without notice by Mortgagee
(any such notice being hereby expressly waived by Mortgagor).
SECTION 6.2 PERFECTION UPON RECORDATION. Mortgagor
acknowledges that Mortgagee has taken all actions necessary to obtain, and that
upon recordation of this Mortgage Mortgagee shall have, to the extent permitted
under applicable law, a valid and fully perfected, first priority, present
assignment of the Rents arising out of the Leases and all security for such
Leases. Mortgagor acknowledges and agrees that upon recordation of this
Mortgage. Mortgagee's interest in the Rents shall be deemed to be fully
perfected, "xxxxxx" and enforced as to Mortgagor and all third parties,
including, without limitation, any subsequently appointed trustee in any case
under Title 11 of the United States Code (the "BANKRUPTCY CODE"), without the
necessity of commencing a foreclosure action with respect to this Mortgage,
making formal demand for the Rents, obtaining the appointment of a receiver or
taking any other affirmative action.
SECTION 6.3 BANKRUPTCY PROVISIONS. Without limitation of the
absolute nature of the assignment of the Rents hereunder, Mortgagor and
Mortgagee agree that (a) this Mortgage shall constitute a "security agreement"
for purposes of Section 552(b) of the Bankruptcy Code, (b) the security interest
created by this Mortgage extends to property of Mortgagor acquired before the
commencement of a case in bankruptcy and to all amounts paid as Rents and (c)
such security interest shall extend to all Rents acquired by the estate after
the commencement of any case in bankruptcy.
SECTION 6.4 NO MERGER OF ESTATES. So long as part of the
Indebtedness and the Obligations secured hereby remain unpaid and undischarged,
the fee and leasehold estates to the Mortgaged Property shall not merge, but
shall remain separate and distinct, notwithstanding the union of such estates
either in Mortgagor, Mortgagee, any tenant or any third party by purchase or
otherwise.
ARTICLE VII
SECURITY AGREEMENT
8
SECTION 7.1 SECURITY INTEREST. This Mortgage constitutes a
"security agreement" on personal property within the meaning of the UCC and
other applicable law and with respect to the Fixtures, Leases, Rents, Tax
Refunds, Proceeds, and Condemnation Awards. To this end. Mortgagor grants to
Mortgagee a first and prior security interest in the Fixtures, Leases, Rents,
Tax Refunds, Proceeds, Condemnation Awards and all other Mortgaged Property
which is personal property to secure the payment of the Indebtedness and
performance of the Obligations, and agrees that Mortgagee shall have all the
rights and remedies of a secured party under the UCC with respect to all such
personal property. Any notice of sale, disposition or other intended action by
Mortgagee with respect to the Fixtures, Leases, Rents, Tax Refunds, Proceeds,
and Condemnation Awards sent to Mortgagor at least ten (10) days prior to any
action under the UCC shall constitute reasonable notice to Mortgagor.
SECTION 7.2 FINANCING STATEMENTS; CHIEF EXECUTIVE OFFICE.
Mortgagor shall execute and deliver to Mortgagee, in form and substance
satisfactory to Mortgagee, such financing statements and such further assurances
as Mortgagee may, from time to time, reasonably consider necessary to create,
perfect and preserve Mortgagee's security interest hereunder and Mortgagee may
cause such statements and assurances to be recorded and filed, at such times and
places as may be required or permitted by law to so create, perfect and preserve
such security interest. Mortgagor's chief executive office is in the State of
Georgia at the address set forth in the first paragraph of this Mortgage.
SECTION 7.3 FIXTURE FILING. This Mortgage shall also
constitute a "fixture filing" for the purposes of the UCC against all of the
Mortgaged Property which is or is to become fixtures. The address of Mortgagor
(the debtor) and the address of Mortgagee (the secured party) appear in Exhibit
B attached to this Mortgage.
ARTICLE VIII
[INTENTIONALLY OMITTED]
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 NOTICES. Any notice required or permitted to be
given under this Mortgage shall be given in accordance with Section 10.1 of the
Credit Agreement.
SECTION 9.2 COVENANTS RUNNING WITH THE LAND. All Obligations
contained in this Mortgage are intended by Mortgagor and Mortgagee to be, and
shall be construed as, covenants running with the Mortgaged Property. As used
herein, "Mortgagor" shall refer to the party named in the first paragraph of
this Mortgage and to any subsequent owner of all or any portion of the Mortgaged
Property. All Persons who may have or acquire an interest in the Mortgaged
Property shall be deemed to have notice of, and be bound by, the terms of the
Credit Agreement and the other Credit Documents to the extent but only to the
extent they bind Mortgagor; however, no such party shall be entitled to any
rights thereunder without the prior written consent of Mortgagee.
9
SECTION 9.3 CHANGE IN TAX LAW. Upon the enactment of or change
in (including, without limitation, a change in interpretation of) any applicable
law (i) deducting or allowing Mortgagor to deduct from the value of the
Mortgaged Property for the purpose of taxation any lien or security interest
thereon or (ii) subjecting Mortgagee or any of the Lenders to any tax or
changing the basis of taxation of mortgages, deeds of trust, or other liens or
debts secured thereby, or the manner of collection of such taxes, in each such
case, so as to affect this Mortgage, the Indebtedness or Mortgagee, and the
result is to increase the taxes imposed upon or the cost to Mortgagee of
maintaining the Indebtedness, or to reduce the amount of any payments receivable
hereunder, then, and in any such event, Mortgagor shall, on demand, pay to
Mortgagee and the Lenders additional amounts to compensate for such increased
costs or reduced amounts, provided that if any such payment or reimbursement
shall be unlawful, or taxable to Mortgagee, or would constitute usury or render
the Indebtedness wholly or partially usurious under applicable law, then
Mortgagor shall pay or reimburse Mortgagee or the Lenders for payment of the
lawful and non-usurious portion thereof.
SECTION 9.4 MORTGAGE TAX. Mortgagor shall (i) pay when due any
tax imposed upon it or upon Mortgagee or any Lender pursuant to the tax law of
the state in which the Mortgaged Property is located in connection with the
execution, delivery and recordation of this Mortgage and any of the other Credit
Documents, and (ii) prepare, execute and file any form required to be prepared,
executed and filed in connection therewith.
SECTION 9.5 ATTORNEY IN FACT. Mortgagor hereby irrevocably
appoints Mortgagee and its successors and assigns, as its attorney-in-fact with
full power of substitution, which agency is coupled with an interest, (a) to
execute and/or record any notices of completion, cessation of labor or any other
notices that Mortgagee deems appropriate to protect Mortgagee's interest, if
Mortgagor shall fail to do so within thirty (30) days after written request by
Mortgagee, (b) upon the issuance of a deed pursuant to the foreclosure of this
Mortgage or the delivery of a deed in lieu of foreclosure, to execute all
instruments of assignment, conveyance or further assurance with respect to the
Fixtures, Leases, Rents, Tax Refunds, Proceeds, and Condemnation Awards in favor
of the grantee of any such deed and as may be necessary or desirable for such
purpose, (c) to prepare, execute and file or record financing statements,
continuation statements, applications for registration and like papers necessary
to create, perfect or preserve Mortgagee's security interests and rights in or
to any of the Mortgaged Property, and (d) upon the occurrence and during the
continuance of any Event of Default, to perform any obligation of Mortgagor
hereunder, however: (1) Mortgagee shall not under any circumstances be obligated
to perform any obligation of Mortgagor; (2) any sums advanced by Mortgagee in
such performance shall be added to and included in the Indebtedness and shall
bear interest at the rate or rates at which interest is then computed on the
Indebtedness; (3) Mortgagee as such attorney-in-fact shall only be accountable
for such funds as are actually received by Mortgagee: and (4) Mortgagee shall
not be liable to Mortgagor or any other person or entity for any failure to take
any action which it is empowered to take under this Section 9.5.
10
SECTION 9.6 SUCCESSORS AND ASSIGNS. This Mortgage shall be
binding upon and inure to the benefit of Mortgagee and Mortgagor and their
respective successors and assigns. Except as otherwise permitted by the Credit
Agreement, Mortgagor shall not, without the prior written consent of Mortgagee,
assign any rights, duties or obligations hereunder.
SECTION 9.7 NO WAIVER. Any failure by Mortgagee or the Lenders
to insist upon strict performance of any of the terms, provisions or conditions
of this Mortgage shall not be deemed to be a waiver of same, and Mortgagee and
the Lenders shall have the right at any time to insist upon strict performance
of all of such terms, provisions and conditions.
SECTION 9.8 CREDIT AGREEMENT. If any conflict or inconsistency
exists between this Mortgage and the Credit Agreement, the Credit Agreement
shall govern.
SECTION 9.9 RELEASE OR RECONVEYANCE. Upon payment in full of
the Indebtedness and performance in full of the Obligations, Mortgagee, at
Mortgagor's expense, shall release the liens and security interests created by
this Mortgage or reconvey the Mortgaged Property to Mortgagor.
SECTION 9.10 WAIVER OF STAY, MORATORIUM AND SIMILAR RIGHTS.
Mortgagor agrees, to the full extent that it may lawfully do so, that it will
not at any time insist upon or plead or in any way take advantage of any stay,
marshalling of assets, extension, redemption or moratorium law now or hereafter
in force and effect so as to prevent or hinder the enforcement of the provisions
of this Mortgage or the Indebtedness secured hereby, or any rights or remedies
of Mortgagee hereunder.
SECTION 9.11 APPLICABLE LAW. The provisions of this Mortgage
regarding the creation, perfection and enforcement of the liens and security
interests herein granted shall be governed by and construed under the laws of
the state in which the Mortgaged Property is located. All other provisions of
this Mortgage shall be governed by the laws of the State of New York (including,
without limitation, Section 5 1401 of the General Obligations Law of the State
of New York), without regard to conflicts of laws principles.
SECTION 9.12 HEADINGS. The Article, Section and Subsection
titles hereof are inserted for convenience of reference only and shall in no way
alter, modify or define, or be used in construing, the text of such Articles,
Sections or Subsections.
SECTION 9.13 ENTIRE AGREEMENT. This Mortgage and the other
Credit Documents embody the entire agreement and understanding between Mortgagee
and Mortgagor and supersede all prior agreements and understandings between such
parties relating to the subject matter hereof and thereof. Accordingly, the
Credit Documents may not be contradicted by evidence of prior, contemporaneous
or subsequent oral agreements of the parties. There are no unwritten oral
agreements between the parties.
11
SECTION 9.14 REDUCTION OF SECURED AMOUNT. In the event that
the amount secured by the Mortgage is less than the aggregate Indebtedness
evidenced by the Mortgage Notes, then the amount secured shall be reduced only
by the last and final sums that Mortgagor or Borrower repays with respect to the
Indebtedness and shall not be reduced by any intervening repayments of the
Indebtedness. So long as the balance of the Indebtedness exceeds the amount
secured, any payments of the Indebtedness shall not be deemed to be applied
against, or to reduce, the portion of the Indebtedness secured by this Mortgage.
Such payments shall instead be deemed to reduce only such portions of the
Indebtedness as are secured by other collateral located outside of the state in
which the Mortgaged Property is located or as are unsecured.
ARTICLE X
LOCAL LAW PROVISIONS
SECTION 10.1 1NCONSISTENCIES. In the event of any
inconsistencies between the terms and conditions of this Article 10 and the
other provisions of this Mortgage, the terms and conditions of this Article 10
shall control and be binding, except as to Section 9.8, in which event Section
9.8 shall control.
SECTION 10.2 STATUTORY PROVISIONS. Mortgagor hereby agrees to
the provisions of Sections 846.101 and 846.103, Wisconsin Statutes, as the same
may be amended or renumbered from time to time, providing for a reduced period
of redemption between foreclosure judgment and sale upon Mortgagee's waiving the
right to any judgment for deficiency, and consenting to Mortgagor's remaining in
possession of the Mortgaged Property and collecting all Rents therefrom, up to
the court's confirmation of the foreclosure sale.
SECTION 10.3 TERMINATION OF LICENSE TO COLLECT RENTS. In
addition to and without limiting the provisions of Section 6.1 hereof, the
revocable license therein granted from Mortgagee to Mortgagor permitting
Mortgagor to exercise all rights extended to the landlord under the Leases
(including the right to receive and collect all Rents and to hold the Rents in
trust for use in the payment and performance of the Obligations and to otherwise
use the same) shall automatically expire and terminate if, after the occurrence
and during the continuance of an Event of Default, at Mortgagee's option and in
addition to any other rights and remedies of Mortgagee under this Mortgage and
the other Credit Documents, Mortgagee: (a) takes possession of the Premises; (b)
moves or applies for the appointment of a receiver; (c) files or commences an
action to foreclose this Mortgage; (d) gives written or verbal notice to
Mortgagor that an Event of Default has occurred and is continuing; (e) sends a
notice to any of the tenants directing that Rents be paid directly to Mortgagee;
or (f) collects Rents directly from any of the tenants.
12
IN WITNESS WHEREOF, Mortgagor has on the date set forth in the
acknowledgment hereto, effective as of the date first above written, caused this
instrument to be duly EXECUTED AND DELIVERED by authority duly given.
MORTGAGOR: THE XXXXXXX MANUFACTURING
CO.. LLC. a Delaware corporation
[Corporate Seal] By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President
This instrument prepared by:
Xxx Xxxxx, Esq.
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
13
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me this 18
day of December, 2003. by /s/ XXXXXXX X. XXXXXXXXX as Executive Vice President
of THE XXXXXXX MANUFACTURING CO., LLC on behalf of the corporation.
/s/ Xxxxx X'Xxxxxx
-------------------------------------
Print Name: Xxxxx X'Xxxxxx
[Notarial Seal] Notary Public, New York, State
of New York
My Commission Expires: Sept. 28, 2006
[STAMP]
N-1
EXHIBIT A
(See attached)
Exh. A-1
445053.04-New York Server 5A - MSW
EXHIBIT B
UCC INFORMATION
DEBTOR:
Name: The Xxxxxxx Manufacturing Co., LLC
Corporate Structure: a Delaware limited liability company
Notice Address: c/o Simmons Company
Xxx Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxxxx
State in which Mortgagor's
Chief Executive Office is
located: Georgia
SECURED PARTY:
Deutsche Bank AG, New York Branch
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Secured Party acts as Administrative Agent for the Lenders party from time to
time to the Credit Agreement. Information regarding the security interest held
by the Lenders, for which Secured Party acts as Administrative Agent, may be
obtained by contacting Secured Party at the address set forth above.
Exh. B-1
445053.04-New York Server 5A - MSW
EXHIBIT L TO
CREDIT AND GUARANTY AGREEMENT
CERTAIN ADJUSTMENTS TO EBITDA
FOUR-FISCAL QUARTER PERIOD ENDING: CONSOLIDATED ADJUSTED EBITDA:
March 31,2003 $29,066,000
June 30, 2003 $30,212,000
September 30, 2003 $37,117,000
EXHIBIT L-1
EXHIBITS TO EXECUTION
CREDIT AND GUARANTY AGREEMENT
443102-New York Server 5A
EXHIBIT M TO
CREDIT AND GUARANTY AGREEMENT
JOINDER AGREEMENT
THIS JOINDER AGREEMENT, dated as of [_________________ ____,
200_] (this "AGREEMENT"), by and among [NEW LENDERS] (each a "LENDER" and
collectively the "LENDERS"), THL-SC BEDDING COMPANY ("HOLDINGS"), XXXXXXX
COMPANY (as successor to THL Bedding Company), a Delaware corporation
("COMPANY"), CERTAIN SUBSIDIARIES OF COMPANY, as Guarantors ("SUBSIDIARIES"),
XXXXXXX SACHS CREDIT PARTNERS L.P., and DEUTSCHE BANK AG, NEW YORK BRANCH, as
Administrative Agent.
RECITALS:
WHEREAS, reference is hereby made to the CREDIT AND GUARANTY
AGREEMENT, dated as of December 19, 2003 (as it may be amended, supplemented or
otherwise modified, the "CREDIT AGREEMENT"; the terms defined therein and not
otherwise defined herein being used herein as therein defined), by and among
HOLDINGS, COMPANY, certain Subsidiaries of Company, as Guarantors, the Lenders
party thereto from time to time, XXXXXXX XXXXX CREDIT PARTNERS L.P., as Sole
Bookrunner, Joint Lead Arranger and Co-Syndication Agent, UBS SECURITIES, LLC,
as Joint Lead Arranger and Co-Syndication Agent, DEUTSCHE BANK AG, NEW YORK
BRANCH, as Administrative Agent and as Collateral Agent, GENERAL ELECTRIC
CAPITAL CORPORATION, as Co-Documentation Agent, and CIT LENDING SERVICES
CORPORATION, as Co-Documentation Agent; and
WHEREAS, subject to the terms and conditions of the Credit
Agreement, Company may increase the existing Revolving Loan Commitments and/or
obtain New Term Loan Commitments by entering into one or more Joinder Agreements
with the New Term Loan Lenders and/or New Revolving Loan Lenders, as applicable.
NOW, THEREFORE, in consideration of the premises and
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
Each Lender party hereto hereby agrees to commit to provide
its respective Commitment as set forth on Schedule A annexed hereto, on the
terms and subject to the conditions set forth below:
Each Lender (i) confirms that it has received a copy of the
Credit Agreement and the other Credit Documents, together with copies of the
financial statements referred to therein and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Joinder Agreement (this "AGREEMENT"); (ii) agrees
that it will, independently and without reliance upon the Administrative Agent
or any other Lender or Agent and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (iii) appoints and
authorizes Administrative Agent, the Collateral Agent and each Co-Syndication
Agent to take such action as agent on its behalf and to exercise such powers
under the Credit Agreement and the other Credit Documents as are delegated to
Administrative Agent, the Collateral Agent and each Co-Syndication Agent, as
the case may be, by the terms thereof, together with such powers as are
reasonably incidental thereto; and (iv) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Lender.
EXHIBIT M-l
EXHIBITS TO
CREDIT AND GUARANTY AGREEMENT EXECUTION
443102-New York Server 5A
Each Lender hereby agrees to make its Commitment on the following terms
and conditions(1):
1. APPLICABLE MARGIN: The Applicable Margin for each Series [ ] New Term
Loan shall mean, as of any date of determination, a percentage per
annum as set forth below:
SERIES [ ] NEW TERM LOANS
--------------------------------------------------
TOTAL EURODOLLAR
LEVERAGE RATIO RATE LOANS BASE RATE LOANS
--------------------------------------------------
____:____ % %
2. PRINCIPAL PAYMENTS. Company shall make principal payments on the Series
[ ] New Term Loans in installments on the dates and in the amounts set
forth below:
(A) (B)
SCHEDULED
PAYMENT REPAYMENT OF
DATE SERIES[ ] NEW TERM LOANS
-----------------------------------------------
$____________
$____________
$____________
$____________
$____________
$____________
$____________
$____________
$____________
$____________
$____________
$____________
-----------------
(1) Insert completed items 1 - 7 as applicable, with respect to New Term Loans
with such modifications as may be agreed to by the parties hereto to
the extent consistent with Section 2.25 of the Credit Agreement.
EXHIBIT M-2
EXHIBITS TO
CREDIT AND GUARANTY AGREEMENT EXECUTION
443102-New York Server 5A
(A) (B)
SCHEDULED
PAYMENT REPAYMENT OF
DATE SERIES [ ] NEW TERM LOANS
------------------------------------------------
$____________
$____________
TOTAL $____________
3. VOLUNTARY AND MANDATORY PREPAYMENTS. Scheduled installments of
principal of the [Series [ ]] New Term Loans set forth above shall be
reduced in connection with any voluntary or mandatory prepayments of
the [Series [ ]] New Term Loans in accordance with Sections 2.11, 2.12
and 2.13 of the Credit Agreement respectively.
4. PROPOSED BORROWING. This Agreement represents Company's request to
borrow [Series [ ] New Term Loans] from New Term Loan Lender as follows
(the "PROPOSED BORROWING"):
a. Business Day of Proposed Borrowing: _____________,________
b. Amount of Proposed Borrowing: $_________________________
c. Interest rate option: [ ] a. Base Rate
Loan( s)
[ ] b. Eurodollar Rate
Loans with an
initial Interest
Period of __month(s)
5. [NEW LENDERS. Each [New Term Loan Lender] [New Revolving Loan Lender]
acknowledges and agrees that upon its execution of this Agreement [and
the making of [New Term Loans] Series ________, New Term Loans] that
such [New Term Loan Lender] [New Revolving Loan Lender] shall become a
"Lender" under, and for all purposes of, the Credit Agreement and the
other Credit Documents, and shall be subject to and bound by the terms
thereof, and shall perform all the obligations of and shall have all
rights of a Lender therender.](2)
6. CREDIT AGREEMENT GOVERNS. Except as set forth in this Agreement, [New
Revolving Loans] [Series [ ] New Term Loans] shall otherwise be subject
to the provisions of the Credit Agreement and the other Credit
Documents.
7. COMPANY'S CERTIFICATIONS. By its execution of this Agreement, the
undersigned officer, to his or her knowledge, on behalf of Company, and
not individually, hereby certifies that:
i. The representations and warranties contained in the
Credit Agreement and the other Credit Documents are
true and correct in all material respects on and as
of the date hereof to the same extent as though made
on and as of the date hereof, except to the extent
such representations and warranties specifically
relate to an
-----------------------
(2) Insert bracketed language if the lending institution is not already a
Lender.
EXHIBIT M-3
EXHIBITS TO
CREDIT AND GUARANTY AGREEMENT EXECUTION
443102-New York Server 5A
earlier date, in which case such representations and
warranties were true and correct in all material
respects on and as of such earlier date; and
ii. No event has occurred and is continuing or would
result from the consummation of the Proposed
Borrowing contemplated hereby that would constitute a
Default or an Event of Default.
8. COMPANY COVENANTS. By its execution of this Agreement, Company hereby
covenants that:
i. [COMPANY shall make any payments required pursuant to
Section 2.18(c) of the Credit Agreement in connection
with the New Revolving Loan commitments](3)
ii. COMPANY shall deliver or cause to be delivered a
legal opinion from Weil, Gotshal & Xxxxxx LLP,
together with all other documents reasonably
requested by Administrative Agent in connection with
this Agreement; and
iii. Set forth on the attached Officers' Certificate are
the calculations (in reasonable detail) demonstrating
compliance on a Pro Forma Basis with the financial
tests described in Section 6.6 of the Credit
Agreement.
9. ELIGIBLE ASSIGNEE. By its execution of this Agreement, each [New Term
Loan Lender] [New Revolving Loan Lender] represents and warrants that
it is an Eligible Assignee.
10. NOTICE. For purposes of the Credit Agreement, the initial notice
address of each [New Term Loan Lender] [New Revolving Loan Lender]
shall be as set forth below its signature below.
10. TAX CERTIFICATIONS. For each [New Revolving Loan Lender] [New Term Loan
Lender], delivered herewith to Administrative Agent are such forms,
certificates or other evidence with respect to United States federal
income tax withholding matters as such [New Revolving Loan Lender] [New
Term Loan Lender] may be required to deliver to Administrative Agent
pursuant to the Credit Agreement.
12. RECORDATION OF THE NEW LOANS. Upon execution and delivery hereof,
Administrative Agent will record the [Series [ ] New Terms Loan] [New
Revolving Loans] made by [New Term Loan Lenders] [New Revolving Loan
Lenders] in the Register.
13. AMENDMENT, MODIFICATION AND WAIVER. This Agreement may not be amended,
modified or waived except by an instrument or instruments in writing
signed and delivered on behalf of each of the parties hereto.
14. ENTIRE AGREEMENT. This Agreement, the Credit Agreement and the other
Credit Documents constitute the entire agreement among the parties with
respect to the subject matter hereof and thereof and supersede all
other prior agreements and understandings, both written and verbal,
among the parties or any of them with respect to the subject matter
hereof.
15. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
----------------------
(3) Select this provision in the circumstance where the Lender is a New
Revolving Loan Lender.
EXHIBIT M-4
EXHIBITS TO
CREDIT AND GUARANTY AGREEMENT EXECUTION
443102-New York Server 5A
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
16. SEVERABILITY. Any term or provision of this Agreement which is invalid
or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability
without rendering invalid or unenforceable the remaining terms and
provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Agreement in
any other jurisdiction. If any provision of this Agreement is so broad
as to be unenforceable, the provision shall be interpreted to be only
so broad as would be enforceable.
17. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but all of which shall
constitute one and the same agreement.
[The remainder of this page is intentionally left blank.]
EXHIBIT M-5
EXHIBITS TO
CREDIT AND GUARANTY AGREEMENT EXECUTION
443102-New York Server 5A
IN WITNESS WHEREOF, each of the undersigned has caused its
duly authorized officer to execute and deliver this Joinder Agreement as of the
date above first written.
[NAME OF LENDER]
By:_________________________________________
Name:
Title:
Notice Address:
Attention:
Telephone:
Facsimile:
XXXXXXX COMPANY
By: ________________________________________
Name:
Title:
[ADD ALL GUARANTORS]
EXHIBIT M-6
EXHIBITS TO
CREDIT AND GUARANTY AGREEMENT EXECUTION
443102-New York Server 5A
CONSENTED TO BY:
XXXXXXX XXXXX CREDIT PARTNERS, L.P.
By: _________________________
Name:
Title:
DEUTSCHE BANK AG, NEW YORK BRANCH
as Administrative Agent
By: _________________________
Name:
Title:
EXHIBIT M-7
EXHIBITS TO
CREDIT AND GUARANTY AGREEMENT EXECUTION
443102-New York Server 5A
SCHEDULE A
TO JOINDER AGREEMENT
NAME OF LENDER TYPE OF COMMITMENT AMOUNT
-------------- -------------------------- -----------------------------
[ ] [New Term Loan Commitment] $ ______________
[New Revolving Loan
Commitment]
Total: $________________
EXHIBIT M-8
EXHIBITS TO
CREDIT AND GUARANTY AGREEMENT EXECUTION
443102-New York Server 5A
EXHIBIT N TO
CREDIT AND GUARANTY AGREEMENT
See TAB 3
EXHIBIT N-1
EXHIBITS TO
CREDIT AND GUARANTY AGREEMENT EXECUTION
443102-New York Server 5A