AMENDED AND RESTATED
INVESTMENT
AND
DEPOSIT AGREEMENT
Dated as of March 29, 2000
between
Vestar Capital Partners III, L.P.
and
BANK OF AMERICA, N. A.,
in its capacity as Agent for the Lenders herein defined
ii
TABLE OF CONTENTS
SECTION 1 DEFINITIONS 3
Section 1.1 Definitions. 3
Section 1.2 Terms Generally. 5
Section 1.3 Accounting Terms. 5
SECTION 2 MANDATORY INVESTMENTS 5
Section 2.1 Leverage Reduction relating to Shirt Group
Restructuring or Vestar Default. 5
Section 2.2 Leverage Reduction in Bankruptcy. 7
Section 2.3 Cash Collateral Account. 7
Section 2.4 Limitation on Investment Obligations. 7
SECTION 3 CONDITIONS 8
Section 3.1 Conditions to Effectiveness. 8
SECTION 4 DEPOSIT OF CAPITAL CALL NOTICES WITH AGENT 9
Section 4.1 Deposit of Capital Call Notices. 9
SECTION 5 REPRESENTATIONS AND WARRANTIES 9
Section 5.1 Existence and Power. 9
Section 5.2 Authorization. 9
Section 5.3 No Conflicts. 10
Section 5.4 Consents. 10
Section 5.5 Enforceable Obligations. 10
Section 5.6 Permitted Investment. 10
Section 5.7 Venture Capital Operating Company. 10
Section 5.8 Deposited Notices. 10
Section 5.9 Limitations on Actions. 11
SECTION 6 AFFIRMATIVE COVENANTS 11
Section 6.1 Outstanding Subscriptions. 11
Section 6.2 General Partner. 11
Section 6.3 Plan Assets, etc. 11
Section 6.4 Receipt of the Funds Pursuant to the
Deposited Notices. 11
Section 6.5 Partners and Pro Rata Shares. 11
SECTION 7 NEGATIVE COVENANTS 11
Section 7.1 Limitations on Actions. 12
SECTION 8 EVENTS OF DEFAULT 12
Section 8.1 Events of Default. 12
Section 8.2 Remedies. 13
Section 8.3 Receipt of the Funds Pursuant to the
Deposited Notices. 13
SECTION 9 MISCELLANEOUS 13
Section 9.1 Notices. 13
Section 9.2 Payments. 15
Section 9.3 Benefit of Agreement. 15
Section 9.4 No Waiver; Remedies Cumulative. 15
Section 9.5 Payment of Expenses, etc. 15
Section 9.6 Amendments, Waivers and Consents. 16
Section 9.7 Counterparts. 16
Section 9.8 Headings. 16
Section 9.9 Survival. 16
Section 9.10 Governing Law; Submission to Jurisdiction;
Venue. 16
Section 9.11 Severability. 17
Section 9.12 Entirety. 17
Section 9.13 Binding Effect; Termination. 17
Section 9.14 Limitation on Recourse. 17
Section 9.15 Confidentiality. 18
ANNEXES
Exhibit A Form of Capital Call Notice
Exhibit B Terms of Preferred Stock
Exhibit C Terms of Subordination
AMENDED AND RESTATED
INVESTMENT
AND
DEPOSIT AGREEMENT
THIS AMENDED AND RESTATED INVESTMENT AND DEPOSIT AGREEMENT, dated as of
March 29, 2000 (the "Agreement"), amends and restates that certain Investment
and Deposit Agreement dated as of September 30, 1999 by and among the parties
hereto (the "Existing Investment and Deposit Agreement"), and is executed and
entered into by and between Vestar Capital Partners III, L.P., a Delaware
limited partnership (the "Sponsor"), and Bank of America, N.A. (formerly known
as NationsBank, N.A.), in its capacity as Agent under the Credit Agreement
hereinafter defined (in such capacity, the "Agent").
W I T N E S S E T H
WHEREAS, Xxxxxx American Corp. (the "Borrower"), Xxxxxx American
Investment Corp. (the "Parent"), Xxxxxx American Group, --------
------ Inc. ("Interco"), the Subsidiary Guarantors parties thereto,
the Lenders parties thereto and Gleacher NatWest Inc., as
Documentation ------- Agent, have entered into that certain Credit
Agreement dated as of May 18, 1998 and amended as of May 27, 1998,
December 18, 1998, March 19, 1999 and September 30, 1999 (as so
previously amended, the "Existing Credit Agreement"); and
WHEREAS, the parties to the Existing Credit Agreement have agreed to
further amend the Existing Credit Agreement by entering into that certain Fifth
Amendment, dated as of the date hereof (such amendment herein referred to as the
"Fifth Amendment" and, together with the Existing Credit Agreement and any
further amendments entered into subsequent to the date hereof, the "Credit
Agreement"); and
WHEREAS, as a condition to the effectiveness of the Fifth Amendment,
the Lenders have required that the Existing Investment and Deposit Agreement be
amended and restated in the manner set forth below;
NOW, THEREFORE, for and in consideration of the mutual promises,
covenants and representations and warranties contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, the parties hereto agree as
follows:
SECTION 1
DEFINITIONS
Section 1.1 Definitions.
All capitalized terms not defined in this Agreement shall have the
meanings ascribed to such terms in the Credit Agreement. As used in this
Agreement, the following terms shall have the meanings specified below unless
the context otherwise requires:
"Amendment No. 5 Effective Date" shall have the meaning
assigned to such term in the Fifth Amendment.
"Capital Call Notice" means a capital call notice satisfying
the requirements of Section 3.1 of the Partnership Agreement and
substantially in the form of Exhibit A attached hereto.
"Cash Collateral Account" shall have the meaning assigned to
such term in Section 2.3.
"Deposited Notices" means a collective reference to the
Capital Call Notices delivered by the Sponsor to the Agent pursuant to
Section 3.1(b) and maintained on deposit with the Agent as contemplated
by Section 4.1.
"Event of Default" means such term as defined in Section 8.1.
"General Partner" means Vestar Associates III, L.P., a
Delaware limited partnership, as general partner of the
----------------
Sponsor.
"Investment Commitment" means, on any date, $30,000,000 minus,
without duplication, the sum of (i) the aggregate outstanding principal
amount of the Tranche C Obligations on such date, (ii) the aggregate
amount of payments made by, or on behalf of, the Sponsor after the
Amendment No. 5 Effective Date through and including such date which
permanently reduce the Tranche C Commitment (including, without
limitation, pursuant to payments under the Tranche C Guaranty and
payments made in order to cash collateralize Tranche C LOC
Obligations), (iii) the aggregate amount of capital contributions made
by, or on behalf of, the Sponsor to the Parent after the Amendment No.
5 Effective Date through and including such date which are used by the
Borrower to make a mandatory prepayment of the Loans outstanding under
the Credit Agreement pursuant to Section 3.3(b)(v)(B) thereof and (iv)
the aggregate amount of Credit Party Obligations in which a
participation interest has been purchased by, or on behalf of, the
Sponsor pursuant to Section 2.1(c) or Section 2.2(c).
"Limited Partners" means the limited partners of the Sponsor.
"Mandatory Investment" means a capital contribution by, or on
behalf of, the Sponsor to the Parent in Dollars and in funds
immediately available to the Parent on the terms set forth in Exhibit B
attached hereto made for the purpose of enabling the Borrower to make a
mandatory prepayment of the Loans outstanding under the Credit
Agreement pursuant to Section 3.3(b)(v)(B) thereof.
"Material Adverse Effect" means a material adverse effect on
(i) the condition (financial or otherwise), operations, business,
assets, liabilities or results of operations of the Sponsor, (ii) the
ability of the Sponsor to perform any material obligation under this
Agreement or (iii) the rights and remedies of the Agent under this
Agreement.
"Obligations" means, with respect to the Sponsor, all
Indebtedness, all other obligations that would be reflected as
liabilities on a balance sheet of the Sponsor and the purchase price
that the Sponsor (directly or indirectly, including, but not limited
to, through any Subsidiary of the Sponsor) or the General Partner has
agreed, pursuant to a binding contract, to pay for any investment or
acquisition that has not yet closed. The Obligations of the Sponsor on
any date shall include (i) the obligations of the Sponsor to make
Mandatory Investments (and other payments to the Agent pursuant to
Section 2.1 or Section 2.2) in an amount up to the Investment
Commitment on such date and any and all other payment obligations of
the Sponsor to the Agent (on behalf of the Lenders) under this
Agreement on such date and (ii) the obligations of the Sponsor under
the Tranche C Guaranty.
"Partners" means a collective reference to the General Partner
and the Limited Partners.
"Partnership Agreement" means that certain limited partnership
agreement, dated as of November 22, 1996, among the General Partner and
the individuals and entities party thereto, as limited partners.
"Plan Asset Regulations" means the plan asset regulations of
the Department of Labor, 29 CFR ss.2510.3-101 et seq., as amended, and
the advisory opinions and rulings issued thereunder.
"Pro Rata Share" means, with respect to any Partner, such
Partner's share, expressed as a percentage, of the aggregate
obligations of all of the Partners to make capital contributions to the
Sponsor in accordance with the terms of the Partnership Agreement. The
Pro Rata Share of each Partner shall be based on the proportion that
such Partner's Total Capital Commitment bears to the aggregate Total
Capital Commitments of all of the Partners. In determining the Pro Rata
Shares of the Partners for purposes of completing Deposited Notices as
contemplated by Section 8.2, the Agent shall (and shall be entitled to)
rely on the information delivered to the Agent pursuant to Section
3.1(f) unless the Sponsor shall have provided the Agent with updated
information regarding Pro Rata Shares pursuant to Section 6.5, in which
case the Agent shall (and shall be entitled to) rely on such updated
information.
"Subsidiary" means, at any time, (i) any corporation more than
50% of whose Equity Interests of any class or classes having by the
terms thereof ordinary voting power to elect a majority of the
directors of such corporation (irrespective of whether or not at such
time, any class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) is at such
time owned by the Sponsor, directly or indirectly through Subsidiaries,
and (ii) any partnership, association, joint venture or other entity of
which the Sponsor, directly or indirectly through Subsidiaries, owns at
such time more than 50% of the Equity Interests.
"Total Capital Commitment" means, with respect to any Limited
Partner, an amount equal to the total amount of capital contributions
that such Limited Partner is obligated to make to the Sponsor pursuant
to the terms of the Partnership Agreement.
Section 1.2 Terms Generally.
All references herein to Articles, Sections, Exhibits and
Schedules shall be deemed references to Articles and Sections of, and
Exhibits and Schedules to, this Agreement unless the context shall
otherwise require. For purposes of computation of periods of time
hereunder, the word "from" means "from and including" and the words
"to" and "until" each mean "to but excluding."
Section 1.3 Accounting Terms.
Except as otherwise expressly provided herein, all accounting terms
used herein shall be interpreted in accordance with GAAP.
SECTION 2
MANDATORY INVESTMENTS
Section 2.1 Leverage Reduction relating to Shirt Group Restructuring or Vestar
Default.
--------------------------------------------------------------------
(a) In the event that the Leverage Reduction Requirements
shall not have been satisfied by the last day of the Leverage Reduction
Period, the Sponsor shall make a Mandatory Investment on such day in an
amount equal to (i) if the Shirt Group Restructuring shall have been
consummated by such date, the amount necessary (after giving effect to
all prepayments made pursuant to Section 3.3(b)(iii)(A) of the Credit
Agreement after the Amendment No. 5 Effective Date through and
including such date) to enable satisfaction of the Leverage Reduction
Requirements or (ii) if the Shirt Group Restructuring shall not have
been consummated by such date, the then current Investment Commitment.
(b) Upon the occurrence of any Event of Default hereunder, the
Sponsor immediately shall, upon written demand by the Agent, make a
Mandatory Investment in an amount equal to the then current Investment
Commitment.
(c) The Sponsor may, at its option, in lieu of making a
Mandatory Investment required by Section 2.1(a)(i), pay directly to the
Agent and direct the Agent to purchase on behalf of the Sponsor, on or
before the time that such Mandatory Investment is required to be made,
an undivided, non-voting participation interest in the Credit Party
Obligations then outstanding under the Credit Documents for a purchase
price equal to the amount of the Mandatory Investment that otherwise
would have been required. The Sponsor may, at its option, in lieu of
making a portion of the Mandatory Investment required by Section
2.1(a)(ii) in an amount equal to the amount of the prepayment required
to be made on the last day of the Leverage Reduction Period pursuant to
Section 3.3(c) of the Credit Agreement, pay directly to the Agent and
direct the Agent to purchase on behalf of the Sponsor, on or before the
time that such Mandatory Investment is required to be made, an
undivided, non-voting participation interest in the Credit Party
Obligations then outstanding under the Credit Documents for a purchase
price equal to the amount of the prepayment required to be made on the
last day of the Leverage Reduction Period pursuant to Section 3.3(c) of
the Credit Agreement. Any participation interest in the Credit Party
Obligations acquired on behalf of the Sponsor in accordance with the
terms of this Section 2.1(c) shall be subject to an intercreditor
agreement with the Agent on behalf of the Lenders containing
substantially the terms and conditions set forth on Exhibit C.
(d) In the event that the Sponsor shall fail, at its option,
to either (A) make a Mandatory Investment when due as required pursuant
to Section 2.1(a) or Section 2.1(b) or (B) to the extent applicable,
make a payment to the Agent for the purchase on behalf of the Sponsor
of a participation interest in the Credit Party Obligations on or
before the time that such Mandatory Investment is required to be made
in accordance with the terms of Section 2.1(c), the Sponsor hereby
promises to pay on demand to the Agent (for the benefit of the Lenders)
an amount equal to the amount of the Mandatory Investment that
otherwise would have been required.
(e) All amounts paid by the Sponsor to the Agent pursuant to
Section 2.1(a) or Section 2.1(b) shall be applied by the Agent on
behalf of the Lenders to the prepayment of the Loans outstanding under
the Credit Agreement in accordance with the terms of Section
3.3(b)(v)(B) thereof. Subject to the terms of Section 2.1(f), all
amounts paid by the Sponsor to the Agent pursuant to Section 2.1(c)
shall be applied by the Agent on behalf of the Lenders to pay for the
purchase by the Sponsor of an undivided, non-voting participation
interest in the Credit Party Obligations then outstanding under the
Credit Documents which shall be subject to an intercreditor agreement
with the Agent on behalf of the Lenders containing substantially the
terms and conditions set forth on Exhibit C and, in making the purchase
of such participation interest in the Credit Party Obligations, shall
be applied (i) in the case of any such payment pursuant to Section
2.1(c) made in lieu of a Mandatory Investment required by Section
2.1(a)(i), in the same manner prescribed for the application of
prepayment proceeds under Section 3.3(b)(vi)(D) of the Credit Agreement
and (ii) in the case of any such payment pursuant to Section 2.1(c)
made in lieu of a portion of a Mandatory Investment required by Section
2.1(a)(ii), in the same manner prescribed for the application of
prepayment proceeds under Section 3.3(b)(vi)(C) of the Credit
Agreement.
(f) Notwithstanding any provision to the contrary contained
herein or in the Credit Agreement, amounts paid by the Sponsor to the
Agent pursuant to Section 2.1(c) shall not be applied to pay for the
purchase on behalf of the Sponsor of a participation interest in any
Swingline Loans, Revolving Loans or LOC Obligations (or cash collateral
therefor), and, to the extent that any provision of this Agreement or
the Credit Agreement provides for such amounts to be so applied, such
amounts instead shall be applied, at the Sponsor's option, either (i)
to the pro rata prepayment of (A) the Swingline Loans (without any
reduction in the Revolving Committed Amount) and (B) the Revolving
Loans and, after all Revolving Loans have been repaid, to a cash
collateral account in respect of LOC Obligations (without any reduction
in the Revolving Committed Amount), in which case such proceeds shall
be deemed to constitute a Mandatory Investment, or (ii) to purchase an
undivided, non-voting participation interest in the Term Loans then
outstanding under the Credit Documents, such participation interest to
be subject to an intercreditor agreement with the Agent on behalf of
the Lenders containing substantially the terms and conditions set forth
on Exhibit C and the purchase price of such participation interest to
be applied in the same manner prescribed for the application of
prepayment proceeds under Section 3.3(b)(vi)(C) of the Credit
Agreement.
Section 2.2 Leverage Reduction in Bankruptcy.
Notwithstanding any provision to contrary set forth in this Agreement:
(a) The obligations of the Sponsor under Section 2.1 shall not
be satisfied by the making of a Mandatory Investment (or any other
capital contribution to or investment in the Parent or any of the
Consolidated Parties) at any time after the Business Day immediately
preceding the first day that a Bankruptcy Event with respect to the
Parent or the Borrower shall have occurred.
(b) If a Bankruptcy Event with respect to the Parent or the
Borrower shall occur prior to the end of the Leverage Reduction Period,
the Sponsor hereby promises to pay immediately to the Agent (for the
benefit of the Lenders) an amount equal to the then current Investment
Commitment.
(c) All amounts paid by the Sponsor to the Agent pursuant to
this Section 2.2 immediately shall be applied by the Agent (for the
benefit of the Lenders) to pay for the purchase by the Sponsor of an
undivided, non-voting participation interest in the Credit Party
Obligations then outstanding under the Credit Documents shall be
subject to an intercreditor agreement with the Agent on behalf of the
Lenders containing substantially the terms and conditions set forth on
Exhibit C and, in making the purchase of such participation interest in
the Credit Party Obligations, shall be applied in the same manner
prescribed for the application of prepayment proceeds under Section
3.3(b)(vi)(E) of the Credit Agreement.
Section 2.3 Cash Collateral Account.
To the extent that the Sponsor shall have deposited with the
Agent on June 30, 2000 cash and/or Cash Equivalents in an aggregate
amount at least equal to the Investment Commitment as of such date,
the Leverage Reduction Period shall be extended until August 31, 2000
as provided in the definition of the term "Leverage Reduction Period"
set forth in Section 1.1 of the Credit Agreement. All cash and/or Cash
Equivalents so deposited with the Agent shall be held by the Agent in
a cash collateral account subject to the sole dominion and control of
the Agent (the "Cash Collateral Account") until this Agreement is
terminated in accordance with the terms of Section 9.13. The Sponsor
hereby authorizes the Agent to apply amounts on deposit in the Cash
Collateral Account to the payment, on behalf of the Sponsor, when due
of all amounts payable under Section 2.1 or Section 2.2, as
applicable, and, in the case of amounts payable under Section 2.1(a)
or Section 2.1(c) (in lieu of a Mandatory Investment (or portion
thereof) required by Section 2.1(a)), if so directed by the Sponsor,
the amount so applied by the Agent shall be used by the Agent, on
behalf of the Sponsor, to purchase participation interests in the
Credit Party Obligations pursuant to Section 2.1(c), and any balance
remaining in the Cash Collateral Account promptly shall be turned over
by the Agent to the Sponsor in such manner as the Sponsor at the time
shall specify to the Agent. At the request of the Sponsor, amounts on
deposit in the Cash Collateral Account shall be invested by the Agent
in Cash Equivalents. Any income earned on such Cash Equivalents will
be for the account of the Sponsor and shall be distributed not less
than quarterly by the Agent to the Sponsor. To the extent that any
loss is incurred in respect of such investments by the Agent on behalf
of the Sponsor, the Sponsor not less than quarterly will deliver to
the Agent, for deposit in the Cash Collateral Account, additional
amounts sufficient to offset such losses.
Section 2.4 Limitation on Investment Obligations.
Notwithstanding any provision to contrary set forth in this
Agreement, the Sponsor shall not be obligated at any time to make
Mandatory Investments (or any other payments to the Agent pursuant to
Section 2.1 or Section 2.2) in an amount in excess of the Investment
Commitment at such time.
SECTION 3
CONDITIONS
Section 3.1 Conditions to Effectiveness.
This Agreement shall become effective on the Amendment No. 5
Effective Date provided the following conditions are satisfied in form
and substance reasonably acceptable to the Agent:
(a) Execution of this Agreement. Receipt by the Agent
of an executed copy of this Agreement signed by a duly
----------------------------
authorized officer of the General Partner.
(b) Deposited Notices. Receipt by the Agent of an original
Capital Call Notice for each Limited Partner, in each case executed by
the General Partner and uncompleted in respect of the amount of the
total capital contribution to be made by all of the Limited Partners
pursuant to such Capital Call Notices and the applicable Limited
Partner's Pro Rata Share of such total capital contribution. Upon
satisfaction of the requirements of this clause (b), the Agent shall
promptly return to the Sponsor the original Capital Call Notices
delivered to the Agent pursuant to the Existing Investment and Deposit
Agreement.
(c) Legal Opinion. Receipt of a legal opinion of Xxxxxxx
Xxxxxxx & Xxxxxxxx, counsel for the Sponsor, in form
-------------
and substance reasonably satisfactory to the Agent.
(d) Partnership Documents. Receipt by the Agent of all
documents reasonably requested by the Agent relating to the existence
of the Sponsor, the enforceability of this Agreement and the Deposited
Notices and other matters relating thereto, in form and substance
satisfactory to the Agent, including, but not limited to:
(i) Certificates of Authorization. Certificates of
authorization of the General Partner as of the Amendment No. 5
Effective Date, approving and adopting this Agreement and the
delivery of the Deposited Notices and authorizing the
execution and delivery thereof by the General Partner on
behalf of the Sponsor.
(ii) Partnership Agreement. A certificate of the
President or any duly authorized officer and Secretary of the
general partner of the General Partner providing that the copy
of the Partnership Agreement, together with all amendments
thereto, delivered to the Agent in connection with the
Existing Investment and Deposit Agreement is a true and
complete copy of the Partnership Agreement and that there have
been no amendments to the Partnership Agreement since the date
of the Existing Investment and Deposit Agreement.
(iii) Incumbency Certificate. An incumbency
certificate of the President or any duly authorized officer
and Secretary of the general partner of the General Partner
who will be executing this Agreement, any Deposited Notice, or
any other document, instrument or certificate to be delivered
pursuant to the terms hereof (including the name, title and
signature of each such officer).
(e) Total Capital Commitments. Receipt by the Agent of a
certificate executed by an officer of the general partner of the
General Partner on behalf of the Sponsor, in form and substance
satisfactory to the Agent, stating that the aggregate Total Capital
Commitments of all Limited Partners as of the Amendment No. 5 Effective
Date equals or exceeds the sum of (i) the Investment Commitment plus
(ii) all other Obligations of the Sponsor.
(f) Partners and Pro Rata Shares. Receipt by the Agent of a
certificate executed by an officer of the general partner of the
General Partner on behalf of the Sponsor, in form and substance
satisfactory to the Agent, setting forth a list of Limited Partners and
their respective Pro Rata Shares as of the Amendment No. 5 Effective
Date. Except as otherwise permitted under Section 9.15, the information
contained in the certificate delivered to the Agent as contemplated by
this Section 3.1(f) shall not be disclosed by the Agent to any other
Person (including, without limitation, the Lenders) without the prior
written consent of the Sponsor.
SECTION 4
DEPOSIT OF CAPITAL CALL NOTICES WITH AGENT
Section 4.1 Deposit of Capital Call Notices.
The Sponsor hereby agrees that each of the Capital Call
Notices delivered by the Sponsor to the Agent pursuant to Section
3.1(b) shall be held by the Agent on deposit and shall be delivered by
the Agent to the Partners only under the circumstances contemplated
by, and otherwise in accordance with the terms of, Section 8.2.
SECTION 5
REPRESENTATIONS AND WARRANTIES
The Sponsor hereby represents and warrants to the Agent (for
the benefit of the Lenders) that:
Section 5.1 Existence and Power.
(a) Each of the Sponsor and the General Partner is a limited
partnership duly organized, validly existing and in good standing under
the laws of the State of Delaware, and is in good standing as a foreign
limited partnership in each other jurisdiction where ownership of its
properties or the conduct of its business requires it to be so other
than in such jurisdictions where failure to be in good standing could
not reasonably be expected to have a Material Adverse Effect, and has
all power and authority under such laws and its partnership agreement
and all material governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted.
(b) The general partner of the General Partner (i) is duly
incorporated, validly existing and in good standing under the laws of
the state of its incorporation, (ii) has all corporate power pursuant
to proper authorization to enable it to act as the general partner of
the General Partner and to enter into this Agreement on the Sponsor's
behalf, and (iii) is duly qualified to do business and is in good
standing in each other jurisdiction where it is required to be
qualified in order to act as the general partner of the General
Partner, other than in such jurisdiction where the failure to be so
qualified and in good standing could not reasonably be expected to have
a Material Adverse Effect.
Section 5.2 Authorization.
The Sponsor has the partnership or other necessary power and
authority, and the legal right, to enter into this Agreement and to
perform its obligations hereunder and consummate the transactions
contemplated hereby and has by proper action duly authorized the
execution and delivery of this Agreement and the Deposited Notices.
Without limiting the generality of the above, the Sponsor has by
proper action duly authorized (i) the execution and delivery of one or
more Capital Call Notices to each Partner in order to fund the
obligations of the Sponsor to make Mandatory Investments (and other
payments to the Agent pursuant to Section 2.1 or Section 2.2) in
accordance with the terms of this Agreement, (ii) the depositing of
such Capital Call Notices with the Agent in the manner contemplated by
Section 4.1 and (iii) the authorizing of the Agent to complete and
deliver such Capital Call Notices on behalf of the Sponsor in
accordance with the terms of Section 8.2.
Section 5.3 No Conflicts.
Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated herein, nor performance
of and compliance with the terms and provisions hereof will (i)
violate or conflict with any provision of the Partnership Agreement or
other governance document, (ii) violate any material law, regulation,
order, writ, judgment, injunction, decree or permit applicable to it,
(iii) violate or conflict with contractual provisions of, or cause an
event of default under, any indenture, loan agreement, mortgage, deed
of trust, contract or other agreement or instrument to which it is a
party or by which it may be bound, the violation of which could
reasonably be expected to have a Material Adverse Effect, (iv) result
in or require the creation of any lien, security interest or other
charge or encumbrance (other than those contemplated in or in
connection with this Agreement) upon or with respect to the Sponsor's
properties.
Section 5.4 Consents.
No consent, approval, authorization or order of, or filing,
registration or qualification with, any court or Governmental
Authority or other Person is required in connection with the
execution, delivery or performance of this Agreement or with the
execution and delivery of the Deposited Notices.
Section 5.5 Enforceable Obligations.
This Agreement has been duly executed and delivered by the
Sponsor and constitutes legal, valid and binding obligations of the
Sponsor, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or laws affecting creditors' rights
generally and subject to general principles of equity, regardless of
whether considered in proceedings in equity or at law and by an
implied covenant of good faith and fair dealing.
Section 5.6 Permitted Investment.
(a) The incurrence of the obligations of the Sponsor set
forth in this Agreement and the making by the Sponsor of any Mandatory
Investment (and other payments to the Agent pursuant to Section 2.1 or
Section 2.2) are permitted by the Partnership Agreement, and (b) the
Limited Partners shall be obligated to make additional capital
contributions (each in a pro rata amount in proportion to such Limited
Partner's Total Capital Commitment) for the purpose of providing funds
to or for the account of the Sponsor in an aggregate amount sufficient
to pay in full the amount required to satisfy the obligation of the
Sponsor to make Mandatory Investments (and other payments to the Agent
pursuant to Section 2.1 or Section 2.2) in an aggregate amount of up
to the Investment Commitment, if so requested by the General Partner.
Section 5.7 Venture Capital Operating Company.
The Sponsor is a venture capital operating company within
the meaning of the Plan Asset Regulations, or, the Sponsor satisfies
another exception under the Plan Asset Regulations such that the
assets of the Sponsor are not "plan assets" within the meaning and as
defined in the Plan Asset Regulations.
Section 5.8 Deposited Notices.
Each Deposited Notice, when completed by the Agent and
delivered by the Agent to the applicable Limited Partner in accordance
with the terms of Section 8.2 and the definition of "Pro Rata Share"
set forth in Section 1.1, will give rise to a legal, valid and binding
obligation on the part of such Limited Partner to pay such Limited
Partner's Pro Rata Share of each Mandatory Investment (and each other
payment to the Agent pursuant to Section 2.1 or Section 2.2),
enforceable against such Limited Partner in accordance with the terms
of such Deposited Notice and the Partnership Agreement.
Section 5.9 Limitations on Actions.
The Sponsor is not aware of any event or condition that
could (i) have a material adverse effect on the ability of the Sponsor
to perform its obligations under this Agreement, (ii) render invalid
or unenforceable any of the Deposited Notices or (iii) otherwise
modify the obligations of any of the Partners and/or any Person
becoming Partners subsequent to the date hereof which arise upon the
due delivery of, and as contemplated by, the Deposited Notices.
SECTION 6
AFFIRMATIVE COVENANTS
The Sponsor hereby covenants and agrees that so long as this
Agreement is in effect:
Section 6.1 Outstanding Subscriptions.
At all times prior to the termination of this Agreement in
accordance with the terms of Section 9.13, the Sponsor will cause the
aggregate Total Capital Commitments of all Limited Partners to equal
or exceed the sum of (i) the Investment Commitment plus (ii) all other
Obligations of the Sponsor.
Section 6.2 General Partner.
The Sponsor will cause (i) Vestar Associates III, L.P. to be
the sole general partner of the Sponsor at all times and (ii) Vestar
Associates Corporation III to be the sole general partner of the
General Partner at all times.
Section 6.3 Plan Assets, etc.
The Sponsor shall at all times either (i) be a venture
capital operating company within the meaning of the Plan Asset
Regulations, or (ii) satisfy another exception under the Plan Asset
Regulations such that the assets of the Sponsor are not "plan assets"
within the meaning and as defined in the Plan Asset Regulations.
Section 6.4 Receipt of the Funds Pursuant to the Deposited Notices.
------------------------------------------------------
Immediately upon receipt by the Sponsor or any of its
Affiliates of payment by any Limited Partner in respect of a Deposited
Notice delivered by the Agent pursuant to Section 8.2, the Sponsor
shall (i) notify the Agent in writing specifying the Limited Partner
making such payment and the amount thereof and (ii) forward, or cause
to be forwarded, the funds representing such payment to the Parent.
Section 6.5 Partners and Pro Rata Shares.
Upon the reasonable request of the Agent from time to time,
the Sponsor shall promptly deliver to the Agent an updated list of
Limited Partners and their respective Pro Rata Shares, certified by an
officer of the general partner of the General Partner on behalf of the
Sponsor as true and complete.
SECTION 7
NEGATIVE COVENANTS
Section 7.1 Limitations on Actions.
So long as this Agreement is in effect, the Sponsor
covenants and agrees that it shall not take any action that could (i)
render invalid or unenforceable any of the Deposited Notices or (ii)
otherwise modify the obligations of any of the Partners and/or any
Person becoming Partners subsequent to the date hereof which arise
upon the due delivery of, and as contemplated by, the Deposited
Notices.
SECTION 8
EVENTS OF DEFAULT
Section 8.1 Events of Default.
An Event of Default shall exist upon the occurrence of any
of the following specified events (each an "Event of Default"):
(a) Payment. The Sponsor shall default in the payment
when due of any amounts owing under Section 2.1 or
-------
Section 2.2; or
(b) Representations. Any representation, warranty or statement
made or deemed to be made herein or in any statement or certificate
delivered or required to be delivered pursuant hereto shall prove
untrue in any material respect on the date as of which it was deemed to
have been made; or
(c) Covenants.
---------
(i) Default in the due performance or observance
of any term, covenant or agreement contained in
Section 6 or Section 7, or
(ii) Default in the due performance or observance by
it of any term, covenant or agreement (other than those
referred to in subsections (a), (b) or (c)(i) of this Section
8.1) contained in this Agreement and such default shall
continue unremedied for a period of at least 30 days after the
earlier of an officer of the Sponsor becoming aware of such
default or notice thereof by the Agent; or
(d) Effectiveness of Documents. This Agreement or any of the
Deposited Notices shall fail to be in full force
--------------------------- and effect or to give the Agent (for the
benefit of the Lenders) any material part of the rights, powers and
privileges purported to be created hereby; or
(e) Bankruptcy, etc. A Bankruptcy Event shall occur with
respect to the Sponsor; or
---------------
(f) Defaults under Other Agreements. With respect to any
Indebtedness (other than Indebtedness outstanding under this Agreement
or the Credit Agreement (but including the Guaranty Obligations of the
Sponsor arising under the Tranche C Guaranty)) in excess of $20
million in the aggregate for the Sponsor, (A)(1) the Sponsor shall
default in any payment (beyond the applicable grace period with
respect thereto, if any) with respect to any such Indebtedness, or (2)
the occurrence and continuance of a default in the observance or
performance relating to such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or
any other event or condition shall occur or condition exist, the
effect of which default or other event or condition is to cause, or
permit, the holder or holders of such Indebtedness (or trustee or
agent on behalf of such holders) to cause (determined without regard
to whether any notice or lapse of time is required), any such
Indebtedness to become due prior to its stated maturity; or (B) any
such Indebtedness shall be declared due and payable, or required to be
prepaid other than by a regularly scheduled required prepayment, prior
to the stated maturity thereof; provided, however, that
notwithstanding the foregoing, no Default or Event of Default shall
exist under this Section 8.1(f) with respect to a default which is
being contested in good faith by appropriate proceedings; or
(g) Judgments. The Sponsor shall fail within 30 days of the
date due and payable to pay, bond or otherwise discharge any judgment,
settlement or order for the payment of money (to the extent not paid or
fully covered by insurance provided by a carrier who has acknowledged
coverage and has the ability to perform) which judgment, settlement or
order, when aggregated with all other such judgments, settlements or
orders due and unpaid at such time, exceeds $20 million, and which is
not stayed on appeal (or for which no motion for stay is pending) or is
not otherwise being executed.
Section 8.2 Remedies.
Upon the occurrence and during the continuance of any Event
of Default, the Agent may, and shall be authorized to: (i) declare the
unpaid amount of any of the Sponsor's obligations arising under this
Agreement (including, without limitation, the Sponsor's obligations
under Section 2.1 and Section 2.2) to be due, whereupon the same shall
be immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the
Sponsor; (ii) complete appropriate Deposited Notices for the Limited
Partners based on each Limited Partner's Pro Rata Share of the then
current amount of the Investment Commitment; and (iii) after at least
2 Business Days' prior written notice thereof by the Agent to the
Sponsor, deliver such Deposited Notices to the Limited Partners. The
rights of the Agent under this Section 8.2 are independent and in
addition to such rights as the Agent may have at law or in equity or
otherwise based on the failure of the Sponsor to perform any covenant,
agreement or undertaking made by it in this Agreement, including the
right to seek specific performance of such covenant or agreement or
seek any other equitable relief.
Section 8.3 Receipt of the Funds Pursuant to the Deposited Notices.
------------------------------------------------------
The Agent agrees that, promptly after receipt by the Agent
of any capital contribution by any Limited Partner pursuant to the
exercise of the Agent's rights under Section 8.2, the Agent shall
notify the Sponsor of the amount of such capital contribution and the
identity of the Limited Partner making such capital contribution.
SECTION 9
MISCELLANEOUS
Section 9.1 Notices.
Except as otherwise expressly provided herein, all notices
and other communications shall have been duly received and shall be
effective (i) when delivered, (ii) when transmitted via telecopy (or
other facsimile device) to the number set out below, (iii) the day
following the day on which the same has been delivered prepaid to a
reputable national overnight air courier service, or (iv) the third
Business Day following the day on which the same is sent by certified
or registered mail, postage prepaid, in each case to the respective
parties at the address set forth below or at such other address as
such party may specify by written notice to the other parties hereto:
if to the Sponsor:
Vestar Capital Partners III, L.P.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with copies to:
Vestar Capital Partners III, L.P.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
and
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
if to the Agent:
Bank of America, N.A.
000 Xxxxx Xxxxx Xxxxxx
Bank of America Corporate Center, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Bank of America, N.A.
NY1-503-06-07
000 Xxxxxxx Xxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Section 9.2 Payments.
Except as otherwise specifically provided herein, all payments made
pursuant to any Deposited Notice shall be made to the Agent in Dollars in
immediately available funds, without offset, deduction, counterclaim or
withholding of any kind, not later than 2:00 P.M. (Charlotte, North Carolina
time). Payments received after such time shall be deemed to have been received
on the next succeeding Business Day.
Section 9.3 Benefit of Agreement.
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and assigns of the Agent and the
Sponsor; provided that (i) the Sponsor may not assign or transfer any of its
interests and obligations hereunder without prior written consent of the Agent
and (ii) the Agent may not assign or transfer any of its interests and
obligations hereunder without prior written consent of the Sponsor except to any
Person which becomes a successor Agent pursuant to Section 10.7 of the Credit
Agreement and except during the continuance of an Event of Default.
Section 9.4 No Waiver; Remedies Cumulative.
No failure or delay on the part of the Agent or the Lenders in
exercising any right, power or privilege hereunder and no course of dealing
between the Agent or any Lender and the Sponsor shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder or thereunder. The
rights and remedies provided herein are cumulative and not exclusive of any
rights or remedies which the Agent or the Lenders would otherwise have. No
notice to or demand on the Sponsor in any case shall entitle the Sponsor to any
other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Agent and the Lenders to any other or
further action in any circumstances without notice or demand.
Section 9.5 Payment of Expenses, etc.
The Sponsor shall cause the Borrower to (i) pay all reasonable
out-of-pocket costs and expenses (A) of the Agent in connection with the
negotiation, preparation, execution and delivery and administration of this
Agreement and the documents and instruments referred to herein (including,
without limitation, the reasonable fees and expenses of Xxxxx & Xxx Xxxxx, PLLC,
special counsel to the Agent) and any amendment, waiver or consent relating
hereto including, but not limited to, any such amendments, waivers or consents
resulting from or related to any work-out, renegotiation or restructure relating
to the performance by the Sponsor under this Agreement and (B) of the Agent in
connection with enforcement of this Agreement and the documents and instruments
referred to herein (including, without limitation, in connection with any such
enforcement, the reasonable fees and disbursements of counsel for the Agent);
and (ii) indemnify the Agent, its officers, directors, employees, and
representatives from and hold each of them harmless against any and all losses,
liabilities, claims, damages or expenses incurred by any of them as a result of,
or arising out of, or in any way related to, or by reason of any investigation,
litigation or other proceeding (whether or not the Agent is a party thereto)
related to the entering into and/or performance of this Agreement or the
consummation of any other transactions contemplated in this Agreement,
including, without limitation, the reasonable fees and disbursements of counsel
incurred in connection with any such investigation, litigation or other
proceeding (but excluding any such losses, liabilities, claims, damages or
expenses to the extent incurred by reason of gross negligence or willful
misconduct on the part of the Person to be indemnified).
Section 9.6 Amendments, Waivers and Consents.
Except pursuant to the terms of Section 9.13, this Agreement and the
provisions hereof may not be amended, waived, modified, changed, discharged or
terminated unless such amendment, waiver, modification, change, discharge or
termination is in writing entered into, or approved in writing, by the Agent and
the Sponsor.
Section 9.7 Counterparts.
This Agreement may be executed in any number of counterparts, each of
which when so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument. It shall not be necessary in
making proof of this Agreement to produce or account for more than one such
counterpart.
Section 9.8 Headings.
The headings of the Sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Agreement.
Section 9.9 Survival.
All indemnities set forth herein, including, without limitation, in
Section 9.5, shall survive the execution and delivery of this Agreement and
other obligations under this Agreement.
Section 9.10 Governing Law; Submission to Jurisdiction; Venue.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Any legal action or
proceeding with respect to this Agreement may be brought in the courts
of the State of New York in New York County, or of the United States
for the Southern District of New York, and, by execution and delivery
of this Agreement, each of the Sponsor and the Agent hereby irrevocably
accepts for itself and in respect of its property, generally and
unconditionally, the nonexclusive jurisdiction of such courts. Each of
the Sponsor and the Agent further irrevocably consents to the service
of process out of any of the aforementioned courts in any such action
or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to it at the address set out for
notices pursuant to Section 9.1, such service to become effective three
(3) days after such mailing. Nothing herein shall affect the right of
the Agent, as the case may be, to serve process in any other manner
permitted by law or to commence legal proceedings or to otherwise
proceed against the Sponsor, as the case may be, in any other
jurisdiction.
(b) Each of the Sponsor and the Agent hereby irrevocably
waives any objection which it may now or hereafter have to the laying
of venue of any of the aforesaid actions or proceedings arising out of
or in connection with this Agreement brought in the courts referred to
in subsection (a) of this Section 9.10 and hereby further irrevocably
waives and agrees not to plead or claim in any such court that any such
action or proceeding brought in any such court has been brought in an
inconvenient forum.
(c) TO THE EXTENT PERMITTED BY LAW, EACH OF THE AGENT AND THE
FUND HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 9.11 Severability.
If any provision of this Agreement is determined to be illegal, invalid
or unenforceable, such provision shall be fully severable and the remaining
provisions shall remain in full force and effect and shall be construed without
giving effect to the illegal, invalid or unenforceable provisions.
Section 9.12 Entirety.
This Agreement represents the entire agreement of the parties hereto,
and supersedes all prior agreements and understandings, oral or written, if any,
including the Existing Investment and Deposit Agreement.
Section 9.13 Binding Effect; Termination.
This Agreement shall become effective at such date determined in
accordance with Section 3.1. The term of this Agreement shall be until the
earliest of (i) the date that the Credit Agreement is terminated in accordance
with the terms of Section 11.13(b) thereof, (ii) the date that the Agent
receives the proceeds of a Mandatory Investment (and/or a payment to the Agent
in order to purchase a participation interest in the Credit Party Obligations)
in an aggregate amount that is equal to or exceeds the then current Investment
Commitment, (iii) the date that (A) the ratio (calculated on a pro forma basis
using the principles set forth in the definition of "Leverage Reduction
Requirements" set forth in Section 1.1 of the Credit Agreement) of (1) all
Funded Indebtedness (net of cash and Cash Equivalents, but without netting for
cash and Cash Equivalents on deposit in the Cash Collateral Account, and
excluding (x) Subordinated Indebtedness, (y) the Tranche C Obligations and (z)
any Credit Party Obligations in which a participation interest has been
purchased by, or on behalf of, the Sponsor pursuant to Section 2.1(c) or Section
2.2(c)) of the Consolidated Parties on a consolidated basis on the date of
determination, to (2) Consolidated EBITDA for the four fiscal-quarter period
ending as of the most recent fiscal month end preceding the date of
determination with respect to which the Agent has received the Required
Financial Information, is equal to or less than 3.25 to 1.0 and (B) the ratio
(calculated on a pro forma basis using the principles set forth in the
definition of "Leverage Reduction Requirements" set forth in Section 1.1) of (1)
all Funded Indebtedness (net of cash and Cash Equivalents, but without netting
for cash and Cash Equivalents on deposit in the Cash Collateral Account) of the
Consolidated Parties on a consolidated basis on the date of determination
(including Subordinated Indebtedness, but excluding the Tranche C Obligations
and any Credit Party Obligations in which a participation interest has been
purchased by, or on behalf of, the Sponsor pursuant to Section 2.1(c) or Section
2.2(c)) to (2) Consolidated EBITDA for the four fiscal-quarter period ending as
of the most recent fiscal month end preceding the date of determination with
respect to which the Agent has received the Required Financial Information is
equal to or less than 5.5 to 1.0 and (iv) the date that the sum of, without
duplication, (A) the aggregate amount of capital contributions made by, or on
behalf of, the Sponsor to the Parent after the Amendment No. 5 Effective Date
through and including such date which are used by the Borrower to make a
mandatory prepayment of the Loans pursuant to Section 3.3(b)(v)(B) of the Credit
Agreement and (B) the aggregate amount of payments made by, or on behalf of, the
Sponsor to purchase participation interests in the Credit Party Obligations
after the Amendment No. 5 Effective Date through and including such time, shall
equal or exceed the then current Investment Commitment.
Section 9.14 Limitation on Recourse.
The Agent agrees that its rights in respect of any claim or liability
under this Agreement asserted against the Sponsor by it shall be limited to
satisfaction out of, and enforcement against, the assets of the Sponsor.
Notwithstanding anything to the contrary contained herein or in any other
document, certificate or instrument executed by the Sponsor pursuant hereto, the
Agent acknowledges and agrees that no officer, employee, partner, servant,
controlling Person, manager, agent, authorized representative or Affiliate of
the Sponsor (collectively, the "Non-Recourse Persons") shall have any liability
to the Agent (such liability, including such as may arise by operation of law,
being hereby expressly waived) for the payment of any sums now or hereafter
owing by the Sponsor under this Agreement or for the performance of any of the
obligations of the Sponsor contained herein or shall otherwise be liable or
responsible with respect thereto. If any Event of Default shall occur or if any
claim of the Agent against the Sponsor or alleged liability to the Agent of the
Sponsor shall be asserted under this Agreement, the Agent agrees that it shall
not have the right to proceed directly or indirectly against the Non-Recourse
Persons or against their respective properties and assets for the satisfaction
of any such claim or liability or for any deficiency judgment in respect of any
such claim or liability. Notwithstanding any of the foregoing, it is expressly
understood and agreed, however, that nothing contained in this Section 9.14
shall in any manner or any way constitute or be deemed (i) to excuse any
obligations of any Partner to make additional capital contributions to the
Sponsor pursuant to the terms of the Partnership Agreement, (ii) to impair the
enforceability of any of the rights arising from this Agreement or (iii) to
restrict the remedies available to the Agent to realize upon the assets of the
Sponsor. The foregoing acknowledgments, agreements and waivers shall survive the
termination of this Agreement and shall be enforceable by any Non-Recourse
Person.
Section 9.15 Confidentiality.
The Agent agrees to keep confidential any information furnished or made
available to it by or on behalf of the Sponsor pursuant to this Agreement that
is marked confidential, provided that nothing herein shall prevent the Agent
from disclosing such information (a) as required by any law, rule, or
regulation, (b) upon the order of any court or administrative agency, (c) upon
the request or demand of any regulatory agency or authority having jurisdiction
over the Agent or any Affiliate thereof, (d) that is or becomes available to the
public or that is or becomes available to the Agent or any Affiliate thereof
other than as a result of a disclosure by the Agent prohibited by this
Agreement, (e) in connection with any litigation to which the Agent or any of
its Affiliates may be a party, (f) to the extent necessary in connection with
the exercise of any remedy under this Agreement, and (g) to any Affiliate of the
Agent.
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Investment and Deposit Agreement to be duly executed and delivered as of
the date first above written.
Vestar Capital Partners III, L.P.,
a Delaware limited partnership
By: Vestar Associates III, L.P.,
its General Partner
By: Vestar Associates Corporation III,
its General Partner
By: __________________________________
Name:
Title:
Bank of America, N.A.
By: ________________________________
Name:
Title:
Exhibit A
[Letterhead of Vestar Associates III, L.P.]
[Name and address of partner]
Re: [Vestar/Xxxxxx-American Corp.]
Dear ___________:
Pursuant to Section 3.1(a) of the Agreement of Limited Partnership of
Vestar Capital Partners III, L.P., Vestar Associates III, L.P. (the "General
Partner") is calling for payment of the Capital Contribution to be made in
connection with Vestar/Xxxxxx American Corp. Your pro rata share of the $
__________ Capital Contribution for your $ __________ commitment is $
__________. Kindly pay either by certified or cashier's check or by wire
transfer of immediately available funds to the account set forth below (or to
such other account as Bank of America, N.A. shall have notified you in writing)
no later than the tenth (10th) business day following the date of this letter.
Via Check: or Via Bank Wire:
--------- -----------------
Payable to: Bank of America, N.A. Payable to: Bank of America, N.A.
Send to: Bank of America, N.A.. Bank of America, N.A.
000 Xxxxx Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxx
NC1-007-13-06 ABA Routing No.: 000-000-000
Bank of America Corporate Center Account No.: 1366212250600
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 For Credit to: Corporate Services
Attn: Xxx Xxxxxxxxx Reference: Vestar Capital
Telephone: (000) 000-0000 Partners III, L.P.
Account No. 1366212250600 Amount: $______________
For Credit to: Corporate Services
Reference: Vestar Capital
Partners III, L.P.
Amount: $______________
If you have any questions, please feel free to call me at (000) 000-0000.
Very truly yours,
Vestar Associates III, L.P.,
General Partner of Vestar Capital Partners III, L.P.
By: Vestar Associates Corporation III,
its General Partner
By: __________________________________
Name: Xxxxx X. Xxxxxxxx
Title: Chief Financial Officer
22
Exhibit B
Illustrative Terms of New Equity Securities
Issuer Xxxxxx American Investment Corp. (the "Issuer").
------
--------------------------------------------------
Security Junior Preferred Stock, par value $.01 per share (the
"Preferred Stock").
----------------
Offering Private offering of the Preferred Stock by the Issuer.
Liquidation Preference Per Share $100.00
per share, plus an amount in
cash equal to all accrued and
unpaid dividends.
Use of Proceeds All the net proceeds of the Preferred Stock will be
invested by the Issuer in its wholly-owned subsidiary
Xxxxxx American Corp.
("Xxxxxx").
------
Optional Redemption Unless prohibited
by the Credit Agreement, the
Issuer may redeem the
Preferred Stock in whole or
in part at any time and from
time to time, pro rata, at a
redemption price equal to the
liquidation preference
thereof, payable in cash.
Mandatory Redemption The Preferred Stock will not be subject to mandatory
redemption.
Dividend Rate Dividends on the Preferred
Stock will accrue at the rate
of 22?% per annum compounded
quarterly ("Dividend Rate").
-------------
Dividends Dividends on the Preferred
Stock will be payable only if
declared by the Issuer?s
Board of Directors. Upon any
such declaration, dividends
are payable in cash, at a per
annum rate equal to the
Dividend Rate of the
liquidation preference.
Dividends will be cumulative
and will accumulate from the
date of issuance.
Voting The Preferred Stock will be
non-voting, except as
otherwise required by law and
except in certain customary
circumstances, including
amendments to the rights of
the holders of the Preferred
Stock and the creation of
equivalent and senior
securities.
Ranking The Preferred Stock will
rank, with respect to the
dividend rights, redemption
and distributions upon
liquidation, winding-up and
dissolution of the Issuer,
senior to all classes of
common stock of the Issuer
and to the Class C Junior
Preferred Stock and junior to
the Class A Senior Preferred
Stock.
Covenants
The Issuer may not repurchase, redeem or otherwise acquire or retire securities
of equal or junior ranking, other than repurchases of employee stock
substantially on the same basis as provided for in the Issuer?s Class A Senior
Preferred Stock; the Issuer may not permit any subsidiary to make any payment or
distribution on securities of the Issuer that the Issuer would be prohibited
from making itself.
Remedies Until all Non-Sponsor Debt
(as defined in Exhibit C) has
been paid or purchased in
full in cash and the
Commitments under the Credit
Agreement shall have been
terminated, holders of the
Preferred Stock may not
exercise remedies other than
increasing pricing and
acceleration.
------------------------------------------------------------------------------
Exhibit C
Illustrative Terms of Intercreditor Agreement
o All payments or prepayments of principal or interest on the participation
interests of the Sponsor, the Partners and/or their respective Affiliates
(collectively, the "Sponsor Lenders") in the Credit Party Obligations (the
"Sponsor Participation Interests") received by the Agent or the Sponsor
Lenders shall be used to purchase additional participation interests from
the Lenders other than the Sponsor Lenders (collectively, the "Non-Sponsor
Lenders") in the Credit Party Obligations held by the Non-Sponsor Lenders
(the "Non-Sponsor Debt") until the Non-Sponsor Debt has been paid or
purchased in full in cash, no Letters of Credit or Tranche C Letters of
Credit shall be outstanding and the Commitments under the Credit Agreement
shall have been terminated.
o Interest on the Sponsor Participation Interests shall be PIK only until all
Non-Sponsor Debt has been paid or purchased in full in cash, no Letters of
Credit or Tranche C Letters of Credit shall be outstanding and the
Commitments under the Credit Agreement shall have been terminated.
o Until all Non-Sponsor Debt has been paid or purchased in full in cash, no
Letters of Credit or Tranche C Letters of Credit shall be outstanding and
the Commitments under the Credit Agreement shall have been terminated, the
Sponsor Lenders shall have no voting rights in respect of the Sponsor
Participation Interests.
o Until the date 91 days after all Non-Sponsor Debt has been paid or
purchased in full in cash, no Letters of Credit or Tranche C Letters of
Credit shall be outstanding and the Commitments under the Credit Agreement
shall have been terminated, the Sponsor Lenders shall not take any action
in their capacity as holders of the Sponsor Participation Interests to
initiate an involuntary bankruptcy proceeding in respect of any Credit
Party.
o The Non-Sponsor Lenders shall have the right, if not exercised by the
Sponsor Lenders, to file proofs of claim (and any notice of assignment of
the right to receive payments) in respect of the Sponsor Participation
Interests in any bankruptcy proceeding in respect of any Credit Party.
o In any bankruptcy proceeding in respect of any Credit Party, the
Non-Sponsor Lenders shall be entitled to payment in full in cash before the
Sponsor Lenders, in their capacity as holders of the Sponsor Participation
Interests, shall be entitled to receive any payments, property or assets
(other than (i) debt securities having payment terms no more favorable to
the Sponsor Lenders vis-a-vis the Non-Sponsor Lenders than the terms
provided in this Exhibit C and (ii) equity securities that are not
redeemable for cash, and in respect of which no cash dividends are
payable), until all Non-Sponsor Debt has been paid in full in cash, no
Letters of Credit or Tranche C Letters of Credit shall be outstanding and
the Commitments under the Credit Agreement shall have been terminated.
o Any payments received by the Sponsor Lenders, in their capacity as holders
of the Sponsor Participation Interests, in contravention of the foregoing
provisions shall be held in trust for the benefit of the Non-Sponsor
Lenders, and immediately turned over to, the Agent for the benefit of the
Non-Sponsor Lenders.
o Until the Credit Party Obligations have been paid or purchased in full in
cash, no Letters of Credit or Tranche C Letters of Credit shall be
outstanding and the Commitments under the Credit Agreement have been
terminated, in any reorganization proceeding in respect of any Credit
Party, the Non-Sponsor Lenders shall be entitled to approve (on behalf of
the Sponsor Lenders, in their capacity as holders of the Sponsor
Participation Interests) the use of cash collateral by such Credit Party.
o Until the Credit Party Obligations have been paid or purchased in full in
cash, no Letters of Credit or Tranche C Letters of Credit shall be
outstanding and the Commitments under the Credit Agreement have been
terminated, in any bankruptcy proceeding in respect of any Credit Party,
the Sponsor Lenders, in their capacity as holders of the Sponsor
Participation Interests, shall not (i) vote against any plan of
reorganization or liquidation supported by the Non-Sponsor Lenders or (ii)
vote for any plan of reorganization or liquidation opposed by the
Non-Sponsor Lenders.
o Until the Credit Party Obligations have been paid or purchased in full in
cash, no Letters of Credit or Tranche C Letters of Credit shall be
outstanding and the Commitments under the Credit Agreement have been
terminated, in any bankruptcy proceeding in respect of any Credit Party,
(i) the Sponsor Lenders, in their capacity as holders of the Sponsor
Participation Interests, shall not file any motion, application or other
pleading seeking affirmative relief, including without limitation for the
appointment of a trustee or examiner, for the conversion of the case to a
liquidation proceeding, for the substantive consolidation of such Credit
Party's bankruptcy case with the case of any other entity, for the creation
of a separate official committee representing only the Sponsor Lenders or
any other form of affirmative relief of any other kind or nature and (ii)
the Sponsor Lenders, in their capacity as holders of the Sponsor
Participation Interests, shall not file any objection or other responsive
pleading opposing any relief requested by the Non-Sponsor Lenders. o If a
Bankruptcy Event shall occur with respect to the Parent or the Borrower,
the Sponsor Lenders shall, subject to obtaining any necessary consents from
the holders of the Senior Subordinated Debt or as otherwise required by
law, take such action as the Agent shall reasonably request to cause the
Sponsor Participation Interests to rank pari passu with the Senior
Subordinated Debt.
