|
UNITED
STATES
|
OMB APPROVAL
|
|
SECURITIES
AND EXCHANGE COMMISSION
|
OMB Number:
3235-0060
Expires: March 31, 2006
Estimated average burden hours per response. . 28.0
|
|
Washington, D.C. 20549
|
|
FORM 8-K
|
CURRENT REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of
earliest event reported) August 2 , 2006
TRIMAS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware
|
|
333-100351
|
|
38-2687639
|
(State
or other jurisdiction
|
|
(Commission
|
|
(IRS
Employer
|
of
incorporation)
|
|
File
Number)
|
|
Identification
No.)
|
|
|
|
|
|
39400 Woodward Avenue, Suite 130, Bloomfield
Hills, Michigan
|
|
48304
|
(Address
of principal executive offices)
|
|
(Zip
Code)
|
Registrants telephone number, including area
code (248) 631-5400
Not
Applicable
(Former name or former address, if changed since last report.)
Check the appropriate box
below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions
(see General Instruction A.2. below):
|
|
o
|
Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
|
|
o
|
Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
|
|
o
|
Pre-commencement communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
|
|
o
|
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
|
Item 1.01
Entry Into Material Agreements.
On August 3, 2006, the
Company issued a press release (the Credit Agreement Press Release)
announcing that it had closed on the previously announced refinancing of its
existing $410.0 million senior secured credit facilities. Proceeds from the
amended and restated credit facilities will be used to refinance all
outstanding amounts under the existing senior credit facilities and for general
corporate purposes.
The amended and restated
credit facility provides for: (a) a $260.0 million term loan facility maturing
in December 2013; (b) up to a $90.0 million senior secured revolving credit
facility and a $60.0 million deposit-linked supplemental revolving credit
facility, which mature in December 2011; and (c) additional incremental term
loans not to exceed $100.0 million under certain circumstances.
The description set forth
above is qualified by the amended and restated credit facility dated as of August 2, 2006 filed as Exhibit 99.1 to this
report on Form 8-K and is incorporated herein by reference.
The Credit Agreement Press
Release is filed as Exhibit 99.2 to this report on Form 8-K and is incorporated
herein by reference.
Item 5.02
Departure of Directors or Principal Officers; Election of Directors;
Appointment of Principal Officers.
On August 3,
2006, TriMas Corporation (the Company) issued a press release (the Board
Press Release) announcing the following:
1. Richard M.
Gabrys had been elected to the Companys Board of Directors, effective on
August 1, 2006. Mr. Gabrys term as director will continue until the 2007 annual
meeting of shareholders.
2. Gary M.
Banks, Timothy D. Leuliette and W. Gerald McConnell resigned from the Companys
Board of Board of Directors, effective on July 31, 2006. Each advised that his
resignation was intended to further the Companys effort to increase its
percentage of independent directors in connection with the Companys proposed
public offering.
3. On July 31,
2006, Arthur W. Huge resigned from the Board of Directors of the Company and
its Audit Committee citing the demands of his primary professional commitments.
The Board
Press Release is filed as Exhibit 99.3 to this report on Form 8-K and is
incorporated herein by reference.
Item 9.01.
Financial Statement and Exhibits.
99.1 Amended and
Restated Credit Facility dated as of August 2, 2006
99.2 Credit Agreement
Press Release issued on August 3, 2006
99.3 Board Press Release
issued on August 3, 2006
2
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this
report to be signed on its behalf by the undersigned hereunto duly authorized.
|
|
|
TRIMAS CORPORATION
|
|
|
|
|
Date:
|
August
3, 2006
|
|
By:
|
/s/ Grant H. Beard
|
|
|
|
|
Name:
|
Grant H. Beard
|
|
|
|
Title:
|
Chief Executive Officer
|
|
|
|
|
|
|
|
|
3
Exhibit 99.1
EXECUTION COPY
CREDIT AGREEMENT
dated as of June 6, 2002,
as Amended and Restated as of August 2, 2006
among
TRIMAS CORPORATION,
TRIMAS COMPANY LLC,
The Subsidiary Term Borrowers Party Hereto,
The Foreign Subsidiary Borrowers Party Hereto,
The Lenders Party Hereto,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and Collateral Agent
and
COMERICA BANK,
as Syndication Agent
J.P. MORGAN SECURITIES INC.,
as Lead Arranger and Bookrunner
TABLE OF CONTENTS
|
Page
|
|
ARTICLE I
|
|
Definitions
|
|
SECTION 1.01. Defined
Terms
|
1
|
SECTION 1.02.
Classification of Loans and Borrowings
|
39
|
SECTION 1.03. Terms
Generally
|
40
|
SECTION 1.04. Accounting
Terms; GAAP
|
40
|
SECTION 1.05. Exchange
Rates
|
40
|
SECTION 1.06.
Redenomination of Certain Foreign Currencies
|
41
|
|
|
ARTICLE II
|
|
The Credits
|
|
|
SECTION 2.01. Commitments;
Deposit Account
|
41
|
SECTION 2.02. Loans and
Borrowings
|
47
|
SECTION 2.03. Requests for
Borrowings
|
48
|
SECTION 2.04. Swingline
Loans
|
49
|
SECTION 2.05. Letters of
Credit
|
50
|
SECTION 2.06. Funding of
Borrowings
|
57
|
SECTION 2.07. Interest
Elections
|
58
|
SECTION 2.08. Termination
and Reduction of Commitments
|
60
|
SECTION 2.09.
Repayment of Loans; Evidence of Debt
|
61
|
SECTION 2.10. Amortization
of Term Loans
|
62
|
SECTION 2.11. Prepayment
of Loans
|
64
|
SECTION 2.12. Fees
|
66
|
SECTION 2.13. Interest
|
68
|
SECTION 2.14. Alternate
Rate of Interest
|
69
|
SECTION 2.15. Increased
Costs
|
69
|
SECTION 2.16. Break
Funding Payments
|
71
|
SECTION 2.17. Taxes
|
72
|
SECTION 2.18. Payments
Generally; Pro Rata Treatment; Sharing of Set-offs
|
73
|
SECTION 2.19. Mitigation
Obligations; Replacement of Lenders
|
76
|
SECTION 2.20. Additional
Reserve Costs
|
76
|
SECTION 2.21. Designation
of Foreign Subsidiary Borrowers
|
77
|
SECTION 2.22. Foreign
Subsidiary Borrower Costs
|
78
|
ARTICLE III
|
|
Representations and Warranties
|
|
SECTION 3.01.
Organization; Powers
|
78
|
SECTION 3.02.
Authorization; Enforceability
|
79
|
SECTION 3.03. Governmental
Approvals; No Conflicts
|
79
|
SECTION 3.04. Financial
Condition; No Material Adverse Change
|
79
|
SECTION 3.05. Properties
|
80
|
SECTION 3.06. Litigation
and Environmental Matters
|
80
|
SECTION 3.07. Compliance
with Laws and Agreements
|
81
|
SECTION 3.08. Investment
Company Status
|
81
|
SECTION 3.09. Taxes
|
81
|
SECTION 3.10. ERISA
|
81
|
SECTION 3.11. Disclosure
|
81
|
SECTION 3.12. Subsidiaries
|
82
|
SECTION 3.13. Insurance
|
82
|
SECTION 3.14. Labor
Matters
|
82
|
SECTION 3.15. Solvency
|
82
|
SECTION 3.16. Senior
Indebtedness
|
83
|
SECTION 3.17. Security
Documents
|
83
|
SECTION 3.18. Federal
Reserve Regulations
|
84
|
|
|
ARTICLE IV
|
|
|
Conditions
|
|
|
SECTION 4.01. Restatement
Effective Date
|
84
|
SECTION 4.02. Each Credit
Event
|
85
|
SECTION 4.03. Credit
Events Relating to Foreign Subsidiary Borrowers
|
86
|
|
|
ARTICLE V
|
|
Affirmative Covenants
|
|
|
SECTION 5.01. Financial
Statements and Other Information
|
87
|
SECTION 5.02. Notices of
Material Events
|
88
|
SECTION 5.03. Information
Regarding Collateral
|
89
|
SECTION 5.04. Existence;
Conduct of Business; Asset Dropdown
|
89
|
SECTION 5.05. Payment of
Obligations
|
90
|
SECTION 5.06. Maintenance
of Properties
|
90
|
SECTION 5.07. Insurance
|
90
|
SECTION 5.08. Casualty and
Condemnation
|
91
|
SECTION 5.09. Books and
Records; Inspection and Audit Rights
|
91
|
SECTION 5.10. Compliance
with Laws
|
91
|
SECTION 5.11. Use of
Proceeds and Letters of Credit
|
91
|
ii
SECTION 5.12. Additional
Subsidiaries
|
92
|
SECTION 5.13. Further
Assurances
|
92
|
SECTION 5.14. Interest
Rate Protection
|
92
|
|
|
ARTICLE VI
|
|
|
Negative Covenants
|
|
|
SECTION 6.01.
Indebtedness; Certain Equity Securities
|
93
|
SECTION 6.02. Liens
|
96
|
SECTION 6.03. Fundamental
Changes
|
98
|
SECTION 6.04. Investments,
Loans, Advances, Guarantees and Acquisitions
|
99
|
SECTION 6.05. Asset Sales
|
101
|
SECTION 6.06. Sale and
Leaseback Transactions
|
102
|
SECTION 6.07. Hedging
Agreements
|
103
|
SECTION 6.08. Restricted
Payments; Certain Payments of Indebtedness
|
103
|
SECTION 6.09. Transactions
with Affiliates
|
105
|
SECTION 6.10. Restrictive
Agreements
|
106
|
SECTION 6.11. Amendment of
Material Documents
|
106
|
SECTION 6.12. Interest
Expense Coverage Ratio
|
107
|
SECTION 6.13. Leverage
Ratio
|
107
|
SECTION 6.14. Capital
Expenditures
|
108
|
|
|
ARTICLE VII
|
|
Events of Default
|
|
|
ARTICLE VIII
|
|
The Administrative Agent
|
|
ARTICLE IX
|
|
Collection Allocation Mechanism
|
|
SECTION 9.01.
Implementation of CAM
|
114
|
SECTION 9.02. Letters of
Credit
|
114
|
|
|
ARTICLE X
|
|
Miscellaneous
|
|
SECTION 10.01. Notices
|
116
|
SECTION 10.02. Waivers;
Amendments
|
117
|
SECTION 10.03. Expenses;
Indemnity; Damage Waiver
|
119
|
iii
SECTION 10.04. Successors
and Assigns
|
121
|
SECTION 10.05. Survival
|
125
|
SECTION 10.06.
Counterparts; Integration; Effectiveness
|
125
|
SECTION 10.07.
Severability
|
125
|
SECTION 10.08. Right of
Setoff
|
125
|
SECTION 10.09. Governing
Law; Jurisdiction; Consent to Service of Process
|
126
|
SECTION 10.10. WAIVER OF
JURY TRIAL
|
127
|
SECTION 10.11. Headings
|
127
|
SECTION 10.12.
Confidentiality
|
127
|
SECTION 10.13. Interest
Rate Limitation
|
128
|
SECTION 10.14. Judgment
Currency
|
128
|
SECTION 10.15. Obligations
Joint and Several
|
129
|
SCHEDULES:
|
|
|
|
|
|
Schedule 1.01(a)
|
|
Mortgaged Property
|
Schedule 2.01
|
|
Commitments
|
Schedule 3.05
|
|
Real Property
|
Schedule 3.06
|
|
Disclosed Matters
|
Schedule 3.12
|
|
Subsidiaries
|
Schedule 3.13
|
|
Insurance
|
Schedule 3.17(d)
|
|
Mortgage Filing Offices
|
Schedule 6.01(a)(iii)
|
|
Existing Indebtedness
|
Schedule 6.02
|
|
Existing Liens
|
Schedule 6.04
|
|
Existing Investments
|
Schedule 6.05
|
|
Asset Sales
|
Schedule 6.09
|
|
Existing Affiliate Transactions
|
Schedule 6.10
|
|
Existing Restrictions
|
|
|
|
EXHIBITS(1):
|
|
|
|
|
|
Exhibit A
|
|
Form of Assignment and Acceptance
|
Exhibit B
|
|
Form of Opinion of Parent Borrowers Counsel
|
Exhibit C
|
|
Form of Foreign Subsidiary Borrowing Agreement
|
Exhibit D
|
|
Form of Guarantee Agreement
|
Exhibit E
|
|
Form of Incremental Term Loan Activation Notice
|
Exhibit F
|
|
Form of Indemnity, Subrogation and Contribution Agreement
|
Exhibit G
|
|
Form of Mortgage
|
Exhibit H
|
|
Form of Pledge Agreement
|
Exhibit I
|
|
Form of Security Agreement
|
Exhibit J
|
|
Form of Subordination and Other Provisions
|
Exhibit K
|
|
Mandatory Costs Rate
|
(1) Exhibits are not being restated.
iv
CREDIT AGREEMENT dated as of June 6, 2002, as
amended and restated as of August 2, 2006, among TRIMAS COMPANY LLC, TRIMAS
CORPORATION, the SUBSIDIARY TERM BORROWERS party hereto, the FOREIGN SUBSIDIARY
BORROWERS party hereto, the LENDERS party hereto and JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and Collateral Agent, and COMERICA BANK, as Syndication
Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION
1.01. Defined Terms. As used in this Agreement, the following terms have
the meanings specified below:
ABR,
when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate
determined by reference to the Alternate Base Rate.
Acquired
Assets means (a) the consolidated tangible assets acquired pursuant to a
Permitted Acquisition during any fiscal year determined in accordance with GAAP
(the Specified Amount), provided that if such Permitted
Acquisition is not consummated during the first quarter of a fiscal year,
Acquired Assets for such fiscal year shall be determined by multiplying the
Specified Amount by (i) 0.75 if such Permitted Acquisition is consummated
during the second quarter of such fiscal year, (ii) 0.50 if such Permitted
Acquisition is consummated during the third quarter of such fiscal year and
(iii) 0.25 if such Permitted Acquisition is consummated during the fourth
quarter of such fiscal year and (b) with respect to any fiscal year
occurring after such Permitted Acquisition, the Specified Amount.
Acquisition
Lease Financing means any sale or transfer by the Parent Borrower or any
Subsidiary of any property, real or personal, that is acquired pursuant to a
Permitted Acquisition, in an aggregate amount, not to exceed at any time
$50,000,000, after the Restatement Effective Date that is rented or leased by
the Parent Borrower or such Subsidiary so long as the proceeds from such
transaction consist solely of cash; provided that such amount shall
increase to $75,000,000 upon completion of the IPO Repayment Event.
Adjusted
LIBO Rate means, with respect to any Eurocurrency Borrowing for any
Interest Period, an interest rate per annum (rounded upwards, if necessary, to
the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.
Administrative
Agent means JPMCB, in its capacity as administrative agent for the Lenders
hereunder. With respect to Foreign Currency Borrowings, the Administrative
Agent may be an Affiliate of JPMCB for purposes of administering such
Borrowings, and all references herein to the term Administrative Agent shall
be deemed to refer to the Administrative Agent in respect of the applicable
Borrowing or to all Administrative Agents, as the context requires.
Administrative
Questionnaire means an Administrative Questionnaire in a form supplied by
the Administrative Agent.
Affiliate
means, with respect to a specified Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or
is under common Control with the Person specified.
Agents
means, collectively, the Administrative Agent, the Collateral Agent and
Comerica Bank, as syndication agent.
Alternate
Base Rate means, for any day, a rate per annum equal to the greater of
(a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus ½ of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, as the case may
be.
Applicable
Rate means, for any day, (a) with respect to any ABR Tranche B Term Loan,
1.75%, (b) with respect to any Eurocurrency Tranche B Term Loan or Tranche B-1
Loan, 2.75%, (c) with respect to any Swingline Loan, the applicable percentage
set forth below under the caption ABR Spread, (d) with respect to any ABR
Revolving Loan or Eurocurrency Revolving Loan, the applicable percentage set
forth below under the caption ABR Spread or Eurocurrency Spread, as the
case may be, based upon the Leverage Ratio as of the most recent determination
date, and (e) with respect to the Commitment Fee, 0.50%.
Leverage Ratio
|
|
ABR Spread
|
|
Eurocurrency
Spread
|
|
Category 1:
Greater than or equal
to 4.50 to 1.00
|
|
1.75
|
%
|
2.75
|
%
|
Category 2:
Less than 4.50 to 1.00
but greater than or
equal to 4.00 to 1.00
|
|
1.50
|
%
|
2.50
|
%
|
Category 3:
Less than 4.00 to 1.00
|
|
1.25
|
%
|
2.25
|
%
|
For
purposes of the foregoing, (i) the Leverage Ratio shall be determined as
of the end of each fiscal quarter of the Parent Borrowers fiscal year based
upon
2
Holdings
consolidated financial statements delivered pursuant to Section 5.01(a) or
(b) and (ii) each change in the Applicable Rate resulting from a
change in the Leverage Ratio shall be effective during the period commencing on
and including the date of delivery to the Administrative Agent of such
consolidated financial statements indicating such change and ending on the date
immediately preceding the effective date of the next such change; provided
that the Applicable Rate shall be deemed to be in Category 1 (A) at
any time that an Event of Default has occurred and is continuing or (B) if
Holdings or the Parent Borrower fails to deliver the consolidated financial
statements required to be delivered by it pursuant to Section 5.01(a) or (b),
during the period from the expiration of the time for delivery thereof until
such consolidated financial statements are delivered. The rate per annum for
Incremental Term Loans shall be the rate specified, or the rate per annum
determined pursuant to a pricing grid specified, in the applicable Incremental
Term Loan Activation Notice as agreed to by the Parent Borrower and the
applicable Incremental Lenders; provided that if and for so long as the
Applicable Rate with respect to any Incremental Term Loans is greater than
0.25% per annum in excess of the then existing Applicable Rate for
Tranche B Term Loans, the Applicable Rate for Tranche B Term Loans
shall be increased automatically for such period so that the Applicable Rate
for such Incremental Term Loans is no greater than 0.25% per annum in excess of
the Applicable Rate for Tranche B Term Loans.
The
Applicable Rate (including the grid above) in respect of Tranche B Term Loans,
Tranche B-1 Loans and Revolving Loans will be decreased by 0.50% immediately
after both the completion of the IPO Repayment Event and the credit ratings for
the Loans are B+ (with stable outlook) or better by S&P and B1 (with stable
outlook) or better by Moodys and for each day thereafter.
Approved
Fund means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions
of credit in the ordinary course and that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
Assessment
Rate means, for any day, the annual assessment rate in effect on such day
that is payable by a member of the Bank Insurance Fund classified as
well-capitalized and within supervisory subgroup B (or a comparable
successor risk classification) within the meaning of 12 C.F.R. Part 327
(or any successor provision) to the Federal Deposit Insurance Corporation for
insurance by such Corporation of time deposits made in dollars at the offices
of such member in the United States; provided that if, as a result
of any change in any law, rule or regulation, it is no longer possible to
determine the Assessment Rate as aforesaid, then the Assessment Rate shall be
such annual rate as shall be determined by the Administrative Agent to be
representative of the cost of such insurance to the Lenders.
Asset
Dropdown means the sale or contribution by Holdings to the Parent Borrower
or any Subsidiary of all of its assets to the extent permitted by
3
applicable
law or third party contracts, except as otherwise agreed to by the
Administrative Agent.
Assignment
and Acceptance means an assignment and acceptance entered into by a Lender
and an assignee (with the consent of any party whose consent is required by
Section 10.04), and accepted by the Administrative Agent, in the form of
Exhibit A to the Original Credit Agreement or any other form approved by
the Administrative Agent.
Assumed
Preferred Stock means any preferred stock or preferred equity interests of
any Person that becomes a Subsidiary after the Restatement Effective Date; provided
that (a) such preferred stock or preferred equity interests exists at the
time such Person becomes a Subsidiary and is not created in contemplation of or
in connection with such Person becoming a Subsidiary and (b) the aggregate
liquidation value of all such outstanding preferred stock and preferred equity
interests shall not exceed $25,000,000 (which amount shall increase to
$40,000,000 upon completion of the IPO Repayment Event) at any time
outstanding, less the aggregate principal amount of Indebtedness incurred and
outstanding pursuant to Section 6.01(a)(xi).
Board
means the Board of Governors of the Federal Reserve System of the
United States of America.
Borrowing
means (a) Loans of the same Class and Type, made, converted or continued
on the same date and, in the case of Eurocurrency Loans, as to which a single
Interest Period is in effect, or (b) a Swingline Loan.
Borrowing
Request means a request by the Parent Borrower, a Subsidiary Term Borrower
or a Foreign Subsidiary Borrower, as the case may be, for a Borrowing in
accordance with Section 2.03.
Business
Day means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to
remain closed; provided that (a) when used in connection with any
Eurocurrency Loan denominated in dollars or Sterling, the term Business Day
shall also exclude any day on which banks are not open for dealings in dollar
deposits in the London interbank market and (b) when used in connection
with any Revolving Loan denominated in Euro, the term Business Day shall also
exclude any day on which the TARGET payment system is not open for the
settlement of payment in Euro.
Calculation
Date means (a) each date on which a Revolving Loan is made and
(b) the last Business Day of each calendar month.
CAM
shall mean the mechanism for the allocation and exchange of interests in the
Credit Facilities and collections thereunder established under Article IX.
CAM
Exchange shall mean the exchange of the Lenders interests provided for in
Section 9.01.
4
CAM
Exchange Date shall mean the date on which (a) any event referred to
in paragraph (h) or (i) of Article VII shall occur in respect of
Holdings, the Parent Borrower, any Subsidiary Term Borrower or any Foreign
Subsidiary Borrower or (b) an acceleration of the maturity of the Loans
pursuant to Article VII shall occur.
CAM
Percentage shall mean, as to each Lender, a fraction, expressed as a
decimal, of which (a) the numerator shall be the aggregate Dollar
Equivalent (determined on the basis of Exchange Rates prevailing on the CAM
Exchange Date) of the Specified Obligations owed to such Lender and such
Lenders participation in undrawn amounts of Letters of Credit immediately
prior to the CAM Exchange Date and (b) the denominator shall be the
aggregate Dollar Equivalent (as so determined) of the Specified Obligations
owed to all the Lenders and the aggregate undrawn amount of outstanding Letters
of Credit immediately prior to such CAM Exchange Date.
Capital
Expenditures means, for any period, without duplication, (a) the
additions to property, plant and equipment and other capital expenditures of
Holdings, the Parent Borrower and its consolidated Subsidiaries (including the
Receivables Subsidiary) that are (or would be) set forth in a consolidated
statement of cash flows of Holdings for such period prepared in accordance with
GAAP other than (x) such additions and expenditures classified as
Permitted Acquisitions and (y) such additions and expenditures made with
Net Proceeds from any casualty or other insured damage or condemnation or
similar awards and (b) Capital Lease Obligations incurred by Holdings, the
Parent Borrower and its consolidated Subsidiaries (including the Receivables Subsidiary)
during such period.
Capital
Lease Obligations of any Person means the obligations of such Person to
pay rent or other amounts under any lease of (or other arrangement conveying
the right to use) real or personal property, or a combination thereof, which
obligations are required to be classified and accounted for as capital leases
on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
Change
in Control means (a) the acquisition by any Person other than
Holdings of any direct Equity Interest in the Parent Borrower; (b) prior
to the date of an IPO, any Person or group (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder as in effect on the Restatement Effective Date) other
than Heartland and its Affiliates shall beneficially own at any time, directly
or indirectly (without giving effect, for avoidance of doubt, to shares owned by
Heartland and its Affiliates), a greater percentage of the aggregate ordinary
voting power of Holdings than the aggregate ordinary voting power of Holdings
that is beneficially owned at such time, directly or indirectly (without giving
effect, for avoidance of doubt, to shares owned by such Person), by Heartland
and its Affiliates (treating shares over which Heartland or its Affiliates have
voting authority by right of contract or otherwise as being owned by Heartland
and its Affiliates), unless Heartland and its Affiliates shall have the right
to designate, by right of contract or otherwise, a majority of the board of
directors of Holdings; (c) on or after an IPO, the acquisition of
5
beneficial
ownership, directly or indirectly, by any Person or group (within the meaning
of the Securities Exchange Act of 1934 and the rules of the Securities and
Exchange Commission thereunder as in effect on the Restatement Effective Date)
other than Heartland and its Affiliates, of Equity Interests representing more
than 25% of either the aggregate ordinary voting power represented by the
issued and outstanding Equity Interests in Holdings and such Person or group
beneficially owns at such time, directly or indirectly (without giving effect,
for avoidance of doubt, to shares owned by Heartland and its Affiliates), a
greater percentage of the aggregate ordinary voting power of Holdings than the
aggregate ordinary voting power of Holdings that is beneficially owned at such
time, directly or indirectly, (without giving effect, for avoidance of doubt,
to shares owned by such Person), by Heartland and its Affiliates (treating
shares over which Heartland or its Affiliates have voting authority by right of
contract or otherwise as being owned by Heartland and its Affiliates), unless
Heartland and its Affiliates shall have the right to designate, by right of
contract or otherwise, a majority of the board of directors of Holdings; (d)
occupation of a majority of the seats on the board of directors of Holdings by
Persons who were not nominated by Heartland and its Affiliates or approved by
Heartland and its Affiliates; or (e) the occurrence of any change in
control (or similar event, however denominated) with respect to Holdings or the
Parent Borrower under (i) any indenture or agreement in respect of
Material Indebtedness to which Holdings, the Parent Borrower or any Subsidiary
is a party, including the Subordinated Debt Documents, (ii) any instrument
governing any preferred stock of Holdings, the Parent Borrower or any
Subsidiary having a liquidation value or redemption value in excess of
$10,000,000 or (iii) the Permitted Receivables Financing.
Change
in Law means (a) the adoption of any law, rule or regulation after
the Restatement Effective Date, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the Restatement Effective Date or (c) compliance by any
Lender or the Issuing Bank (or, for purposes of Section 2.15(b), by any lending
office of such Lender or by such Lenders or the Issuing Banks holding
company, if any) with any request, guideline or directive (whether or not
having the force of law) of any Governmental Authority made or issued after the
Restatement Effective Date.
Class,
when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans, Tranche B Term
Loans, Tranche B-1 Loans, Incremental Term Loans or Swingline Loans and, when
used in reference to any Commitment, refers to whether such Commitment is a
Revolving Commitment, Tranche B Commitment, Tranche B-1 Commitment or
Incremental Commitment.
Code
means the Internal Revenue Code of 1986, as amended from time to time.
Collateral
means any and all Collateral, as defined in any applicable Security Document.
6
Collateral
Agent means JPMCB, in its capacity as collateral agent for the Lenders
under the Security Documents. With respect to Foreign Currency Borrowings, the
Collateral Agent may be an Affiliate of JPMCB, for purposes of administering
the collateralization of such Borrowings, and all references herein to the term
Collateral Agent shall be deemed to refer to the Collateral Agent in respect
of the applicable Borrowing or to all Collateral Agents, as the context
requires.
Collateral
and Guarantee Requirement means the requirement that:
(a)
the Collateral Agent shall have received from each party thereto (other than
the Collateral Agent) either (i) a counterpart of (A) the Guarantee
Agreement, (B) the Indemnity, Subrogation and Contribution Agreement,
(C) the Pledge Agreement and (D) the Security Agreement in each case
duly executed and delivered on behalf of such Loan Party, or (ii) in the case
of any Person that becomes a Loan Party after the Original Effective Date, a
supplement to each of the Guarantee Agreement, the Indemnity, the Subrogation
and Contribution Agreement, the Pledge Agreement and the Security Agreement, in
each case in the form specified therein, duly executed and delivered on behalf
of such Loan Party;
(b)
all outstanding Equity Interests of the Parent Borrower and each Subsidiary
(including the Receivables Subsidiary) owned by or on behalf of any Loan Party
shall have been pledged pursuant to the Pledge Agreement (except that the Loan
Parties shall not be required to pledge more than 65% of the outstanding voting
Equity Interests of any Foreign Subsidiary, it being understood that this exception
shall not limit the application of the Foreign Security Collateral and
Guarantee Requirement) and the Collateral Agent shall have received
certificates or other instruments representing all such Equity Interests,
together with stock powers or other instruments of transfer with respect
thereto endorsed in blank;
(c)
all Indebtedness of Holdings, the Parent Borrower and each Subsidiary in an
aggregate principal amount that exceeds $500,000 that is owing to any Loan
Party shall be evidenced by a promissory note and shall have been pledged
pursuant to the Pledge Agreement and the Collateral Agent shall have received
all such promissory notes, together with instruments of transfer with respect
thereto endorsed in blank;
(d)
all documents and instruments, including Uniform Commercial Code financing
statements, required by law or reasonably requested by the Collateral Agent to
be filed, registered or recorded to create the Liens intended to be created by
the Security Agreement and the Pledge Agreement and perfect such Liens to the
extent required by, and with the priority required by, the Security Agreement
and the Pledge Agreement shall have been filed, registered or recorded or
delivered to the Collateral Agent for filing, registration or recording;
7
(e)
the Collateral Agent shall have received (i) counterparts of a Mortgage
with respect to each Mortgaged Property duly executed and delivered by the
record owner of such Mortgaged Property, (ii) a policy or policies of title
insurance issued by a nationally recognized title insurance company insuring
the Lien of each such Mortgage as a valid first Lien on the Mortgaged Property
described therein, free of any other Liens except as expressly permitted by Section 6.02,
together with such endorsements, coinsurance and reinsurance as the
Administrative Agent or the Required Lenders may reasonably request, and (iii)
such surveys, abstracts, appraisals, legal opinions and other documents as the
Administrative Agent or the Required Lenders may reasonably request with
respect to any such Mortgage or Mortgaged Property; and
(f)
each Loan Party (other than the Foreign Subsidiary Borrowers) shall have
obtained all consents and approvals required to be obtained by it in connection
with the execution and delivery of all Security Documents to which it is a
party, the performance of its obligations thereunder and the granting by it of
the Liens thereunder.
Commitment
means a Revolving Commitment, Tranche B Commitment, Tranche B-1 Commitment
or Incremental Commitment, or any combination thereof (as the context
requires).
Commitment
Fee has the meaning assigned to such term in Section 2.12(a).
Commitment
Termination Date means August 2, 2011.
Consolidated
Cash Interest Expense means, for any period, the excess of (a) the
sum, without duplication, of (i) the interest expense (including imputed
interest expense in respect of Capital Lease Obligations) of Holdings, the
Parent Borrower and the Subsidiaries (including the Receivables Subsidiary) for
such period, determined on a consolidated basis in accordance with GAAP, plus
(ii) any interest accrued during such period in respect of Indebtedness of
Holdings, the Parent Borrower or any Subsidiary (including the Receivables
Subsidiary) that is required to be capitalized rather than included in
consolidated interest expense for such period in accordance with GAAP, plus
(iii) any cash payments made during such period in respect of obligations
referred to in clause (b)(iii) below that were amortized or accrued in a
previous period, plus (iv) interest-equivalent costs associated with any
Permitted Receivables Financing, whether accounted for as interest expense or
loss on the sale of receivables, minus (b) the sum of, without duplication,
(i) interest income of Holdings, the Parent Borrower and the Subsidiaries
(including the Receivables Subsidiary) for such period, determined on a
consolidated basis in accordance with GAAP, plus (ii) to the extent
included in such consolidated interest expense for such period, noncash amounts
attributable to amortization of financing costs paid in a previous period, plus
(iii) to the extent included in such consolidated interest expense for such
period, noncash amounts attributable to amortization of debt discounts or
accrued interest payable in kind for such period, plus
8
(iv) to
the extent included in such consolidated interest expense for such period, all
financing fees incurred in connection with the Transactions.
Consolidated
EBITDA means, for any period, Consolidated Net Income for such period plus
(a) without duplication and to the extent deducted in determining such
Consolidated Net Income, the sum of (i) consolidated interest expense for
such period, (ii) consolidated income tax expense for such period
(including all single business tax expenses imposed by state law),
(iii) all amounts attributable to depreciation and amortization for such
period, (iv) any extraordinary noncash charges for such period,
(v) all management fees and other fees paid during such period to
Heartland and/or its Affiliates pursuant to the Heartland Management Agreement
to the extent permitted by Section 6.09, (vi) interest-equivalent
costs associated with any Permitted Receivables Financing for such period,
whether accounted for as interest expense or loss on the sale of receivables,
and all Preferred Dividends, (vii) all extraordinary losses during such
period that are either noncash or relate to the retirement of Indebtedness,
(viii) noncash expenses during such period resulting from the grant of
Equity Interests to management and employees of Holdings, the Parent Borrower
or any of the Subsidiaries, (ix) the aggregate amount of deferred
financing expenses for such period, (x) all other noncash expenses or
losses of Holdings, the Parent Borrower or any of the Subsidiaries for such
period (excluding any such charge that constitutes an accrual of or a reserve
for cash charges for any future period), (xi) any nonrecurring fees,
expenses or charges realized by Holdings, the Parent Borrower or any of the
Subsidiaries for such period related to any offering of Equity Interests or
incurrence of Indebtedness, whether or not consummated, (xii) fees and
expenses in connection with the Transactions, (xiii) any nonrecurring
costs and expenses arising from the integration of any business acquired
pursuant to any Permitted Acquisition consummated after the Restatement
Effective Date not to exceed $15,000,000 in the aggregate (which amount shall
increase to $10,000,000 in any fiscal year and $25,000,000 in the aggregate
upon completion of the IPO Repayment Event), (xiv) any nonrecurring expenses or
similar costs relating to cost savings projects, including restructuring and
severance expenses, not to exceed $25,000,000 in the aggregate (which amount
shall increase to $20,000,000 in any fiscal year and $50,000,000 in the
aggregate upon completion of the IPO Repayment Event), (xv) any nonrecurring
expenses or similar costs incurred from and during the fourth fiscal quarter of
2004 through fiscal year 2006 relating to the completion of cost savings
initiatives, including restructuring and severance expenses related thereto,
not to exceed in the aggregate $5,000,000, (xvi) any nonrecurring expenses
or similar costs incurred relating to the completion of cost savings
initiatives, including production sourcing expenses related thereto, not to
exceed in the aggregate $5,000,000, (xvii) EBITDA from discontinued operations,
not to exceed in any fiscal year $10,000,000, (xviii) losses associated
with the prepayment of leases (whether operating leases or capital leases)
outstanding on the Restatement Effective Date (A) from the Net Proceeds of
an IPO or (B) from discontinued operations and (xix) losses or
charges associated with asset sales otherwise permitted hereunder not to exceed
in the aggregate $10,000,000, minus (b) without duplication and to the extent
included in determining such Consolidated Net Income, any extraordinary gains
for such period, all determined on a consolidated basis in accordance with
GAAP. If the Parent Borrower or any Subsidiary has acquired assets
9
to
be used or useful in their continuing operations (to the extent permitted by
Section 6.14) in connection with the prepayment of leases during the relevant
period for determining the Senior Leverage Ratio, Consolidated EBITDA for the
relevant period shall be calculated only for purposes of determining Senior
Leverage Ratio after giving pro forma effect thereto, as if such acquisition of
assets and related termination of leases had occurred on the first day of the
relevant period for determining Consolidated EBITDA. If the Parent Borrower or
any Subsidiary has made any Permitted Acquisition or any sale, transfer, lease
or other disposition of assets outside of the ordinary course of business
permitted by Section 6.05 during the relevant period for determining the
Leverage Ratio and the Interest Expense Coverage Ratio, Consolidated EBITDA for
the relevant period shall be calculated only for purposes of determining
Leverage Ratio and the Interest Expense Coverage Ratio after giving pro forma
effect thereto, as if such Permitted Acquisition or sale, transfer, lease or
other disposition of assets (and, in each case, any related incurrence,
repayment or assumption of Indebtedness, with any new Indebtedness being deemed
to be amortized over the relevant period in accordance with its terms, and
assuming that any Revolving Loans borrowed in connection with such acquisition
are repaid with excess cash balances when available) had occurred on the first
day of the relevant period for determining Consolidated EBITDA. Any such pro
forma calculations may include operating and other expense reductions and other
adjustments for such period resulting from any Permitted Acquisition, or sale,
transfer, lease or other disposition of assets that is being given pro forma
effect to the extent that such operating and other expense reductions and other
adjustments (a) would be permitted pursuant to Article XI of Regulation S-X
under the Securities Act of 1933 (Regulation S-X) or (b) are reasonably
consistent with the purpose of Regulation S-X as determined in good faith by
the Parent Borrower in consultation with the Administration Agent.
Consolidated
Net Income means, for any period, the net income or loss of Holdings, the
Parent Borrower and the Subsidiaries (including the Receivables Subsidiary) for
such period determined on a consolidated basis in accordance with GAAP; provided
that there shall be excluded (a) the income of any Person (other than the
Parent Borrower) in which any other Person (other than the Parent Borrower or
any Subsidiary or any director holding qualifying shares in compliance with
applicable law) owns an Equity Interest, except to the extent of the amount of
dividends or other distributions actually paid to the Parent Borrower or any of
the Subsidiaries during such period, and (b) the income or loss of any
Person accrued prior to the date it becomes a Subsidiary or is merged into or
consolidated with the Parent Borrower or any Subsidiary or the date that such
Persons assets are acquired by the Parent Borrower or any Subsidiary.
Control
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. Controlling
and Controlled have meanings correlative thereto.
Credit
Facility means a category of Commitments and extensions of credit
thereunder.
10
Default
means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an
Event of Default.
Deposit
means, with respect to each Lender at any time, amounts actually on deposit in
the Deposit Account to the credit of such Lenders Sub-Account at such time.
Deposit
Account means the TriMas 2006 Credit Agreement Deposit Account
established by the Administrative Agent at JPMCB pursuant to Section
2.01(a)(ii)(A).
Deposit
Return has the meaning set forth in Section 2.01(a)(ii)(D).
Disclosed
Matters means the actions, suits and proceedings and the environmental
matters disclosed in Schedule 3.06.
dollars
or $ refers to lawful money of the United States of America.
Dollar
Equivalent means, on any date of determination, (a) with respect to
any amount in dollars, such amount, and (b) with respect to any amount in
any Foreign Currency, the equivalent in dollars of such amount, determined by
the Administrative Agent pursuant to Section 1.05(b) using the Exchange
Rate with respect to such Foreign Currency at the time in effect under the
provisions of such Section.
Domestic
Loan Party means any Loan Party, other than the Foreign Subsidiary
Borrowers.
EMU
Legislation means the legislative measures of the European Union for the
introduction of, changeover to or operation of the Euro in one or more member
states.
Environmental
Laws means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in any way
to the environment, preservation or reclamation of natural resources, the
management, Release or threatened Release of any Hazardous Material or to
health and safety matters.
Environmental
Liability means any liabilities, obligations, damages, losses, claims,
actions, suits, judgments, or orders, contingent or otherwise (including any
liability for damages, costs of environmental remediation, costs of
administrative oversight, fines, natural resource damages, penalties or
indemnities), of Holdings, the Parent Borrower or any Subsidiary (including the
Receivables Subsidiary) directly or indirectly resulting from or relating to
(a) compliance or non-compliance with any Environmental Law, (b) the
generation, use, handling, transportation, storage, treatment or disposal of
any Hazardous Materials, (c) any actual or alleged exposure to any
Hazardous Materials, (d) the Release or threatened Release of any
Hazardous Materials
11
or
(e) any contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.
Equity
Interests means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or
other equity ownership interests in a Person or any warrants, options or other
rights to acquire such interests.
ERISA
means the Employee Retirement Income Security Act of 1974, as amended from time
to time.
ERISA
Affiliate means any trade or business (whether or not incorporated) that,
together with the Parent Borrower, is treated as a single employer under
Section 414(b) or (c) of the Code or, solely for purposes of Section
302 of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
ERISA
Event means (a) any reportable event, as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to
a Plan (other than an event for which the 30-day notice period is waived);
(b) the existence with respect to any Plan of an accumulated funding
deficiency (as defined in Section 412 of the Code or Section 302 of
ERISA), whether or not waived; (c) the filing pursuant to
Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Parent Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Parent Borrower or any
ERISA Affiliate from the PBGC or a plan administrator of any notice relating to
an intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan; (f) the incurrence by the Parent Borrower or any of
its ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the
Parent Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Parent Borrower or any ERISA Affiliate of any
notice, concerning the imposition of Withdrawal Liability or a determination
that a Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA.
Euro
or means the single currency of the European Union as constituted by the
Treaty on European Union and as referred to in the EMU Legislation.
Eurocurrency,
when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate
determined by reference to the Adjusted LIBO Rate.
Event
of Default has the meaning assigned to such term in Article VII.
12
Excess
Cash Flow means, for any fiscal year, the sum (without duplication) of:
(a)
the Consolidated Net Income for such fiscal year, adjusted to exclude any gains
or losses attributable to Prepayment Events; plus
(b)
the excess, if any, of the Net Proceeds received during such fiscal year by
Holdings, the Parent Borrower and its consolidated Subsidiaries (including the
Receivables Subsidiary) in respect of any Prepayment Events over (x) amounts
permitted to be reinvested pursuant to Section 2.11(d) and (y) the aggregate
principal amount of Term Loans prepaid pursuant to Section 2.11(d) in
respect of such Net Proceeds; plus
(c)
depreciation, amortization and other noncash charges or losses deducted in
determining such consolidated net income (or loss) for such fiscal year; plus
(d)
the sum of (i) the amount, if any, by which Net Working Capital (adjusted
to exclude changes arising from Permitted Acquisitions) decreased during such
fiscal year plus (ii) the net amount, if any, by which the consolidated
deferred revenues and other consolidated accrued long-term liability accounts
of Holdings, the Parent Borrower and its consolidated Subsidiaries (including
the Receivables Subsidiary) (adjusted to exclude changes arising from Permitted
Acquisitions) increased during such fiscal year plus (iii) the net amount, if
any, by which the consolidated accrued long-term asset accounts of Holdings,
Parent Borrower and its consolidated Subsidiaries (including the Receivables
Subsidiary) (adjusted to exclude changes arising from Permitted Acquisitions)
decreased during such fiscal year; minus
(e)
the sum of (i) any noncash gains included in determining such consolidated
net income (or loss) for such fiscal year plus (ii) the amount, if any, by
which Net Working Capital (adjusted to exclude changes arising from Permitted
Acquisitions) increased during such fiscal year plus (iii) the net amount, if
any, by which the consolidated deferred revenues and other consolidated accrued
long-term liability accounts of Holdings, the Parent Borrower and its
consolidated Subsidiaries (including the Receivables Subsidiary) (adjusted to
exclude changes arising from Permitted Acquisitions) decreased during such
fiscal year plus (iv) the net amount, if any, by which the consolidated accrued
long-term asset accounts of Holdings, the Parent Borrower and its consolidated
Subsidiaries (including the Receivables Subsidiary) (adjusted to exclude
changes arising from Permitted Acquisitions) increased during such fiscal year;
minus
(f)
the sum of (i) Capital Expenditures for such fiscal year (except to the
extent attributable to the incurrence of Capital Lease Obligations or otherwise
financed by incurring Long-Term Indebtedness) plus (ii) cash
consideration paid during such fiscal year to make acquisitions or other
capital investments (except to the extent financed by incurring Long-Term
Indebtedness); minus
13
(g)
the aggregate principal amount of Long-Term Indebtedness repaid or prepaid by
Holdings, the Parent Borrower and its consolidated Subsidiaries (including the
Receivables Subsidiary) during such fiscal year, excluding
(i) Indebtedness in respect of Revolving Loans (except to the extent the
Revolving Commitments are permanently reduced in the amount of and at the time
of any such payment) and Letters of Credit, (ii) Term Loans prepaid
pursuant to Section 2.11(d) or (e), (iii) Indebtedness in respect of Tranche
B-1 Loans (except to the extent the Tranche B-1 Commitments are permanently
reduced in the amount of and at the time of such payment) and (iv) repayments
or prepayments of Long-Term Indebtedness financed by incurring other Long-Term
Indebtedness; minus
(h)
the noncash impact of currency translations and other adjustments to the equity
account, including adjustments to the carrying value of marketable securities
and to pension liabilities, in each case to the extent such items would
otherwise constitute Excess Cash Flow.
Exchange
Rate means on any day, with respect to any Foreign Currency, the rate at
which such Foreign Currency may be exchanged into dollars, as set forth at
approximately 11:00 a.m., London time, on such day on the Reuters World
Currency Page for such Foreign Currency. In the event that such rate does not
appear on any Reuters World Currency Page, the Exchange Rate shall be
determined by reference to such other publicly available service for displaying
exchange rates as may be agreed upon by the Administrative Agent and the Parent
Borrower, or, in the absence of such agreement, such Exchange Rate shall
instead be the arithmetic average of the spot rates of exchange of the
Administrative Agent in the market where its foreign currency exchange
operations in respect of such Foreign Currency are then being conducted, at or
about 10:00 a.m., local time, on such date for the purchase of dollars for
delivery two Business Days later; provided that if at the time of
any such determination, for any reason, no such spot rate is being quoted, the
Administrative Agent, after consultation with the Parent Borrower, may use any
reasonable method it deems appropriate to determine such rate, and such
determination shall be conclusive absent manifest error.
Excluded
Taxes means, with respect to the Administrative Agent, any Lender, the
Issuing Bank or any other recipient of any payment to be made by or on account
of any obligation of the Parent Borrower, the Subsidiary Term Borrowers or any
Foreign Subsidiary Borrower hereunder, (a) income or franchise taxes
imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits Taxes imposed by the United States of America or any similar Tax
imposed by any other jurisdiction described in clause (a) above and
(c) in the case of a Foreign Lender (other than an assignee pursuant to a
request by the Parent Borrower under Section 2.19(b)), (i) any
United States withholding Tax that is in effect and would apply to amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement (or designates a new lending office), except to the extent that
14
such
Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from the Parent Borrower with respect to any United States
withholding Tax pursuant to Section 2.17(a) and (ii) any withholding Tax
that is attributable to such Foreign Lenders failure to comply with
Section 2.17(e).
Existing
Subordinated Notes means the 9.875% Subordinated Notes of Holdings due
2012 in the aggregate principal amount of $437,770,000 (including the Exchange
Notes issued in exchange for the initial Existing Subordinated Notes as
contemplated by the registration rights agreement related thereto) and the
Indebtedness represented thereby.
Federal
Funds Effective Rate means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published on the next succeeding Business Day by
the Federal Reserve Bank of New York, or, if such rate is not so published
for any day that is a Business Day, the average (rounded upwards, if necessary,
to the next 1/100 of 1%) of the quotations for such day for such transactions
received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
Financial
Officer means the chief financial officer, principal accounting officer,
treasurer or controller of Holdings or the Parent Borrower, as applicable.
Foreign
Currencies means Euro and Sterling.
Foreign
Currency Administrative Agent means J.P. Morgan Europe Limited, in its
capacity as foreign currency administrative agent for the Lenders hereunder.
Foreign
Currency Commitment means, with respect to each Revolving Lender, the
commitment of such Revolving Lender to make Foreign Currency Loans and to
acquire participations in Foreign Currency Letters of Credit, expressed as an
amount representing the maximum aggregate amount of such Revolving Lenders
Foreign Currency Exposure hereunder, as such commitment may be (a) reduced
from time to time pursuant to Section 2.08 and (b) reduced or
increased from time to time pursuant to assignments by or to such Revolving
Lender pursuant to Section 10.04. The initial amount of each Revolving
Lenders Foreign Currency Commitment is set forth on Schedule 2.01, or in
the Assignment and Acceptance pursuant to which such Revolving Lender shall
have assumed its Foreign Currency Commitment, as applicable. The initial
aggregate amount of the Revolving Lenders Foreign Currency Commitments is the
Dollar Equivalent of $10,000,000.
Foreign
Currency Exposure means, with respect to any Revolving Lender at any time,
the Dollar Equivalent of the sum of the outstanding principal amount of such
Lenders Foreign Currency Loans and its Foreign Currency LC Exposure at such
time.
15
Foreign
Currency LC Exposure means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Foreign Currency Letters of Credit at such
time plus (b) the aggregate amount of all LC Disbursements in respect of
Foreign Currency Letters of Credit that have not yet been reimbursed by or on
behalf of the Foreign Subsidiary Borrowers at such time. The Foreign Currency
LC Exposure of any Revolving Lender at any time shall be its Revolving
Applicable Percentage of the total Foreign Currency LC Exposure at such time.
Foreign
Currency Letter of Credit means a Letter of Credit denominated in a
Foreign Currency.
Foreign
Currency Loan means a Revolving Loan denominated in a Foreign Currency.
Foreign
Lender means any Lender that is organized under the laws of a jurisdiction
other than that in which the Parent Borrower or any Foreign Subsidiary
Borrower, as the case may be, is located. For purposes of this definition, the
United States of America, each State thereof and the District of Columbia
shall be deemed to constitute a single jurisdiction.
Foreign
Security Collateral and Guarantee Requirement means the requirement that:
(a)
the Collateral Agent shall have received from the applicable Foreign Subsidiary
Borrower and its subsidiaries a counterpart of each Foreign Security Document
relating to the assets (including the capital stock of its subsidiaries) of
such Foreign Subsidiary Borrower, excluding assets as to which the Collateral
Agent shall determine in its reasonable discretion, after consultation with the
Parent Borrower, that the costs and burdens of obtaining a security interest
are excessive in relation to the value of the security afforded thereby;
(b)
all documents and instruments (including legal opinions) required by law or
reasonably requested by the Collateral Agent to be filed, registered or
recorded to create the Liens intended to be created over the assets specified
in clause (a) above and perfect such Liens to the extent required by, and
with priority required by, such Foreign Security Documents, shall have been
filed, registered or recorded or delivered to the Collateral Agent for filing,
registration or recording;
(c)
such Foreign Subsidiary Borrower and its subsidiaries shall become a guarantor
of the obligations under the Loan Documents of other Foreign Subsidiary Borrowers,
if any, under a guarantee agreement reasonably acceptable to the Collateral
Agent, in either case duly executed and delivered on behalf of such Foreign
Subsidiary Borrower and such subsidiaries, except that such guarantee shall not
be required if the Collateral Agent shall determine in its reasonable
discretion, after consultation with the Parent Borrower, that the benefits of
such a guarantee are limited and such limited benefits are not justified
16
in
relation to the burdens imposed by such guarantee on the Parent Borrower and
its Subsidiaries; and
(d)
such Foreign Subsidiary Borrower shall have obtained all consents and approvals
required to be obtained by it in connection with the execution and delivery of
such Foreign Security Documents, the performance of its obligations thereunder
and the granting by it of the Liens thereunder.
Foreign
Security Documents means any agreement or instrument entered into by any
Foreign Subsidiary Borrower that is reasonably requested by the Collateral
Agent providing for a Lien over the assets (including shares of other
Subsidiaries) of such Foreign Subsidiary Borrower.
Foreign
Subsidiary means any Subsidiary that is organized under the laws of a
jurisdiction other than the United States of America or any State thereof
or the District of Columbia.
Foreign
Subsidiary Borrowers means any wholly owned Foreign Subsidiary of the
Parent Borrower organized under the laws of England and Wales, any member
nation of the European Union or any other nation in Europe reasonably
acceptable to the Collateral Agent that becomes a party to this Agreement
pursuant to Section 2.21.
Foreign
Subsidiary Borrowing Agreement means an agreement substantially in the
form of Exhibit C to the Original Credit Agreement.
GAAP
means generally accepted accounting principles in the United States of
America.
Governmental
Authority means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and
any agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
Guarantee
of or by any Person (the guarantor) means any obligation, contingent
or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the primary
obligor) in any manner, whether directly or indirectly, and including any
obligation of the guarantor, direct or indirect, (a) to purchase or pay
(or advance or supply funds for the purchase or payment of) such Indebtedness
or other obligation or to purchase (or to advance or supply funds for the
purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay
such Indebtedness or other obligation or (d) as an account party in
respect of any letter of credit or letter of guaranty
17
issued
to support such Indebtedness or obligation; provided, that the term
Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business.
Guarantee
Agreement means the Guarantee Agreement, substantially in the form of
Exhibit D to the Original Credit Agreement, made by Holdings, the Parent
Borrower and the Subsidiary Loan Parties party thereto in favor of the
Collateral Agent for the benefit of the Secured Parties.
Hazardous
Materials means all explosive,
radioactive, hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
Heartland
means Heartland Industrial Partners, L.P., a Delaware limited partnership.
Heartland
Management Agreement means the monitoring agreement dated as of the
Original Effective Date between Heartland (or one or more of its Affiliates)
and Holdings.
Hedging
Agreement means any interest rate protection agreement, foreign currency
exchange agreement, commodity price protection agreement or other interest or
currency exchange rate or commodity price hedging arrangement.
Holdings
means TriMas Corporation, a Delaware corporation.
Incremental
Lenders means (a) on any Incremental Term Loan Activation Date, the
Lenders signatory to the Incremental Term Loan Activation Notice and
(b) thereafter, each Lender that has made, or acquired pursuant to an
assignment made pursuant to Section 10.04, an Incremental Term Loan.
Incremental
Maturity Date means, as to the Incremental Term Loans to be made pursuant
to any Incremental Term Loan Activation Notice, the maturity date specified in
such Incremental Term Loan Activation Notice, which date shall be a date at
least 91 days after the Tranche B Maturity Date.
Incremental
Term Loan Activation Date means each date, which shall be a Business Day
on or before the Incremental Term Loan Termination Date, on which any Lender
shall execute and deliver to the Administrative Agent an Incremental Term Loan
Activation Notice pursuant to Section 2.01(b).
Incremental
Term Loan Activation Notice means a notice substantially in the form of
Exhibit E to the Original Credit Agreement.
Incremental
Term Loan Amount means, as to each Incremental Lender, on and after the
effectiveness of any Incremental Term Loan Activation Notice, the
18
obligation
of such Incremental Lender to make Incremental Term Loans hereunder in a
principal amount equal to the amount set forth under the heading Incremental
Term Loan Amount opposite such Incremental Lenders name on such Incremental
Term Loan Activation Notice.
Incremental
Term Loan Effective Date means each date, which shall be a Business Day on
or before the Incremental Term Loan Termination Date, designated as such in an
Incremental Term Loan Activation Notice.
Incremental
Term Loan Termination Date means the Tranche B Maturity Date.
Incremental
Term Loans means a Loan made pursuant to clause (b) of
Section 2.01.
Indebtedness
of any Person means, without duplication, (a) all obligations of such
Person for borrowed money or with respect to advances of any kind, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, (c) all obligations of such Person upon which interest
charges are customarily paid, (d) all obligations of such Person under
conditional sale or other title retention agreements relating to property
acquired by such Person, (e) all obligations of such Person in respect of
the deferred purchase price of property or services (excluding current accounts
payable incurred in the ordinary course of business), (f) all Indebtedness
of others secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on property
owned or acquired by such Person, whether or not the Indebtedness secured
thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all
obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Persons ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
Notwithstanding anything to the contrary in this paragraph, the term
Indebtedness shall not include (a) agreements providing for indemnification,
purchase price adjustments or similar obligations incurred or assumed in
connection with the acquisition or disposition of assets or capital stock,
(b) trade payables and accrued expenses in each case arising in the
ordinary course of business and (c) Deposits.
Indemnified
Taxes means Taxes other than Excluded Taxes.
Indemnity,
Subrogation and Contribution Agreement means the Indemnity, Subrogation
and Contribution Agreement, substantially in the form of Exhibit F to the
Original Credit Agreement, among the Parent Borrower, the Subsidiary Loan
Parties party thereto and the Collateral Agent.
19
Information
Memorandum means the Confidential Information Memorandum dated June 2006,
relating to the Parent Borrower and the Transactions.
Interest
Election Request means a request by the Parent Borrower, a Subsidiary Term
Borrower or a Foreign Subsidiary Borrower, as the case may be, to convert or
continue a Revolving Loan or Term Borrowing in accordance with
Section 2.07.
Interest
Expense Coverage Ratio means, on any date, the ratio of
(a) Consolidated EBITDA to (b) the sum of (i) Consolidated Cash
Interest Expense and (ii) Preferred Dividends.
Interest
Payment Date means (a) with respect to any ABR Loan (other than a
Swingline Loan), the last day of each March, June, September and December,
(b) with respect to any Eurocurrency Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part and, in the case
of a Eurocurrency Borrowing with an Interest Period of more than three months
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months duration after the first day of such Interest
Period, and (c) with respect to any Swingline Loan, the day that such Loan
is required to be repaid.
Interest
Period means, with respect to any Eurocurrency Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or
six months thereafter (or nine or twelve months thereafter if, at the time
of the relevant Borrowing, all Lenders participating therein agree to make an
interest period of such duration available), as the Parent Borrower, a
Subsidiary Term Borrower or a Foreign Subsidiary Borrower, as the case may be,
may elect; provided, that (a) if any Interest Period would end on a
day other than a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless such next succeeding Business Day would
fall in the next calendar month, in which case such Interest Period shall end
on the next preceding Business Day and (b) any Interest Period that
commences on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the last calendar month of such
Interest Period) shall end on the last Business Day of the last calendar month
of such Interest Period. For purposes hereof, the date of a Borrowing initially
shall be the date on which such Borrowing is made and thereafter shall be the
effective date of the most recent conversion or continuation of such Borrowing.
Investors
means Heartland, its Affiliates, and the other entities identified by Heartland
as Investors to the Administrative Agent prior to the Original Effective
Date.
IPO
means an underwritten public offering by Holdings of Equity Interests of
Holdings pursuant to a registration statement filed with the Securities and
Exchange Commission in accordance with the Securities Act of 1933.
20
IPO
Repayment Event means repayment of principal in an aggregate minimum
amount of $100,000,000 in respect of (i) Tranche B Term Loans and/or (ii)
Existing Subordinated Notes, in each case contemporaneous with or subsequent to
the consummation of an IPO.
Issuing
Bank means JPMCB, in its capacity as the issuer of Letters of Credit
hereunder, and its successors in such capacity as provided in
Section 2.05(i). The Issuing Bank may, in its discretion, arrange for one
or more Letters of Credit to be issued by Affiliates of the Issuing Bank,
including with respect to Foreign Currency Letters of Credit, and in each such
case the term Issuing Bank shall include any such Affiliate with respect to
Letters of Credit issued by such Affiliate. In the event that there is more
than one Issuing Bank at any time, references herein and in the other Loan
Documents to the Issuing Bank shall be deemed to refer to the Issuing Bank in
respect of the applicable Letter of Credit or to all Issuing Banks, as the
context requires.
JPMCB
means JPMorgan Chase Bank, N.A.
Judgment
Currency has the meaning set forth in Section 10.14.
Judgment
Currency Conversion Date has the meaning set forth in Section 10.14.
LC
Disbursement means a payment made by the Issuing Bank pursuant to a Letter
of Credit.
LC
Exposure means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by
or on behalf of the Parent Borrower or the Foreign Subsidiary Borrowers, as the
case may be, at such time. The LC Exposure of any Lender at any time shall be
the sum of its Revolving Applicable Percentage of the total Revolving LC
Exposure at such time plus its Tranche B-1 Applicable Percentage of the total
Tranche B-1 LC Exposure at such time.
LC
Reserve Account has the meaning set forth in Section 9.02(a).
Lender
Affiliate means, (a) with respect to any Lender, (i) an
Affiliate of such Lender or (ii) any entity (whether a corporation,
partnership, trust or otherwise) that is engaged in making, purchasing, holding
or otherwise investing in bank loans and similar extensions of credit in the
ordinary course of its business and is administered or managed by a Lender or
an Affiliate of such Lender and (b) with respect to any Lender that is a
fund that invests in bank loans and similar extensions of credit, any other fund
that invests in bank loans and similar extensions of credit and is managed by
the same investment advisor as such Lender or by an Affiliate of such
investment advisor.
Lenders
means the Persons listed on Schedule 2.01 and any other Person that shall
have become a party hereto pursuant to an Assignment and Acceptance or an
Incremental Term Loan Activation Notice, as the case may be, other than any
such
21
Person
that ceases to be a party hereto pursuant to an Assignment and Acceptance.
Unless the context otherwise requires, the term Lenders includes the
Swingline Lender.
Letter
of Credit means any letter of credit issued pursuant to this Agreement.
Leverage
Ratio means, on any date, the ratio of (a) Total Indebtedness as of
such date to (b) Consolidated EBITDA for the period of four consecutive
fiscal quarters of Holdings ended on such date (or, if such date is not the
last day of a fiscal quarter, ended on the last day of the fiscal quarter of Holdings
most recently ended prior to such date for which financial statements are
available),
LIBO
Rate means, with respect to any Eurocurrency Borrowing (other than such
Borrowings denominated in a Foreign Currency) for any Interest Period, the rate
appearing on Page 3750 of the Dow Jones Market Service (or on any successor or
substitute page of such Service, or any successor to or substitute for such
Service, providing rate quotations comparable to those currently provided on
such page of such Service, as determined by the Administrative Agent from time
to time for purposes of providing quotations of interest rates applicable to
dollar deposits in the London interbank market) at approximately
11:00 a.m., London time, two Business Days prior to the commencement of
such Interest Period, as the rate for dollar deposits with a maturity
comparable to such Interest Period. With respect to Eurocurrency Borrowings
denominated in a Foreign Currency, the LIBO Rate for any Interest Period shall
be determined by the Administrative Agent at approximately 11:00 a.m.,
London time, on the Quotation Day for such Interest Period by reference to the
British Bankers Association Interest Settlement Rates for deposits in the
currency of such Borrowing (as reflected on the applicable Telerate screen) for
a period equal to such Interest Period. In the event that such rate is not
available at such time for any reason, then the LIBO Rate with respect
to such Eurocurrency Borrowing for such Interest Period shall be the rate at
which deposits in the applicable currency for the Dollar Equivalent of
$5,000,000 and for a maturity comparable to such Interest Period are offered by
the principal London office of the Administrative Agent in immediately
available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of
such Interest Period.
Lien
means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of
such asset, (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset and (c) in the case of securities, any purchase
option, call or similar right of a third party with respect to such securities.
Loan
Documents means this Agreement and the Security Documents.
Loan
Parties means Holdings, the Parent Borrower, the Subsidiary Term
Borrowers, the Foreign Subsidiary Borrowers and the other Subsidiary Loan
Parties.
22
Loans
means the loans made by the Lenders to the Parent Borrower, the Subsidiary Term
Borrowers and the Foreign Subsidiary Borrowers pursuant to this Agreement.
Long-Term
Indebtedness means any Indebtedness that, in accordance with GAAP,
constitutes (or, when incurred, constituted) a long-term liability, including
the current portion of any Long-Term Indebtedness.
Mandatory
Costs Rate has the meaning set forth in Section 2.20.
Margin
Stock shall have the meaning assigned to such term in Regulation U.
Material
Adverse Effect means a material adverse effect on (a) the business,
operations, properties, assets, financial condition, or material agreements of
Holdings, the Parent Borrower and the Subsidiaries (including the Receivables
Subsidiary), taken as a whole (it being understood that any effect on the
business, operations, properties, assets, financial condition, or material
agreements of Holdings, the Parent Borrower and the Subsidiaries (including the
Receivables Subsidiary) resulting from the Asset Dropdown will not constitute a
material adverse effect for purposes of this clause (a)), (b) the
ability of any Loan Party in any material respect to perform any of its
obligations under any Loan Document or (c) the rights of or benefits
available to the Lenders under any Loan Document.
Material
Agreements means (a) any agreements or instruments relating to
Material Indebtedness and (b) the Heartland Management Agreement.
Material
Indebtedness means (a) Indebtedness in respect of the Existing
Subordinated Notes, the Permitted Senior Notes, the Permitted Subordinated
Notes and the Permitted Acquisition Subordinated Notes, (b) obligations in
respect of the Permitted Receivables Financing and (c) any other
Indebtedness (other than the Loans and Letters of Credit), or obligations in
respect of one or more Hedging Agreements, of any one or more of Holdings, the
Parent Borrower and its Subsidiaries evidencing an aggregate outstanding
principal amount exceeding $15,000,000. For purposes of determining Material
Indebtedness, the principal amount of the obligations of Holdings, the Parent
Borrower or any Subsidiary in respect of any Hedging Agreement at any time
shall be the maximum aggregate amount (giving effect to any netting agreements)
that Holdings, the Parent Borrower or such Subsidiary would be required to pay
if such Hedging Agreement were terminated at such time.
Moodys
means Moodys Investors Service, Inc.
Mortgage
means a mortgage, deed of trust, assignment of leases and rents, leasehold
mortgage or other security document granting a Lien on any Mortgaged Property
to secure the Obligations. Each Mortgage shall be substantially in the form of
Exhibit G to the Original Credit Agreement with such changes as are
necessary under applicable local law.
23
Mortgaged
Property means, initially, each parcel of real property and the
improvements thereto owned by a Loan Party and identified on
Schedule 1.01(a), and includes each other parcel of real property and
improvements thereto with respect to which a Mortgage is granted pursuant to
Section 5.12 or 5.13.
Multiemployer
Plan means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
Net
Proceeds means, with respect to any event (a) the cash proceeds
received in respect of such event including (i) any cash received in
respect of any noncash proceeds, but only as and when received, (ii) in
the case of a casualty, insurance proceeds in excess of $1,000,000 and
(iii) in the case of a condemnation or similar event, condemnation awards
and similar payments, net of (b) the sum of (i) all reasonable fees
and out-of-pocket expenses paid by Holdings, the Parent Borrower and the
Subsidiaries to third parties (other than Affiliates) in connection with such
event, (ii) in the case of a sale, transfer or other disposition of an asset
(including pursuant to a sale and leaseback transaction or a casualty or a
condemnation or similar proceeding), the amount of all payments required to be
made by Holdings, the Parent Borrower and the Subsidiaries as a result of such
event to repay Indebtedness (other than Loans) secured by such asset or
otherwise subject to mandatory prepayment as a result of such event, and
(iii) the amount of all Taxes paid (or reasonably estimated to be payable)
by Holdings, the Parent Borrower and the Subsidiaries, and the amount of any
reserves established by Holdings, the Parent Borrower and the Subsidiaries to
fund contingent liabilities reasonably estimated to be payable, in each case
during the 24-month period immediately following such event and that are
directly attributable to such event (as determined reasonably and in good faith
by the chief financial officer of Holdings or the Parent Borrower) to the
extent such liabilities are actually paid within such applicable time periods.
Notwithstanding anything to the contrary set forth above, the proceeds of any
sale, transfer or other disposition of receivables (or any interest therein)
pursuant to any Permitted Receivables Financing shall not be deemed to
constitute Net Proceeds.
Net
Working Capital means, at any date, (a) the consolidated current
assets of Holdings, the Parent Borrower and its consolidated Subsidiaries
(including the Receivables Subsidiary) as of such date (excluding cash and
Permitted Investments) minus (b) the consolidated current liabilities of
Holdings, the Parent Borrower and its consolidated Subsidiaries (including the
Receivables Subsidiary) as of such date (excluding current liabilities in
respect of Indebtedness). Net Working Capital at any date may be a positive or
negative number. Net Working Capital increases when it becomes more positive or
less negative and decreases when it becomes less positive or more negative.
Non-Consenting
Lender has the meaning assigned to such term in Section 10.02(c).
Obligations
has the meaning assigned to such term in the Security Agreement.
24
Original
Credit Agreement means the Credit Agreement dated as of June 6, 2002,
as amended and restated June 6, 2003 (and as further amended as of
December 17, 2003, December 21, 2004, September 29, 2005 and
December 20, 2005) by and among Holdings, the Parent Borrower, the
Administrative Agent and the other parties thereto.
Original
Effective Date means June 6, 2002.
Other
Taxes means any and all present or future recording, stamp, documentary,
excise, transfer, sales, property or similar taxes, charges or levies imposed
by any Governmental Authority arising from any payment made under any Loan
Document or from the execution, delivery or enforcement of, or otherwise with
respect to, any Loan Document, other than Excluded Taxes.
Parent
Borrower means TriMas Company LLC, a Delaware limited liability company.
PBGC
means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.
Perfection
Certificate means a certificate in the form of Annex I to the
Security Agreement or any other form approved by the Collateral Agent.
Permitted
Acquisition means any acquisition, whether by purchase, merger,
consolidation or otherwise, by the Parent Borrower or a Subsidiary of all or
substantially all the assets of, or all the Equity Interests in, a Person or a
division, line of business or other business unit of a Person so long as
(a) such acquisition shall not have been preceded by a tender offer that
has not been approved or otherwise recommended by the board of directors of
such Person, (b) such assets are to be used in, or such Person so acquired
is engaged in, as the case may be, a business of the type conducted by the
Parent Borrower and its Subsidiaries on the date of execution of this Agreement
or in a business reasonably related thereto, (c) such acquisition shall be
financed with proceeds from (i) Revolving Loans (subject to Section 6.01(a)(i)),
Incremental Term Loans, Permitted Acquisition Subordinated Notes, Acquisition
Lease Financings, Permitted Receivables Financings (subject to
Section 6.01(a)(ii)) and/or Qualified Holdings Preferred Stock issued and
outstanding pursuant to clause (b) of the definition of Qualified Holdings
Preferred Stock, (ii) the issuance of Equity Interests by Holdings,
(iii) Excess Cash Flow not required to be used to prepay Term Loans
pursuant to Section 2.11(e) or (iv) any combination thereof and (d) immediately
after giving effect thereto, (i) no Default has occurred and is continuing
or would result therefrom, (ii) all transactions related thereto are
consummated in all material respects in accordance with applicable laws,
(iii) all the Equity Interests (other than Assumed Preferred Stock) of
each Subsidiary formed for the purpose of or resulting from such acquisition
shall be owned directly by the Parent Borrower or a Subsidiary and all actions
required to be taken under Sections 5.12 and 5.13 have been taken, (iv)
Holdings, the Parent Borrower and its Subsidiaries are in compliance, on a pro
forma basis after giving effect to such acquisition, with the covenants
contained in Section 6.13 recomputed as at the last day of the most
recently
25
ended
fiscal quarter of Holdings for which financial statements are available, as if
such acquisition (and any related incurrence or repayment of Indebtedness) had
occurred on the first day of each relevant period for testing such compliance (provided
that any acquisition that occurs prior to the first testing period under such
Sections shall be deemed to have occurred during such first testing period),
(v) any Indebtedness or any preferred stock that is incurred, acquired or
assumed in connection with such acquisition shall be in compliance with
Section 6.01 and (vi) the Parent Borrower has delivered to the
Administrative Agent an officers certificate to the effect set forth in
clauses (a), (b), (c) and (d) (i) through (v) above,
together with all relevant financial information for the Person or assets to be
acquired.
Permitted
Acquisition Subordinated Notes means Indebtedness of Holdings or the
Parent Borrower in an aggregate principal amount not to exceed at any time the
sum of (x) $250,000,000 and (y) the amount of any underwriting or
placement discounts, fees or commissions and other financing expenses incurred
to yield net proceeds of $250,000,000, less the liquidation value of any
applicable Qualified Holdings Preferred Stock issued and outstanding pursuant
to clause (b) of the definition of Qualified Holdings Preferred Stock, provided
that (a) such Indebtedness and any related Guarantees shall not be secured by
any Lien, (b) such Indebtedness shall be subject to subordination and
intercreditor provisions that are no more favorable to the holders or obligees
thereof than the subordination or intercreditor provisions of the Existing
Subordinated Notes in any material respect, (c) such Indebtedness shall not
have any principal payments due prior to the date that is 12 months after the
later of the Tranche B Maturity Date and the Incremental Maturity Date, whether
at maturity or otherwise, except upon the occurrence of a change of control or
similar event (including asset sales), in each case so long as the provisions
relating to change of control or similar events (including asset sales)
included in the governing instrument of such Indebtedness provide that the
provisions of this Agreement must be satisfied prior to the satisfaction of
such provisions of such Indebtedness and (d) such Indebtedness bears interest
at a fixed rate, which rate shall be, in the good faith judgment of the Parent
Borrowers board of directors, consistent with the market at the time of
issuance for similar Indebtedness for comparable issuers or borrowers.
Permitted
Capital Expenditure Amount means with respect to any fiscal year, the sum
of (i) the Base Amount for such fiscal year as specified below,
(ii) 10% of Acquired Assets (the Acquired Assets Amount) and
(iii) for each fiscal year after any Acquired Assets Amount is initially
included in clause (ii) above, 5% of such Acquired Assets Amount,
calculated on a cumulative basis.
Fiscal Year Ended
|
|
Base Amount
|
|
2006
|
|
|
$
|
40,000,000
|
|
2007
|
|
|
$
|
40,000,000
|
|
2008
|
|
|
$
|
44,000,000
|
|
2009
|
|
|
$
|
48,400,000
|
|
2010
|
|
|
$
|
53,240,000
|
|
2011
|
|
|
$
|
58,564,000
|
|
2012
|
|
|
$
|
64,420,400
|
|
2013
|
|
|
$
|
70,862,440
|
|
26
Permitted
Encumbrances means:
(a)
Liens imposed by law for taxes that are not yet due or are being contested in
compliance with Section 5.05;
(b)
carriers, warehousemens, mechanics, materialmens, repairmens and other
like Liens imposed by law, arising in the ordinary course of business and
securing obligations that are not overdue by more than 30 days or are
being contested in compliance with Section 5.05;
(c)
pledges and deposits made in the ordinary course of business in compliance with
workers compensation, unemployment insurance and other social security laws or
regulations;
(d)
deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations
of a like nature, in each case in the ordinary course of business and Liens in
respect of the proceeds from the issuance of Permitted Acquisition Subordinated
Notes held by a trustee or an agent prior to the consummation of a Permitted
Acquisition;
(e)
judgment Liens in respect of judgments that do not constitute an Event of
Default under clause (k) of Article VII;
(f)
easements, zoning restrictions, rights-of-way and similar encumbrances on real
property imposed by law or arising in the ordinary course of business that do
not secure any monetary obligations and do not materially detract from the
value of the affected property or interfere with the ordinary conduct of
business of Holdings, the Parent Borrower or any Subsidiary;
(g)
ground leases in respect of real property on which facilities owned or leased
by Holdings, the Parent Borrower or any of the Subsidiaries are located, other
than any Mortgaged Property;
(h)
Liens in favor or customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods in
the ordinary course of business;
27
(i)
Leases or subleases granted to other Persons and not interfering in any
material respect with the business of Holdings, the Parent Borrower and the
Subsidiaries, taken as a whole;
(j)
bankers liens, rights of set-off or similar rights, in each case arising by
operation of law; and
(k)
Liens in favor of a landlord on leasehold improvements in leased premises;
provided that the term Permitted Encumbrances shall
not include any Lien securing Indebtedness.
Permitted
Investments means:
(a)
direct obligations of, or obligations the principal of and interest on which
are unconditionally guaranteed by, the United States of America (or by any
agency thereof to the extent such obligations are backed by the full faith and
credit of the United States of America), in each case maturing within one
year from the date of acquisition thereof;
(b)
investments in commercial paper maturing within one year from the date of acquisition
thereof and having, at such date of acquisition, the highest credit rating
obtainable from S&P or from Moodys;
(c)
investments in certificates of deposit, bankers acceptances and time deposits
maturing within one year from the date of acquisition thereof issued or
guaranteed by or placed with, and money market deposit accounts issued or
offered by, any domestic office of any commercial bank organized under the laws
of the United States of America or any State thereof which has a combined
capital and surplus and undivided profits of not less than $500,000,000;
(d)
fully collateralized repurchase agreements with a term of not more than
30 days for securities described in clause (a) above and entered into
with a financial institution satisfying the criteria described in
clause (c) above;
(e)
securities issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality thereof
having maturities of not more than six months from the date of acquisition
thereof and, at the time of acquisition, having the highest credit rating
obtainable from S&P or from Moodys;
(f)
securities issued by any foreign government or any political subdivision of any
foreign government or any public instrumentality thereof having maturities of
not more than six months from the date of acquisition thereof and, at the time
of acquisition, having the highest credit rating obtainable from S&P or
from Moodys;
28
(g)
investments of the quality as those identified on Schedule 6.04 as
Qualified Foreign Investments made in the ordinary course of business;
(h)
cash; and
(i)
investments in funds that invest solely in one or more types of securities
described in clauses (a), (e) and (f) above.
Permitted
Joint Venture and Foreign Subsidiary Investments means investments by
Holdings, the Parent Borrower or any Subsidiary in the Equity Interests of (a)
any Person that is not a Subsidiary or (b) any Person that is a Foreign Subsidiary,
in an aggregate amount not to exceed $50,000,000; provided that such
amount shall increase to (i) $75,000,000 upon completion of the IPO Repayment
Event and (ii) $100,000,000 upon completion of the IPO Repayment Event and
after the Leverage Ratio is less than 3.75 to 1.00.
Permitted
Receivables Documents means the Receivables Purchase Agreement, the
Receivables Transfer Agreement and all other documents and agreements relating
to the Permitted Receivables Financing.
Permitted
Receivables Financing means (a) the sale by the Parent Borrower and
certain Subsidiaries (other than Foreign Subsidiaries) of accounts receivable
to the Receivables Subsidiary pursuant to the Receivables Purchase Agreement
and (b) the sale of such accounts receivable (or participations therein)
by the Receivables Subsidiary to certain purchasers pursuant to the Receivables
Transfer Agreement.
Permitted
Senior Notes means Indebtedness of Holdings or the Parent Borrower, provided
that (a) such Indebtedness and any related Guarantees shall not be secured
by any Lien, (b) the net proceeds from such Indebtedness shall be used to
prepay Term Loans pursuant to Section 2.11(d), except that up to $250,000,000
in proceeds from such Indebtedness may instead be used to repay Revolving Loans
pursuant to Section 2.09(a) and reduce the balances in respect of the Permitted
Receivables Financing, in either case, only if, immediately after giving effect
to such repayment, the Senior Leverage Ratio is less than 3.00 to 1.00,
(c) such Indebtedness shall not have any principal payments due prior to
the date that is 12 months after the later of the Tranche B Maturity
Date and the Incremental Maturity Date, whether at maturity or otherwise,
except upon the occurrence of a change of control or similar event (including
asset sales), in each case so long as the provisions relating to change of
control or similar events (including asset sales) included in the governing
instrument of such Indebtedness provide that the provisions of this Agreement
must be satisfied prior to the satisfaction of such provisions of such
Indebtedness and (d) such Indebtedness bears interest at a fixed rate,
which rate shall be, in the good faith judgment of the Parent Borrowers board
of directors, consistent with the market at the time of issuance for similar
Indebtedness for comparable issuers or borrowers.
29
Permitted
Subordinated Notes means Indebtedness of Holdings or the Parent Borrower,
provided that (a) such Indebtedness and any related Guarantees shall not
be secured by any Lien, (b) such Indebtedness shall be subject to
subordination and intercreditor provisions that are no more favorable to the
holders or obligees thereof than the subordination or intercreditor provisions
of the Existing Subordinated Notes in any material respect, (c) the Net
Proceeds from such Indebtedness shall be used to prepay Term Loans pursuant to
Section 2.11(d), except that up to $250,000,000 in proceeds from such
Indebtedness may instead be used to repay Revolving Loans pursuant to Section
2.09(a) and reduce the balances in respect of the Permitted Receivables
Financing, only if, immediately after giving effect to such repayment, the
Senior Leverage Ratio is less than 3.00 to 1.00, (d) such Indebtedness
shall not have any principal payments due prior to the date that is
12 months after the later of the Tranche B Maturity Date and the
Incremental Maturity Date, whether at maturity or otherwise, except upon the
occurrence of a change of control or similar event (including asset sales), in
each case so long as the provisions relating to change of control or similar
events (including asset sales) included in the governing instrument of such
Indebtedness provide that the provisions of this Agreement must be satisfied
prior to the satisfaction of such provisions of such Indebtedness and
(e) such Indebtedness bears interest at a fixed rate, which rate shall be,
in the good faith judgment of the Parent Borrowers board of directors,
consistent with the market at the time of issuance for similar Indebtedness for
comparable issuers of borrowers.
Person
means any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other
entity.
Plan means any employee pension benefit plan
(other than a Multiemployer Plan) subject to the provisions of Title IV of
ERISA or Section 412 of the Code or Section 302 of ERISA, and in
respect of which the Parent Borrower or any ERISA Affiliate is (or, if such
plan were terminated, would under Section 4069 of ERISA be deemed to be)
an employer as defined in Section 3(5) of ERISA.
Pledge
Agreement means the Pledge Agreement, substantially in the form of
Exhibit H to the Original Credit Agreement, among Holdings, the Parent
Borrower, the Subsidiary Loan Parties party thereto and the Collateral Agent
for the benefit of the Secured Parties.
Preferred
Dividends means any cash dividends of Holdings permitted hereunder paid
with respect to preferred stock of Holdings.
Prepayment
Event means:
(a)
any sale, transfer or other disposition (including pursuant to a sale and
leaseback transaction) of any property or asset of Holdings, the Parent
Borrower or any Subsidiary, other than dispositions described in clauses (a),
(b), (c), (d), (f), (g) and (j) (but only to the extent the sales,
transfers or other dispositions under clause (j) do not exceed $25,000,000
thereof) of Section 6.05 and Section 6.06(a),
30
provided that Acquisition Lease Financings shall not
constitute a Prepayment Event; or
(b)
any casualty or other insured damage to, or any taking under power of eminent
domain or by condemnation or similar proceeding of, any property or asset of
Holdings, the Parent Borrower or any Subsidiary having a book value or fair
market value in excess of $1,000,000, but only to the extent that the Net
Proceeds therefrom have not been applied to repair, restore or replace such
property or asset within 365 days after such event; or
(c)
the incurrence by Holdings, the Parent Borrower or any Subsidiary of any
Indebtedness, other than Indebtedness permitted by Section 6.01(a) (except for
Permitted Senior Notes (except to the extent proceeds therefrom are permitted
to be used for other purposes pursuant to clause (b) of the definition thereof)
and Permitted Subordinated Notes (except to the extent proceeds therefrom are
permitted to be used for other purposes pursuant to clause (c) of the
definition thereof)).
Prime
Rate means the rate of interest per annum publicly announced from time to
time by JPMCB as its prime rate in effect at its principal office in
New York City; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being effective.
Purchase
Agreement means the Stock Purchase Agreement dated as of May 17,
2002, among Heartland, Holdings and Seller as amended, supplemented or
otherwise modified from time to time.
Qualified
Holdings Preferred Stock means any preferred capital stock or preferred
equity interest of Holdings (a)(i) that does not provide for any cash
dividend payments or other cash distributions in respect thereof prior to the
Tranche B Maturity Date and (ii) that by its terms (or by the terms
of any security into which it is convertible or for which it is exchangeable or
exercisable) or upon the happening of any event does not (A)(x) mature or
become mandatorily redeemable pursuant to a sinking fund obligation or otherwise;
(y) become convertible or exchangeable at the option of the holder thereof
for Indebtedness or preferred stock that is not Qualified Holdings Preferred
Stock; or (z) become redeemable at the option of the holder thereof (other
than as a result of a change of control event), in whole or in part, in each
case on or prior to the first anniversary of the Tranche B Maturity Date
and (B) provide holders thereunder with any rights upon the occurrence of
a change of control event prior to the repayment of the Obligations under the
Loan Documents, (b) with respect to which Holdings has delivered a notice
to the Administrative Agent that it has issued preferred stock or preferred
equity interest in lieu of incurring (x) Permitted Acquisition Subordination Notes
or (y) Indebtedness permitted by clause (xiii) under Section 6.01(a),
with such notice specifying to which of such Indebtedness such preferred stock
or preferred equity interest applies; provided that (i) the
aggregate liquidation value of all such preferred stock or preferred equity
interest issued pursuant to this clause (b) shall not exceed at any time
the dollar
31
limitation
related to the applicable Indebtedness hereunder, less the aggregate principal
amount of such Indebtedness then outstanding and (ii) the terms of such
preferred stock or preferred equity interests (x) shall provide that upon
a default thereof, the remedies of the holders thereof shall be limited to the
right to additional representation on the board of directors of Holdings and
(y) shall otherwise be no less favorable to the Lenders, in the aggregate,
than the terms of the applicable Indebtedness or (c) having an aggregate
initial liquidation value not to exceed $25,000,000, provided that the
terms of such preferred stock or preferred equity interests shall provide that
upon a default thereof, the remedies of the holders thereof shall be limited to
the right to additional representation on the board of directors of Holdings.
Quotation
Day means, with respect to any Eurocurrency Borrowing denominated in a
Foreign Currency and any Interest Period, the day on which it is market
practice in the relevant interbank market for prime banks to give quotations
for deposits in the currency of such Borrowing for delivery on the first day of
such Interest Period. If such quotations would normally be given by prime banks
on more than one day, the Quotation Day will be the last of such days.
Reaffirmation
Agreement means the Reaffirmation Agreement dated as of the date hereof,
among the Parent Borrower, Holdings, the Subsidiary Loan Parties and JPMCB, as
Administrative Agent and Collateral Agent.
Receivables
Purchase Agreement means (a) the Receivables Purchase Agreement dated
as of June 6, 2002 among the Receivables Subsidiary, Holdings, the Parent
Borrower and the Subsidiaries party thereto, related to the Permitted
Receivables Financing, as may be amended, supplemented or otherwise modified to
the extent permitted by Section 6.11 and (b) any agreement replacing
such Receivables Purchase Agreement, provided that such replacing
agreement contains terms that are substantially similar to such Receivables
Purchase Agreement and that are otherwise no more adverse to the Lenders than
the applicable terms of such Receivables Purchase Agreement.
Receivables
Subsidiary means TSPC, Inc., a Nevada corporation.
Receivables
Transfer Agreement means (a) the Receivables Transfer Agreement dated
as of the Original Effective Date, among the Receivables Subsidiary, Holdings
and the purchasers party thereto, relating to the Permitted Receivables
Financing, as may be amended, supplemented or otherwise modified to the extent
permitted by Section 6.11 and (b) any agreement replacing such
Receivables Transfer Agreement, provided that such replacing agreement
contains terms that are substantially similar to such Receivables Transfer
Agreement and that are otherwise no more adverse to the Lenders than the
applicable terms of such Receivables Transfer Agreement.
Register
has the meaning set forth in Section 10.04.
Regulation
U shall mean Regulation U of the Board as from time to time in effect
and all official rulings and interpretations thereunder or thereof.
32
Regulation
X shall mean Regulation X of the Board as from time to time in effect and
all official rulings and interpretations thereunder or thereof.
Related
Parties means, with respect to any specified Person, such Persons
Affiliates and the respective directors, officers, employees, agents, trustees
and advisors of such Person and such Persons Affiliates.
Release
means any release, spill, emission, leaking, dumping, injection, pouring,
deposit, disposal, discharge, dispersal, leaching or migration into or through
the environment (including ambient air, surface water, groundwater, land
surface or subsurface strata) or within any building, structure, facility or
fixture.
Replacement
Subordinated Notes means Indebtedness of Holdings or the Parent Borrower
of the type described in clauses (a), (b), (d) and (e) of the definition
of Permitted Subordinated Notes.
Required
Lenders means, at any time, Lenders having Revolving Exposures, Term
Loans, Tranche B-1 Commitments and unused Commitments representing more
than 50% of the sum of the total Revolving Exposures, outstanding Term Loans,
Tranche B-1 Total Commitment and unused Commitments at such time.
Restatement
Effective Date means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with
Section 10.02), which the parties hereto agree is August 2, 2006.
Restricted
Indebtedness means Indebtedness of Holdings, the Parent Borrower or any
Subsidiary, the payment, prepayment, redemption, repurchase or defeasance of
which is restricted under Section 6.08(b).
Restricted
Payment means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests in Holdings,
the Parent Borrower or any Subsidiary (including the Receivables Subsidiary),
or any payment (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancelation or termination of any Equity Interests in
Holdings, the Parent Borrower or any Subsidiary (including the Receivables
Subsidiary) or any option, warrant or other right to acquire any such Equity
Interests in Holdings, the Parent Borrower or any Subsidiary (including the
Receivables Subsidiary).
Revolving
Applicable Percentage means, with respect to any Revolving Lender, the
percentage of the total Revolving Commitments represented by such Lenders
Revolving Commitment. If the Revolving Commitments have terminated or expired,
the Revolving Applicable Percentages shall be determined based upon the
Revolving Commitments most recently in effect, giving effect to any
assignments.
33
Revolving
Availability Period means the period from and including the Restatement
Effective Date to but excluding the earlier of the Commitment Termination Date
and the date of termination of the Revolving Commitments.
Revolving
Commitment means, with respect to each Lender, the commitment, if any, of
such Lender to make Revolving Loans, including Foreign Currency Loans, and to
acquire participations in Letters of Credit, including Foreign Currency Letters
of Credit, and Swingline Loans hereunder, expressed as an amount representing
the maximum aggregate amount of such Lenders Revolving Exposure, including
Foreign Currency Exposure, hereunder, as such commitment may be
(a) reduced from time to time pursuant to Section 2.08 and
(b) reduced or increased from time to time pursuant to assignments by or
to such Lender pursuant to Section 10.04. The initial amount of each Lenders
Revolving Commitment is set forth on Schedule 2.01, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Revolving
Commitment, as applicable. The initial aggregate amount of the Lenders
Revolving Commitments is $90,000,000.
Revolving
LC Disbursement means a payment made by any Issuing Bank pursuant to a
Revolving Letter of Credit.
Revolving
Exposure means, with respect to any Lender at any time, the sum of the
outstanding principal amount of such Lenders Revolving Loans and its LC
Exposure and Swingline Exposure at such time.
Revolving
LC Exposure means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Revolving Letters of Credit at such time plus (b) the
aggregate amount of all Revolving LC Disbursements that have not yet been
reimbursed by or on behalf of the Parent Borrower at such time (by the
borrowing of Loans or otherwise). The Revolving LC Exposure of any Lender at
any time shall be its Revolving Applicable Percentage of the total Revolving LC
Exposure at such time.
Revolving
Lender means a Lender with a Revolving Commitment or, if the Revolving
Commitments have terminated or expired, a Lender with Revolving Exposure.
Revolving
Letter of Credit means, at any time, each Letter of Credit outstanding at
such time designated as a Revolving Letter of Credit pursuant to Section
2.05(a).
Revolving
Loan means a Loan made pursuant to Section 2.01(a)(i)(B).
S&P
means Standard & Poors Rating Services, a division of The McGraw-Hill
Companies, Inc., or any successor thereto.
Secured
Parties has the meaning assigned to such term in the Security Agreement.
34
Security
Agreement means the Security Agreement, substantially in the form of
Exhibit I to the Original Credit Agreement, among Holdings, the Parent
Borrower, the Subsidiary Loan Parties party thereto and the Collateral Agent
for the benefit of the Secured Parties.
Security
Documents means the Security Agreement, the Pledge Agreement, the
Mortgages, the Guarantee Agreement, the Indemnity, Subrogation and Contribution
Agreement, each Foreign Security Document entered into pursuant to
Section 2.21 and Section 4.03 and each other security agreement or
other instrument or document executed and delivered pursuant to Section 5.12 or
5.13 to secure any of the Obligations.
Seller
means Metaldyne Corporation, a Delaware corporation.
Senior
Indebtedness means Total Indebtedness less Subordinated Debt.
Senior
Leverage Ratio means, on any date, the ratio of (a) Senior
Indebtedness as of such date to (b) Consolidated EBITDA for the period of
four consecutive fiscal quarters of the Parent Borrower ended on such date (or,
if such date is not the last day of a fiscal quarter, ended on the last day of
the fiscal quarter of the Parent Borrower most recently ended prior to such
date for which financial statements are available).
Shareholder
Agreement means the Shareholders Agreement dated as of the Original
Effective Date, among Holdings, Heartland and the other parties thereto, as
amended from time to time.
Specified
Obligations means Obligations consisting of the principal and interest on
Loans, reimbursement obligations in respect of LC Disbursements and fees.
Statutory
Reserve Rate means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus
the aggregate of the maximum reserve percentages (including any marginal,
special, emergency or supplemental reserves) expressed as a decimal established
by the Board (or in the case of Foreign Currency Borrowings, the applicable
Governmental Authority) to which the Administrative Agent is subject with
respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred
to as Eurocurrency Liabilities in Regulation D of the Board). Such
reserve percentages shall include those imposed pursuant to such
Regulation D. Eurocurrency Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under any applicable law, rule or regulation.
The Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
Sterling
or £ means the lawful money of the United Kingdom.
35
Sub-Account
has the meaning set forth in Section 2.01(a)(ii)(A).
Subordinated
Debt means the Existing Subordinated Notes, the Permitted Subordinated
Notes, the Permitted Acquisition Subordinated Notes and any other subordinated
Indebtedness of Holdings, the Parent Borrower or any Subsidiary.
Subordinated
Notes Documents means the indenture under which any of the Existing
Subordinated Notes, the Permitted Subordinated Notes and the Permitted
Acquisition Subordinated Notes are issued and all other instruments, agreements
and other documents evidencing or governing such Notes or providing for any
Guarantee or other right in respect thereof.
subsidiary
means, with respect to any Person (the parent) at any date, any
corporation, limited liability company, partnership, association or other
entity the accounts of which would be consolidated with those of the parent in
the parents consolidated financial statements if such financial statements
were prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing
more than 50% of the ordinary voting power or, in the case of a partnership,
more than 50% of the general partnership interests are, as of such date, owned,
controlled or held, or (b) that is, as of such date, otherwise Controlled,
by the parent or one or more subsidiaries of the parent or by the parent and
one or more subsidiaries of the parent.
Subsidiary
means any subsidiary of the Parent Borrower or Holdings, as the context
requires, including the Subsidiary Term Borrowers and the Foreign Subsidiary
Borrowers. Unless expressly otherwise provided, the term Subsidiary shall not
include the Receivables Subsidiary.
Subsidiary
Loan Party means (a) any Subsidiary that is not a Foreign Subsidiary
(other than the Foreign Subsidiary Borrowers), (b) any Subsidiary Term Borrower
and (c) any Foreign Subsidiary Borrower and any other Foreign Subsidiary that
executes a guarantee agreement pursuant to paragraph (c) of the Collateral
and Guarantee Requirement.
Subsidiary
Term Borrowers means each direct or indirect wholly owned domestic
subsidiary of the Parent Borrower listed on the signature page hereof.
Swingline
Exposure means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Lender
at any time shall be its Revolving Applicable Percentage of the total Swingline
Exposure at such time.
Swingline
Lender means either JPMCB, in its capacity as lender of Swingline Loans
hereunder, or Comerica Bank, in its capacity as lender of Swingline Loans
hereunder, as the case may be. References herein and in the other Loan
Documents to the Swingline Lender shall be deemed to refer to the Swingline
Lender in
36
respect
of the applicable Swingline Loan or to all Swingline Lenders, as the context
requires.
Swingline
Loan means a Loan made pursuant to Section 2.04.
Synthetic
Purchase Agreement means any swap, derivative or other agreement or
combination of agreements pursuant to which Holdings, the Parent Borrower or a
Subsidiary is or may become obligated to make (i) any payment (other than
in the form of Equity Interests of Holdings) in connection with a purchase by a
third party from a Person other than Holdings, the Parent Borrower or a
Subsidiary of any Equity Interest or Restricted Indebtedness or (ii) any
payment (other than on account of a permitted purchase by it of any Equity
Interest or any Restricted Indebtedness) the amount of which is determined by
reference to the price or value at any time of any Equity Interest or
Restricted Indebtedness; provided that (i) the other obligations under
the Purchase Agreement or (ii) phantom stock or similar plans providing for
payments only to current or former directors, officers, consultants, advisors
or employees of Holdings, the Parent Borrower or the Subsidiaries (or to their
heirs or estates) shall not be deemed to be a Synthetic Purchase Agreement.
Taxes
means any and all present or future taxes (of any nature whatsoever), levies,
imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
Term
Loan Borrowers means the Parent Borrower and the Subsidiary Term
Borrowers.
Term
Loans means Tranche B Term Loans and Incremental Term Loans.
Total
Indebtedness means, as of any date, the sum of, without duplication,
(a) the aggregate principal amount of Indebtedness of Holdings, the Parent
Borrower and the Subsidiaries outstanding as of such date, in the amount that
would be reflected on a balance sheet prepared as of such date on a
consolidated basis in accordance with GAAP, plus (b) the aggregate Net
Investment as defined in Annex A to the Receivables Transfer Agreement,
plus (c) the aggregate principal amount of Indebtedness of Holdings, the
Parent Borrower and the Subsidiaries outstanding as of such date that is not
required to be reflected on a balance sheet in accordance with GAAP, determined
on a consolidated basis; provided that, for purposes of clause (c)
above, the term Indebtedness shall not include (i) contingent obligations of
Holdings, the Parent Borrower or any Subsidiary as an account party in respect
of any letter of credit or letter of guaranty unless, without duplication, such
letter of credit or letter of guaranty supports an obligation that constitutes
Indebtedness and (ii) Indebtedness described in Section 6.01(a)(xii).
Tranche
B Commitment means, with respect to each Lender, the commitment, if any,
of such Lender to make a Tranche B Term Loan hereunder on the Restatement
Effective Date, expressed as an amount representing the maximum principal
37
amount
of the Tranche B Term Loan to be made by such Lender hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.08
and (b) reduced or increased from time to time pursuant to assignments by
or to such Lender pursuant to Section 10.04. The initial amount of each
Lenders Tranche B Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Tranche B Commitment, as applicable. The aggregate amount of the Lenders
Tranche B Commitments is $260,000,000.
Tranche
B Lender means a Lender with a Tranche B Commitment or an outstanding
Tranche B Term Loan.
Tranche
B Maturity Date means August 2, 2013, or if such day is not a Business Day,
the first Business Day thereafter provided that if the Existing
Subordinated Notes are outstanding on February 28, 2012, the Tranche B Maturity
Date will be February 28, 2012.
Tranche
B Term Loan means a Loan made pursuant to Section 2.01(a)(i)(A).
Tranche
B-1 Applicable Percentage means, with respect to any Tranche B-1 Lender,
the percentage of the Tranche B-1 Total Commitment represented by such Lenders
Tranche B-1 Commitment. If the Tranche B-1 Commitments have been reduced to
zero, the Tranche B-1 Applicable Percentages shall be determined based upon the
Tranche B-1 Commitments most recently in effect, giving effect to any
assignments.
Tranche
B-1 Availability Period means the period from and including the
Restatement Effective Date to but excluding the earlier of the Commitment
Termination Date and the date of termination of the Tranche B-1 Commitments.
Tranche
B-1 Commitment means, with respect to each Lender, an amount representing
the maximum permitted aggregate amount of such Lenders Tranche B-1 Credit
Exposure hereunder, as such amount may be (a) reduced from time to time
pursuant to Section 2.08 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 10.04. For the
avoidance of doubt, a Lenders Tranche B-1 Commitment shall be deemed unused
at any time to the extent it exceeds such Lenders Tranche B-1 Credit Exposure
at such time. The initial amount of each Lenders Tranche B-1 Commitment is set
forth on Schedule 2.01 or in the Assignment and Assumption pursuant to which
such Lender shall have assumed its Tranche B-1 Commitment, as applicable. The
initial aggregate amount of the Lenders Tranche B-1 Commitments is
$60,000,000.
Tranche
B-1 Credit Exposure means, with respect to any Lender at any time, the sum
of the outstanding principal amount of such Lenders Tranche B-1 Loans and such
Lenders Tranche B-1 LC Exposure at such time.
Tranche
B-1 LC Disbursement means a payment made by any Issuing Bank pursuant to a
Tranche B-1 Letter of Credit.
38
Tranche
B-1 LC Exposure means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Tranche B-1 Letters of Credit at such time plus (b)
the aggregate amount of all Tranche B-1 LC Disbursements that have not yet been
reimbursed by or on behalf of the Parent Borrower at such time (by the
borrowing of Loans or otherwise). The Tranche B-1 LC Exposure of any Lender at
any time shall be its Tranche B-1 Applicable Percentage of the total Tranche
B-1 LC Exposure at such time.
Tranche
B-1 Lender means a Lender with a Tranche B-1 Commitment or, if the Tranche
B-1 Commitments have been reduced to zero, a Lender with a Tranche B-1 Credit
Exposure.
Tranche
B-1 Letter of Credit means, at any time, each Letter of Credit outstanding
at such time designated as a Tranche B-1 Letter of Credit pursuant to Section
2.05(a).
Tranche
B-1 Loan means a Loan made pursuant to Section 2.02(a)(ii).
Tranche
B-1 Total Commitment means, at any time, the aggregate amount of all the
Tranche B-1 Commitments at such time.
Transactions
means (a) the execution, delivery and performance by each Loan Party of
the Loan Documents to which it is to be a party, the borrowing of Loans, the use
of the proceeds thereof and the issuance of Letters of Credit hereunder and
(b) the payment of the fees and expenses payable in connection with (a)
above.
Type,
when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined
by reference to the Adjusted LIBO Rate or the Alternate Base Rate.
Undrawn/Unreimbursed
Tranche B-1 LC Exposure means, at any time, the sum of (a) the aggregate
undrawn amounts of all outstanding Tranche B-1 Letters of Credit at such time
plus (b) the aggregate amounts of all Tranche B-1 LC Disbursements that have
not yet been (i) reimbursed by or on behalf of the Parent Borrower at such time
(by the borrowing of Loans or otherwise) or (ii) otherwise repaid to the
applicable Issuing Banks by the application of the Deposits pursuant to Section
2.05(e). The Undrawn/Unreimbursed Tranche B-1 LC Exposure of any Lender at any
time shall be its Tranche B-1 Applicable Percentage of the total Undrawn/Unreimbursed
Tranche B-1 LC Exposure at such time.
Withdrawal
Liability means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are
defined in Part I of Subtitle E of Title IV of ERISA.
SECTION
1.02. Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a
Revolving Loan or a Tranche B-1 Loan) or by Type (e.g., a
Eurocurrency Loan) or by Class
39
and Type (e.g., a
Eurocurrency Revolving Loan). Borrowings also may be classified and referred
to by Class (e.g., a Revolving Loan or a Tranche B-1 Loan) or by
Type (e.g., a Eurocurrency Borrowing) or by Class and Type (e.g.,
a Eurocurrency Revolving Loan).
SECTION
1.03. Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words include, includes and including
shall be deemed to be followed by the phrase without limitation. The word
will shall be construed to have the same meaning and effect as the word
shall. Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth
herein), (b) any reference herein to any Person shall be construed to
include such Persons successors and assigns, (c) the words herein,
hereof and hereunder, and words of similar import, shall be construed to
refer to this Agreement in its entirety and not to any particular provision
hereof, (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, this Agreement and (e) the words asset and property
shall be construed to have the same meaning and effect and to refer to any and
all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
SECTION
1.04. Accounting Terms; GAAP. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided that, if
the Parent Borrower notifies the Administrative Agent that the Parent Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the Restatement Effective Date in GAAP or in the application
thereof on the operation of such provision (or if the Administrative Agent
notifies the Parent Borrower that the Required Lenders request an amendment to
any provision hereof for such purpose), regardless of whether any such notice
is given before or after such change in GAAP or in the application thereof,
then such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith.
SECTION
1.05. Exchange Rates. (a) Not later than 1:00 p.m.,
New York City time, on each Calculation Date beginning with the date on
which the initial Foreign Currency Borrowing is made or the initial Foreign Currency
Letter of Credit is issued, the Administrative Agent shall (i) determine
the Exchange Rate as of such Calculation Date with respect to each Foreign
Currency and (ii) give notice thereof to the Revolving Lenders and the
Parent Borrower (on behalf of itself and the Foreign Subsidiary Borrowers). The
Exchange Rates so determined shall become effective on the first Business Day
immediately following the relevant Calculation Date (a Recalculation
40
Date), shall remain effective until the next
succeeding Recalculation Date, and shall for all purposes of this Agreement
(other than Section 9.01, Section 10.14 or any other provision
expressly requiring the use of a current Exchange Rate) be the Exchange Rates
employed in converting any amounts between dollars and Foreign Currencies.
(b)
Not later than 5:00 p.m., New York City time, on each Recalculation
Date and each date on which Revolving Loans denominated in any Foreign Currency
are made, the Administrative Agent shall (i) determine the aggregate
amount of the Dollar Equivalents of (A) the principal amounts of the
Foreign Currency Loans then outstanding (after giving effect to any Foreign
Currency Loans made or repaid on such date), (B) the face value of
outstanding Foreign Currency Letters of Credit and (C) unreimbursed
drawings in respect of Foreign Currency Letters of Credit and (ii) notify
the Revolving Lenders and the Parent Borrower (on behalf of itself and the
Foreign Subsidiary Borrowers) of the results of such determination.
SECTION
1.06. Redenomination of Certain Foreign Currencies. (a) Each
obligation of any party to this Agreement to make a payment denominated in the
national currency unit of any member state of the European Union that adopts the
Euro as its lawful currency after the Restatement Effective Date shall be
redenominated into Euro at the time of such adoption (in accordance with the
EMU Legislation). If, in relation to the currency of any such member state, the
basis of accrual of interest expressed in this Agreement in respect of that
currency shall be inconsistent with any convention or practice in the London
Interbank Market for the basis of accrual of interest in respect of the Euro,
such expressed basis shall be replaced by such convention or practice with
effect from the date on which such member state adopts the Euro as its lawful
currency; provided that if any Foreign Currency Borrowing in the
currency of such member state is outstanding immediately prior to such date,
such replacement shall take effect, with respect to such Foreign Currency
Borrowing, at the end of the then current Interest Period.
(b)
Each provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be
appropriate to reflect the adoption of the Euro by any member state of the
European Union and any relevant market conventions or practices relating to the
Euro.
ARTICLE II
The Credits
SECTION
2.01. Commitments; Deposit Account. (a) (i) Subject to the
terms and conditions set forth herein, each Lender agrees (A) to make a
Tranche B Term Loan to the Parent Borrower and the Subsidiary Term
Borrowers, as the case may be, on the Restatement Effective Date and (B) to
make Revolving Loans to the Parent Borrower and the Foreign Subsidiary
Borrowers, as the case may be, from time to time during the Revolving
Availability Period in an aggregate principal amount that will not result in
such Lenders (x) Revolving Exposure exceeding such Lenders
Revolving Commitment
41
or (y) Foreign Currency
Exposure exceeding such Lenders Foreign Currency Commitment.
(ii)
(A) On or prior to the Restatement Effective Date, the Administrative Agent shall
establish a bank account with JPMCB as the Deposit Account of the
Administrative Agent with the title TriMas 2006 Credit Agreement Deposit
Account. The Administrative Agent shall maintain records enabling it to
determine at any time the amount of the interest of each Tranche B-1 Lender in
the Deposit Account (the interest of each Tranche B-1 Lender in the Deposit
Account, as evidenced by such records, being referred to as such Lenders
Sub-Account). The Administrative Agent shall establish such additional
Sub-Accounts for assignee Tranche B-1 Lenders as shall be required pursuant to
Section 10.04(b). No Person (other than the Administrative Agent) shall have
the right to make any withdrawal from the Deposit Account or to exercise any
other right or power with respect thereto except as expressly provided in
Section 2.01(a)(ii)(C) below or in Section 10.04(b). Without limiting the
generality of the foregoing, each party hereto acknowledges and agrees that the
Deposits are and will at all times be property of the Tranche B-1 Lenders, and
that no amount on deposit at any time in the Deposit Account shall be the
property of any of the Loan Parties, constitute Collateral under the Credit
Documents or otherwise be available in any manner to satisfy any Obligations of
any of the Loan Parties under the Credit Documents. Each Tranche B-1 Lender
agrees that its right, title and interest in and to the Deposit Account shall
be limited to the right to require amounts in its Sub-Account to be applied as
provided in Section 2.01(a)(ii)(C) below and that it will have no right to
require the return of its Deposit other than as expressly provided in such
Section 2.01(a)(ii)(C). Each Tranche B-1 Lender hereby acknowledges that
(1) its Deposit constitutes payment for its participations in Tranche B-1
Letters of Credit issued or to be issued hereunder, (2) its Deposit and any
investments made therewith shall secure its obligations to the Issuing Banks
hereunder and (3) the Issuing Banks will be issuing, amending, renewing and
extending Tranche B-1 Letters of Credit in reliance on the availability of such
Tranche B-1 Lenders Deposit to discharge such Tranche B-1 Lenders
obligations in accordance with Section 2.05(e) in connection with any Tranche
B-1 LC Disbursement thereunder. Each Lender hereby grants to the Administrative
Agent, for the benefit of the Issuing Banks, a security interest in its Deposit
and agrees that the Administrative Agent, as holder of the Deposits and any
investments made therewith, will be acting, inter alia, as
collateral agent for the Issuing Banks. The funding of the Deposits and the
agreements with respect thereto set forth in this Agreement constitute
arrangements among the Administrative Agent, the Issuing Banks and the Tranche
B-1 Lenders with respect to the funding obligations of the Tranche B-1 Lenders
under this Agreement, and the Deposits do not constitute loans or extensions of
credit to any Loan Party. No Loan Party shall have any responsibility or
liability to the Tranche B-1 Lenders, the Agents or any other Person in respect
of the establishment, maintenance, administration or misappropriation of the
Deposit Account (or any Sub-Account) or with respect to the investment of
amounts held therein, including pursuant to Section 2.01(a)(ii)(D) below, or
the duties and responsibilities of the Administrative Agent with respect to the
foregoing contemplated by Section 2.01(a)(ii)(E) below. JPMCB hereby waives any
right of setoff against the Deposits that it may have under applicable law or
otherwise with respect to amounts owed to it by
42
Tranche B-1 Lenders (it
being agreed that such waiver shall not reduce the rights of JPMCB, in its
capacity as an Issuing Bank or otherwise, to apply or require the application
of the Deposits in accordance with the provisions of this Agreement).
(B) The following amounts will be deposited in the Deposit Account at
the following times:
(1) On the Restatement Effective Date, each Tranche
B-1 Lender shall deposit in the Deposit Account an amount in dollars equal to
such Tranche B-1 Lenders Tranche B-1 Commitment. Thereafter, the Deposits
shall be available, on the terms and subject to the conditions set forth
herein, (A) to fund Tranche B-1 Loans by such Tranche B-1 Lender pursuant to
Section 2.02(a) and (B) for application pursuant to Section 2.05(e) to
reimburse such Lenders Tranche B-1 Applicable Percentage of Tranche B-1 LC
Disbursements that are not reimbursed by the Parent Borrower. The obligations
of the Tranche B-1 Lenders to make the deposits required by this clause (1) are
several, and no Tranche B-1 Lender shall be responsible for any other Tranche
B-1 Lenders failure to make its deposit as so required.
(2) On any date prior to the Commitment Termination
Date on which the Administrative Agent receives any payment for the account of
any Tranche B-1 Lender with respect to the principal amount of any of its
Tranche B-1 Loans, subject to clause (4) below, the Administrative Agent shall
deposit such amount in the Deposit Account and credit such amount to the
Sub-Account of such Tranche B-1 Lender.
(3) On any date prior to the Commitment Termination
Date on which the Administrative Agent or any Issuing Bank receives any
reimbursement payment from the Parent Borrower in respect of a Tranche B-1 LC
Disbursement with respect to which amounts were withdrawn from the Deposit
Account to reimburse any Issuing Bank, subject to clause (4) below, the
Administrative Agent shall deposit in the Deposit Account, and credit to the
Sub-Accounts of the Tranche B-1 Lenders, the portion of such reimbursement
payment to be deposited therein, in accordance with Section 2.05(e).
(4) If at any time when any amount is required to be
deposited in the Deposit Account under clause (2) or (3) above the sum of such
amount and the aggregate amount of the Deposits at such time would exceed the
Tranche B-1 Total Commitment minus the aggregate principal amount of the
outstanding Tranche B-1 Loans, then such excess shall not be deposited in the Deposit
Account and the Administrative Agent shall instead pay to each Tranche B-1
Lender its Tranche B-1 Applicable Percentage of such excess.
(5) Concurrently with the effectiveness of any
assignment by any Tranche B-1 Lender of all or any portion of its Tranche B-1
Commitment, the Administrative Agent shall transfer into the Sub-Account of the
assignee the
43
corresponding
portion of the amount on deposit in the assignors Sub-Account in accordance
with Section 10.04(b)(vii)(B)(2).
(C) Amounts on deposit in the Deposit Account shall be withdrawn and
distributed (or transferred, in the case of clause (5) below) as follows:
(1) On each date on which a Tranche B-1 Borrowing is
to be made, the Administrative Agent shall, pursuant to Section 2.02(a) or
Section 2.05(e), as applicable, and subject to the satisfaction of the
conditions applicable thereto set forth in Section 4.02, withdraw from the
Deposit Account the principal amount of such Tranche B-1 Borrowing (and debit
the Sub-Account of each Tranche B-1 Lender in the amount of such Lenders
Tranche B-1 Applicable Percentage of such Borrowing) and make such amount
available to the Parent Borrower.
(2) On each date on which an Issuing Bank is to be
reimbursed by the Tranche B-1 Lenders pursuant to Section 2.05(e) for any
Tranche B-1 LC Disbursement, the Administrative Agent shall withdraw from the
Deposit Account the amount of such unreimbursed Tranche B-1 LC Disbursement
(and debit the Sub-Account of each Tranche B-1 Lender in the amount of such
Tranche B-1 Lenders Applicable Percentage of such unreimbursed Tranche B-1 LC
Disbursement) and make such amount available to such Issuing Bank in accordance
with Section 2.05(e).
(3) Concurrently with each voluntary reduction of
the Tranche B-1 Total Commitment pursuant to and in accordance with Section
2.08(b), the Administrative Agent shall withdraw from the Deposit Account and
pay to each Tranche B-1 Lender such Tranche B-1 Lenders Applicable Percentage
of any amount by which the Deposits, after giving effect to such reduction of
the Tranche B-1 Total Commitment, would exceed the Tranche B-1 Total Commitment
minus the aggregate principal amount of the outstanding Tranche B-1 Loans and
unreimbursed Tranche B-1 LC Disbursements that have been funded by the
application of Deposits.
(4) Concurrently with any reduction of the Tranche
B-1 Total Commitment to zero pursuant to and in accordance with Section 2.08(c)
or Article VII, the Administrative Agent shall withdraw from the Deposit
Account and pay to each Tranche B-1 Lender such Tranche B-1 Lenders Applicable
Percentage of the excess at such time of the aggregate amount of the Deposits
over the Undrawn/Unreimbursed Tranche B-1 LC Exposure.
(5) Concurrently with the effectiveness of any
assignment by any Tranche B-1 Lender of all or any portion of its Tranche B-1
Commitment, the corresponding portion of the assignors Sub-Account shall be
transferred from the assignors Sub-Account to the assignees Sub-Account in accordance
with Section 10.04(b) and, if required by Section 10.04(b), the Administrative
Agent shall close such assignors Sub-Account.
44
(6) Upon the reduction of each of the Tranche B-1
Total Commitment and the Undrawn/Unreimbursed Tranche B-1 LC Exposure to zero,
the Administrative Agent shall withdraw from the Deposit Account and pay to
each Tranche B-1 Lender the entire remaining amount of such Tranche B-1
Lenders Deposit, and shall close the Deposit Account.
Each
Tranche B-1 Lender irrevocably and unconditionally agrees that its Deposit may
be applied or withdrawn from time to time as set forth in this Section
2.01(a)(ii)(C).
(D) The Administrative Agent shall invest, or cause to be invested, the
Deposit of each Tranche B-1 Lender so as to earn for the account of such
Tranche B-1 Lender a return thereon (the Deposit Return) for each day
at a rate per annum equal to (1) the one month LIBOR rate as determined by the
Administrative Agent on such day (or if such day was not a Business Day, the
first Business Day immediately preceding such day) based on rates for deposits
in dollars (as set forth by Bloomberg L.P.-page BTMM or any other comparable
publicly available service as may be selected by the Administrative Agent) (the
Benchmark LIBO Rate) minus (2) 0.15% per annum (based on a 365/366 day
year). The Benchmark LIBO Rate will be reset on each Business Day. The Deposit
Return accrued through and including the last day of March, June, September and
December of each year shall be payable by the Administrative Agent to each
Tranche B-1 Lender on the third Business Day following such last day,
commencing on the first such date to occur after the Restatement Effective
Date, and on the date on which each of the Tranche B-1 Total Commitment and the
Tranche B-1 LC Exposure shall have been reduced to zero, and the Administrative
Agent agrees to pay to each Tranche B-1 Lender the amount due to it under this
sentence. No Loan Party shall have any obligation under or in respect of the
provisions of this Section 2.01(a)(ii)(D).
(E) As provided in Article VIII, the Administrative Agent may perform
any and all its duties and exercise its rights and powers contemplated by this
Section 2.01 by or through one or more sub-agents appointed by it (which may
include any of its Affiliates). The parties hereto acknowledge that on or prior
to the Restatement Effective Date the Administrative Agent has engaged JPMorgan
Chase Institutional Trust Services to act as its sub-agent in connection with
the Deposit Account, and that in such capacity JPMorgan Chase Institutional
Trust Services shall be entitled to the benefit of all the provisions of this
Agreement contemplated by Article VIII, including the provisions of Section
10.03.
(F) Notwithstanding any other provision of this Agreement, including
Sections 2.02 and 2.05(a), no Tranche B-1 Loan shall be made, and no Tranche
B-1 Letter of Credit shall be issued or the stated amount thereof increased, if
after giving effect thereto the aggregate amount of the Deposits would be less
than the Undrawn/Unreimbursed Tranche B-1 LC Exposure. The
45
Administrative
Agent agrees to provide, at the request of any Issuing Bank, information to such
Issuing Bank as to the aggregate amount of the Deposits and the
Undrawn/Unreimbursed Tranche B-1 LC Exposure.
(G) The Parent Borrower and each Issuing Bank acknowledges and agrees
that, notwithstanding any other provision contained herein, the deposit by each
Tranche B-1 Lender in the Deposit Account on the Restatement Effective Date of
funds equal to its Tranche B-1 Commitment will (except as provided in the
second to last sentence of Section 2.05(d)) fully discharge the obligation of
such Tranche B-1 Lender to fund Tranche B-1 Loans by such Tranche B-1 Lender
pursuant to Section 2.02(a) and to reimburse such Lenders Tranche B-1
Applicable Percentage of Tranche B-1 LC Disbursements that are not reimbursed
by the Parent Borrower pursuant to Section 2.05(d) or (e), and that no other or
further payments shall be required to be made by any Tranche B-1 Lender in
respect of any such funding or reimbursement obligations.
(b)
The Parent Borrower and all or certain of the Lenders may, up to three times
during the period from and including the Restatement Effective Date to but
excluding the Incremental Term Loan Termination Date, agree that such Lenders
shall become Incremental Lenders or increase the principal amount of their
Incremental Term Loans by executing and delivering to the Administrative Agent
an Incremental Term Loan Activation Notice specifying (i) the respective
Incremental Term Loan Amount of such Incremental Lenders, (ii) the
applicable Incremental Term Loan Effective Date, (iii) the applicable Incremental
Maturity Date, (iv) the amortization schedule for the applicable
Incremental Term Loans, which shall comply with subsection 2.10(b) and (v)
the Applicable Rate for the Incremental Term Loans to be made pursuant to such
Incremental Term Loan Activation Notice, and which shall be otherwise duly
completed. Each Incremental Lender that is a signatory to an Incremental Term
Loan Activation Notice severally agrees, on the terms and conditions of this
Agreement, to make an Incremental Term Loan to the Parent Borrower on the
Incremental Term Loan Effective Date specified in such Incremental Term Loan
Activation Notice in a principal amount not to exceed the amount of the
Incremental Term Loan Amount of such Incremental Lender specified in such
Incremental Term Loan Activation Notice. Subject to the terms and conditions of
this Agreement, the Parent Borrower may convert Incremental Term Loans of one
Type into Incremental Term Loans of another Type (as provided in
Section 2.07) or continue Incremental Term Loans of one Type as
Incremental Term Loans of the same Type (as provided in Section 2.07).
Nothing in this subsection 2.01(b) shall be construed to obligate any Lender to
execute an Incremental Term Loan Activation Notice. Notwithstanding the foregoing,
the aggregate amount of Incremental Term Loans shall not exceed $100,000,000.
(c)
Within the foregoing limits and subject to the terms and conditions set forth
herein, the Parent Borrower and the Foreign Subsidiary Borrowers, as the case
may be, may borrow, prepay and reborrow Revolving Loans or Tranche B-1 Loans.
Amounts repaid or prepaid in respect of Term Loans may not be reborrowed.
46
SECTION
2.02. Loans and Borrowings. (a) (i) Each Loan (other than a Swingline
Loan) shall be made as part of a Borrowing consisting of Loans of the same
Class and Type made by the Lenders ratably in accordance with their respective
Commitments of the applicable Class. The failure of any Lender to make any Loan
required to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the Commitments of the Lenders are several and
no Lender shall be responsible for any other Lenders failure to make Loans as
required.
(ii) Subject to the terms and conditions set forth herein, each Tranche
B-1 Lender agrees to make Tranche B-1 Loans to the Parent Borrower, with
amounts in its Sub-Account, from time to time during the Tranche B-1
Availability Period in an aggregate principal amount that will not after giving
effect to any such Tranche B-1 Loan result in such Lenders Tranche B-1 Credit
Exposure exceeding such Lenders Tranche B-1 Commitment. Each Tranche B-1 Loan
shall be part of a Tranche B-1 Borrowing consisting of Loans of the same Type
held by the Tranche B-1 Lenders ratably in accordance with their respective
Tranche B-1 Applicable Percentages. Each Tranche B-1 Lender hereby authorizes
and directs the Administrative Agent to make its portion of each Tranche B-1
Borrowing available to the Parent Borrower by withdrawing from the Deposit
Account (and debiting such Tranche B-1 Lenders Sub-Account in the amount of)
such Lenders Tranche B-1 Applicable Percentage of such Tranche B-1 Borrowing
and crediting such amount to the applicable account of the Parent Borrower as
provided in Section 2.06. Within the foregoing limits and subject to the terms
and conditions set forth herein, the Parent Borrower may borrow, prepay and
reborrow Tranche B-1 Loans.
(b)
Subject to Section 2.14, each Loan (other than Foreign Currency Loans)
shall be comprised entirely of ABR Loans or Eurocurrency Loans as the Parent
Borrower may request in accordance herewith. All Foreign Currency Borrowings
shall be comprised entirely of Eurocurrency Loans. Each Swingline Loan shall be
an ABR Loan. Each Lender at its option may make any Eurocurrency Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the
obligation of the Parent Borrower, a Subsidiary Term Borrower or a Foreign
Subsidiary Borrower, as the case may be, to repay such Loan in accordance with
the terms of this Agreement.
(c)
At the commencement of each Interest Period for any Eurocurrency Borrowing,
such Borrowing shall be in an aggregate amount that is an integral multiple of
$1,000,000 (or 1,000,000 units of the applicable Foreign Currency) and not less
than $5,000,000 (or 5,000,000 units of the applicable Foreign Currency). At the
time that each ABR Revolving Loan is made, such Borrowing shall be in an
aggregate amount that is an integral multiple of $1,000,000 and not less than
$5,000,000; provided that (i) an ABR Revolving Loan may be in an
aggregate amount that is equal to the entire unused balance of the total
Revolving Commitments and (ii) an ABR Revolving Loan or a Tranche B-1
Loan, or a Eurocurrency Revolving Loan, in the case of Foreign Currency Letters
of Credit, may be in an aggregate amount that is equal to the amount that is
47
required to finance the
reimbursement of a Revolving LC Disbursement or Tranche B-1 LC Disbursement as
contemplated by Section 2.05(e). Each Swingline Loan shall be in an amount that
is an integral multiple of $100,000 and not less than $500,000. Borrowings of
more than one Type and Class may be outstanding at the same time; provided
that there shall not at any time be more than a total of 12 Eurocurrency
Borrowings outstanding.
(d)
Notwithstanding any other provision of this Agreement, none of the Parent
Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower shall
be entitled to request, or to elect to convert or continue, any Borrowing if
the Interest Period requested with respect thereto would end after the
Commitment Termination Date, Tranche B Maturity Date or Incremental Maturity
Date, as applicable.
(e)
Notwithstanding any other provision of this Agreement, but subject to Article
IX, a Lender with no Foreign Currency Commitment hereunder shall not be
obligated to make or participate in any Foreign Currency Loans.
SECTION
2.03. Requests for Borrowings. (a) To request a Revolving Loan,
Tranche B-1 Loan or Term Loan, the Parent Borrower or the applicable
Subsidiary Term Borrower shall notify the Administrative Agent of such request
by telephone (i) in the case of a Eurocurrency Borrowing, not later than
12:00 noon, New York City time, three Business Days before the
date of the proposed Borrowing or (ii) in the case of an ABR Borrowing,
not later than 12:00 noon, New York City time, one Business Day
before the date of the proposed Borrowing; provided that any such notice
of an ABR Revolving Loan to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.05(e) may be given not later than
10:00 a.m., New York City time, on the date of the proposed
Borrowing, and (b) to request a Foreign Currency Borrowing, the applicable
Foreign Subsidiary Borrower shall notify the Foreign Currency Administrative
Agent of such request by telephone not later than 11:00 a.m., London Time,
three Business Days before the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
the Parent Borrower or Subsidiary Term Borrower, as the case may be, and, in
the case of a Foreign Currency Borrowing, the applicable Foreign Subsidiary
Borrower. Each such telephonic and written Borrowing Request shall specify the
following information in compliance with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving Loan,
Tranche B-1 Loan, Tranche B Term Loan or Incremental Term Loan;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
48
(iv) whether such Borrowing is to be an ABR Borrowing or a Eurocurrency
Borrowing, unless such Borrowing is a Foreign Currency Borrowing;
(v) if such Borrowing is a Foreign Currency Borrowing, the relevant
Foreign Currency;
(vi) in the case of a Eurocurrency Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by the
definition of the term Interest Period; and
(vii) the location and number of the Parent Borrowers, the applicable
Subsidiary Term Borrowers, or the applicable Foreign Subsidiary Borrowers, as
the case may be, account to which funds are to be disbursed, which shall comply
with the requirements of Section 2.06.
If
no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing, unless such Borrowing is a Foreign
Currency Borrowing, in which case such Borrowing shall be a Eurocurrency
Borrowing. If no Interest Period is specified with respect to any requested
Eurocurrency Revolving Loan, then the Parent Borrower shall be deemed to have
selected an Interest Period of one months duration. Promptly following receipt
of a Borrowing Request in accordance with this Section, the Administrative
Agent shall advise each Lender of the details thereof and of the amount of such
Lenders Loan to be made as part of the requested Borrowing.
SECTION
2.04. Swingline Loans. (a) Subject to the terms and conditions set forth
herein, the Swingline Lender agrees to make Swingline Loans to the Parent
Borrower from time to time during the Revolving Availability Period, in an
aggregate principal amount at any time outstanding that will not result in
(i) the aggregate principal amount of outstanding Swingline Loans
exceeding $20,000,000 or (ii) the sum of the total Revolving Exposures
exceeding the total Revolving Commitments; provided that the Swingline
Lender shall not be required to make a Swingline Loan to refinance an
outstanding Swingline Loan. On the last day of each month during the Revolving
Availability Period, the Parent Borrower shall repay any outstanding Swingline
Loans. Within the foregoing limits and subject to the terms and conditions set
forth herein, the Parent Borrower may borrow, prepay and reborrow Swingline
Loans.
(b)
To request a Swingline Loan, the Parent Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 12:00 noon, New York City time, on the day of a proposed
Swingline Loan. Each such notice shall be irrevocable and shall specify the
requested date (which shall be a Business Day) and amount of the requested
Swingline Loan. The Administrative Agent will promptly advise the Swingline
Lender of any such notice received from the Parent Borrower. The Swingline
Lender shall make each Swingline Loan available to the Parent Borrower by means
of a credit to the general deposit account of the Parent Borrower with the Swingline
Lender (or, in the case of a Swingline Loan made to finance the reimbursement
of an LC Disbursement as provided in Section 2.05(e), by remittance to
49
the Issuing Bank) by
3:00 p.m., New York City time, on the requested date of such
Swingline Loan. The Parent Borrower shall not request a Swingline Loan if at
the time of and immediately after giving effect to such request a Default has
occurred and is continuing.
(c)
The Swingline Lender may by written notice given to the Administrative Agent
not later than 12:00 noon, New York City time, on any Business Day
require the Revolving Lenders to acquire participations on such Business Day in
all or a portion of the Swingline Loans outstanding. Such notice shall specify
the aggregate amount of Swingline Loans in which Revolving Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent
will give notice thereof to each Revolving Lender, specifying in such notice
such Lenders Revolving Applicable Percentage of such Swingline Loan or Loans.
Each Revolving Lender hereby absolutely and unconditionally agrees, upon
receipt of notice as provided above, to pay to the Administrative Agent, for
the account of the Swingline Lender, such Lenders Revolving Applicable
Percentage of such Swingline Loan or Loans. Each Revolving Lender acknowledges
and agrees that its obligation to acquire participations in Swingline Loans
pursuant to this paragraph is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever (provided that such payment shall not cause such
Lenders Revolving Exposure to exceed such Lenders Revolving Commitment). Each
Revolving Lender shall comply with its obligation under this paragraph by wire
transfer of immediately available funds, in the same manner as provided in
Section 2.06 with respect to Loans made by such Lender (and
Section 2.06 shall apply, mutatis mutandis, to the payment
obligations of the Revolving Lenders), and the Administrative Agent shall
promptly pay to the Swingline Lender the amounts so received by it from the
Revolving Lenders. The Administrative Agent shall notify the Parent Borrower of
any participations in any Swingline Loan acquired pursuant to this paragraph,
and thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by
the Swingline Lender from the Parent Borrower (or other party on behalf of the
Parent Borrower) in respect of a Swingline Loan after receipt by the Swingline
Lender of the proceeds of a sale of participations therein shall be promptly
remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Revolving Lenders that shall have made their payments pursuant to this
paragraph and to the Swingline Lender, as their interests may appear. The
purchase of participations in a Swingline Loan pursuant to this paragraph shall
not relieve the Parent Borrower of any default in the payment thereof.
SECTION
2.05. Letters of Credit. (a) General. (i) Subject to the
terms and conditions set forth herein, the Parent Borrower may request the
issuance of Letters of Credit for its own account or the account of a
Subsidiary and any Foreign Subsidiary Borrower may request the issuance of
Foreign Currency Letters of Credit for its own account or the account of a
Subsidiary of such Foreign Subsidiary Borrower, in each case in a form
reasonably acceptable to the Administrative Agent and the Issuing Bank, at any
50
time and from time to time
during the Revolving Availability Period and the Tranche B-1 Availability
Period, as applicable (provided that the Parent Borrower or a Foreign
Subsidiary Borrower, as the case may be, shall be a co-applicant with respect
to each Letter of Credit issued for the account of or in favor of a Subsidiary
that is not a Foreign Subsidiary Borrower). In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions
of any form of letter of credit application or other agreement submitted by the
Parent Borrower or any Foreign Subsidiary Borrower, as the case may be, to, or
entered into by the Parent Borrower or any Foreign Subsidiary Borrower, as the
case may be, with, the Issuing Bank relating to any Letter of Credit, the terms
and conditions of this Agreement shall control.
(ii) The Parent Borrower may at any time redesignate Tranche B-1
Letters of Credit as Revolving Letters of Credit and Revolving Letters of
Credit as Tranche B-1 Letters of Credit; provided, that (A) the
Parent Borrower shall by notice to the Administrative Agent identify the
Letters of Credit to be redesignated hereunder and certify that the conditions
to such redesignation set forth in the following clause (B) are satisfied and
that no Default shall have occurred and be continuing; and (B) no
redesignation of a Letter of Credit shall become effective hereunder unless
after giving effect to such redesignation the conditions precedent to the
issuance, amendment, renewal or extension of a Letter of Credit under the third
sentence of paragraph (b) below shall be satisfied. The Revolving Lenders
hereby agree that upon the effectiveness of any redesignation of a Tranche B-1
Letter of Credit as a Revolving Letter of Credit, the Issuing Bank that issued
such Letter of Credit shall be deemed, without further action by any party
hereto, to have granted to each Revolving Lender, and each Revolving Lender
shall be deemed to have purchased from such Issuing Bank, a participation in
such Letter of Credit in accordance with paragraph (d) below, and on and after
the effectiveness of any such redesignation, such Letter of Credit shall
constitute a Revolving Letter of Credit for all purposes hereof. The Tranche
B-1 Lenders hereby agree that upon the effectiveness of any redesignation of a
Revolving Letter of Credit as a Tranche B-1 Letter of Credit, the Issuing Bank
that issued such Letter of Credit shall be deemed, without further action by
any party hereto, to have granted to each Tranche B-1 Lender, and each Tranche
B-1 Lender shall be deemed to have purchased from such Issuing Bank, a
participation in such Letter of Credit in accordance with paragraph (d) below,
and on and after the effectiveness of any such redesignation, such Letter of
Credit shall constitute a Tranche B-1 Letter of Credit for all purposes hereof.
No Tranche B-1 Letter of Credit may be redesignated as a Revolving Letter of
Credit if the Parent Borrower and the Issuing Bank in respect thereof shall
have agreed at the time such Issuing Bank became an Issuing Bank that such
Issuing Bank will not be required to issue Revolving Letters of Credit, or that
Tranche B-1 Letters of Credit issued by such Issuing Bank may not be
redesignated by the Parent Borrower as Revolving Letters of Credit, and shall
not have subsequently agreed otherwise.
51
(b)
Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To
request the issuance of a Letter of Credit (or the amendment, renewal or
extension of an outstanding Letter of Credit), the Parent Borrower or the
applicable Foreign Subsidiary Borrower, as the case may be, shall hand deliver
or telecopy (or transmit by electronic communication, if arrangements for doing
so have been approved by the Issuing Bank) to the Issuing Bank and the
Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter
of Credit, or identifying the Letter of Credit to be amended, renewed or
extended, and specifying the date of issuance, amendment, renewal or extension
(which shall be a Business Day), the date on which such Letter of Credit is to
expire (which shall comply with paragraph (c) of this Section), the amount
of such Letter of Credit, whether such Letter of Credit is to be a Revolving
Letter of Credit or a Tranche B-1 Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit. If requested by the
Issuing Bank, the Parent Borrower or the applicable Foreign Subsidiary
Borrower, as the case may be, also shall submit a letter of credit application
on the Issuing Banks standard form in connection with any request for a Letter
of Credit. A Letter of Credit shall be issued, amended, renewed or extended
only if (and upon issuance, amendment, renewal or extension of each Letter of
Credit the Parent Borrower or the applicable Foreign Subsidiary Borrower, as
the case may be, shall be deemed to represent and warrant that), after giving
effect to such issuance, amendment, renewal or extension (i) the LC
Exposure shall not exceed $65,000,000, (ii) (A) the total Revolving LC
Exposure shall not exceed the total Revolving Commitment and (B) the total
Tranche B-1 Exposure shall not exceed the total Tranche B-1 Commitment and
(iii) the total Foreign Currency Exposures shall not exceed the total
Foreign Currency Commitments.
(c)
Expiration Date. Each Letter of Credit shall expire at or prior to the
close of business on the earlier of (i) the date one year after the date
of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the
date that is five Business Days prior to the Commitment Termination Date.
(d)
Participations. By the issuance of a Letter of Credit (or an amendment
to a Letter of Credit increasing the amount thereof) and without any further
action on the part of the Issuing Bank or the Lenders, the Issuing Bank hereby
grants (i) to each Revolving Lender, and each Revolving Lender hereby acquires
from the Issuing Bank, a participation in such Revolving Letters of Credit
equal to such Lenders Revolving Applicable Percentage of the aggregate amount
available to be drawn under such Revolving Letters of Credit and (ii) to each
Tranche B-1 Lender, and each Tranche B-1 Lender hereby acquires from the
Issuing Bank, a participation in such Tranche B-1 Letters of Credit equal to
such Lenders Tranche B-1 Applicable Percentage of the aggregate amount
available to be drawn under such Tranche B-1 Letters of Credit. In
consideration and in furtherance of the foregoing, (A) each Revolving Lender
hereby absolutely and unconditionally agrees to pay to the Administrative
Agent, for the account of the Issuing Bank, such Lenders Revolving Applicable
Percentage of each LC Disbursement made by the Issuing Bank and not reimbursed
by the Parent Borrower or
52
the applicable Foreign
Subsidiary Borrower, as the case may be, on the date due as provided in
paragraph (e) of this Section, or of any reimbursement payment required to be
refunded to the Parent Borrower or the applicable Foreign Subsidiary Borrower,
as the case may be, for any reason, and (B) each Tranche B-1 Lender hereby
absolutely and unconditionally authorizes and directs the Administrative Agent,
and the Administrative Agent agrees, to withdraw from the Deposit Account (and
debit such Lenders Sub-Account in the amount of) such Lenders Tranche B-1
Applicable Percentage of each Tranche B-1 LC Disbursement made by such Issuing
Bank and not reimbursed by the Parent Borrower on the date due as provided in
paragraph (e) of this Section, or such Lenders Tranche B-1 Applicable
Percentage of any reimbursement payment in respect of a Tranche B-1 LC
Disbursement required to be refunded to the Parent Borrower for any reason (it
being understood and agreed that, except as provided in the last sentence of
this paragraph, each Tranche B-1 Lenders obligations in respect of
participations in Tranche B-1 Letters of Credit shall be payable solely from,
and limited to, such Tranche B-1 Lenders Deposit). Each Lender acknowledges
and agrees that its obligation to acquire participations pursuant to this
paragraph in respect of Letters of Credit is, subject in the case of Tranche
B-1 Lenders to the preceding sentence, absolute and unconditional and shall not
be affected by any circumstance whatsoever, including any amendment, renewal or
extension of any Letter of Credit or the occurrence and continuance of a
Default or reduction or termination of its Revolving Commitment, its Tranche
B-1 Commitment, the Revolving Total Commitment or the Tranche B-1 Total
Commitment, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever; provided that in the
event any reimbursement payment in respect of a Tranche B-1 LC Disbursement
shall be required to be refunded by an Issuing Bank to the Parent Borrower
after the return of the Deposits to the Lenders as provided in
Section 2.01(a)(ii)(C), each Tranche B-1 Lender agrees to acquire and fund
a participation in such refunded amount equal to the lesser of its Tranche B-1
Applicable Percentage thereof and the amount of its Deposit that shall have
been so returned. Notwithstanding the foregoing or any other provision of this
Agreement, but subject to Article IX, a Lender with no Foreign Currency
Commitment hereunder shall not be obligated to participate in any Foreign
Currency Letter of Credit.
(e)
Reimbursement. If the Issuing Bank shall make any LC Disbursement in
respect of a Letter of Credit, the Parent Borrower or the applicable Foreign
Subsidiary Borrower, as the case may be, shall reimburse such LC Disbursement
by paying to the Administrative Agent an amount equal to such LC Disbursement
not later than 12:00 noon, New York City time, on the date that such
LC Disbursement is made, if the Parent Borrower or the applicable Foreign
Subsidiary Borrower, as the case may be, shall have received notice of such LC
Disbursement prior to 10:00 a.m., New York City time or London time
(in the case of Foreign Currency Letters of Credit), on such date, or, if such
notice has not been received by the Parent Borrower or the applicable Foreign
Subsidiary Borrower, as the case may be, prior to such time on such date, then
not later than 12:00 noon, New York City time or London time (in the
case of Foreign Currency Letters of Credit), on the Business Day immediately
following the day that the Parent Borrower or the applicable Foreign Subsidiary
Borrower, as the case may be, receives such notice; provided
that (i) the Parent Borrower may, subject to the conditions to
53
borrowing set forth herein,
request in accordance with Section 2.03 or 2.04 that such payment be financed
with an ABR Borrowing (which will be a Borrowing of Revolving Loans in the case
of a Revolving Letter of Credit or of Tranche B-1 Loans in the case of a
Tranche B-1 Letter of Credit) in an equivalent amount and, to the extent so
financed, the Parent Borrowers obligation to make such payment shall be
discharged and replaced by the resulting ABR Revolving Loan, Swingline Loan or
Tranche B-1 Loan and (ii) such Foreign Subsidiary Borrower may, subject to
the conditions to borrowing set forth herein, request in accordance with
Section 2.03 that such payment be financed with a Eurocurrency Loan in an
equivalent amount in the applicable Foreign Currency and, to the extent so
financed, such Foreign Subsidiary Borrowers obligation to make such payment
shall be discharged and replaced by the resulting Eurocurrency Loan. If the
Parent Borrower or the applicable Foreign Subsidiary Borrower, as the case may
be, fails to make such payment when due, the Administrative Agent shall notify
each Lender of the applicable LC Disbursement, the payment then due from the
Parent Borrower or the applicable Foreign Subsidiary Borrower, as the case may
be, in respect thereof and such Lenders Revolving Applicable Percentage or
Tranche B-1 Applicable Percentage, as the case may be, thereof. Promptly
following receipt of such notice, each Lender shall pay to the Administrative
Agent its Revolving Applicable Percentage or its Tranche B-1 Applicable
Percentage, as the case may be, of the unreimbursed LC Disbursement in the same
manner as provided in Section 2.06 with respect to Loans made by such Lender
(and Section 2.06 shall apply, mutatis mutandis, to the
payment obligations of the Revolving Lenders and the Tranche B-1 Lenders), and
the Administrative Agent shall promptly pay to the Issuing Bank the amounts so
received by it from the Revolving Lenders and the Tranche B-1 Lenders. Promptly
following receipt by the Administrative Agent of any payment from the Parent
Borrower or the applicable Foreign Subsidiary Borrower, as the case may be,
pursuant to this paragraph, the Administrative Agent shall distribute such
payment to the Issuing Bank or, to the extent that Revolving Lenders or Tranche
B-1 Lenders have made payments pursuant to this paragraph to reimburse the
Issuing Bank, then distribute such payment to such Lenders and the Issuing Bank
as their interests may appear. Any payment made by a Revolving Lender or a
Tranche B-1 Lender pursuant to this paragraph to reimburse the Issuing Bank for
any LC Disbursement (other than the funding of ABR Revolving Loans or Tranche
B-1 Loans or a Swingline Loan as contemplated above) shall not constitute a
Loan and shall not relieve the Parent Borrower or the applicable Foreign
Subsidiary Borrower, as the case may be, of its obligation to reimburse such LC
Disbursement.
(f)
Obligations Absolute. The obligation of the Parent Borrower or any
Foreign Subsidiary Borrower to reimburse LC Disbursements as provided in
paragraph (e) of this Section shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms of
this Agreement under any and all circumstances whatsoever and irrespective of
(i) any lack of validity or enforceability of any Letter of Credit or this
Agreement, or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or
invalid in any respect or any statement therein being untrue or inaccurate in
any respect, (iii) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or other document that does not comply with the
terms of such Letter of Credit, or
54
(iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this Section, constitute a legal or equitable
discharge of, or provide a right of setoff against, the obligations of the
Parent Borrower or any Foreign Subsidiary Borrower hereunder. None of the
Administrative Agent, the Lenders or the Issuing Bank, or any of their Related
Parties, shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of
the Issuing Bank; provided that the foregoing shall not be construed to
excuse the Issuing Bank from liability to the Parent Borrower or any applicable
Foreign Subsidiary Borrower, as the case may be, to the extent of any direct
damages (as opposed to consequential damages, claims in respect of which are
hereby waived by the Parent Borrower or any applicable Foreign Subsidiary
Borrower, as the case may be, to the extent permitted by applicable law)
suffered by the Parent Borrower or any applicable Foreign Subsidiary Borrower,
as the case may be, that are caused by the Issuing Banks failure to exercise
care when determining whether drafts and other documents presented under a
Letter of Credit comply with the terms thereof. The parties hereto expressly
agree that, in the absence of gross negligence or wilful misconduct on the part
of the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised care in each
such determination. In furtherance of the foregoing and without limiting the
generality thereof, the parties agree that, with respect to documents presented
which appear on their face to be in substantial compliance with the terms of a
Letter of Credit, the Issuing Bank may, in its sole discretion, either accept
and make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or
refuse to accept and make payment upon such documents if such documents are not
in strict compliance with the terms of such Letter of Credit.
(g)
Disbursement Procedures. The Issuing Bank shall, promptly following its
receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall promptly notify the
Administrative Agent and the Parent Borrower or any applicable Foreign
Subsidiary Borrower, as the case may be, by telephone (confirmed by telecopy)
of such demand for payment and whether the Issuing Bank has made or will make
an LC Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not (i) relieve the Parent Borrower or any
applicable Foreign Subsidiary Borrower, as the case may be, of its obligation
to reimburse the Issuing Bank and the Lenders with respect to any such LC
Disbursement (other than with respect to the timing of such reimbursement
obligation set forth in Section 2.05(e)) or (ii) relieve (A) any Lenders
obligations to acquire participations as required pursuant to paragraph (d) of
this Section 2.05 or (B) in the case of a Tranche B-1 LC Disbursement, the
obligation of the Administrative Agent, promptly after receipt of such notice,
to withdraw from the Deposit Account each Lenders
55
Tranche B-1 Applicable
Percentage of such Tranche B-1 LC Disbursement and apply such amounts to make
payments to the Issuing Bank as provided herein.
(h)
Interim Interest. If the Issuing Bank shall make any LC Disbursement,
then, unless the Parent Borrower or any applicable Foreign Subsidiary Borrower,
as the case may be, shall reimburse such LC Disbursement in full on the date
such LC Disbursement is made, the unpaid amount thereof shall bear interest,
for each day from and including the date such LC Disbursement is made to but
excluding the date that the Parent Borrower or any applicable Foreign
Subsidiary Borrower, as the case may be, reimburses such LC Disbursement, at
the rate per annum then applicable to ABR Revolving Loans or Tranche B-1 Loans,
as applicable; provided that, if the Parent Borrower or any applicable
Foreign Subsidiary Borrower, as the case may be, fails to reimburse such LC Disbursement
when due pursuant to paragraph (e) of this Section 2.05, then
Section 2.13(c) shall apply. Interest accrued pursuant to this paragraph
shall be for the account of the Issuing Bank, except that interest accrued on
and after the date of payment by any Lender pursuant to paragraph (e) of this
Section 2.05 to reimburse the Issuing Bank shall be for the account of
such Lender to the extent of such payment.
(i)
Replacement of the Issuing Bank; Additional Issuing Banks. The Issuing
Bank may be replaced at any time by written agreement among the Parent Borrower
(on behalf of itself and the Foreign Subsidiary Borrowers), the Administrative
Agent, the replaced Issuing Bank and the successor Issuing Bank. One or more
Lenders may be appointed as additional Issuing Banks by written agreement among
the Parent Borrower (on behalf of itself and the Foreign Subsidiary Borrowers),
the Administrative Agent (whose consent will not be unreasonably withheld) and
the Lender that is to be so appointed. The Administrative Agent shall notify
the Lenders of any such replacement of the Issuing Bank or any such additional
Issuing Bank. At the time any such replacement shall become effective, the
Parent Borrower (on behalf of itself and the Foreign Subsidiary Borrowers)
shall pay all unpaid fees accrued for the account of the replaced Issuing Bank
pursuant to Section 2.12(b). From and after the effective date of any such
replacement or addition, as applicable, (i) the successor or additional
Issuing Bank shall have all the rights and obligations of the Issuing Bank
under this Agreement with respect to Letters of Credit to be issued thereafter
and (ii) references herein to the term Issuing Bank shall be deemed to refer
to such successor or such addition or to any previous Issuing Bank, or to such
successor or such addition and all previous Issuing Banks, as the context shall
require. After the replacement of an Issuing Bank hereunder, the replaced
Issuing Bank shall remain a party hereto and shall continue to have all the
rights and obligations of an Issuing Bank under this Agreement with respect to
Letters of Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit. If at any time there is more
than one Issuing Bank hereunder, the Parent Borrower (on behalf of itself and
the Foreign Subsidiary Borrowers) may, in its discretion, select which Issuing
Bank is to issue any particular Letter of Credit.
(j)
Cash Collateralization. If any Event of Default shall occur and be
continuing, on the Business Day that the Parent Borrower or any Foreign
Subsidiary
56
Borrower receives notice
from the Administrative Agent or the Required Lenders (or, if the maturity of
the Loans has been accelerated, Revolving Lenders and/or Tranche B-1 Lenders
with LC Exposure representing greater than 50% of the total LC Exposure)
demanding the deposit of cash collateral pursuant to this paragraph, the Parent
Borrower and the Foreign Subsidiary Borrowers, as the case may be, shall
deposit in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Lenders, an amount in cash in
the applicable currency equal to the LC Exposure as of such date plus any
accrued and unpaid interest thereon; provided that the obligation to
deposit such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other
notice of any kind, upon the occurrence of any Event of Default with respect to
the Parent Borrower or any Foreign Subsidiary Borrower described in
clause (h) or (i) of Article VII. Each such deposit shall be
held by the Administrative Agent as collateral for the payment and performance of
the obligations of the Parent Borrower and the Foreign Subsidiary Borrowers
under this Agreement. The Administrative Agent shall have exclusive dominion
and control, including the exclusive right of withdrawal, over such account.
Other than any interest earned on the investment of such deposits, which
investments shall be made at the option and sole discretion of the
Administrative Agent and at the risk and expense of the Parent Borrower and the
Foreign Subsidiary Borrowers, such deposits shall not bear interest. Interest
or profits, if any, on such investments shall accumulate in such account.
Moneys in such account shall be applied by the Administrative Agent to
reimburse the Issuing Bank for LC Disbursements for which it has not been
reimbursed and, to the extent not so applied, shall be held for the
satisfaction of the reimbursement obligations of the Parent Borrower and the
Foreign Subsidiary Borrowers for the LC Exposure at such time or, if the
maturity of the Loans has been accelerated (but subject to the consent of
Revolving Lenders and/or Tranche B-1 Lenders with LC Exposure representing
greater than 50% of the total LC Exposure), be applied to satisfy other
obligations of the Parent Borrower and the Foreign Subsidiary Borrowers under
this Agreement. If the Parent Borrower or any Foreign Subsidiary Borrower is
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount plus any accrued interest or
realized profits of such amounts (to the extent not applied as aforesaid) shall
be returned to the Parent Borrower or such Foreign Subsidiary Borrower within
three Business Days after all Events of Default have been cured or waived. If
the Parent Borrower is required to provide an amount of such collateral hereunder
pursuant to Section 2.11(b), such amount plus any accrued interest or
realized profits on account of such amount (to the extent not applied as
aforesaid) shall be returned to the Parent Borrower as and to the extent that,
after giving effect to such return, the Parent Borrower would remain in
compliance with Section 2.11(b) and no Default or Event of Default shall
have occurred and be continuing.
SECTION
2.06. Funding of Borrowings. (a) Each Lender shall make each Loan
to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, or in
the case of Foreign Currency Borrowings, London time, to the account of the
Administrative Agent most recently designated by it for such purpose by notice
to the Lenders; provided that
57
Swingline Loans shall be
made as provided in Section 2.04. The Administrative Agent will make such
Loans available to the Parent Borrower, the applicable Subsidiary Term Borrower
or the applicable Foreign Subsidiary Borrower, as the case may be, by promptly
crediting the amounts so received, in like funds, to an account of the Parent
Borrower, such Subsidiary Term Borrower or such Foreign Subsidiary Borrower, as
the case may be, maintained with the Administrative Agent in New York
City, or in the case of Foreign Currency Borrowings, London, and designated by
the Parent Borrower, such Subsidiary Term Borrower or such Foreign Subsidiary
Borrower, as the case may be, in the applicable Borrowing Request; provided
that ABR Revolving Loans made to finance the reimbursement of an LC
Disbursement as provided in Section 2.05(e) shall be remitted by the
Administrative Agent to the Issuing Bank.
(b)
Unless the Administrative Agent shall have received notice from a Lender prior
to the proposed date of any Borrowing that such Lender will not make available
to the Administrative Agent such Lenders share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share available
on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the Parent Borrower, the
applicable Subsidiary Term Borrower or the applicable Foreign Subsidiary Borrower,
as the case may be, a corresponding amount. In such event, if a Lender has not
in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Parent Borrower, the
applicable Subsidiary Term Borrower or the applicable Foreign Subsidiary
Borrower, as the case may be, severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Parent Borrower, the applicable Subsidiary Term Borrower or the applicable
Foreign Subsidiary Borrower, as the case may be, to but excluding the date of
payment to the Administrative Agent, at (i) in the case of such Lender,
the greater of (x) the Federal Funds Effective Rate and (y) a rate
determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation, except with respect to Foreign Currency
Borrowings, the applicable rate shall be determined as specified in
clause (y) above, or (ii) in the case of the Parent Borrower, any
Subsidiary Term Borrower or any Foreign Subsidiary Borrower, the interest rate
applicable to ABR Loans. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lenders Loan included in such
Borrowing.
(c)
The Administrative Agent will make each Tranche B-1 Loan to be made hereunder
available to the Parent Borrower by promptly crediting the amounts withdrawn by
it from the Deposit Account in accordance with Section 2.02(a)(ii), in like
funds, to an account designated by the Parent Borrower in the applicable
Borrowing Request; provided that Tranche B-1 Loans made to finance the
reimbursement of an LC Disbursement as provided in Section 2.05(e) shall
be remitted by the Administrative Agent to the applicable Issuing Bank.
SECTION
2.07. Interest Elections. (a) Each Borrowing initially shall be of
the Type specified in the applicable Borrowing Request and, in the case of a
58
Eurocurrency Borrowing,
shall have an initial Interest Period as specified in such Borrowing Request.
Thereafter, the Parent Borrower, the applicable Subsidiary Term Borrower or the
applicable Foreign Subsidiary Borrower, as the case may be, may elect to
convert such Borrowing to a different Type or to continue such Borrowing and,
in the case of a Eurocurrency Borrowing, may elect Interest Periods therefor,
all as provided in this Section. The Parent Borrower, the applicable Subsidiary
Term Borrower or the applicable Foreign Subsidiary Borrower, as the case may
be, may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding the Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing. This
Section shall not apply to Swingline Loans, which may not be converted or
continued.
(b)
To make an election pursuant to this Section, the Parent Borrower, the
applicable Subsidiary Term Borrower or the applicable Foreign Subsidiary
Borrower, as the case may be, shall notify the Administrative Agent of such
election by telephone by the time that a Borrowing Request would be required
under Section 2.03 if the Parent Borrower, the applicable Subsidiary Term
Borrower or the applicable Foreign Subsidiary Borrower, as the case may be,
were requesting a Revolving Loan, Tranche B-1 Loan or Term Loan of the Type
resulting from such election to be made on the effective date of such election.
Each such telephonic Interest Election Request shall be irrevocable and shall
be confirmed promptly by hand delivery or telecopy to the Administrative Agent
of a written Interest Election Request in a form approved by the Administrative
Agent and signed by the Parent Borrower, the applicable Subsidiary Term
Borrower or the applicable Foreign Subsidiary Borrower, as the case may be.
(c)
Each telephonic and written Interest Election Request shall specify the
following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing (in
which case the information to be specified pursuant to clauses (iii) and (iv)
below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing, the
Interest Period to be applicable thereto after giving effect to such election,
which shall be a period contemplated by the definition of the term Interest
Period.
If
any such Interest Election Request requests a Eurocurrency Borrowing but does
not specify an Interest Period, then the Parent Borrower, the applicable
Subsidiary Term
59
Borrower
or the applicable Foreign Subsidiary Borrower, as the case may be, shall be
deemed to have selected an Interest Period of one months duration.
(d)
Promptly following receipt of an Interest Election Request, the Administrative
Agent shall advise each Lender of the details thereof and of such Lenders
portion of each resulting Borrowing.
(e)
If an Interest Election Request with respect to a Eurocurrency Borrowing is not
timely delivered prior to the end of the Interest Period applicable thereto,
then, unless such Borrowing is repaid as provided herein, at the end of such
Interest Period such Borrowing shall be converted to an ABR Borrowing (unless
such Borrowing is a Foreign Currency Borrowing, in which case such Borrowing
shall become due and payable on the last day of such Interest Period).
Notwithstanding any contrary provision hereof, if an Event of Default has
occurred and is continuing and the Administrative Agent, at the request of the
Required Lenders, so notifies the Parent Borrower (on behalf of itself, the
Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers), then, so long
as an Event of Default is continuing (i) no outstanding Borrowing (other
than a Foreign Currency Borrowing) may be converted to or continued as a
Eurocurrency Borrowing and (ii) unless repaid, each Eurocurrency Borrowing
(other than a Foreign Currency Borrowing) shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto.
SECTION
2.08. Termination and Reduction of Commitments. (a) Unless
previously terminated, (i) the Tranche B Commitments shall terminate at
5:00 p.m., New York City time, on the Restatement Effective Date and
(ii) the Revolving Commitments and Tranche B-1 Commitments shall terminate
on the Commitment Termination Date.
(b)
The Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the
Foreign Subsidiary Borrowers) may at any time terminate, or from time to time
reduce, the Commitments of any Class (it being understood that reductions of
the Revolving Commitment or the Tranche B-1 Commitment will automatically
reduce Foreign Currency Commitments on a pro rata basis); provided that
(i) each reduction of the Commitments of any Class shall be in an amount
that is an integral multiple of $1,000,000 and not less than $5,000,000 and
(ii) (A) the Revolving Commitments shall not be terminated or reduced if, after
giving effect to any concurrent prepayment of the Revolving Loans in accordance
with Section 2.11, the sum of the Revolving Exposures would exceed the
total Revolving Commitments or (B) the Tranche B-1 Commitments shall not be
reduced if, after giving effect to any concurrent prepayment of the Tranche B-1
Loans in accordance with Section 2.11, the sum of the Tranche B-1
Exposures would exceed the total Tranche B-1 Commitments.
(c)
The Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the
Foreign Subsidiary Borrowers) shall notify the Administrative Agent (or, in the
case of Foreign Currency Commitments, the Foreign Currency Administrative
Agent) of any election to terminate or reduce the Commitments under
paragraph (b) of
60
this Section at least three
Business Days prior (and, in the case of Foreign Currency Commitments, not
later than 11 a.m., London Time, three Business Days prior) to the effective
date of such termination or reduction, specifying such election and the
effective date thereof. Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
notice delivered by the Parent Borrower (on behalf of itself, the Subsidiary
Term Borrowers and the Foreign Subsidiary Borrowers) pursuant to this Section
shall be irrevocable; provided that a notice of termination of the
Revolving Commitments or a notice of reduction of the Tranche B-1 Commitments
to zero delivered by the Parent Borrower (on behalf of itself, the Subsidiary
Term Borrowers and the Foreign Subsidiary Borrowers) may state that such notice
is conditioned upon the effectiveness of other credit facilities or the
occurrence of another transaction, in which case such notice may be revoked by
the Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the
Foreign Subsidiary Borrowers) (by notice to the Administrative Agent on or
prior to the specified effective date) if such condition is not satisfied. Any
reduction of the Commitments of any Class shall be permanent. Each reduction of
the Commitments of any Class shall be made ratably among the Lenders in
accordance with their respective Commitments of such Class.
SECTION
2.09. Repayment of Loans; Evidence of Debt. (a) The Parent
Borrower, each Subsidiary Term Borrower (with respect to Tranche B Term
Loans made to such Subsidiary Term Borrower) and each Foreign Subsidiary
Borrower (with respect to Foreign Currency Loans made to such Foreign
Subsidiary Borrower) hereby unconditionally promises to pay (i) to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Revolving Loan of such Lender and for the account of each
Tranche B-1 Lender the then unpaid principal amount of each Tranche B-1 Loan,
on the Commitment Termination Date, (ii) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Term Loan of
such Lender as provided in Section 2.10 and (iii) to the Swingline Lender the
then unpaid principal amount of each Swingline Loan on the earlier of the
Commitment Termination Date and the first date after such Swingline Loan is
made that is the 15th or last day of a calendar month and is at least two
Business Days after such Swingline Loan is made; provided that on each
date that a Revolving Loan (other than a Foreign Currency Borrowing) is made,
the Parent Borrower shall repay all Swingline Loans that were outstanding on
the date such Borrowing was requested.
(b)
Each Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Parent Borrower, the Subsidiary
Term Borrowers and the Foreign Subsidiary Borrowers to such Lender resulting
from each Loan made by such Lender, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder.
(c)
The Administrative Agent shall maintain accounts in which it shall record
(i) the amount of each Loan made hereunder, the Class and Type thereof and
the Interest Period applicable thereto, (ii) the amount of any principal
or interest due and payable or to become due and payable from the Parent
Borrower, the Subsidiary Term
61
Borrowers and the Foreign
Subsidiary Borrowers to each Lender hereunder and (iii) the amount of any
sum received by the Administrative Agent hereunder for the account of the
Lenders and each Lenders share thereof.
(d)
The entries made in the accounts maintained pursuant to paragraph (b)
or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that
the failure of any Lender or the Administrative Agent to maintain such accounts
or any error therein shall not in any manner affect the obligation of the
Parent Borrower, the Subsidiary Term Borrowers and the Foreign Subsidiary
Borrowers to repay the Loans in accordance with the terms of this Agreement.
(e)
Any Lender may request that Loans of any Class made by it be evidenced by a
promissory note. In such event, the Parent Borrower, the applicable Subsidiary
Term Borrower or the applicable Foreign Subsidiary Borrower, as the case may
be, shall prepare, execute and deliver to such Lender a promissory note payable
to the order of such Lender (or, if requested by such Lender, to such Lender
and its registered assigns) and in a form approved by the Administrative Agent.
Thereafter, the Loans evidenced by such promissory note and interest thereon
shall at all times (including after assignment pursuant to Section 10.04)
be represented by one or more promissory notes in such form payable to the
order of the payee named therein (or, if such promissory note is a registered
note, to such payee and its registered assigns).
SECTION
2.10. Amortization of Term Loans. (a) Subject to adjustment
pursuant to paragraph (e) of this Section, the Term Loan Borrowers shall
repay Tranche B Term Loans on each date set forth below in the aggregate
principal amount set forth opposite such date:
Date
|
|
Amount
|
|
December 31, 2006
|
|
$
|
650,000
|
|
March 31, 2007
|
|
$
|
650,000
|
|
June 30, 2007
|
|
$
|
650,000
|
|
September 30, 2007
|
|
$
|
650,000
|
|
December 31, 2007
|
|
$
|
650,000
|
|
March 31, 2008
|
|
$
|
650,000
|
|
June 30, 2008
|
|
$
|
650,000
|
|
September 30, 2008
|
|
$
|
650,000
|
|
December 31, 2008
|
|
$
|
650,000
|
|
March 31, 2009
|
|
$
|
650,000
|
|
June 30, 2009
|
|
$
|
650,000
|
|
62
Date
|
|
Amount
|
|
September 30, 2009
|
|
$
|
650,000
|
|
December 31, 2009
|
|
$
|
650,000
|
|
March 31, 2010
|
|
$
|
650,000
|
|
June 30, 2010
|
|
$
|
650,000
|
|
September 30, 2010
|
|
$
|
650,000
|
|
December 31, 2010
|
|
$
|
650,000
|
|
March 31, 2011
|
|
$
|
650,000
|
|
June 30, 2011
|
|
$
|
650,000
|
|
September 30, 2011
|
|
$
|
650,000
|
|
December 31, 2011
|
|
$
|
650,000
|
|
March 31, 2012
|
|
$
|
650,000
|
|
June 30, 2012
|
|
$
|
650,000
|
|
September 30, 2012
|
|
$
|
650,000
|
|
December 31, 2012
|
|
$
|
650,000
|
|
March 31, 2013
|
|
$
|
650,000
|
|
June 30, 2013
|
|
$
|
650,000
|
|
Tranche B Maturity Date
|
|
$
|
242,450,000
|
;
|
provided that if the Tranche B Maturity Date
becomes February 28, 2012 in accordance with the definition thereof, the
amount due on such date shall be $246,350,000.
(b)
The Incremental Term Loans, if any, of each Incremental Lender shall mature in
installments as specified in the Incremental Term Loan Activation Notice
pursuant to which such Incremental Term Loans were made; provided that
prior to the Tranche B Maturity Date the amounts of such installments for
any twelve consecutive months shall not exceed 1% of the aggregate principal
amount of such Incremental Term Loans on the date such Loans were first made.
(c)
To the extent not previously paid, (i) all Tranche B Term Loans shall be due
and payable on the Tranche B Maturity Date and (ii) all Incremental Term
Loans shall be due and payable on the applicable Incremental Maturity Date.
(d)
Any prepayment of a Term Loan of any Class shall be applied to reduce the
subsequent scheduled repayments of the Term Loans of such Class to be made
pursuant to this Section ratably; provided that any prepayment made
pursuant to Section 2.11(a) shall be applied, first, to reduce the next
two scheduled repayments of the Term Loans of such Class due to be made within
the next twelve months pursuant to this Section unless and until such next
scheduled repayment has been eliminated as a result of
63
reductions hereunder (provided,
further, that the amount of such prepayment that may be allocated as
provided in this proviso may not exceed the greater of 50% of such prepayment
and the amount of such two scheduled repayments). Notwithstanding the
foregoing, any prepayment of Eurocurrency Term Loans made pursuant to
Section 2.11(a) on a date that is (x) the last day of an Interest
Period and (y) no more than five days prior to a scheduled amortization
payment pursuant this Section shall be applied, first, to reduce such scheduled
payment, and any excess shall be applied as required by the first sentence of
this Section 2.10(d).
(e)
Prior to any repayment of any Term Loans of either Class hereunder, the Parent
Borrower (on behalf of itself and, in the case of Tranche B Term Loans, the
applicable Subsidiary Term Borrower) shall select the Borrowing or Borrowings
of the applicable Class to be repaid and shall notify the Administrative Agent
by telephone (confirmed by telecopy) of such selection not later than 11:00 a.m.,
New York City time, three Business Days before the scheduled date of such
repayment. Each repayment of a Borrowing shall be applied ratably to the Loans
included in the repaid Borrowing. Repayments of Term Loans shall be accompanied
by accrued interest on the amount repaid.
SECTION
2.11. Prepayment of Loans. (a) The Parent Borrower, the Subsidiary
Term Borrowers and the Foreign Subsidiary Borrowers, as the case may be, shall
have the right at any time and from time to time to prepay any Borrowing in whole
or in part, subject to the requirements of this Section.
(b)
In the event and on such occasion that (i) the sum of the Revolving Exposures
exceeds the total Revolving Commitments or (ii) the sum of the Tranche B-1
Exposures exceeds the total Tranche B-1 Commitments, the Parent Borrower and
the Foreign Subsidiary Borrowers, as the case may be, shall prepay Loans (or,
if no such Borrowings are outstanding, deposit cash collateral in an account
with the Administrative Agent pursuant to Section 2.05(j)) in an aggregate
amount equal to such excess.
(c)
In the event and on such occasion that the sum of the Foreign Currency
Exposures exceeds (i) 105% of the total Foreign Currency Commitments
solely as a result of currency fluctuations or (ii) the total Foreign
Currency Commitments (other than as a result of currency fluctuations), the
Foreign Subsidiary Borrowers shall prepay Foreign Currency Borrowings (or if no
such Borrowings are outstanding, deposit cash collateral in an account with the
Administrative Agent pursuant to Section 2.05(j)) in an amount equal to
the amount by which the sum of Foreign Currency Exposures exceed the total
Foreign Currency Commitments no later than in the case of clause (i) above
the next Interest Payment Date and in the case of clause (ii), the first
Business Day that such excess exists.
(d)
In the event and on each occasion that any Net Proceeds are received by or on
behalf of Holdings, the Parent Borrower or any Subsidiary in respect of any
Prepayment Event, the Parent Borrower (on behalf of itself and, in the case of
Tranche B Term Loans, the Subsidiary Term Borrowers) shall, within three
Business Days after
64
such Net Proceeds are
received, prepay Term Loans in an aggregate amount equal to such Net Proceeds; provided
that, in the case of any event described in clause (a) of the definition
of the term Prepayment Event (other than sales, transfers or other dispositions
pursuant to Section 6.05(j) in excess of $25,000,000), if Holdings or the
Parent Borrower shall deliver, within such three Business Days, to the
Administrative Agent a certificate of a Financial Officer to the effect that
Holdings, the Parent Borrower and the Subsidiaries, intend to apply the Net
Proceeds from such event (or a portion thereof specified in such certificate),
within 365 days after receipt of such Net Proceeds, to acquire real
property, equipment or other tangible assets to be used in the business of the
Parent Borrower and the Subsidiaries, and certifying that no Default has
occurred and is continuing, then no prepayment shall be required pursuant to
this paragraph in respect of the Net Proceeds in respect of such event (or the
portion of such Net Proceeds specified in such certificate, if applicable)
except to the extent of any such Net Proceeds therefrom that have not been so
applied by the end of such 365-day period, at which time a prepayment shall be
required in an amount equal to such Net Proceeds that have not been so applied.
(e)
Following the end of each fiscal year of the Parent Borrower, commencing with
the fiscal year ending December 31, 2006, the Parent Borrower (on behalf
of itself and, in the case of Tranche B Term Loans, the Subsidiary Term
Borrowers) shall prepay Term Loans in an aggregate amount equal to 50% of
Excess Cash Flow for such fiscal year; provided that (i) such percentage
shall be reduced from 50% to 25% with respect to the prepayment under this
paragraph (e) if the Parent Borrowers Leverage Ratio as of the last
fiscal quarter preceding the applicable prepayment date is less than 3.25 to
1.00 but greater than 2.00 to 1.00 and (ii) there shall be no requirement of
repayment pursuant to this paragraph (e) if the Parent Borrowers Leverage
Ratio as of the last fiscal quarter preceding the applicable prepayment date is
less than 2.00 to 1.00. Each prepayment pursuant to this paragraph shall be
made on or before the date on which financial statements are delivered pursuant
to Section 5.01 with respect to the fiscal year for which Excess Cash Flow is
being calculated (and in any event within 95 days after the end of such
fiscal year).
(f)
Prior to any optional or mandatory prepayment of Borrowings hereunder, the
Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the
Foreign Subsidiary Borrowers) shall select the Borrowing or Borrowings to be
prepaid and shall specify such selection in the notice of such prepayment
pursuant to paragraph (g) of this Section. In the event of any optional or
mandatory prepayment of Term Loans made at a time when Term Loans of more than
one Class remain outstanding, the Parent Borrower shall select Term Loans to be
prepaid so that the aggregate amount of such prepayment is allocated between
the Tranche B Term Loans and Incremental Term Loans pro rata based on the
aggregate principal amount of outstanding Borrowings of each such Class.
(g)
The Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the
Foreign Subsidiary Borrowers) shall notify the Administrative Agent (or, in the
case of a Foreign Currency Borrowing, the Foreign Currency Administrative
65
Agent) and, in the case of
prepayment of a Swingline Loan, the Swingline Lender by telephone (confirmed by
telecopy) of any prepayment hereunder (i) in the case of prepayment of a
Eurocurrency Borrowing, not later than 12:00 noon, New York City
time, three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Borrowing, not later than 12:00 noon, New York
City time, one Business Day before the date of prepayment, (iii) in the case of
prepayment of a Swingline Loan, not later than 12:00 noon, New York
City time, on the date of prepayment and (iv) in the case of prepayment of a
Foreign Currency Borrowing, not later than 11 a.m. London Time, three Business
Days before the date of prepayment. Each such notice shall be irrevocable and
shall specify the prepayment date, the principal amount of each Borrowing or
portion thereof to be prepaid and, in the case of a mandatory prepayment, a
reasonably detailed calculation of the amount of such prepayment; provided
that, if a notice of optional prepayment is given in connection with a
conditional notice of termination of the Revolving Commitments or a conditional
notice of reduction of the Tranche B-1 Commitments to zero as contemplated by
Section 2.08, then such notice of prepayment may be revoked if such notice
of termination is revoked in accordance with Section 2.08. Promptly
following receipt of any such notice (other than a notice relating solely to
Swingline Loans), the Administrative Agent shall advise the Lenders of the
contents thereof. Each partial prepayment of any Borrowing shall be in an
amount that would be permitted in the case of an advance of a Borrowing of the
same Type as provided in Section 2.02, except as necessary to apply fully the
required amount of a mandatory prepayment. Each prepayment of a Borrowing shall
be applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section
2.13. Prepayments of Tranche B-1 Loans shall be deposited by the Administrative
Agent in the Deposit Account to the extent provided in Section 2.01(a)(ii)(B).
SECTION
2.12. Fees. (a) The Parent Borrower (on behalf of itself, the
Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers) agrees to pay
to the Administrative Agent for the account of each Lender a commitment fee
(the Commitment Fee), which shall accrue at the Applicable Rate on the
average daily unused amount of each Commitment of such Lender during the period
from and including the Restatement Effective Date to but excluding the date on
which such Commitment terminates. Accrued Commitment Fees shall be payable in
arrears (i) in the case of Commitment Fees in respect of the Revolving
Commitments, on the last day of March, June, September and December of each
year and on the date on which the Revolving Commitments terminate, commencing
on the first such date to occur after the Restatement Effective Date, (ii) in
the case of Commitment Fees in respect of the Tranche B Commitments, on the
Restatement Effective Date, or any earlier date on which such Tranche B
Commitments terminate and (iii) in the case of Commitment Fees in respect
of Incremental Term Commitments, as specified in the applicable Incremental
Term Loan Activation Notice. All Commitment Fees shall be computed on the basis
of a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). For purposes of computing
Commitment Fees with respect to Revolving Commitments, a Revolving Commitment
of a Lender shall be deemed to be used to the extent of the outstanding
Revolving Loans and LC Exposure of
66
such Lender (and the
Swingline Exposure of such Lender shall be disregarded for such purpose).
(b)
(i) The Parent Borrower (on behalf of itself and the Foreign Subsidiary
Borrowers) agrees to pay (A) to the Administrative Agent for the account
of each Lender a participation fee with respect to its participations in
Letters of Credit, which shall accrue at the same Applicable Rate as interest
on Eurocurrency Revolving Loans on the average daily amount of such Lenders LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Restatement Effective
Date to but excluding the later of the date on which (1) such Lenders Revolving
Commitment terminates or Tranche B-1 Commitment is reduced to zero and (2) such
Lender ceases to have any LC Exposure, and (B) to the Issuing Bank a fronting
fee, which shall accrue at the rate of 0.25% per annum on the average daily
amount of the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Restatement Effective Date to but excluding the later of the date on which (1)
such Issuing Banks Revolving Commitment terminates or Tranche B-1 Commitment
is reduced to zero and (2) the date on which there ceases to be any LC
Exposure, as well as the Issuing Banks standard fees with respect to the
issuance, amendment, renewal or extension of any Letter of Credit or processing
of drawings thereunder. Participation fees and fronting fees accrued through
and including the last day of March, June, September and December of each year
shall be payable on the third Business Day following such last day, commencing
on the first such date to occur after the Restatement Effective Date; provided
that (x) all such fees shall be payable on the date on which the Revolving
Commitments terminate and any such fees accruing after the date on which the
Revolving Commitments terminate shall be payable on demand and (y) all such
fees shall be payable on the date on which the Tranche B-1 Commitment is
reduced to zero and any such fees accruing after the date on which the Tranche
B-1 Commitment is reduced to zero shall be payable on demand. Any other fees payable
to the Issuing Bank pursuant to this paragraph shall be payable within
10 days after demand. All participation fees and fronting fees shall be
computed on the basis of a year of 360 days and shall be payable for the
actual number of days elapsed (including the first day but excluding the last
day).
(ii) The Parent Borrower (on behalf of itself and the Foreign
Subsidiary Borrowers) agrees to pay to the Administrative Agent for the account
of each Tranche B-1 Lender a fee, accruing at the rate of 2.75%, on the daily
amount of the Deposit of such Lender during the period from and including the
date hereof to but excluding the date on which each of the Tranche B-1 Total
Commitment and the Tranche B-1 LC Exposure have been reduced to zero. In
addition, the Parent Borrower agrees to pay to the Administrative Agent for the
account of each Tranche B-1 Lender an additional amount, accruing at the rate
of 0.15% per annum, on the daily amount of the Deposit of such Lender during
the period from and including the date hereof to but excluding the date on
which each of the Tranche B-1 Total Commitment and the Tranche B-1 LC Exposure
have been reduced to zero. Fees and other amounts under this paragraph accrued
through and including the last day of March, June, September and December of
67
each
year shall be payable on the third Business Day following such last day,
commencing on the first such date to occur after the Restatement Effective
Date, and on the date on which each of the Tranche B-1 Total Commitment and the
Tranche B-1 LC Exposure have been reduced to zero. All fees and amounts payable
under this paragraph shall be computed on the basis of a 365/366 day year and
shall be payable for the actual number of days elapsed (including the first day
but excluding the last day).
(c)
The Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the
Foreign Subsidiary Borrowers) agrees to pay to the Administrative Agent, for
its own account, fees payable in the amounts and at the times separately agreed
upon between the Parent Borrower and the Administrative Agent.
(d)
All fees payable hereunder shall be paid on the dates due, in immediately
available funds, to the Administrative Agent (or to the Issuing Bank, in the
case of fees payable to it) for distribution, in the case of Commitment Fees
and participation fees, to the Lenders entitled thereto. Fees paid shall not be
refundable under any circumstances.
SECTION
2.13. Interest. (a) The Loans comprising each ABR Borrowing
(including each Swingline Loan) shall bear interest at the Alternate Base Rate
plus the Applicable Rate.
(b)
The Loans comprising each Eurocurrency Borrowing shall bear interest at the
Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus
the Applicable Rate.
(c)
Notwithstanding the foregoing, if any principal of or interest on any Loan or
any fee or other amount payable by the Parent Borrower, the Subsidiary Term
Borrowers or the Foreign Subsidiary Borrowers, as the case may be, hereunder is
not paid when due, whether at stated maturity, upon acceleration or otherwise,
such overdue amount shall bear interest, after as well as before judgment, at a
rate per annum equal to (i) in the case of overdue principal of any Loan,
2% plus the rate otherwise applicable to such Loan as provided in the preceding
paragraphs of this Section or (ii) in the case of any other amount, 2% plus the
rate applicable to ABR Revolving Loans as provided in paragraph (a) of
this Section.
(d)
Accrued interest on each Loan shall be payable in arrears on each Interest
Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Revolving Commitments and in the case of Tranche B-1 Loans,
upon reduction of the Tranche B-1 Commitment to zero; provided that
(i) interest accrued pursuant to paragraph (c) of this Section shall
be payable on demand, (ii) in the event of any repayment or prepayment of any
Loan (other than a prepayment of an ABR Revolving Loan prior to the end of the
Revolving Availability Period), accrued interest on the principal amount repaid
or prepaid shall be payable on the date of such repayment or prepayment and
(iii) in the event of any conversion of any Eurocurrency Loan prior to
68
the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(e)
All interest hereunder shall be computed on the basis of a year of
360 days, except that (i) interest on a Foreign Currency
Borrowing denominated in Sterling and (ii) interest computed by reference
to the Alternate Base Rate at times when the Alternate Base Rate is based on
the Prime Rate shall be computed on the basis of a year of 365 days (or
366 days in a leap year), and in each case shall be payable for the actual
number of days elapsed (including the first day but excluding the last day).
The applicable Alternate Base Rate or Adjusted LIBO Rate shall be determined by
the Administrative Agent, and such determination shall be conclusive absent
manifest error.
SECTION
2.14. Alternate Rate of Interest. If prior to the commencement of any
Interest Period for a Eurocurrency Borrowing denominated in any currency:
(a)
the Administrative Agent determines (which determination shall be conclusive
absent manifest error) that adequate and reasonable means do not exist for
ascertaining the Adjusted LIBO Rate for such Interest Period; or
(b)
the Administrative Agent is advised by the Required Lenders that the Adjusted
LIBO Rate for such Interest Period will not adequately and fairly reflect the
cost to such Lenders of making or maintaining their Loans included in such
Borrowing for such Interest Period;
then
the Administrative Agent shall give notice thereof to the Parent Borrower (on
behalf of itself, the Subsidiary Term Borrowers and the Foreign Subsidiary
Borrowers) and the Lenders by telephone or telecopy as promptly as practicable
thereafter and, until the Administrative Agent notifies the Parent Borrower (on
behalf of itself, the Subsidiary Term Borrowers and the Foreign Subsidiary
Borrowers) and the Lenders that the circumstances giving rise to such notice no
longer exist, (i) any Interest Election Request that requests the
conversion of any Borrowing denominated in such currency to, or continuation of
any Borrowing denominated in such currency as, a Eurocurrency Borrowing shall
be ineffective, and any Eurocurrency Borrowing denominated in such currency
that is requested to be continued (A) if such currency is the dollar,
shall be converted to an ABR Borrowing on the last day of the Interest Period
applicable thereto and (B) if such currency is a Foreign Currency, shall
be repaid on the last day of the Interest Period applicable thereto and (ii) if
any Borrowing Request requests a Eurocurrency Borrowing denominated in such
currency (A) if such currency is the dollar, such Borrowing shall be made
as an ABR Borrowing and (B) if such currency is a Foreign Currency, such
Borrowing Request shall be ineffective.
SECTION
2.15. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of, or
credit extended by, any Lender (except any such reserve requirement reflected
in
69
the
Adjusted LIBO Rate) or the Issuing Bank or any Deposit or the Deposit Account;
or
(ii) impose on any Lender or the Issuing Bank or the London interbank
market any other condition affecting this Agreement or Eurocurrency Loans made
by such Lender or any Letter of Credit or participation therein or any Deposit
or the Deposit Account;
and
the result of any of the foregoing shall be to increase the cost to such Lender
of making or maintaining its Deposit or any Eurocurrency Loan (or of
maintaining its obligation to make any such Loan) or to increase the cost to
such Lender or the Issuing Bank of participating in, issuing or maintaining any
Letter of Credit or to reduce the amount of any sum received or receivable by
such Lender or the Issuing Bank hereunder (whether of principal, interest or
otherwise), then the Parent Borrower, the applicable Subsidiary Term Borrowers
or the applicable Foreign Subsidiary Borrowers, as the case may be, will pay to
such Lender or the Issuing Bank, as the case may be, such additional amount or
amounts as will compensate such Lender or the Issuing Bank, as the case may be,
for such additional costs incurred or reduction suffered.
(b)
If any Lender or the Issuing Bank determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of
return on such Lenders or the Issuing Banks capital or on the capital of such
Lenders or the Issuing Banks holding company, if any, as a consequence of
this Agreement or the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Deposit or Sub-Account of such Lender, or the
Letters of Credit issued by the Issuing Bank, to a level below that which such
Lender or the Issuing Bank or such Lenders or the Issuing Banks holding
company could have achieved but for such Change in Law (taking into
consideration such Lenders or the Issuing Banks policies and the policies of
such Lenders or the Issuing Banks holding company with respect to capital
adequacy), then from time to time the Parent Borrower, the applicable
Subsidiary Term Borrowers or the applicable Foreign Subsidiary Borrowers, as
the case may be, will pay to such Lender or the Issuing Bank, as the case may
be, such additional amount or amounts as will compensate such Lender or the
Issuing Bank or such Lenders or the Issuing Banks holding company for any
such reduction suffered.
(c)
A certificate of a Lender or the Issuing Bank setting forth the amount or
amounts necessary to compensate such Lender or the Issuing Bank or its holding
company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Parent Borrower (on behalf of itself,
the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers) and shall
be conclusive absent manifest error. The Parent Borrower, the applicable
Subsidiary Term Borrowers or the applicable Foreign Subsidiary Borrowers, as
the case may be, shall pay such Lender or the Issuing Bank, as the case may be,
the amount shown as due on any such certificate within 10 days after
receipt thereof.
70
(d)
Failure or delay on the part of any Lender or the Issuing Bank to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lenders or the Issuing Banks right to demand such compensation; provided
that none of the Parent Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary
Borrower shall be required to compensate a Lender or the Issuing Bank pursuant
to this Section for any increased costs or reductions incurred more than
270 days prior to the date that such Lender or the Issuing Bank, as the
case may be, notifies the Parent Borrower (on behalf of itself, the Subsidiary
Term Borrowers and the Foreign Subsidiary Borrowers) of the Change in Law
giving rise to such increased costs or reductions and of such Lenders or the
Issuing Banks intention to claim compensation therefor; provided further
that, if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 270-day period referred to above shall be extended to
include the period of retroactive effect thereof.
SECTION
2.16. Break Funding Payments. In the event of (a) the payment of
any principal of any Eurocurrency Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurocurrency Loan other than on the
last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Revolving Loan or Term Loan on the date
specified in any notice delivered pursuant hereto (regardless of whether such
notice may be revoked under Section 2.11(g) and is revoked in accordance
therewith), or (d) the assignment of any Eurocurrency Loan other than on
the last day of the Interest Period applicable thereto as a result of a request
by the Parent Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary
Borrower pursuant to Section 2.19, then, in any such event, the Parent
Borrower, the applicable Subsidiary Term Borrower or the applicable Foreign
Subsidiary Borrower, as the case may be, shall compensate each Lender for the
loss, cost and expense attributable to such event. In the case of a
Eurocurrency Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount determined by such Lender to be the excess, if any, of
(i) the amount of interest which would have accrued on the principal
amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that
would have been applicable to such Loan, for the period from the date of such
event to the last day of the then current Interest Period therefor (or, in the
case of a failure to borrow, convert or continue, for the period that would
have been the Interest Period for such Loan), over (ii) the amount of interest
which would accrue on such principal amount for such period at the interest
rate which such Lender would bid were it to bid, at the commencement of such
period, for deposits in the applicable currency of a comparable amount and
period from other banks in the Eurocurrency market. A certificate of any Lender
setting forth any amount or amounts that such Lender is entitled to receive
pursuant to this Section shall be delivered to the Parent Borrower (on behalf
of itself, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers)
and shall be conclusive absent manifest error. The Parent Borrower, the
applicable Subsidiary Term Borrower or the applicable Foreign Subsidiary
Borrower, as the case may be, shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
71
SECTION
2.17. Taxes. (a) Any and all payments by or on account of any
obligation of the Parent Borrower, any Subsidiary Term Borrower or any Foreign
Subsidiary Borrower hereunder or under any other Loan Document shall be made
free and clear of and without deduction for any Indemnified Taxes or Other
Taxes; provided that if the Parent Borrower, any Subsidiary Term
Borrower or any Foreign Subsidiary Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section) the Administrative Agent, Lender or Issuing Bank (as the case may
be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Parent Borrower, such Subsidiary Term
Borrower or such Foreign Subsidiary Borrower, as the case may be, shall make
such deductions and (iii) the Parent Borrower, such Subsidiary Term
Borrower or such Foreign Subsidiary Borrower, as the case may be, shall pay the
full amount deducted to the relevant Governmental Authority in accordance with
applicable law.
(b)
In addition, the Parent Borrower, each Subsidiary Term Borrower and each
Foreign Subsidiary Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c)
The Parent Borrower, each Subsidiary Term Borrower and each Foreign Subsidiary
Borrower, as the case may be, shall indemnify the Administrative Agent, each
Lender and the Issuing Bank, within 10 Business Days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes (i) paid
by the Administrative Agent, such Lender or the Issuing Bank, as the case may
be, on or with respect to any payment by or on account of any obligation of the
Parent Borrower, each Subsidiary Term Borrower and each Foreign Subsidiary
Borrower, as the case may be, hereunder
or under any other Loan Document (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section)
and any penalties, interest and reasonable expenses arising therefrom or with
respect thereto and (ii) withheld by the Administrative Agent with respect to
any and all payments of the Deposit Return to the Tranche B-1 Lenders
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section), in each case, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Parent Borrower, any Subsidiary
Term Borrower or any Foreign Subsidiary Borrower, as the case may be, by a
Lender or the Issuing Bank, or by the Administrative Agent on its own behalf or
on behalf of a Lender or the Issuing Bank, shall be conclusive absent manifest
error.
(d)
As soon as practicable after any payment of Indemnified Taxes or Other Taxes by
the Parent Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary
Borrower to a Governmental Authority, the Parent Borrower, such Subsidiary Term
Borrower or such Foreign Subsidiary Borrower, as the case may be, shall deliver
to the Administrative Agent the original or a certified copy of a receipt
issued by such Governmental Authority evidencing such payment, a copy of the
return reporting such
72
payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e)
Any Lender that is entitled to an exemption from or reduction of withholding
tax under the law of the jurisdiction in which the Parent Borrower, any
Subsidiary Term Borrower or any Foreign Subsidiary Borrower, as the case may
be, is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Parent Borrower
(on behalf of itself, the Subsidiary Term Borrowers and the Foreign Subsidiary
Borrowers) (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by the
Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the
Foreign Subsidiary Borrowers) as will permit such payments to be made without
withholding or at a reduced rate.
(f)
If the Administrative Agent or a Lender (or a transferee) determines, in its
sole discretion, that it has received a refund of any Taxes or Other Taxes as
to which it has been indemnified by the Parent Borrower, any Subsidiary Term
Borrower or any Foreign Subsidiary Borrower or with respect to which the Parent
Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign
Subsidiary Borrowers) has paid additional amounts pursuant to this
Section 2.17, it shall pay over such refund to the Parent Borrower (but
only to the extent of indemnity payments made, or additional amounts paid, by
the Parent Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary
Borrower under this Section 2.17 with respect to the Taxes or the Other
Taxes giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent or such Lender (or transferee) and without interest (other
than any interest paid by the relevant Governmental Authority with respect to
such refund); provided, however, that the Parent Borrower, any
Subsidiary Term Borrower or any Foreign Subsidiary Borrower, upon the request
of the Administrative Agent or such Lender (or transferee), agrees to repay the
amount paid over to the Parent Borrower (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) to the Administrative
Agent or such Lender (or transferee) in the event the Administrative Agent or
such Lender (or transferee) is required to repay such refund to such
Governmental Authority. Nothing contained in this Section 2.17(f) shall
require the Administrative Agent or any Lender to make available its tax
returns or any other information relating to its taxes which it deems
confidential to the Parent Borrower or any other person.
SECTION
2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The
Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the
Foreign Subsidiary Borrowers) shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest,
fees or reimbursement of LC Disbursements, or of amounts payable under Section
2.15, 2.16 or 2.17, or otherwise) on or before the time expressly required
hereunder or under such other Loan Document for such payment (or, if no such
time is expressly required, prior to 12:00 noon, New York City time,
or if the applicable Loan is a Foreign Currency Loan, London time), on the date
when due, in immediately available funds, without set-off or
73
counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 270 Park Avenue,
New York, New York (unless otherwise instructed in the case of
Foreign Currency Loans), except payments to be made directly to the Issuing
Bank or Swingline Lender as expressly provided herein and except that payments
pursuant to Sections 2.15, 2.16, 2.17 and 10.03 shall be made directly to the
Persons entitled thereto and payments pursuant to other Loan Documents shall be
made to the Persons specified therein. The Administrative Agent shall
distribute any such payments received by it for the account of any other Person
to the appropriate recipient promptly following receipt thereof. If any payment
under any Loan Document shall be due on a day that is not a Business Day, the
date for payment shall be extended to the next succeeding Business Day, and, in
the case of any payment accruing interest, interest thereon shall be payable
for the period of such extension. Subject to Section 9.01, (i) all payments
under each Loan Document of principal or interest in respect of any Loan or LC
Disbursement shall be made in the currency of such Loan or LC Disbursement,
(ii) any portion of the fees payable pursuant to Section 2.12(b) in respect of
Foreign Currency LC Exposure shall be made in the applicable Foreign Currency,
and (iii) all other payments hereunder and under each other Loan Document shall
be made in dollars.
(b)
If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be
applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second, towards
payment of principal and unreimbursed LC Disbursements then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal and unreimbursed LC Disbursements then due to such parties.
(c)
If any Lender shall, by exercising any right of set-off or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on any of
its Revolving Loans, Term Loans, Tranche B-1 Loans or participations in LC
Disbursements or Swingline Loans resulting in such Lender receiving payment of
a greater proportion of the aggregate amount of its Revolving Loans, Term
Loans, Tranche B-1 Loans and participations in LC Disbursements and Swingline
Loans and accrued interest thereon than the proportion received by any other
Lender, then the Lender receiving such greater proportion shall purchase (for
cash at face value) participations in the Revolving Loans, Term Loans, Tranche
B-1 Loans and participations in LC Disbursements and Swingline Loans of other
Lenders to the extent necessary so that the benefit of all such payments shall
be shared by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Revolving Loans, Term
Loans, Tranche B-1 Loans and participations in LC Disbursements and Swingline
Loans; provided that (i) if any such participations are purchased and
all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the
74
purchase price restored to
the extent of such recovery, without interest, and (ii) the provisions of this
paragraph shall not be construed to apply to any payment made by the Parent
Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower
pursuant to and in accordance with the express terms of this Agreement or any
payment obtained by a Lender as consideration for the assignment of or sale of
a participation in any of its Loans or participations in LC Disbursements to
any assignee or participant, other than to the Parent Borrower or any
Subsidiary or Affiliate thereof (as to which the provisions of this paragraph
shall apply). The Parent Borrower, each Subsidiary Term Borrower and each
Foreign Subsidiary Borrower consents to the foregoing and agrees, to the extent
it may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Parent Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary
Borrower, as the case may be, rights of set-off and counterclaim with respect
to such participation as fully as if such Lender were a direct creditor of the
Parent Borrower, such Subsidiary Term Borrower or such Foreign Subsidiary
Borrower in the amount of such participation.
(d)
Unless the Administrative Agent shall have received notice from the Parent
Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign
Subsidiary Borrowers) prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Bank
hereunder that the Parent Borrower, any Subsidiary Term Borrower or any Foreign
Subsidiary Borrower, as the case may be, will not make such payment, the Administrative
Agent may assume that the Parent Borrower, such Subsidiary Term Borrower or
such Foreign Subsidiary Borrower, as the case may be, has made such payment on
such date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders or the Issuing Bank, as the case may be (or to the
extent provided in Section 2.01(a)(ii)(B), deposit in the Deposit Account), the
amount due. In such event, if the Parent Borrower, such Subsidiary Term
Borrower or such Foreign Subsidiary Borrower, as the case may be, has not in
fact made such payment, then each of the Lenders or the Issuing Bank, as the
case may be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender or Issuing Bank (or, if such
amount shall have been deposited in the Deposit Account, each Tranche B-1
Lender authorizes the Administrative Agent to withdraw such amount from the
Deposit Account) with interest thereon, for each day from and including the
date such amount is distributed to it to but excluding the date of payment to
the Administrative Agent, at the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.
(e)
If any Lender shall fail to make any payment required to be made by it pursuant
to Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.18(d) or 10.03(c), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lenders obligations under
such Sections until all such unsatisfied obligations are fully paid.
75
SECTION
2.19. Mitigation Obligations; Replacement of Lenders. (a) If any
Lender requests compensation under Section 2.15, or if the Parent
Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then
such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 2.15 or 2.17, as the case may be,
in the future and (ii) would not subject such Lender to any unreimbursed cost
or expense and would not otherwise be disadvantageous to such Lender. The
Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the
Foreign Subsidiary Borrowers) hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or
assignment.
(b)
If any Lender requests compensation under Section 2.15, or if the Parent
Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, or if
any Lender defaults in its obligation to fund Loans hereunder, then the Parent
Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign
Subsidiary Borrowers) may, at its sole expense and effort, upon notice to such
Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in Section 10.04), all its interests, rights and obligations
under this Agreement to an assignee selected by the Parent Borrower that shall
assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that (i) the Parent Borrower (on
behalf of itself, the Subsidiary Term Borrowers and the Foreign Subsidiary
Borrowers) shall have received the prior written consent of the Administrative
Agent (and, if a Revolving Commitment is being assigned, the Issuing Bank and
Swingline Lender), which consent shall not unreasonably be withheld, (ii) such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans, its Deposit and participations in LC Disbursements and
Swingline Loans, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Parent Borrower, the Subsidiary
Term Borrowers and the Foreign Subsidiary Borrowers (in the case of all other
amounts) and (iii) in the case of any such assignment resulting from a
claim for compensation under Section 2.15 or payments required to be made
pursuant to Section 2.17, such assignment will result in a material
reduction in such compensation or payments. A Lender shall not be required to
make any such assignment and delegation if, prior thereto, as a result of a
waiver by such Lender or otherwise, the circumstances entitling the Parent
Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower to
require such assignment and delegation cease to apply.
SECTION
2.20. Additional Reserve Costs. (a) If and so long as any Revolving
Lender is required to make special deposits with the Bank of England, to
76
maintain reserve asset
ratios or to pay fees, in each case in respect of such Revolving Lenders
Foreign Currency Loans, such Revolving Lender may require the relevant Foreign
Subsidiary Borrower to pay, contemporaneously with each payment of interest on
each of such Foreign Currency Loans, additional interest on such Foreign
Currency Loan at a rate per annum equal to the mandatory costs rate (the Mandatory
Costs Rate) calculated in accordance with the formula and in the manner
set forth in Exhibit K to the Original Credit Agreement.
(b)
If and so long as any Revolving Lender is required to comply with reserve
assets, liquidity, cash margin or other requirements of any monetary or other
authority (including any such requirement imposed by the European Central Bank
or the European System of Central Banks, but excluding requirements reflected
in the Statutory Reserve Rate or the Mandatory Costs Rate) in respect of any of
such Revolving Lenders Foreign Currency Loans, such Revolving Lender may
require the relevant Foreign Subsidiary Borrower to pay, contemporaneously with
each payment of interest on each of such Revolving Lenders Foreign Currency
Loans subject to such requirements, additional interest on such Foreign
Currency Loan at a rate per annum specified by such Revolving Lender to be the
cost to such Revolving Lender of complying with such requirements in relation
to such Foreign Currency Loan.
(c)
Any additional interest owed pursuant to paragraph (a) or (b) above
shall be determined by the relevant Revolving Lender, which determination shall
be conclusive absent manifest error, and notified to the Parent Borrower (on
behalf of the relevant Foreign Subsidiary Borrower) (with a copy to the
Administrative Agent) at least five Business Days before each date on which
interest is payable for the relevant Foreign Currency Loan, and such additional
interest so notified by such Revolving Lender shall be payable to the
Administrative Agent for the account of such Revolving Lender on each date on
which interest is payable for such Foreign Currency Loan.
SECTION
2.21. Designation of Foreign Subsidiary Borrowers. The Parent Borrower
may at any time and from time to time designate any Foreign Subsidiary as a
Foreign Subsidiary Borrower, by delivery to the Administrative Agent of a
Foreign Subsidiary Borrowing Agreement executed by such Foreign Subsidiary and
the Parent Borrower, and upon such delivery such Foreign Subsidiary shall for
all purposes of this Agreement and the other Loan Documents be a Foreign
Subsidiary Borrower until the Parent Borrower shall terminate such designation
pursuant to a termination agreement satisfactory to the Administrative Agent,
whereupon such Foreign Subsidiary shall cease to be a Foreign Subsidiary
Borrower and a party to this Agreement and any other applicable Loan Documents.
Notwithstanding the preceding sentence, but subject to Section 10.04(a),
no such termination will become effective as to any Foreign Subsidiary Borrower
at a time when any principal of or interest on any Loan to such Foreign
Subsidiary Borrower is outstanding. As soon as practicable upon receipt of a
Foreign Subsidiary Borrowing Agreement, the Administrative Agent shall send a
copy thereof to each Lender.
77
SECTION
2.22. Foreign Subsidiary Borrower Costs. (a) If the cost to any
Revolving Lender of making or maintaining any Foreign Currency Loan to a
Foreign Subsidiary Borrower is increased (or the amount of any sum received or
receivable by any Revolving Lender (or its applicable lending office) is
reduced) by an amount deemed in good faith by such Revolving Lender to be
material, by reason of the fact that such Foreign Subsidiary Borrower is
incorporated in, or conducts business in, a jurisdiction outside the
United States, such Foreign Subsidiary Borrower shall indemnify such
Revolving Lender for such increased cost or reduction within 15 days after
demand by such Revolving Lender (with a copy to the Administrative Agent). A
certificate of such Revolving Lender claiming compensation under this paragraph
and setting forth the additional amount or amounts to be paid to it hereunder
(and the basis for the calculation of such amount or amounts) shall be
conclusive in the absence of manifest error.
(b)
Each Revolving Lender will promptly notify the Parent Borrower (on behalf of
the relevant Foreign Subsidiary Borrower) and the Administrative Agent of any
event of which it has knowledge that will entitle such Revolving Lender to
additional interest or payments pursuant to paragraph (a) above, but in
any event within 45 days after such Revolving Lender obtains actual
knowledge thereof; provided that (i) if any Revolving Lender fails
to give such notice within 45 days after it obtains actual knowledge of
such an event, such Revolving Lender shall, with respect to compensation
payable pursuant to this Section 2.22 in respect of any costs resulting
from such event, only be entitled to payment under this Section 2.22 for
costs incurred from and after the date 45 days prior to the date that such
Revolving Lender does give such notice and (ii) each Revolving Lender will
designate a different applicable lending office, if, in the judgment of such
Revolving Lender, such designation will avoid the need for, or reduce the
amount of, such compensation and will not be otherwise disadvantageous to such
Revolving Lender.
ARTICLE III
Representations and
Warranties
Each
of Holdings, the Parent Borrower, each Subsidiary Term Borrower (as to itself
only) and each Foreign Subsidiary Borrower (as to itself only) represents and
warrants to the Lenders that:
SECTION
3.01. Organization; Powers. Each of Holdings, the Parent Borrower and
its Subsidiaries (including the Receivables Subsidiary) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
78
SECTION
3.02. Authorization; Enforceability. The Transactions to be entered into
by each Loan Party are within such Loan Partys powers and have been duly
authorized by all necessary action. This Agreement has been duly executed and
delivered by each of Holdings and the Parent Borrower and constitutes, and each
other Loan Document to which any Loan Party is to be a party, when executed and
delivered by such Loan Party, will constitute, a legal, valid and binding
obligation of Holdings, the Parent Borrower or such Loan Party (as the case may
be), enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors rights generally and subject to general principles of equity, regardless
of whether considered in a proceeding in equity or at law.
SECTION
3.03. Governmental Approvals; No Conflicts. The Transactions and the
other transactions contemplated hereby (a) do not require any consent or
approval of, registration or filing with, or any other action by, any
Governmental Authority, except (x) such as have been obtained or made and
are in full force and effect, (y) filings necessary to perfect Liens
created under the Loan Documents and (z) consents, approvals, registrations,
filings or actions the failure of which to obtain or perform could not
reasonably be expected to result in a Material Adverse Effect, (b) will
not violate any applicable law or regulation or the charter, by-laws or other
organizational documents of Holdings, the Parent Borrower or any of its
Subsidiaries (including the Receivables Subsidiary) or any order of any
Governmental Authority, (c) will not violate or result in a default under
any indenture, agreement or other instrument binding upon Holdings, the Parent
Borrower or any of its Subsidiaries (including the Receivables Subsidiary) or
its assets, or give rise to a right thereunder to require any payment to be
made by Holdings, the Parent Borrower or any of its Subsidiaries (including the
Receivables Subsidiary), except for violations, defaults or the creation of
such rights that could not reasonably be expected to result in a Material
Adverse Effect, and (d) will not result in the creation or imposition of
any Lien on any asset of Holdings, the Parent Borrower or any of its
Subsidiaries (including the Receivables Subsidiary), except Liens created under
the Loan Documents and Liens permitted by Section 6.02.
SECTION
3.04. Financial Condition; No Material Adverse Change. (a)Holdings has
heretofore furnished to the Lenders its consolidated balance sheet and
statements of income, stockholders equity and cash flows (i) as of and for the
fiscal year ended December 31, 2005, reported on by KPMG LLP, independent
public accountants, and (ii) as of and for the fiscal quarter and the portion
of the fiscal year ended March 31, 2006, certified by its chief financial
officer. Such financial statements present fairly, in all material respects,
the financial position and results of operations and cash flows of Holdings and
its consolidated Subsidiaries as of such dates and for such periods in
accordance with GAAP, subject to year-end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (ii) above.
(b)
[Reserved]
79
(c)
Except as disclosed in the financial statements referred to above or the notes
thereto or in the Information Memorandum, except for the Disclosed Matters and
except for liabilities arising as a result of the Transactions, after giving
effect to the Transactions, none of Holdings, the Parent Borrower or the
Subsidiaries (including the Receivables Subsidiary) has, as of the Restatement
Effective Date, any contingent liabilities that would be material to Holdings,
the Parent Borrower and the Subsidiaries (including the Receivables
Subsidiary), taken as a whole.
(d)
Since December 31, 2005, there has been no event, change or occurrence
that, individually or in the aggregate, has had or could reasonably be expected
to result in a Material Adverse Effect.
SECTION
3.05. Properties. (a) Each of Holdings, the Parent Borrower and its
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business (including its Mortgaged
Properties), except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
(b)
Each of Holdings, the Parent Borrower and its Subsidiaries owns, or is licensed
to use, all trademarks, tradenames, copyrights, patents and other intellectual
property material to its business, and the use thereof by Holdings, the Parent
Borrower and its Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
(c)
Schedule 3.05 sets forth the address of each real property that is owned or
leased by Holdings, the Parent Borrower or any of its Subsidiaries as of the
Restatement Effective Date after giving effect to the Transactions.
(d)
As of the Restatement Effective Date, none of Holdings, the Parent Borrower or
any of its Subsidiaries has received written notice of any pending or
contemplated condemnation proceeding affecting any Mortgaged Property or any
sale or disposition thereof in lieu of condemnation. Neither any Mortgaged
Property nor any interest therein is subject to any right of first refusal,
option or other contractual right to purchase such Mortgaged Property or
interest therein.
SECTION
3.06. Litigation and Environmental Matters. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of Holdings or the Parent
Borrower, threatened against or affecting Holdings, the Parent Borrower or any
of its Subsidiaries (including the Receivables Subsidiary) (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve any of the Loan Documents or the Transactions.
(b)
Except for the Disclosed Matters and except with respect to any other matters
that, individually or in the aggregate, could not reasonably be expected to
result
80
in a Material Adverse Effect, none of Holdings, the
Parent Borrower or any of its Subsidiaries (including the Receivables
Subsidiary) (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval required
under any Environmental Law, (ii) has become subject to any Environmental
Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
(c)
Since the Restatement Effective Date, there has been no change in the status of
the Disclosed Matters that, individually or in the aggregate, has resulted in,
or materially increased the likelihood of, a Material Adverse Effect.
SECTION
3.07. Compliance with Laws and Agreements. Each of Holdings, the Parent
Borrower and its Subsidiaries (including the Receivables Subsidiary) is in
compliance with all laws, regulations and orders of any Governmental Authority
applicable to it or its property and all indentures, agreements and other
instruments binding upon it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect. No Default has occurred and is continuing.
SECTION
3.08. Investment Company Status. None of Holdings, the Parent Borrower
or any of its Subsidiaries (including the Receivables Subsidiary) is an
investment company as defined in, or subject to regulation under, the
Investment Company Act of 1940.
SECTION
3.09. Taxes. Each of Holdings, the Parent Borrower and its Subsidiaries
(including the Receivables Subsidiary) has timely filed or caused to be filed
all Tax returns and reports required to have been filed and has paid or caused
to be paid all Taxes required to have been paid by it, except (a) any
Taxes that are being contested in good faith by appropriate proceedings and for
which Holdings, the Parent Borrower or such Subsidiary (including the
Receivables Subsidiaries), as applicable, has set aside on its books adequate
reserves or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.
SECTION
3.10. ERISA. No ERISA Event has occurred or is reasonably expected to
occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. As of the Restatement Effective Date, the
present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial
Accounting Standards No. 87) did not, as of the date of the most recent
financial statements reflecting such amounts, exceed by more than $5,100,000
the fair market value of the assets of all such underfunded Plans.
SECTION
3.11. Disclosure. Each of Holdings and the Parent Borrower has disclosed
to the Lenders all agreements, instruments and corporate or other restrictions
to which Holdings, the Parent Borrower or any of its Subsidiaries (including
the Receivables Subsidiary) is subject, and all other matters known to any of
them, that, individually or in the aggregate, could reasonably be expected to
result in a Material
81
Adverse Effect. Neither the Information Memorandum
nor any of the other reports, financial statements, certificates or other
information furnished by or on behalf of any Loan Party to the Administrative
Agent or any Lender in connection with the negotiation of this Agreement or any
other Loan Document or delivered hereunder or thereunder (as modified or
supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial
information, Holdings and the Parent Borrower represent only that such
information was prepared in good faith based upon assumptions believed to be reasonable
at the time such projections were prepared.
SECTION
3.12. Subsidiaries. Holdings does not have any subsidiaries other than
the Parent Borrower and the Parent Borrowers Subsidiaries. Schedule 3.12
sets forth the name of, and the ownership interest of the Parent Borrower in,
each Subsidiary of the Parent Borrower and identifies each Subsidiary that is a
Subsidiary Loan Party, in each case as of the Restatement Effective Date.
SECTION
3.13. Insurance. Schedule 3.13 sets forth a description of all material
insurance policies maintained by or on behalf of Holdings, the Parent Borrower
and the Subsidiaries as of the Restatement Effective Date. As of the
Restatement Effective Date, all premiums due in respect of such insurance have
been paid.
SECTION
3.14. Labor Matters. As of the Restatement Effective Date, there are no
strikes, lockouts or slowdowns against Holdings, the Parent Borrower or any
Subsidiary pending or, to the knowledge of Holdings or the Parent Borrower,
threatened that could reasonably be expected to have a Material Adverse Effect.
All payments due from Holdings, the Parent Borrower or any Subsidiary, or for
which any claim may be made against Holdings, the Parent Borrower or any
Subsidiary, on account of wages and employee health and welfare insurance and
other benefits, have been paid or accrued as a liability on the books of
Holdings, the Parent Borrower or such Subsidiary except for those which,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect. The consummation of the Transactions will not give
rise to any right of termination or right of renegotiation on the part of any
union under any collective bargaining agreement to which Holdings, the Parent
Borrower or any Subsidiary is bound.
SECTION
3.15. Solvency. Immediately after the consummation of the Transactions
to occur on the Restatement Effective Date and immediately following the making
of each Loan made on the Restatement Effective Date and after giving effect to
the application of the proceeds of such Loans, (a) the fair value of the
assets of each Loan Party, at a fair valuation, will exceed its debts and
liabilities, subordinated, contingent or otherwise; (b) the present fair
saleable value of the property of each Loan Party will be greater than the
amount that will be required to pay the probable liability of its debts and
other liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become
82
absolute and matured; (c) each Loan Party will
be able to pay its debts and liabilities, subordinated, contingent or
otherwise, as such debts and liabilities become absolute and matured; and
(d) the Loan Parties, on a consolidated basis, will not have unreasonably
small capital with which to conduct the business in which it is engaged as such
business is now conducted and is proposed to be conducted following the
Restatement Effective Date.
SECTION
3.16. Senior Indebtedness. The Obligations constitute Senior
Indebtedness under and as defined in the Subordinated Notes Documents.
SECTION
3.17. Security Documents. (a) The Pledge Agreement is effective to
create in favor of the Collateral Agent, for the benefit of the Secured
Parties, a legal, valid and enforceable security interest in the Collateral (as
defined in the Pledge Agreement) and, when such Collateral is delivered to the
Collateral Agent and for so long as the Collateral Agent remains in possession
of such Collateral, the security interest created by the Pledge Agreement shall
constitute a perfected first priority security interest in all right, title and
interest of the pledgor thereunder in such Collateral, in each case prior and
superior in right to any other Person.
(b)
The Security Agreement is effective to create in favor of the Collateral Agent,
for the benefit of the Secured Parties, a legal, valid and enforceable security
interest in the Collateral (as defined in the Security Agreement) and, when
financing statements in appropriate form are filed in the offices specified on
Schedule 6 to the Perfection Certificate, the security interest created by
the Security Agreement shall constitute a perfected security interest in all
right, title and interest of the grantors thereunder in such Collateral (other
than the Intellectual Property (as defined in the Security Agreement)), in each
case prior and superior in right to any other Person, other than with respect
to Liens permitted by Section 6.02.
(c)
When the Security Agreement (or a summary thereof) is filed in the
United States Patent and Trademark Office and the United States
Copyright Office and the financing statements referred to in
Section 3.17(b) above are appropriately filed, the security interest
created by the Security Agreement shall constitute a perfected security
interest in all right, title and interest of the grantors thereunder in the
Intellectual Property (as defined in the Security Agreement) in which a
security interest may be perfected by filing, recording or registering a security
agreement, financing statement or analogous document in the United States
Patent and Trademark Office or the United States Copyright Office, as
applicable, in each case prior and superior in right to any other Person (it
being understood that subsequent recordings in the United States Patent
and Trademark Office and the United States Copyright Office and subsequent
UCC filings may be necessary to perfect a lien on registered trademarks,
trademark applications and copyrights acquired by the Loan Parties after the
Original Effective Date), other than with respect to Liens permitted by
Section 6.02.
(d)
The Mortgages are effective to create, subject to the exceptions listed in each
title insurance policy covering such Mortgage, in favor of the Collateral Agent,
for the benefit of the Secured Parties, a legal, valid and enforceable Lien on
all of the applicable mortgagors right, title and interest in and to the
Mortgaged Properties
83
thereunder and the proceeds thereof, and when the
Mortgages are filed in the offices specified on Schedule 3.17(d), the Lien
created by each Mortgage shall constitute a perfected Lien on all right, title
and interest of the applicable mortgagor in such Mortgaged Properties and the
proceeds thereof, in each case prior and superior in right to any other Person,
other than with respect to the rights of Persons pursuant to Liens permitted by
Section 6.02.
(e)
Following the execution of any Foreign Security Document pursuant to Section 4.03,
each Foreign Security Document shall be effective to create in favor of the
Collateral Agent, for the benefit of the Secured Parties, a legal, valid and
enforceable security interest in the applicable collateral covered by such
Foreign Security Document, and when the actions specified in such Foreign
Security Document, if any, are completed, the security interest created by such
Foreign Security Document shall constitute a perfected security interest in all
right, title and interest of the grantors thereunder in such collateral to the
full extent possible under the laws of the applicable foreign jurisdiction, in
each case prior and superior in right to any other Person, other than with
respect to Liens permitted by Section 6.02.
SECTION
3.18. Federal Reserve Regulations. (a) None of Holdings, the Parent
Borrower or any of the Subsidiaries (including the Receivables Subsidiary) is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of buying or carrying Margin Stock.
(b)
No part of the proceeds of any Loan or any Letter of Credit will be used,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, for any purpose that entails a violation of the provisions of
the Regulations of the Board, including Regulation U or X.
ARTICLE IV
Conditions
SECTION
4.01. Restatement Effective Date. The obligations of the Lenders to make
Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not
become effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 10.02):
(a)
The Administrative Agent (or its counsel) shall have received from each party
hereto either (i) a counterpart of this Agreement signed on behalf of such
party or (ii) written evidence satisfactory to the Administrative Agent (which
may include telecopy transmission of a signed signature page of this Agreement)
that such party has signed a counterpart of this Agreement.
(b)
The Agents shall have received a favorable written opinion (addressed to the
Administrative Agent and the Lenders and dated the Restatement Effective Date)
of Cahill Gordon & Reindel LLP, special counsel for the Parent
Borrower,
84
substantially
in the form of Exhibit B. Each of Holdings and the Parent Borrower hereby
requests such counsel to deliver such opinions.
(c)
The Administrative Agent shall have received such documents and certificates as
the Administrative Agent or its counsel may reasonably request relating to the
organization, existence and good standing of each Loan Party, the authorization
of the Transactions and any other legal matters relating to the Loan Parties,
the Loan Documents or the Transactions, all in form and substance satisfactory
to the Administrative Agent and its counsel.
(d)
The Administrative Agent shall have received a certificate, dated the
Restatement Effective Date and signed by the President, a Vice President or a
Financial Officer of Holdings and the Parent Borrower, confirming compliance
with the conditions set forth in Section 4.02.
(e)
The Reaffirmation Agreement shall have been duly executed by each Loan Party
that is to be a party thereto and shall be in full force and effect on the
Restatement Effective Date.
(f)
The Administrative Agent shall have received all fees and other amounts due and
payable on or prior to the Restatement Effective Date, including, to the extent
invoiced, reimbursement or payment of all out-of-pocket expenses (including
fees, charges and disbursements of counsel) required to be reimbursed or paid
by any Loan Party hereunder or under any other Loan Document.
The
Administrative Agent shall notify the Parent Borrower and the Lenders of the
Restatement Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans, of
the Tranche B-1 Lenders to make the Deposits and of the Issuing Bank to issue
Letters of Credit hereunder shall not become effective unless each of the
foregoing conditions is satisfied (or waived pursuant to Section 10.02) at or
prior to 5:00 p.m., New York City time, on August 2, 2006 (and, in
the event such conditions are not so satisfied or waived, the Commitments shall
terminate at such time).
SECTION
4.02. Each Credit Event. The obligation of each Lender to make a Loan on
the occasion of any Borrowing (other than (i) any Revolving Loan made
pursuant to Section 2.04(c) or Section 2.05(d) and (ii) any
continuation or conversion of a Borrowing pursuant to the terms hereof that
does not result in the increase of the aggregate principal amount of the
Borrowings then outstanding), of each Tranche B-1 Lender to make a deposit, and
of the Issuing Bank to issue, amend, renew or extend any Letter of Credit, is
subject to receipt of the request therefor in accordance herewith and to the
satisfaction of the following conditions:
(a)
The representations and warranties of each Loan Party set forth in the Loan
Documents shall be true and correct on and as of the date of such Borrowing or
the date of issuance, amendment, renewal or extension of such Letter of Credit,
as applicable.
85
(b)
At the time of and immediately after giving effect to such Borrowing or the
issuance, amendment, renewal or extension of such Letter of Credit, as
applicable, no Default shall have occurred and be continuing.
Each
Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by Holdings
and the Parent Borrower on the date thereof as to the matters specified in
paragraphs (a) and (b) of this Section.
SECTION
4.03. Credit Events Relating to Foreign Subsidiary Borrowers. The
obligation of each Lender to make Loans to any Foreign Subsidiary Borrower, and
of the Issuing Bank to issue, amend, renew or extend any Letter of Credit to
any Foreign Subsidiary Borrower, is subject to the satisfaction of the
following conditions:
(a)
With respect to the initial Loan made or the initial Letter of Credit issued,
whichever comes first, to such Foreign Subsidiary Borrower,
(i) the Administrative Agent (or its counsel) shall have received such
Foreign Subsidiary Borrowers Foreign Subsidiary Borrowing Agreement duly
executed by all parties thereto; and
(ii) the Administrative Agent shall have received such documents
(including legal opinions) and certificates as the Administrative Agent or its
counsel may reasonably request relating to the formation, existence and good
standing of such Foreign Subsidiary Borrower, the authorization of the Foreign
Currency Borrowings as they relate to such Foreign Subsidiary Borrower and any
other legal matters relating to such Foreign Subsidiary Borrower or its Foreign
Subsidiary Borrowing Agreement, all in form and substance satisfactory to the
Administrative Agent and its counsel.
(b)
With respect to any Borrowing following which the aggregate amount of
outstanding Foreign Currency Borrowings exceeds the Dollar Equivalent of
$5,000,000, the Administrative Agent shall be satisfied that the Foreign
Security Collateral and Guarantee Requirement shall be satisfied with respect
to all Foreign Subsidiary Borrowers.
ARTICLE V
Affirmative Covenants
Until
the Commitments have expired or been terminated and the principal of and
interest on each Loan and all fees payable hereunder shall have been paid in
full and all Letters of Credit shall have expired or terminated and all LC
Disbursements shall have been reimbursed, each of Holdings, the Parent
Borrower, each Subsidiary Term Borrower (as to itself only) and each Foreign
Subsidiary Borrower (as to itself only) covenants and agrees with the Lenders
that:
86
SECTION
5.01. Financial Statements and Other Information. Holdings or the Parent
Borrower will furnish to the Administrative Agent and each Lender:
(a)
within 95 days after the end of each fiscal year of Holdings, its audited
consolidated and unaudited consolidating balance sheet and related statements
of operations, stockholders equity and cash flows as of the end of and for
such year, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on by KPMG LLP or other independent public
accountants of recognized national standing (without a going concern or like
qualification or exception and without any qualification or exception as to the
scope of such audit) to the effect that such consolidated financial statements present
fairly in all material respects the financial condition and results of
operations of Holdings and its consolidated subsidiaries on a consolidated
basis in accordance with GAAP consistently applied;
(b)
within 50 days after the end of each of the first three fiscal quarters of
each fiscal year of Holdings, its consolidated balance sheet and related
statements of operations, stockholders equity and cash flows as of the end of
and for such fiscal quarter and the then elapsed portion of the fiscal year,
setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet, as of
the end of) the previous fiscal year, all certified by one of its Financial
Officers as presenting fairly in all material respects the financial condition
and results of operations of Holdings and its consolidated subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes;
(c)
concurrently with any delivery of financial statements under clause (a) or
(b) above, a certificate of a Financial Officer of Holdings or the Parent
Borrower (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken or
proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations demonstrating compliance with Sections 6.12, 6.13
and 6.14, (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of Holdings audited financial
statements referred to in Section 3.04 and, if any such change has
occurred, specifying the effect of such change on the financial statements
accompanying such certificate, (iv) identifying all Subsidiaries existing on
the date of such certificate and indicating, for each such Subsidiary, whether
such Subsidiary is a Subsidiary Loan Party or a Foreign Subsidiary and whether
such Subsidiary was formed or acquired since the end of the previous fiscal
quarter and (v) to the extent that the Asset Dropdown has not been
completed, describing the status of the Asset Dropdown;
(d)
concurrently with any delivery of financial statements under clause
(a) above, (i) a certificate of the accounting firm that reported on
such financial statements stating whether they obtained knowledge during the
course of their examination of such financial statements of any Default (which
certificate may be limited to the extent required by accounting rules or
guidelines) and (ii) a certificate of a Financial Officer of Holdings or
the Parent Borrower (A) identifying any parcels of real
87
property or improvements thereto with a value
exceeding $750,000 that have been acquired by any Loan Party since the end of
the previous fiscal year, (B) identifying any changes of the type
described in Section 5.03(a) that have not been previously reported by the
Parent Borrower, (C) identifying any Permitted Acquisitions that have been
consummated since the end of the previous fiscal year, including the date on
which each such Permitted Acquisition was consummated and the consideration
therefor, (D) identifying any Intellectual Property (as defined in the
Security Agreement) with respect to which a notice is required to be delivered
under the Security Agreement and has not been previously delivered and
(E) identifying any Prepayment Events that have occurred since the end of
the previous fiscal year and setting forth a reasonably detailed calculation of
the Net Proceeds received from Prepayment Events since the end of such previous
fiscal year;
(e)
no later than February 15 of each fiscal year of Holdings (commencing with the
fiscal year ending December 31, 2005), a detailed consolidated budget for such
fiscal year (including a projected consolidated balance sheet and related
statements of projected operations and cash flow as of the end of and for such
fiscal year and setting forth the assumptions used for purposes of preparing
such budget) and, promptly when available, any material revisions of such
budget that have been approved by senior management of Holdings;
(f)
promptly after the same become publicly available, copies of all periodic and
other reports, proxy statements and other materials filed by Holdings, the
Parent Borrower or any Subsidiary with the Securities and Exchange Commission,
or any Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, as the case may be; and
(g)
promptly following any request therefor, such other information regarding the
operations, business affairs and financial condition of Holdings, the Parent
Borrower or any Subsidiary, or compliance with the terms of any Loan Document,
as the Administrative Agent or any Lender may reasonably request.
SECTION
5.02. Notices of Material Events. Holdings and the Parent Borrower will
furnish to the Administrative Agent and each Lender prompt written notice of
the following:
(a)
the occurrence of any Default;
(b)
the filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting Holdings, the Parent
Borrower or any Subsidiary thereof that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect;
(c)
the occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, could reasonably be expected to result in liability
of Holdings, the Parent Borrower and its Subsidiaries in an aggregate amount
exceeding $10,000,000; and
88
(d)
any other development that results in, or could reasonably be expected to
result in, a Material Adverse Effect.
Each
notice delivered under this Section shall be accompanied by a statement of a
Financial Officer or other executive officer of the Parent Borrower setting
forth the details of the event or development requiring such notice and any
action taken or proposed to be taken with respect thereto.
SECTION
5.03. Information Regarding Collateral. (a) The Parent Borrower
will furnish to the Administrative Agent prompt written notice of any change
(i) in any Loan Partys legal name or in any trade name used to identify it in
the conduct of its business or in the ownership of its properties, (ii) in the
location of any Loan Partys chief executive office, its principal place of
business, any office in which it maintains books or records relating to
Collateral owned by it or any office or facility at which Collateral owned by
it is located (including the establishment of any such new office or facility),
(iii) in any Loan Partys identity or structure, (iv) in any Loan Partys
jurisdiction of organization or (v) in any Loan Partys Federal Taxpayer
Identification Number. The Parent Borrower agrees not to effect or permit any
change referred to in the preceding sentence unless written notice has been
delivered to the Collateral Agent, together with all applicable information to
enable the Administrative Agent to make all filings under the Uniform
Commercial Code or otherwise that are required in order for the Collateral
Agent (on behalf of the Secured Parties) to continue at all times following
such change to have a valid, legal and perfected security interest in all the
Collateral.
(b)
Each year, at the time of delivery of annual financial statements with respect
to the preceding fiscal year pursuant to clause (a) of Section 5.01,
Holdings (on behalf of itself and the other Loan Parties) shall deliver to the
Administrative Agent a certificate of a Financial Officer of Holdings (i)
setting forth the information required pursuant to the Perfection Certificate
or confirming that there has been no change in such information since the date
of the Perfection Certificate delivered on the Original Effective Date or the
date of the most recent certificate delivered pursuant to this Section and
(ii) certifying that all Uniform Commercial Code financing statements
(including fixture filings, as applicable) or other appropriate filings,
recordings or registrations, including all refilings, rerecordings and
reregistrations, containing a description of the Collateral have been filed of
record in each governmental, municipal or other appropriate office in each
jurisdiction identified pursuant to clause (i) above to the extent necessary to
protect and perfect the security interests under the Collateral Agreement for a
period of not less than 18 months after the date of such certificate (except as
noted therein with respect to any continuation statements to be filed within
such period).
SECTION
5.04. Existence; Conduct of Business; Asset Dropdown. (a) Each of
Holdings, the Parent Borrower and the Foreign Subsidiary Borrowers will, and
will cause each of the Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges, franchises, patents,
copyrights, trademarks and trade names the loss of which would have a Material
Adverse Effect; provided that the foregoing shall
89
not prohibit any merger, consolidation, liquidation
or dissolution permitted under Section 6.03 or disposition permitted under
Section 6.05. Holdings and the Parent Borrower will cause all the Equity
Interests of the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers
to be owned, directly or indirectly, by the Parent Borrower or any Subsidiary,
and the Subsidiary Term Borrowers shall at all times remain a guarantor under
the Guarantee Agreement.
(b)
Holdings shall complete the Asset Dropdown as soon as reasonably practicable
and in any event on or prior to the date that is 90 days after the
Original Effective Date.
SECTION
5.05. Payment of Obligations. Each of Holdings, the Parent Borrower, the
Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers will, and will
cause each of the Subsidiaries (including the Receivables Subsidiary) to, pay
its Indebtedness and other obligations, including Tax liabilities, before the
same shall become delinquent or in default, except where (a) the validity
or amount thereof is being contested in good faith by appropriate proceedings,
(b) Holdings, the Parent Borrower, the Subsidiary Term Borrowers and the
Foreign Subsidiary Borrowers or such Subsidiary has set aside on its books
adequate reserves with respect thereto in accordance with GAAP, (c) such
contest effectively suspends collection of the contested obligation and the
enforcement of any Lien securing such obligation and (d) the failure to
make payment pending such contest could not reasonably be expected to result in
a Material Adverse Effect.
SECTION
5.06. Maintenance of Properties. Each of Holdings, the Parent Borrower,
the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers will, and
will cause each of the Subsidiaries to, keep and maintain all property material
to the conduct of their business, taken as a whole, in good working order and
condition, ordinary wear and tear excepted; provided that the foregoing
shall not prohibit any merger, consolidation, liquidation or dissolution
permitted under Section 6.03 or disposition permitted under
Section 6.05.
SECTION
5.07. Insurance. Each of Holdings, the Parent Borrower, the Subsidiary
Term Borrowers and the Foreign Subsidiary Borrowers will, and will cause each
of the Subsidiaries to, maintain insurance in such amounts (with no greater
risk retention) and against such risks as are customarily maintained by
companies of established repute engaged in the same or similar businesses
operating in the same or similar locations, except where the failure to do so
could not reasonably be expected to result in a Material Adverse Effect. Such
insurance shall be maintained with financially sound and reputable insurance
companies, except that a portion of such insurance program (not to exceed that
which is customary in the case of companies engaged in the same or similar
business or having similar properties similarly situated) may be effected
through self-insurance, provided adequate reserves therefor, in
accordance with GAAP, are maintained. In addition, each of Holdings, the Parent
Borrower, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers
will, and will cause each of its Subsidiaries to, maintain all insurance
required to be maintained pursuant to the Security
90
Documents. The Parent Borrower will furnish to the
Lenders, upon request of the Administrative Agent, information in reasonable
detail as to the insurance so maintained. All insurance policies or
certificates (or certified copies thereof) with respect to such
insurance shall be endorsed to the Collateral Agents reasonable
satisfaction for the benefit of the Lenders (including, without limitation, by
naming the Collateral Agent as loss payee or additional insured, as
appropriate).
SECTION
5.08. Casualty and Condemnation. The Parent Borrower (a) will
furnish to the Administrative Agent and the Lenders prompt written notice of
casualty or other insured damage to any material portion of any Collateral
having a book value or fair market value of $1,000,000 or more or the
commencement of any action or proceeding for the taking of any Collateral having
a book value or fair market value of $1,000,000 or more or any part thereof or
interest therein under power of eminent domain or by condemnation or similar
proceeding and (b) will ensure that the Net Proceeds of any such event
(whether in the form of insurance proceeds, condemnation awards or otherwise)
are collected and applied in accordance with the applicable provisions of this
Agreement and the Security Documents.
SECTION
5.09. Books and Records; Inspection and Audit Rights. Each of Holdings,
the Parent Borrower, the Subsidiary Term Borrowers and the Foreign Subsidiary
Borrowers will, and will cause each of the Subsidiaries to, keep proper books
of record and account in which full, true and correct entries are made of all
dealings and transactions in relation to its business and activities. Each of
Holdings, the Parent Borrower, the Subsidiary Term Borrowers and the Foreign
Subsidiary Borrowers will, and will cause each of the Subsidiaries to, permit
any representatives designated by the Administrative Agent or any Lender, upon
reasonable prior notice, to visit and inspect its properties, to examine and
make extracts from its books and records, and to discuss its affairs, finances
and condition with its officers and independent accountants, all at such
reasonable times and as often as reasonably requested.
SECTION
5.10. Compliance with Laws. Each of Holdings, the Parent Borrower, the
Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers will, and will
cause each of the Subsidiaries to, comply with all laws, rules, regulations and
orders of any Governmental Authority applicable to it or its property, except
where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION
5.11. Use of Proceeds and Letters of Credit. The Parent Borrower and the
Subsidiary Term Borrowers will use on the Restatement Effective Date the
proceeds of the Tranche B Term Loan solely (a) to repay amounts outstanding
under the Original Credit Agreement and (b) to pay costs and expenses in
connection with such repayment. The proceeds of the Revolving Loans, Tranche
B-1 Loans and Swingline Loans will be used only for general corporate purposes
and, to the extent permitted by Section 6.01(a)(i), Permitted Acquisitions. The
proceeds of the Incremental Term Loans will be used only for Permitted
Acquisitions or to, directly or indirectly, repurchase, retire, redeem or
otherwise repay Existing Subordinated Notes to the extent otherwise
91
permitted hereunder. Letters of Credit will be
available only for general corporate purposes. No part of the proceeds of any
Loan will be used, whether directly or indirectly, for any purpose that entails
a violation of any of the Regulations of the Board, including
Regulations T, U and X.
SECTION
5.12. Additional Subsidiaries. If any additional Subsidiary is formed or
acquired after the Original Effective Date, the Parent Borrower will, within
five Business Days after such Subsidiary is formed or acquired, notify the
Administrative Agent and the Lenders thereof and, within five Business Days
after such Subsidiary is formed or acquired, cause the Collateral and Guarantee
Requirement to be satisfied with respect to any Equity Interest in or
Indebtedness of such Subsidiary owned by or on behalf of any Loan Party.
SECTION
5.13. Further Assurances. (a) Each of Holdings, the Parent
Borrower, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers
will, and will cause each Subsidiary Loan Party to, execute any and all further
documents, financing statements, agreements and instruments, and take all such
further actions (including the filing and recording of financing statements,
fixture filings, mortgages, deeds of trust, landlord waivers and other
documents), which may be required under any applicable law, or which the
Administrative Agent or the Required Lenders may reasonably request, to cause
the Collateral and Guarantee Requirement to be and remain satisfied, all at the
expense of the Loan Parties. Holdings, the Parent Borrower, the Subsidiary Term
Borrowers and the Foreign Subsidiary Borrowers also agree to provide to the
Administrative Agent, from time to time upon request, evidence reasonably
satisfactory to the Administrative Agent as to the perfection and priority of
the Liens created or intended to be created by the Security Documents.
(b)
If any assets (including any real property or improvements thereto or any
interest therein) having a book value or fair market value of $1,000,000 or
more in the aggregate are acquired by the Parent Borrower or any Subsidiary
Loan Party after the Original Effective Date or through the acquisition of a
Subsidiary Loan Party under Section 5.12 (other than, in each case, assets
constituting Collateral under the Security Agreement or the Pledge Agreement
that become subject to the Lien of the Security Agreement or the Pledge
Agreement upon acquisition thereof), the Parent Borrower or, if applicable, the
relevant Subsidiary Loan Party will notify the Administrative Agent and the
Lenders thereof, and, if reasonably requested by the Administrative Agent or
the Required Lenders, the Parent Borrower will cause such assets to be
subjected to a Lien securing the Obligations and will take, and cause the
Subsidiary Loan Parties to take, such actions as shall be necessary or
reasonably requested by the Administrative Agent to grant and perfect such
Liens, including actions described in paragraph (a) of this Section, all
at the expense of the Loan Parties.
SECTION
5.14. Interest Rate Protection. As promptly as practicable, and in any
event within 90 days after the Original Effective Date, the Parent
Borrower will enter into with one or more Lenders, and thereafter for a period
of not less than three years will maintain in effect, one or more interest rate
protection agreements on such
92
terms as shall be reasonably satisfactory to the
Administrative Agent, the effect of which shall be to fix or limit the interest
cost to the Parent Borrower with respect to at least 50% of the sum of
(x) the outstanding Term Loans, (y) the outstanding Subordinated Debt
and (z) any other outstanding Indebtedness that may not be reborrowed
following a repayment thereof.
ARTICLE VI
Negative Covenants
Until
the Commitments have expired or terminated and the principal of and interest on
each Loan and all fees payable hereunder have been paid in full and all Letters
of Credit have expired or terminated and all LC Disbursements shall have been
reimbursed, each of Holdings, the Parent Borrower, each Subsidiary Term
Borrower (as to itself only) and each Foreign Subsidiary Borrower (as to itself
only) covenants and agrees with the Lenders that:
SECTION
6.01. Indebtedness; Certain Equity Securities. (a) None of Holdings, the Parent Borrower, any
Subsidiary Term Borrower or any Foreign Subsidiary Borrower will, nor will they
permit any Subsidiary to, create, incur, assume or permit to exist any
Indebtedness, except:
(i) Indebtedness created under the Loan Documents, including the
Incremental Term Loans; provided that (x)(A) Revolving Loans may only be
used to finance a Permitted Acquisition if, in addition to the satisfaction of
all other requirements necessary to effect such Permitted Acquisition set forth
herein, after giving effect to such Permitted Acquisition, the Senior Leverage
Ratio is less than 2.75 to 1.00 and (B) the amount of Revolving Loans used
to finance Permitted Acquisitions outstanding at any time shall not exceed
$90,000,000, (y) Incremental Term Loans may only be incurred to finance a
Permitted Acquisition if, in addition to the satisfaction of all other
requirements set forth herein necessary to effect the applicable Permitted
Acquisition related to such Incremental Term Loan, after giving effect to such
Permitted Acquisition the Senior Leverage Ratio is less than 2.75 to 1.00 and
(z) Incremental Term Loans may only be incurred to repay, repurchase,
redeem or otherwise retire Existing Subordinated Notes if after giving effect
thereto, the Senior Leverage Ratio is less than 2.75 to 1.00, subject to the
limitations in Section 6.08(b)(vi);
(ii) (x) the Permitted Receivables Financing; provided that the
Permitted Receivables Financing may only be used to finance a Permitted
Acquisition if, in addition to the satisfaction of all other requirements
necessary to effect such Permitted Acquisition set forth herein, after giving
effect to such Permitted Acquisition, the Senior Leverage Ratio is less than
2.75 to 1.00 and (y) financings in respect of sales of accounts receivable by a
Foreign Subsidiary permitted by Section 6.05(c)(ii);
93
(iii) Indebtedness existing on the Restatement Effective Date and set
forth in Schedule 6.01(a)(iii) and extensions, renewals and replacements
of any such Indebtedness that do not increase the outstanding principal amount
as specified on such Schedule 6.01(a)(iii) or result in an earlier maturity
date or decreased weighted average life thereof;
(iv) the Existing Subordinated Notes and refinancings thereof with
Replacement Subordinated Notes;
(v) the Permitted Acquisition Subordinated Notes, the Permitted
Subordinated Notes and the Permitted Senior Notes;
(vi) Indebtedness of the Parent Borrower to any Subsidiary and of any
Subsidiary to the Parent Borrower or any other Subsidiary; provided that
Indebtedness of any Subsidiary that is not a Domestic Loan Party to the Parent
Borrower or any Subsidiary Loan Party shall be subject to Section 6.04;
(vii) Guarantees by the Parent Borrower of Indebtedness of any
Subsidiary and by any Subsidiary of Indebtedness of the Parent Borrower or any
other Subsidiary; provided that (a) Guarantees by the Parent
Borrower or any Subsidiary Loan Party of Indebtedness of any Subsidiary that is
not a Domestic Loan Party shall be subject to Section 6.04 and (b) this
clause (vii) shall not apply to the Existing Subordinated Notes, the
Permitted Subordinated Notes, the Permitted Senior Notes or the Permitted Acquisition
Subordinated Notes;
(viii) Guarantees by Holdings, the Parent Borrower or any Subsidiary,
as the case may be, in respect of the Existing Subordinated Notes, the
Permitted Subordinated Notes, the Permitted Senior Notes or the Permitted
Acquisition Subordinated Notes; provided that none of Holdings, the
Parent Borrower or any Subsidiary, as the case may be, shall Guarantee the
Existing Subordinated Notes, the Permitted Subordinated Notes, the Permitted
Senior Notes or the Permitted Acquisition Subordinated Notes unless (A) it
also has Guaranteed the Obligations pursuant to the Guarantee Agreement and
(B) such Guarantee of the Existing Subordinated Notes, the Permitted
Subordinated Notes, or the Permitted Acquisition Subordinated Notes is subordinated
to such Guarantee of the Obligations on terms no less favorable to the Lenders
than the subordination provisions of the Existing Subordinated Notes;
(ix) Indebtedness of the Parent Borrower or any Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or capital
assets, including Capital Lease Obligations and any Indebtedness assumed in
connection with the acquisition of any such assets or secured by a Lien on any
such assets prior to the acquisition thereof, and extensions, renewals and
replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof or result in an earlier maturity date or decreased
weighted average life thereof; provided that (A) such Indebtedness
is incurred prior to or within 180 days after such acquisition or the
completion of such
94
construction or improvement
and (B) the aggregate principal amount of Indebtedness permitted by this
clause (ix) shall not exceed $30,000,000 (which amount shall increase to
$50,000,000 upon completion of the IPO Repayment Event) at any time
outstanding;
(x) Indebtedness arising as a result of an Acquisition Lease Financing
or any other sale and leaseback transaction permitted under Section 6.06;
(xi) Indebtedness of any Person that becomes a Subsidiary after the
Restatement Effective Date; provided that (A) such Indebtedness
exists at the time such Person becomes a Subsidiary and is not created in
contemplation of or in connection with such Person becoming a Subsidiary and
(B) the aggregate principal amount of Indebtedness permitted by this
clause (xi) shall not exceed $25,000,000 (which amount shall increase to
$40,000,000 upon completion of the IPO Repayment Event) at any time outstanding,
less the liquidation value of any outstanding Assumed Preferred Stock;
(xii) Indebtedness of Holdings, the Parent Borrower or any Subsidiary
in respect of workers compensation claims, self-insurance obligations,
performance bonds, surety appeal or similar bonds and completion guarantees
provided by Holdings, the Parent Borrower and the Subsidiaries in the ordinary
course of their business;
(xiii) other unsecured Indebtedness of Holdings, the Parent Borrower or
any Subsidiary in an aggregate principal amount not exceeding $15,000,000
(which amount shall increase to $25,000,000 upon completion of the IPO
Repayment Event) at any time outstanding, less the liquidation value of any
applicable Qualified Holdings Preferred Stock issued and outstanding pursuant
to clause (b) of the definition of Qualified Holdings Preferred Stock;
(xiv) secured Indebtedness in an aggregate amount not exceeding
$10,000,000 at any time outstanding in respect of foreign lines of credit;
(xv) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument inadvertently
(except in the case of daylight overdrafts) drawn against insufficient funds in
the ordinary course of business; provided, however, that such
Indebtedness is extinguished within ten days of incurrence;
(xvi) Indebtedness arising in connection with endorsement of
instruments for deposit in the ordinary course of business;
(xvii) Indebtedness incurred in connection with the financing of
insurance premiums in an aggregate amount at any time outstanding not to exceed
the premiums owed under such policy, if applicable;
95
(xviii) contingent obligations to financial institutions, in each case
to the extent in the ordinary course of business and on terms and conditions
which are within the general parameters customary in the banking industry,
entered into to obtain cash management services or deposit account overdraft
protection services (in an amount similar to those offered for comparable
services in the financial industry) or other services in connection with the
management or opening of deposit accounts or incurred as a result of
endorsement of negotiable instruments for deposit or collection purposes and
other customary, contingent obligations of the Parent Borrower and its
Subsidiaries incurred in the ordinary course of business;
(xix) unsecured guarantees by the Parent Borrower or any Subsidiary
Loan Party of facility leases of any Loan Party; and
(xx) Indebtedness of the Parent Borrower or any Subsidiary Loan Party
under Hedging Agreements with respect to interest rates, foreign currency
exchange rates or commodity prices, in each case not entered into for
speculative purposes; provided that if such Hedging Agreements relate to
interest rates, (i) such Hedging Agreements relate to payment obligations
on Indebtedness otherwise permitted to be incurred by the Loan Documents and
(ii) the notional principal amount of such Hedging Agreements at the time
incurred does not exceed the principal amount of the Indebtedness to which such
Hedging Agreements relate.
(b)
None of Holdings, the Parent Borrower, any Subsidiary Term Borrower or any
Foreign Subsidiary Borrower will, nor will they permit any Subsidiary to, issue
any preferred stock or other preferred Equity Interests, except
(i) Qualified Holdings Preferred Stock, (ii) Assumed Preferred Stock
and (iii) preferred stock or preferred Equity Interests held by Holdings,
the Parent Borrower or any Subsidiary.
SECTION
6.02. Liens. None of Holdings, the Parent Borrower, any Subsidiary Term
Borrower or any Foreign Subsidiary Borrower will, nor will they permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of any
thereof, except:
(a)
Liens created under the Loan Documents;
(b)
Permitted Encumbrances;
(c)
Liens in respect of the Permitted Receivables Financing;
(d)
any Lien on any property or asset of Holdings, the Parent Borrower or any
Subsidiary existing on the Restatement Effective Date and set forth in
Schedule 6.02; provided that (i) such Lien shall not apply to any
other property or asset of Holdings, the Parent Borrower or any Subsidiary and
(ii) such Lien shall secure only those obligations
96
which it secures on the Restatement Effective Date
and extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
(e)
any Lien existing on any property or asset prior to the acquisition thereof by
the Parent Borrower or any Subsidiary or existing on any property or asset of
any Person that becomes a Subsidiary after the Restatement Effective Date prior
to the time such Person becomes a Subsidiary; provided that
(A) such Lien is not created in contemplation of or in connection with
such acquisition or such Person becoming a Subsidiary, as the case may be,
(B) such Lien shall not apply to any other property or assets of the
Parent Borrower or any Subsidiary and (C) such Lien shall secure only
those obligations which it secures on the date of such acquisition or the date
such Person becomes a Subsidiary, as the case may be;
(f)
Liens on fixed or capital assets acquired, constructed or improved by, or in
respect of Capital Lease Obligations of, the Parent Borrower or any Subsidiary;
provided that (A) such security interests secure Indebtedness
permitted by clause (ix) of Section 6.01(a), (B) such security
interests and the Indebtedness secured thereby are incurred prior to or within
180 days after such acquisition or the completion of such construction or
improvement, (C) the Indebtedness secured thereby does not exceed the cost
of acquiring, constructing or improving such fixed or capital assets and
(D) such security interests shall not apply to any other property or
assets of the Parent Borrower or any Subsidiary;
(g)
Liens, with respect to any Mortgaged Property, described in Schedule B-2 of the
title policy covering such Mortgaged Property;
(h)
Liens in respect of sales of accounts receivable by Foreign Subsidiaries
permitted by Section 6.05(c)(ii);
(i)
other Liens securing liabilities permitted hereunder in an aggregate amount not
exceeding (i) in respect of consensual Liens, $5,000,000 (which amount
shall increase to $10,000,000 upon completion of the IPO Repayment Event) and
(ii) in respect of all such Liens, $10,000,000 (which amount shall increase
to $20,000,000 upon completion of the IPO Repayment Event), in each case at any
time outstanding;
(j)
Liens in respect of Indebtedness permitted by Section 6.01(a)(xiv), provided
that the assets subject to such Liens are not located in the United States;
(k)
Liens, rights of setoff and other similar Liens existing solely with respect to
cash and Permitted Investments on deposit in one or more accounts maintained by
any Lender, in each case granted in the ordinary course of business in favor of
such Lender with which such accounts are maintained, securing amounts owing to
such Lender with respect to cash management and operating account arrangements,
including those involving pooled accounts and netting arrangements; provided
that, unless such Liens are non-consensual and arise by operation of law, in no
case shall any such Liens secure (either directly or indirectly) the repayment
of any Indebtedness for borrowed money;
97
(l)
licenses or sublicenses of Intellectual Property (as defined in the Security
Agreement) granted by any Company in the ordinary course of business and not
interfering in any material respect with the ordinary conduct of business of
the Company;
(m)
the filing of UCC financing statements solely as a precautionary measure in
connection with operating leases or consignment of goods;
(n)
Liens for the benefit of a seller deemed to attach solely to cash earnest money
deposits in connection with a letter of intent or acquisition agreement with respect
to a Permitted Acquisition;
(o)
Liens deemed to exist in connection with Investments permitted under
Section 6.04 that constitute repurchase obligations and in connection with
related set-off rights;
(p)
Liens of a collection bank arising in the ordinary course of business under
Section 4-210 of the UCC in effect in the relevant jurisdiction covering
only the items being collected upon; and
(q)
Liens of sellers of goods to the Parent Borrower or any of its Subsidiaries
arising under Article 2 of the UCC in effect in the relevant jurisdiction
in the ordinary course of business, covering only the goods sold and covering
only the unpaid purchase price for such goods and related expenses.
SECTION
6.03. Fundamental Changes. (a) None of Holdings, the Parent
Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower will,
nor will they permit any other Person to merge into or consolidate with it, or
liquidate or dissolve, except that, if at the time thereof and immediately
after giving effect thereto no Default shall have occurred and be continuing
(i) any Subsidiary may merge into the Parent Borrower in a transaction in
which the Parent Borrower is the surviving corporation, (ii) any
Subsidiary may merge into any Subsidiary in a transaction in which the
surviving entity is a Subsidiary and (if any party to such merger is a
Subsidiary Loan Party) is a Subsidiary Loan Party (provided that, with
respect to any such mergers involving the Subsidiary Term Borrowers or the
Foreign Subsidiary Borrowers, the surviving entity of such mergers shall be a
Subsidiary Term Borrower or a Foreign Subsidiary Borrower, as the case may be)
and (iii) any Subsidiary (other than a Subsidiary Loan Party) may
liquidate or dissolve if the Parent Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the Parent Borrower and
is not materially disadvantageous to the Lenders; provided that any such
merger involving a Person that is not a wholly owned Subsidiary immediately
prior to such merger shall not be permitted unless also permitted by
Section 6.04. Notwithstanding the foregoing, this Section 6.03 shall not
prohibit any Permitted Acquisition.
(b)
The Parent Borrower will not, and will not permit any of its Subsidiaries to, engage
to any material extent in any business other than businesses of the
98
type conducted by the Parent Borrower and its
Subsidiaries on the date of execution of this Agreement and businesses
reasonably related thereto.
(c)
Holdings will not engage in any business or activity other than (i) the
ownership of all the outstanding shares of capital stock of the Parent
Borrower, (ii) performing its obligations (A) under the Loan
Documents, (B) under the Subordinated Notes Documents and the agreements
relating to the Permitted Senior Notes and (C) under the Permitted
Receivables Financing, (iii) activities incidental thereto and to
Holdingss existence, (iv) activities related to the performance of all its
obligations in respect of the Transactions, (v) performing its obligations
under guarantees in respect of sale and leaseback transactions permitted by
Section 6.06 and (vi) other activities (including the incurrence of
Indebtedness and the issuance of its Equity Interests) that are permitted by
this Agreement. Holdings will not own or acquire any assets (other than shares
of capital stock of the Parent Borrower and the Permitted Investments or incur
any liabilities (other than liabilities imposed by law, including tax
liabilities, liabilities related to its existence and permitted business and
activities specified in the immediately preceding sentence).
(d)
The Receivables Subsidiary will not engage in any business or business activity
other than the activities related to the Permitted Receivables Financing and
its existence. The Receivables Subsidiary will not own or acquire any assets
(other than the receivables subject to the Permitted Receivables Financing) or
incur any liabilities (other than the liabilities imposed by law including tax
liabilities, and other liabilities related to its existence and permitted
business and activities specified in the immediately preceding sentence,
including liabilities arising under the Permitted Receivables Financing).
SECTION
6.04. Investments, Loans, Advances, Guarantees and Acquisitions. None of
the Parent Borrower or any Foreign Subsidiary Borrower will, nor will they
permit any Subsidiary to, purchase, hold or acquire (including pursuant to any
merger with any Person that was not a wholly owned Subsidiary prior to such
merger) any Equity Interests in or evidences of indebtedness or other
securities (including any option, warrant or other right to acquire any of the
foregoing) of, make or permit to exist any loans or advances to, Guarantee any
obligations of, or make or permit to exist any investment or any other interest
in, any other Person, or purchase or otherwise acquire (in one transaction or a
series of transactions) any assets of any other Person constituting a business
unit, except:
(a)
Permitted Investments;
(b)
investments existing on the Restatement Effective Date and set forth on
Schedule 6.04;
(c)
Permitted Acquisitions;
(d)
investments by the Parent Borrower and the Subsidiaries in Equity Interests in
their respective Subsidiaries that exist immediately prior to any applicable
99
transaction; provided that (i) any such
Equity Interests held by a Loan Party shall be pledged pursuant to the Pledge
Agreement or any applicable Foreign Security Documents, as the case may be, to
the extent required by this Agreement and (ii) the aggregate amount of
investments (excluding any such investments, loans, advances and Guarantees to
such Subsidiaries that are assumed and exist on the date any Permitted
Acquisition is consummated and that are not made, incurred or created in
contemplation of or in connection with such Permitted Acquisition) by Loan
Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan
Parties of Indebtedness of, Subsidiaries that are not Domestic Loan Parties
made after the Restatement Effective Date shall not at any time exceed, in the
aggregate, $25,000,000 (which amount shall increase to (y) $40,000,000 upon
completion of the IPO Repayment Event and (z) $50,000,000 upon completion of
the IPO Repayment Event and after the Leverage Ratio is less than 3.75 to
1.00);
(e)
loans or advances made by the Parent Borrower to any Subsidiary and made by any
Subsidiary to the Parent Borrower or any other Subsidiary; provided that
(i) any such loans and advances made by a Loan Party shall be evidenced by a
promissory note pledged pursuant to the Pledge Agreement and (ii) the amount of
such loans and advances made by Loan Parties to Subsidiaries that are not Loan
Parties shall be subject to the limitation set forth in clause (d) above;
(f)
Guarantees permitted by Section 6.01(a)(viii);
(g)
investments arising as a result of the Permitted Receivables Financing;
(h)
investments constituting permitted Capital Expenditures under
Section 6.14;
(i)
investments received in connection with the bankruptcy or reorganization of, or
settlement of delinquent accounts and disputes with, customers and suppliers,
in each case in the ordinary course of business;
(j)
any investments in or loans to any other Person received as noncash
consideration for sales, transfers, leases and other dispositions permitted by
Section 6.05;
(k)
Guarantees by Holdings, the Parent Borrower and the Subsidiaries of leases
entered into by any Subsidiary as lessee; provided that the amount of
such Guarantees made by Loan Parties to Subsidiaries that are not Loan Parties
shall be subject to the limitation set forth in clause (d) above;
(l)
extensions of credit in the nature of accounts receivable or notes receivable
in the ordinary course of business;
(m)
loans or advances to employees made in the ordinary course of business
consistent with prudent business practice and not exceeding $5,000,000 in the
aggregate outstanding at any one time;
100
(n)
investments in the form of Hedging Agreements permitted under Section 6.07;
(o)
investments by the Parent Borrower or any Subsidiary in (i) the capital stock
of a Receivables Subsidiary and (ii) other interests in a Receivables
Subsidiary, in each case to the extent required by the terms of the Permitted
Receivables Financing;
(p)
payroll, travel and similar advances to cover matters that are expected at the
time of such advances ultimately to be treated as expenses for accounting
purposes and that are made in the ordinary course of business;
(q)
Permitted Joint Venture and Foreign Subsidiary Investments;
(r)
investments, loans or advances in addition to those permitted by
clauses (a) through (q) above not exceeding in the aggregate
$10,000,000 (which amount shall increase to $20,000,000 upon completion of the
IPO Repayment Event) at any time outstanding; and
(s)
investments made with the Net Proceeds of any issuance of Equity Interests of Holdings
subsequent to an IPO.
SECTION
6.05. Asset Sales. None of Holdings, the Parent Borrower, any Subsidiary
Term Borrower or any Foreign Subsidiary Borrower will, nor will they permit any
Subsidiary to, sell, transfer, lease or otherwise dispose of any asset,
including any Equity Interest owned by it, nor will they permit any Subsidiary
to issue any additional Equity Interest in such Subsidiary, except:
(a)
sales, transfers, leases and other dispositions of inventory, used or surplus
equipment or other obsolete assets, Permitted Investments and Investments
referred to in Section 6.04(i) in the ordinary course of business;
(b)
sales, transfers and dispositions to the Parent Borrower or a Subsidiary; provided
that any such sales, transfers or dispositions involving a Subsidiary that is
not a Domestic Loan Party shall be made in compliance with Section 6.09;
(c)
(i) sales of accounts receivable and related assets pursuant to the Permitted
Receivables Financing and (ii) sales of accounts receivable and related assets
by a Foreign Subsidiary pursuant to customary terms whereby recourse and
exposure in respect thereof to any Foreign Subsidiary does not exceed at any
time $10,000,000.
(d)
the creation of Liens permitted by Section 6.02 and dispositions as a result
thereof;
(e)
sales or transfers that are permitted sale and leaseback transactions pursuant
to Section 6.06;
101
(f)
sales and transfers that constitute part of an Acquisition Lease Financing;
(g)
Restricted Payments permitted by Section 6.08;
(h)
transfers and dispositions constituting investments permitted under Section
6.04;
(i)
sales, transfers and other dispositions of property identified on Schedule
6.05; and
(j)
sales, transfers and other dispositions of assets (other than Equity Interests
in a Subsidiary) that are not permitted by any other clause of this Section; provided
that the aggregate fair market value of all assets sold, transferred or
otherwise disposed of in reliance upon this clause (j) shall not exceed (i) 15%
of the aggregate fair market value of all assets of the Parent Borrower,
including any Equity Interest owned by it, during any fiscal year of the Parent
Borrower, provided that such amount shall be increased, in respect of
the fiscal year ending on December 31, 2006, and each fiscal year
thereafter by an amount equal to the total unused amount of such permitted
sales, transfers and other dispositions for the immediately preceding fiscal
year (without giving effect to the amount of any unused permitted sales,
transfers and other dispositions that were carried forward to such preceding
fiscal year) and (ii) 25% of the aggregate fair market value of all assets of
the Parent Borrower, including any Equity Interest owned by it, during the term
of this Agreement;
provided that (x) all sales, transfers, leases and
other dispositions permitted hereby (other than those permitted by
clause (b) above) shall be made for fair value and (y) all sales,
transfers, leases and other dispositions permitted by clauses (i) and (j)
above shall be for at least 85% cash consideration.
SECTION
6.06. Sale and Leaseback Transactions. None of Holdings, the Parent
Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower will,
nor will they permit any Subsidiary to, enter into any arrangement, directly or
indirectly, whereby it shall sell or transfer any property, real or personal,
used or useful in its business, whether now owned or hereinafter acquired, and
thereafter rent or lease such property or other property that it intends to use
for substantially the same purpose or purposes as the property sold or
transferred, except for (a) any such sale of any fixed or capital assets (other
than any such transaction to which (b) or (c) below is applicable) that is made
for cash consideration in an amount not less than the cost of such fixed or
capital asset in an aggregate amount less than or equal to 25% of the Permitted
Capital Expenditure Amount, so long as the Capital Lease Obligations associated
therewith are permitted by Section 6.01(a)(ix), (b) in the case of property
owned as of the Restatement Effective Date, any such sale of any fixed or
capital assets that is made for cash consideration in an aggregate amount not
less than the fair market value of such fixed or capital assets not to exceed
$90,000,000 in the aggregate, so long as the Capital Lease Obligations (if any)
associated therewith are permitted by Section 6.01(a)(ix) and (c) any
Acquisition Lease Financing.
102
SECTION
6.07. Hedging Agreements. None of Holdings, the Parent Borrower, any
Subsidiary Term Borrower or any Foreign Subsidiary Borrower will, nor will they
permit any Subsidiary to, enter into any Hedging Agreement, other than
(a) Hedging Agreements required by Section 5.14 and (b) Hedging
Agreements entered into in the ordinary course of business and which are not
speculative in nature to hedge or mitigate risks to which the Parent Borrower,
any Subsidiary Term Borrower, any Foreign Subsidiary Borrower or any other
Subsidiary is exposed in the conduct of its business or the management of its
assets or liabilities (including Hedging Agreements that effectively cap,
collar or exchange interest rates (from fixed to floating rates, from one
floating rate to another floating rate or otherwise)).
SECTION
6.08. Restricted Payments; Certain Payments of Indebtedness. (a) None
of Holdings, the Parent Borrower, any Subsidiary Term Borrower or any Foreign
Subsidiary Borrower will, nor will they permit any Subsidiary to, declare or
make, or agree to pay or make, directly or indirectly, any Restricted Payment,
or incur any obligation (contingent or otherwise) to do so, except:
(i) Holdings may declare and pay dividends with respect to its Equity
Interests payable solely in additional Equity Interests of Holdings;
(ii) Subsidiaries may declare and pay dividends ratably with respect to
their capital stock;
(iii) the Parent Borrower may make payments to Holdings to permit it to
make, and Holdings may make, Restricted Payments, not exceeding $5,000,000
during the term of this Agreement, in each case pursuant to and in accordance
with stock option plans, equity purchase programs or agreements or other
benefit plans, in each case for management or employees or former employees of
the Parent Borrower and the Subsidiaries;
(iv) the Parent Borrower may pay dividends to Holdings at such times
and in such amounts as shall be necessary to permit Holdings to discharge and
satisfy its obligations that are permitted hereunder (including (A) state and
local taxes and other governmental charges, and administrative and routine
expenses required to be paid by Holdings in the ordinary course of business and
(B) cash dividends payable by Holdings in respect of Qualified Holdings
Preferred Stock issued pursuant to clauses (b) and (c) of the definition
thereof, provided that dividends payable by the Parent Borrower to
Holdings pursuant to this clause (iv) in order to satisfy cash dividends
payable by Holdings in respect of Qualified Holdings Preferred Stock issued
pursuant to clause (c) of the definition thereof may only be made after the
fiscal year ending December 31, 2006 with Excess Cash Flow not otherwise
required to be used to prepay Term Loans pursuant to Section 2.11(e));
(v) Parent Borrower may make payments to Holdings to permit it to make,
and Holdings may make payments permitted by Sections 6.09(d), (e), (f), (g) and
(h); provided that, at the time of such payment and after giving effect
103
thereto,
no Default or Event of Default shall have occurred and be continuing and
Holdings and the Parent Borrower are in compliance with Section 6.12; provided,
further, that any payments that are prohibited because of the
immediately preceding proviso shall accrue and may be made as so accrued upon
the curing or waiver of such Default, Event of Default or noncompliance; and
(vi) Parent Borrower may make payments to Holdings with the proceeds of
Incremental Term Loans to the extent applied pursuant to clause (b)(vi)
below.
(b)
None of Holdings, the Parent Borrower, any Subsidiary Term Borrower or any
Foreign Subsidiary Borrower will, nor will they permit any Subsidiary to, make
or agree to pay or make, directly or indirectly, any payment or other
distribution (whether in cash, securities or other property) of or in respect
of principal of or interest on any Indebtedness, or any payment or other
distribution (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any Indebtedness,
except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as
and when due in respect of any Indebtedness, other than payments in respect of
the subordinated Indebtedness prohibited by the subordination provisions
thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section
6.01;
(iv) payment of secured Indebtedness out of the proceeds of any sale or
transfer of the property or assets securing such Indebtedness;
(v) payment in respect of Capital Lease Obligations in an aggregate
amount not to exceed $25,000,000 during the term of this Agreement less the
amount of Capital Expenditures made pursuant to Section 6.14(c)(i);
(vi) payment in respect of Existing Subordinated Notes using proceeds
from (A) the issuance of Replacement Subordinated Notes, (B) any Net Proceeds
from an IPO, (C) the portion of Excess Cash Flow not subject to mandatory
prepayment pursuant to Section 2.11(e) or (D) any source of cash (to the extent
not otherwise prohibited in this Agreement) up to an amount not to exceed (1)
if, after giving effect to such payment, the Leverage Ratio would be less than
3.25 to 1.00, $125,000,000, (2) if, after giving effect to such payment, the
Leverage Ratio would be less than 4.25 to 1.00 but greater than 3.25 to 1.00,
$75,000,000 and (3) otherwise, $25,000,000; and
(vii) payment of Indebtedness with the Net Proceeds of an issuance of
Holdings Equity Interests subsequent to an IPO.
104
(c)
None of Holdings, the Parent Borrower or any Foreign Subsidiary Borrower will,
nor will they permit any Subsidiary to, enter into or be party to, or make any
payment under, any Synthetic Purchase Agreement unless (i) in the case of
any Synthetic Purchase Agreement related to any Equity Interest of Holdings,
the payments required to be made by Holdings are limited to amounts permitted
to be paid under Section 6.08(a), (ii) in the case of any Synthetic
Purchase Agreement related to any Restricted Indebtedness, the payments
required to be made by Holdings, the Parent Borrower or the Subsidiaries
thereunder are limited to the amount permitted under Section 6.08(b) and
(iii) in the case of any Synthetic Purchase Agreement, the obligations of
Holdings, the Parent Borrower and the Subsidiaries thereunder are subordinated to
the Obligations on terms satisfactory to the Required Lenders.
SECTION
6.09. Transactions with Affiliates. None of Holdings, the Parent
Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower will,
nor will they permit any Subsidiary to, sell, lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise acquire any property or
assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except:
(a)
transactions that are at prices and on terms and conditions not less favorable
to the Parent Borrower or such Subsidiary than could be obtained on an
arms-length basis from unrelated third parties;
(b)
transactions between or among the Parent Borrower and the Subsidiaries not
involving any other Affiliate (to the extent not otherwise prohibited by other
provisions of this Agreement);
(c)
any Restricted Payment permitted by Section 6.08;
(d)
transactions pursuant to agreements in effect on the Restatement Effective Date
and listed on Schedule 6.09 (provided that this clause (d)
shall not apply to any extension, or renewal of, or any amendment or
modification of such agreements that is less favorable to the Parent Borrower
or the applicable Subsidiaries, as the case may be);
(e)
the payment, on a quarterly basis, of management fees to Heartland and/or its
Affiliates in accordance with the Heartland Management Agreement, provided
that the annual amount of such management fees shall not exceed $4,000,000 and
the payment of a one-time fee in consideration of terminating the Heartland
Management Agreement upon consummation of an IPO in an amount not to exceed
$10,000,000;
(f)
the reimbursement of Heartland and/or its Affiliates for their reasonable
out-of-pocket expenses incurred by them in connection with the Transactions and
performing management services to Holdings, the Parent Borrower and the
Subsidiaries, pursuant to the Heartland Management Agreement as in effect on
the Original Effective Date;
105
(g)
the payment of one time fees to Heartland and/or its Affiliates in connection
with any Permitted Acquisition, such fees to be payable at the time of each
such acquisition and not to exceed the percentage of the aggregate
consideration paid by Holdings, the Parent Borrower and its Subsidiaries for
any such acquisition as specified in the Heartland Management Agreement as in
effect on the Original Effective Date; and
(h)
payments to Heartland and/or its Affiliates for any financial advisor,
underwriter or placement services or other investment banking activities
rendered to Holdings, the Parent Borrower or the Subsidiaries, pursuant to the
Heartland Management Agreement as in effect on the Original Effective Date.
SECTION
6.10. Restrictive Agreements. None of Holdings, the Parent Borrower, any
Subsidiary Term Borrower or any Foreign Subsidiary Borrower will, nor will they
permit any Subsidiary to, directly or indirectly, enter into, incur or permit
to exist any agreement or other arrangement that prohibits, restricts or
imposes any condition upon (a) the ability of Holdings, the Parent
Borrower or any Subsidiary to create, incur or permit to exist any Lien upon
any of its property or assets, or (b) the ability of any Subsidiary to pay
dividends or other distributions with respect to any shares of its capital
stock or to make or repay loans or advances to the Parent Borrower or any other
Subsidiary or to Guarantee Indebtedness of the Parent Borrower or any other
Subsidiary; provided that (i) the foregoing shall not apply to
restrictions and conditions imposed by law or by (A) any Loan Document or
Permitted Receivables Document or (B) any Existing Subordinated Notes,
Permitted Acquisition Subordinated Notes, Permitted Subordinated Notes and
Permitted Senior Notes that are customary, in the reasonable judgment of the
board of directors thereof, for the market in which such Indebtedness is issued
so long as such restrictions do not prevent, impede or impair (x) the
creation of Liens and Guarantees in favor of the Lenders under the Loan
Documents or (y) the satisfaction of the obligations of the Loan Parties
under the Loan Documents, (ii) the foregoing shall not apply to
restrictions and conditions existing on the Restatement Effective Date
identified on Schedule 6.10 (but shall apply to any extension or renewal of, or
any amendment or modification expanding the scope of, any such restriction or
condition), (iii) the foregoing shall not apply to customary restrictions
and conditions contained in agreements relating to the sale of a Subsidiary
pending such sale, provided, further, that such restrictions and
conditions apply only to the Subsidiary that is to be sold and such sale is
permitted hereunder, (iv) clause (a) of the foregoing shall not apply
to restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness and
(v) clause (a) of the foregoing shall not apply to customary
provisions in leases and other agreements restricting the assignment thereof.
SECTION
6.11. Amendment of Material Documents. None of Holdings, the Parent
Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower will,
nor will they permit any Subsidiary (including the Receivables Subsidiary) to,
amend, modify or waive any of its rights under (a) its certificate of
incorporation, by-laws or other organizational documents, and (b) any Material
Agreement or other agreements
106
(including joint venture agreements), in each case
to the extent such amendment, modification or waiver is adverse to the Lenders.
SECTION
6.12. Interest Expense Coverage Ratio. Neither Holdings nor the Parent
Borrower will permit the Interest Expense Coverage Ratio, in each case on the
last day of any period of four consecutive fiscal quarters ending during any
period set forth below, to be less than the ratio set forth below opposite such
period:
Period
|
|
Ratio
|
|
April 1, 2006, to September 30, 2006
|
|
1.50 to 1.00
|
|
October 1, 2006, to March 31, 2007
|
|
1.70 to 1.00
|
|
April 1, 2007, to September 30, 2007
|
|
1.85 to 1.00
|
|
October 1, 2007, to June 30, 2008
|
|
1.90 to 1.00
|
|
July 1, 2008, to December 31, 2008
|
|
2.00 to 1.00
|
|
January 1, 2009, to June 30, 2009
|
|
2.10 to 1.00
|
|
July 1, 2009, to December 31, 2009
|
|
2.20 to 1.00
|
|
January 1, 2010, to December 31, 2010
|
|
2.30 to 1.00
|
|
January 1, 2011, to September 30, 2011
|
|
2.40 to 1.00
|
|
October 1, 2011, and thereafter
|
|
2.50 to 1.00
|
|
SECTION
6.13. Leverage Ratio. Neither Holdings nor the Parent Borrower will
permit the Leverage Ratio on the last day of any four quarter period set forth
below to exceed the ratio set forth opposite such period:
Period
|
|
Ratio
|
|
April 1, 2006, to December 31, 2006
|
|
5.75 to 1.00
|
|
January 1, 2007, to June 30, 2007
|
|
5.65 to 1.00
|
|
July 1, 2007, to September 30, 2007
|
|
5.50 to 1.00
|
|
October 1, 2007, to June 30, 2008
|
|
5.25 to 1.00
|
|
July 1, 2008, to June 30, 2009
|
|
5.00 to 1.00
|
|
July 1, 2009, to September 30, 2009
|
|
4.75 to 1.00
|
|
October 1, 2009, to June 30, 2010
|
|
4.50 to 1.00
|
|
July 1, 2010, to September 30, 2011
|
|
4.25 to 1.00
|
|
October 1, 2011, and thereafter
|
|
4.00 to 1.00
|
|
107
SECTION
6.14. Capital Expenditures. (a) Neither Holdings nor the Parent
Borrower will permit the aggregate amount of Capital Expenditures for any
period to exceed the applicable Permitted Capital Expenditure Amount, as such
amount may be reduced pursuant to Section 6.06(a), for such period.
(b)
Notwithstanding the foregoing, the Parent Borrower may in respect of the fiscal
year ending on December 31, 2006, and each fiscal year thereafter,
increase the amount of Capital Expenditures permitted to be made during such
fiscal year pursuant to Section 6.14(a) by an amount equal to the total
unused amount of permitted Capital Expenditures for the immediately preceding
fiscal year (without giving effect to the amount of any unused permitted
Capital Expenditures that were carried forward to such preceding fiscal year).
(c)
In addition, the Parent Borrower or its Subsidiaries may make (i) Capital
Expenditures for prepayment of leases in effect on the Restatement Effective
Date in connection with an IPO, less the amount of capital leases prepaid
pursuant to Section 6.08(b)(v), (ii) Capital Expenditures resulting from
the purchase of assets of businesses constituting discontinued operations not
to exceed $25,000,000 and (iii) Capital Expenditures with Net Proceeds
from any issuance of Holdings Equity Interests subsequent to an IPO.
ARTICLE VII
Events of Default
If
any of the following events (Events of Default) shall occur:
(a)
the Parent Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary
Borrower shall fail to pay any principal of any Loan or any reimbursement
obligation in respect of any LC Disbursement when and as the same shall become
due and payable, whether at the due date thereof or at a date fixed for
prepayment thereof or otherwise;
(b)
the Parent Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary
Borrower shall fail to pay any interest on any Loan or any fee or any other
amount (other than an amount referred to in clause (a) of this Article)
payable under this Agreement or any other Loan Document, when and as the same
shall become due and payable, and such failure shall continue unremedied for a
period of five Business Days;
(c)
any representation or warranty made or deemed made by or on behalf of Holdings,
the Parent Borrower, any Subsidiary Term Borrower, any Foreign Subsidiary
Borrower or any Subsidiary in or in connection with any Loan Document or any
amendment or modification thereof or waiver thereunder, or in any report,
certificate,
108
financial statement or other document furnished
pursuant to or in connection with any Loan Document or any amendment or
modification thereof or waiver thereunder, shall prove to have been incorrect
in any material respect when made or deemed made;
(d)
Holdings, the Parent Borrower, any Subsidiary Term Borrower or any Foreign
Subsidiary Borrower shall fail to observe or perform any covenant, condition or
agreement contained in Section 5.02, 5.04(a) (with respect to the
existence of Holdings, the Parent Borrower, any Subsidiary Term Borrower or any
Foreign Subsidiary Borrower and ownership of the Subsidiary Term Borrowers and
the Foreign Subsidiary Borrowers), 5.04(b), 5.11 or 5.14 or in Article VI;
(e)
any Loan Party shall fail to observe or perform any covenant, condition or
agreement contained in any Loan Document (other than those specified in
clause (a), (b) or (d) of this Article), and such failure shall
continue unremedied for a period of 30 days after notice thereof from the
Administrative Agent to the Parent Borrower (which notice will be given at the
request of any Lender);
(f)
Holdings, the Parent Borrower or any Subsidiary shall fail to make any
payment of principal or interest in respect of any Material Indebtedness, when
and as the same shall become due and payable after giving effect to any
applicable grace period with respect thereto;
(g)
any event or condition occurs that results in any Material Indebtedness
becoming due prior to its scheduled maturity or that enables or permits the
holder or holders of any Material Indebtedness or any trustee or agent on its
or their behalf to cause any Material Indebtedness to become due, or to require
the prepayment, repurchase, redemption or defeasance thereof, prior to its
scheduled maturity; provided that this clause (g) shall not apply
to secured Indebtedness that becomes due as a result of the voluntary sale or
transfer of the property or assets securing such Indebtedness;
(h)
an involuntary proceeding shall be commenced or an involuntary petition shall
be filed seeking (i) liquidation, reorganization or other relief in
respect of Holdings, the Parent Borrower, any Subsidiary Term Borrower, any
Foreign Subsidiary Borrower or any Subsidiary or its debts, or of a substantial
part of its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for Holdings, the Parent Borrower or any Subsidiary or for a
substantial part of its assets, and, in any such case, such proceeding or
petition shall continue undismissed for 60 days or an order or decree
approving or ordering any of the foregoing shall be entered;
(i)
Holdings, the Parent Borrower or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect, (ii) consent
to the institution of, or fail to contest in a timely and appropriate manner,
any proceeding or petition described in clause (h) of this Article,
(iii) apply for or consent to the appointment of a receiver, trustee,
custodian,
109
sequestrator, conservator or similar official for
Holdings, the Parent Borrower or any Subsidiary or for a substantial part of
its assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(j)
Holdings, the Parent Borrower or any Subsidiary shall become unable, admit in
writing in a court proceeding its inability or fail generally to pay its debts
as they become due;
(k)
one or more judgments for the payment of money in an aggregate amount in excess
of $15,000,000 shall be rendered against Holdings, the Parent Borrower, any
Subsidiary or any combination thereof and the same shall remain undischarged
for a period of 30 consecutive days during which execution shall not be
effectively stayed, or any action shall be legally taken by a judgment creditor
to attach or levy upon any assets of Holdings, the Parent Borrower or any
Subsidiary to enforce any such judgment;
(l)
an ERISA Event shall have occurred that, in the opinion of the Required
Lenders, when taken together with all other ERISA Events that have occurred,
could reasonably be expected to result in a Material Adverse Effect on
Holdings, the Parent Borrower and its Subsidiaries;
(m)
any Lien covering property having a book value or fair market value of
$1,000,000 or more purported to be created under any Security Document shall
cease to be, or shall be asserted by any Loan Party not to be, a valid and
perfected Lien on any Collateral, except (i) as a result of the sale or other
disposition of the applicable Collateral in a transaction permitted under the
Loan Documents or (ii) as a result of the Administrative Agents failure to
maintain possession of any stock certificates, promissory notes or other
instruments delivered to it under the Collateral Agreement;
(n)
the Guarantee Agreement shall cease to be, or shall have been asserted not to be,
in full force and effect;
(o)
the Parent Borrower, Holdings or any Subsidiary shall challenge the
subordination provisions of the Subordinated Debt or assert that such
provisions are invalid or unenforceable or that the Obligations of the Parent
Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower, or
the Obligations of Holdings or any Subsidiary under the Guarantee Agreement,
are not senior Indebtedness under the subordination provisions of the
Subordinated Debt, or any court, tribunal or government authority of competent
jurisdiction shall judge the subordination provisions of the Subordinated Debt
to be invalid or unenforceable or such Obligations to be not senior
Indebtedness under such subordination provisions or otherwise cease to be, or
shall be asserted not to be, legal, valid and binding obligations of the
parties thereto, enforceable in accordance with their terms; or
(p)
a Change in Control shall occur;
110
then,
and in every such event (other than an event with respect to the Parent
Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Parent Borrower (on
behalf of itself, the Subsidiary Term Borrowers and the Foreign Subsidiary
Borrowers), take either or both of the following actions, at the same or
different times: (i) terminate the Commitments, and thereupon
the Commitments shall terminate immediately, and (ii) declare the Loans
then outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to
be due and payable), and thereupon the principal of the Loans so declared to be
due and payable, together with accrued interest thereon and all fees and other
obligations of the Parent Borrower, any Subsidiary Term Borrower or any Foreign
Subsidiary Borrower accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Parent Borrower, the Subsidiary Term
Borrowers and the Foreign Subsidiary Borrowers; and in case of any event with
respect to the Parent Borrower, any Subsidiary Term Borrower or any Foreign
Subsidiary Borrower described in clause (h) or (i) of this Article, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other
obligations of the Parent Borrower, any Subsidiary Term Borrower or any Foreign
Subsidiary Borrower accrued hereunder, shall automatically become due and
payable, without presentment, demand, protest or other notice of any kind, all
of which are hereby waived by the Parent Borrower, the Subsidiary Term
Borrowers and the Foreign Subsidiary Borrowers.
ARTICLE VIII
The Administrative Agent
Each
of the Lenders and the Issuing Bank hereby irrevocably appoints the
Administrative Agent (it being understood that reference in this
Article VIII to the Administrative Agent shall be deemed to include the
Collateral Agent) as its agent and authorizes the Administrative Agent to take
such actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms of the Loan Documents, together with such
actions and powers as are reasonably incidental thereto.
The
bank serving as the Administrative Agent hereunder shall have the same rights
and powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not the Administrative Agent, and such bank and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of business with Holdings, the Parent Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent hereunder.
The
Administrative Agent shall not have any duties or obligations except those
expressly set forth in the Loan Documents. Without limiting the generality of
the foregoing, (a) the Administrative Agent shall not be subject to any
fiduciary or other
111
implied duties, regardless of whether a
Default has occurred and is continuing, (b) the Administrative Agent shall
not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated
by the Loan Documents that the Administrative Agent is required to exercise in
writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in
Section 10.02), and (c) except as expressly set forth in the Loan
Documents, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to
Holdings, the Parent Borrower or any of its Subsidiaries that is communicated
to or obtained by the bank serving as Administrative Agent or any of its
Affiliates in any capacity. The Administrative Agent shall not be liable for
any action taken or not taken by it with the consent or at the request of the
Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 10.02) or in the
absence of its own gross negligence or wilful misconduct. The Administrative
Agent shall be deemed not to have knowledge of any Default unless and until
written notice thereof is given to the Administrative Agent by Holdings, the
Parent Borrower, a Subsidiary Term Borrower, a Foreign Subsidiary Borrower or a
Lender, and the Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with any Loan Document, (ii) the
contents of any certificate, report or other document delivered thereunder or
in connection therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness
of any Loan Document or any other agreement, instrument or document, or
(v) the satisfaction of any condition set forth in Article IV or
elsewhere in any Loan Document, other than to confirm receipt of items
expressly required to be delivered to the Administrative Agent.
The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Parent Borrower, a Subsidiary Term Borrower or any
Foreign Subsidiary Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The
Administrative Agent may perform any and all its duties and exercise its rights
and powers by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of each
Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
112
Subject
to the appointment and acceptance of a successor Administrative Agent as
provided in this paragraph, the Administrative Agent may resign at any time by
notifying the Lenders, the Issuing Bank and the Parent Borrower (on behalf of
itself, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers).
Upon any such resignation, the Required Lenders shall have the right, in
consultation with the Parent Borrower and, if applicable, the relevant
Subsidiary Term Borrower and Foreign Subsidiary Borrower, to appoint a
successor from among the Lenders. If no successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within
30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Bank, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate
of any such bank. Upon the acceptance of its appointment as Administrative
Agent hereunder by a successor, such successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. The fees payable by the Parent
Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign
Subsidiary Borrowers) to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Parent
Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign
Subsidiary Borrowers) and such successor. After the Administrative Agents
resignation hereunder, the provisions of this Article and Section 10.03
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while it was acting as
Administrative Agent.
Each
Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any other Loan Document or
related agreement or any document furnished hereunder or thereunder.
The
Lenders identified in this Agreement as the Syndication Agent and the Documentation
Agents shall not have any right, power, obligation, liability, responsibility
or duty under this Agreement other than those applicable to all Lenders.
Without limiting the foregoing, none of the Syndication Agent or the
Documentation Agents shall have or be deemed to have a fiduciary relationship
with any Lender. Each Lender hereby makes the same acknowledgments with respect
to the Syndication Agent and the Documentation Agents as it makes with respect
to the Administrative Agent or any other Lender in this Article VIII.
113
ARTICLE IX
Collection Allocation Mechanism
SECTION
9.01. Implementation of CAM. (a) On the CAM Exchange Date, (i) the
Commitments shall automatically and without further act be terminated as
provided in Article VII, (ii) all Foreign Currency Borrowings and the
Commitments to make Foreign Currency Loans shall be converted into, and all
such amounts due thereunder shall accrue and be payable in, dollars at the
Exchange Rate on such date and (iii) the Lenders shall automatically and
without further act (and without regard to the provisions of
Section 10.04) be deemed to have exchanged interests in the Credit
Facilities such that in lieu of the interest of each Lender in each Credit Facility
in which it shall participate as of such date (including such Lenders interest
in the Specified Obligations of each Loan Party in respect of each such Credit
Facility), such Lender shall hold an interest in every one of the Credit
Facilities (including the Specified Obligations of each Loan Party in respect
of each such Credit Facility and each LC Reserve Account established pursuant
to Section 9.02 below), whether or not such Lender shall previously have
participated therein, equal to such Lenders CAM Percentage thereof. Each
Lender and each Loan Party hereby consents and agrees to the CAM Exchange, and
each Lender agrees that the CAM Exchange shall be binding upon its successors
and assigns and any person that acquires a participation in its interests in
any Credit Facility.
(b)
As a result of the CAM Exchange, upon and after the CAM Exchange Date, each
payment received by the Administrative Agent or the Collateral Agent pursuant
to any Loan Document in respect of the Specified Obligations, and each
distribution made by the Collateral Agent pursuant to any Security Documents in
respect of the Specified Obligations, shall be distributed to the Lenders pro
rata in accordance with their respective CAM Percentages. Any direct payment
received by a Lender upon or after the CAM Exchange Date, including by way of
setoff, in respect of a Specified Obligation shall be paid over to the
Administrative Agent for distribution to the Lenders in accordance herewith.
SECTION
9.02. Letters of Credit. (a) In the event that on the CAM Exchange
Date any Letter of Credit shall be outstanding and undrawn in whole or in part,
or any amount drawn under a Letter of Credit shall not have been reimbursed
either by the Parent Borrower or any Foreign Subsidiary Borrower, as the case
may be, or with the proceeds of a Revolving Loan, each Revolving Lender shall
promptly pay over to the Administrative Agent, in immediately available funds
and in the currency that such Letters of Credit are denominated, an amount
equal to such Revolving Lenders Revolving Applicable Percentage (as notified
to such Lender by the Administrative Agent) of such Letter of Credits undrawn
face amount or (to the extent it has not already done so) such Letter of
Credits unreimbursed drawing, together with interest thereon from the CAM
Exchange Date to the date on which such amount shall be paid to the
Administrative Agent at the rate that would be applicable at the time to an ABR
Revolving Loan in a principal amount equal to such amount, as the case may be.
The Administrative Agent shall establish a separate account or accounts for
each Lender
114
(each, an LC Reserve Account) for the
amounts received with respect to each such Letter of Credit pursuant to the
preceding sentence. The Administrative Agent shall deposit in each Lenders LC
Reserve Account such Lenders CAM Percentage of the amounts received from the
Revolving Lenders as provided above. The Administrative Agent shall have sole
dominion and control over each LC Reserve Account, and the amounts deposited in
each LC Reserve Account shall be held in such LC Reserve Account until
withdrawn as provided in paragraph (b), (c), (d) or (e) below.
The Administrative Agent shall maintain records enabling it to determine the
amounts paid over to it and deposited in the LC Reserve Accounts in respect of
each Letter of Credit and the amounts on deposit in respect of each Letter of
Credit attributable to each Lenders CAM Percentage. The amounts held in each Lenders
LC Reserve Account shall be held as a reserve against the LC Exposure, shall be
the property of such Lender, shall not constitute Loans to or give rise to any
claim of or against any Loan Party and shall not give rise to any obligation on
the part of the Parent Borrower or the Foreign Subsidiary Borrowers to pay
interest to such Lender, it being agreed that the reimbursement obligations in
respect of Letters of Credit shall arise only at such times as drawings are
made thereunder, as provided in Section 2.05.
(b)
In the event that after the CAM Exchange Date any drawing shall be made in
respect of a Letter of Credit, the Administrative Agent shall, at the request
of the Issuing Bank, withdraw from the LC Reserve Account of each Lender any
amounts, up to the amount of such Lenders CAM Percentage of such drawing,
deposited in respect of such Letter of Credit and remaining on deposit and
deliver such amounts to the Issuing Bank in satisfaction of the reimbursement
obligations of the Revolving Lenders under Section 2.05(e) (but not of the
Parent Borrower and the Foreign Subsidiary Borrowers under Section 2.05(f),
respectively). In the event any Revolving Lender shall default on its
obligation to pay over any amount to the Administrative Agent in respect of any
Letter of Credit as provided in this Section 9.02, the Issuing Bank shall,
in the event of a drawing thereunder, have a claim against such Revolving
Lender to the same extent as if such Lender had defaulted on its obligations
under Section 2.05(e), but shall have no claim against any other Lender in
respect of such defaulted amount, notwithstanding the exchange of interests in
the reimbursement obligations pursuant to Section 9.01. Each other Lender
shall have a claim against such defaulting Revolving Lender for any damages
sustained by it as a result of such default, including, in the event such
Letter of Credit shall expire undrawn, its CAM Percentage of the defaulted
amount.
(c)
In the event that after the CAM Exchange Date any Letter of Credit shall expire
undrawn, the Administrative Agent shall withdraw from the LC Reserve Account of
each Lender the amount remaining on deposit therein in respect of such Letter
of Credit and distribute such amount to such Lender.
(d)
With the prior written approval of the Administrative Agent and the Issuing
Bank, any Lender may withdraw the amount held in its LC Reserve Account in
respect of the undrawn amount of any Letter of Credit. Any Lender making such a
withdrawal shall be unconditionally obligated, in the event there shall
subsequently be a
115
drawing under such Letter of Credit, to pay over to
the Administrative Agent, for the account of the Issuing Bank on demand, its
CAM Percentage of such drawing.
(e)
Pending the withdrawal by any Lender of any amounts from its LC Reserve Account
as contemplated by the above paragraphs, the Administrative Agent will, at the
direction of such Lender and subject to such rules as the Administrative Agent
may prescribe for the avoidance of inconvenience, invest such amounts in
Permitted Investments. Each Lender that has not withdrawn its CAM Percentage of
amounts in its LC Reserve Account as provided in paragraph (d) above shall
have the right, at intervals reasonably specified by the Administrative Agent,
to withdraw the earnings on investments so made by the Administrative Agent
with amounts in its LC Reserve Account and to retain such earnings for its own
account.
ARTICLE X
Miscellaneous
SECTION
10.01. Notices. Except in the case of notices and other communications
expressly permitted to be given by telephone, all notices and other
communications provided for herein shall be in writing and shall be delivered
by hand or overnight courier service, mailed by certified or registered mail or
sent by telecopy, as follows:
(a)
if to Holdings, the Parent Borrower, any Subsidiary Term Borrower or any
Foreign Subsidiary Borrower, to the Parent Borrower (on behalf of itself,
Holdings, any Subsidiary Term Borrower and any Foreign Subsidiary Borrower) at
39400 Woodward Avenue, Suite 130, Bloomfield Hills, MI 48304, Attention of
Joshua Sherbin, General Counsel (Telephone No. (248) 631-5450, Telecopy
No. (248) 631-5413),
with a copy to
Jonathan A. Schaffzin, Esq.
Cahill Gordon & Reindel LLP
80 Pine Street
New York, New York
(Telecopy No. (212) 269-5420);
(b)
if to the Administrative Agent, to JPMorgan Chase Bank, N.A., Loan and Agency
Services Group, 1111 Fannin, 10th floor,
Houston, Texas 77002 Attention of Michael Chau (Telecopy: 713-750-2938), with a
copy to JPMorgan Chase Bank, N.A., 270 Park Avenue, New York,
New York 10017, Attention of Richard Duker (Telecopy
No. 212-270-5127);
(c)
if to the Issuing Bank, to it at JPMorgan Chase Bank, N.A., Standby Letters of
Credit, 10420 Highland Mn Dr BL2, Tampa, Florida, 33610 4th floor (Telecopy: 813-432-5161)
attention of James Alonzo, and in the event that there is more
116
than one Issuing Bank, to such other Issuing Bank at
its address (or telecopy number) set forth in its Administrative Questionnaire;
(d)
if to JPMCB, as Swingline Lender, to it at 1111 Fannin, 10th floor, Houston, Texas 77002,
Attention of Michael Chau (Telecopy: 713-750-2938);
(e)
if to Comerica, as Swingline Lender, to it at Comerica Tower at Detroit Center,
500 Woodward Avenue, 9th floor,
M/C 3270, Detroit, Michigan 48226, Attention of Tammy Gurne (Telecopy
No. (313) 222-1582);
(f)
if to the Foreign Currency Administrative Agent, to J.P. Morgan Europe Limited,
Loan and Agency Services Group, 125 London Wall, 9th Floor, London, EC2Y 5AJ,
United Kingdom, Attention of James Beard (Telecopy No. +44 (0)
207-777-2360/2085); and
(g)
if to any other Lender, to it at its address (or telecopy number) set forth in
its Administrative Questionnaire.
Any
party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION
10.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent, the Issuing Bank or any Lender in exercising any right or
power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power,
or any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the
Issuing Bank and the Lenders hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would otherwise
have. No waiver of any provision of any Loan Document or consent to any
departure by any Loan Party therefrom shall in any event be effective unless
the same shall be permitted by paragraph (b) of this Section, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. Without limiting the generality of the foregoing,
the making of a Loan or issuance of a Letter of Credit shall not be construed
as a waiver of any Default, regardless of whether the Administrative Agent, any
Lender or the Issuing Bank may have had notice or knowledge of such Default at
the time.
(b)
Neither this Agreement nor any other Loan Document nor any provision hereof or
thereof may be waived, amended or modified except, in the case of this
Agreement, pursuant to an agreement or agreements in writing entered into by
Holdings, the Parent Borrower, each Subsidiary Term Borrower (but only to the
extent such waiver, amendment or modification relates to such Subsidiary Term Borrower),
each Foreign Subsidiary Borrower (but only to the extent such waiver, amendment
or modification relates to such Foreign Subsidiary Borrower) and the Required
Lenders or,
117
in the case of any other Loan Document, pursuant to
an agreement or agreements in writing entered into by the Administrative Agent
and the Loan Party or Loan Parties that are parties thereto, in each case with
the consent of the Required Lenders; provided that no such agreement
shall (i) increase the Commitment of any Lender without the written consent of
such Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable hereunder, or
reduce or forgive the Deposit Return, without the written consent of each
Lender affected thereby, (iii) postpone the maturity of any Loan, or any
scheduled date of payment of the principal amount of any Term Loan under
Section 2.10, or the required date of reimbursement of any LC Disbursement, or
any date for the payment of any interest or fees payable hereunder, or reduce
or forgive the amount of, waive or excuse any such payment, or postpone the
scheduled date of expiration of any Commitment or postpone the scheduled date
of expiration of any Letter of Credit beyond the Commitment Termination Date,
without the written consent of each Lender affected thereby, (iv) change
Section 2.18(a), (b) or (c) in a manner that would alter the pro rata
sharing of payments required thereby, without the written consent of each
Lender, (v) change the percentage set forth in the definition of Required
Lenders or any other provision of any Loan Document (including this Section)
specifying the number or percentage of Lenders (or Lenders of any Class)
required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, without the written consent of
each Lender (or each Lender of such Class, as the case may be), (vi) release
Holdings or any Subsidiary Loan Party from its Guarantee under the Guarantee
Agreement (except as expressly provided in the Guarantee Agreement), or limit
its liability in respect of such Guarantee, without the written consent of each
Lender, (vii) release all or substantially all of the Collateral from the Liens
of the Security Documents, without the written consent of each Lender (except
as expressly provided in the Security Documents) or (viii) change any
provisions of any Loan Document in a manner that by its terms adversely affects
the rights in respect of payments due to Lenders holding Loans of any Class
differently than those holding Loans of any other Class, without the written
consent of Lenders holding a majority in interest of the outstanding Loans and
unused Commitments of each affected Class; provided, further,
that (A) no such agreement shall amend, modify or otherwise affect the
rights or duties of the Administrative Agent, the Issuing Bank or the Swingline
Lender without the prior written consent of the Administrative Agent, the
Issuing Bank or the Swingline Lender, as the case may be, and (B) any
waiver, amendment or modification of this Agreement that by its terms affects
the rights or duties under this Agreement of the Revolving Lenders (but not the
Tranche B Lenders, Tranche B-1 Lenders and Incremental Lenders), the Tranche
B-1 Lenders (but not the Revolving Lenders, Tranche B Lenders and Incremental
Lenders), the Tranche B Lenders (but not the Revolving Lenders, Tranche B-1
Lenders and Incremental Lenders) or the Incremental Lenders (but not the
Revolving Lenders, Tranche B Lenders and Tranche B-1 Lenders) may be
effected by an agreement or agreements in writing entered into by Holdings, the
Parent Borrower, each Subsidiary Term Borrower (but only to the extent such
waiver, amendment or modification relates to such Subsidiary Term Borrower),
each Foreign Subsidiary Borrower (but only to the extent such waiver, amendment
or modification relates to such Foreign Subsidiary Borrower) and requisite
percentage in interest of the affected Class of Lenders that would be required
to consent thereto under
118
this Section if such Class of Lenders were the only
Class of Lenders hereunder at the time. Notwithstanding the foregoing, any
provision of this Agreement may be amended by an agreement in writing entered
into by Holdings, the Parent Borrower, each Subsidiary Term Borrower (but only
to the extent such waiver, amendment or modification relates to such Subsidiary
Term Borrower), each Foreign Subsidiary Borrower (but only to the extent such
waiver, amendment or modification relates to such Foreign Subsidiary Borrower),
the Required Lenders and the Administrative Agent (and, if their rights or
obligations are affected thereby, the Issuing Bank and the Swingline Lender) if
(i) by the terms of such agreement the Commitment of each Lender not consenting
to the amendment provided for therein shall terminate upon the effectiveness of
such amendment and (ii) at the time such amendment becomes effective, each
Lender not consenting thereto receives payment in full of the principal of and
interest accrued on each Loan made by it and all other amounts owing to it or
accrued for its account under this Agreement.
(c)
In connection with any proposed amendment, modification, waiver or termination
(a Proposed Change) requiring the consent of all Lenders or all affected
Lenders, if the consent of the Required Lenders (and, to the extent any
Proposed Change requires the consent of Lenders holding Loans of any Class
pursuant to clause (v) or (viii) of paragraph (b) of this Section,
the consent of at least 50% in interest of the outstanding Loans and unused
Commitments of such Class) to such Proposed Change is obtained, but the consent
to such Proposed Change of other Lenders whose consent is required is not
obtained (any such Lender whose consent is not obtained as described in
paragraph (b) of this Section being referred to as a Non-Consenting
Lender), then, so long as the Lender that is acting as Administrative Agent is
not a Non-Consenting Lender, the Parent Borrower may, at its sole expense and
effort, upon notice to such Non-Consenting Lender and the Administrative Agent,
require such Non-Consenting Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in
Section 10.04), all its interests, rights and obligations under this
Agreement to an assignee that shall assume such obligations (which assignee may
be another Lender, if a Lender accepts such assignment), provided that
(a) the Parent Borrower shall have received the prior written consent of
the Administrative Agent (and, if a Revolving Commitment is being assigned, the
Issuing Bank and Swingline Lender), which consent shall not be unreasonably
withheld, (b) such Non-Consenting Lender shall have received payment of an
amount equal to the outstanding principal of its Loans and participations in LC
Disbursements and Swingline Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts), (c) the Borrower or such assignee shall
have paid to the Administrative Agent the processing and recordation fee
specified in Section 10.04(b), (d) such assignee shall consent to
such Proposed Change and (e) if such Non-Consenting Lender is acting as
the Administrative Agent, it will not be required to assign and delegate its
interests, rights and obligations as Administrative agent under this Agreement.
SECTION
10.03. Expenses; Indemnity; Damage Waiver. (a) Holdings, the Parent
Borrower, each Subsidiary Term Borrower and each Foreign Subsidiary
119
Borrower, jointly and severally, shall pay
(i) all reasonable out-of-pocket expenses incurred by the Agents and their
Affiliates, including the reasonable fees, charges and disbursements of one
counsel in each applicable jurisdiction for each of the Agents, in connection
with the syndication of the credit facilities provided for herein, due
diligence investigation, the preparation and administration of the Loan
Documents or any amendments, modifications or waivers of the provisions thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the
Issuing Bank in connection with the issuance, amendment, renewal or extension
of any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Agents, the Issuing Bank or any Lender,
including the fees, charges and disbursements of any counsel for the Agents,
the Issuing Bank or any Lender, in connection with the enforcement or
protection of its rights in connection with the Loan Documents, including its
rights under this Section, or in connection with the Loans made or Letters of
Credit issued hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans or
Letters of Credit.
(b)
Holdings, the Parent Borrower, each Subsidiary Term Borrower and each Foreign
Subsidiary Borrower, jointly and severally, shall indemnify the Agents, the
Issuing Bank and each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an Indemnitee) against, and
hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including the fees, charges and disbursements
of any counsel for any Indemnitee, incurred by or asserted against any
Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of any Loan Document or any other agreement or instrument
contemplated hereby, the performance by the parties to the Loan Documents of
their respective obligations thereunder or the consummation of the Transactions
or any other transactions contemplated hereby, (ii) any Loan or Letter of
Credit or the use of the proceeds therefrom (including any refusal by the
Issuing Bank to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply with
the terms of such Letter of Credit), (iii) any actual or alleged presence
or release of Hazardous Materials on or from any Mortgaged Property or any
other property currently or formerly owned or operated by Holdings, the Parent
Borrower or any Subsidiary, or any Environmental Liability related in any way
to Holdings, the Parent Borrower or any Subsidiary, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that
such indemnity shall not, as to any Indemnitee, be available to the extent that
such losses, claims, damages, liabilities or related expenses are determined by
a court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or wilful misconduct of such Indemnitee.
(c)
To the extent that Holdings, the Parent Borrower, the Subsidiary Term Borrowers
and the Foreign Subsidiary Borrowers fail to pay any amount required to be paid
by it to the Administrative Agent, the Issuing Bank or the Swingline Lender
under paragraph (a) or (b) of this Section (and without limiting such
partys obligation to do
120
so), each Lender severally agrees to pay to the
Administrative Agent, the Issuing Bank or the Swingline Lender, as the case may
be, such Lenders pro rata share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided
that the unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against the
Administrative Agent, the Issuing Bank or a Swingline Lender in its capacity as
such; provided further that to the extent indemnification of the
Issuing Bank or Swingline Lender is required pursuant to this Section 10.03(c),
such obligation will be limited to Revolving Lenders only. For purposes hereof,
a Lenders pro rata share shall be determined based upon its share of the sum
of the total Revolving Exposures, outstanding Term Loans and unused Commitments
at the time.
(d)
To the extent permitted by applicable law, none of Holdings, the Parent
Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower shall
assert, and each hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or as
a result of, this Agreement or any agreement or instrument contemplated hereby,
the Transactions, any Loan or Letter of Credit or the use of the proceeds
thereof.
(e)
All amounts due under this Section shall be payable promptly after written
demand therefor.
(f)
Neither Heartland nor any director, officer, employee, stockholder or member,
as such, of any Loan Party or Heartland shall have any liability for the
Obligations or for any claim based on, in respect of or by reason of the
Obligations or their creation; provided that the foregoing shall not be
construed to relieve any Loan Party of its Obligations under any Loan Document.
SECTION
10.04. Successors and Assigns. (a) The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby (including any Affiliate of
the Issuing Bank that issues any Letter of Credit), except that, subject to
Section 10.15(g), none of Holdings, the Parent Borrower, any Subsidiary Term
Borrower or any Foreign Subsidiary Borrower may assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender (and any attempted assignment or transfer by Holdings, the Parent
Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower
without such consent shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby
(including any Affiliate of the Issuing Bank that issues any Letter of Credit)
and, to the extent expressly contemplated hereby, the Related Parties of each
of the Administrative Agent, the Issuing Bank and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
121
(b)
Any Lender may assign to one or more assignees all or a portion of its rights
and obligations under this Agreement (including all or a portion of its
Commitments, the Loans at the time owing to it and its Deposit); provided
that (i) except in the case of an assignment to a Lender, a Lender
Affiliate or an Approved Fund, each of the Parent Borrower, each Subsidiary Term
Borrower (but only to the extent such assignment relates to a Tranche B
Commitment or Tranche B Term Loan to such Subsidiary Term Borrower), each
Foreign Subsidiary Borrower and the Administrative Agent (and, in the case of
an assignment of all or a portion of a Revolving Commitment or any Lenders
obligations in respect of its LC Exposure or Swingline Exposure, the Issuing
Bank and the Swingline Lender) must give their prior written consent to such
assignment (which consent shall not be unreasonably withheld or delayed), (ii)
except in the case of an assignment to a Lender, a Lender Affiliate or an
Approved Fund or an assignment of the entire remaining amount of the assigning
Lenders Commitment or Loans, the amount of the Commitment or Loans of the assigning
Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than (x) in the case of Revolving
Commitments and Revolving Loans, $5,000,000, and (y) in the case of
Tranche B Commitments, Tranche B-1 Commitments and Incremental Term
Commitments and Tranche B Term Loans, Tranche B-1 Loans and Incremental
Term Loans, $1,000,000 unless each of the Parent Borrower, each Foreign Subsidiary
Borrower (but only to the extent such assignment relates to Foreign Currency
Commitments or Foreign Currency Loans relating to such Foreign Subsidiary
Borrower) and the Administrative Agent otherwise consent, (iii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lenders rights and obligations under this Agreement, except that
this clause (iii) shall not be construed to prohibit the assignment of a
proportionate part of all the assigning Lenders rights and obligations in
respect of one Class of Commitments or Loans, (iv) notwithstanding
anything to the contrary, assignments by any Revolving Lender of any portion of
its Revolving Commitments or any portion of Revolving Loans must include a ratable
portion of its Foreign Currency Commitments and ratable portion of its Foreign
Currency Loans and visa versa, (v) the parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Acceptance,
together with a processing and recordation fee of $3,500, (vi) the
assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire and (vii) in connection with each
assignment of a Tranche B-1 Commitment, Tranche B-1 Loan or Tranche B-1 LC
Exposure, (A) the Deposit of the assignor Lender shall not be released, but
shall instead be purchased by the relevant assignee and continue to be held for
application (to the extent not already applied) in accordance with Article II
to satisfy such assignees obligations in respect of such Tranche B-1 Loans and
such Tranche B-1 LC Exposure and (B) each Lender agrees that immediately prior
to each assignment (1) the Administrative Agent shall establish a new
Sub-Account in the name of the assignee, (2) a corresponding portion of the
Deposit credited to the Sub-Account of the assignor Lender shall be purchased
by the assignee and shall be transferred from the assignors Sub-Account to the
assignees Sub-Account and (3) if after giving effect to such assignment the
Tranche B-1 Commitment of the assignor Lender shall be zero, the Administrative
Agent shall close the Sub-Account of such assignor Lender; and provided further
that any consent of
122
the Parent Borrower or any Subsidiary Term Borrower
or any Foreign Subsidiary Borrower otherwise required under this paragraph
shall not be required if an Event of Default under Article VII has occurred and
is continuing. Subject to acceptance and recording thereof pursuant to
paragraph (d) of this Section, from and after the effective date specified
in each Assignment and Acceptance the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement (provided
that any liability of the Parent Borrower, any Subsidiary Term Borrower or any
Foreign Subsidiary Borrower to such assignee under Section 2.15, 2.16 or 2.17
shall be limited to the amount, if any, that would have been payable thereunder
by the Parent Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary
Borrower in the absence of such assignment), and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lenders
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of
Sections 2.15, 2.16, 2.17 and 10.03). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this paragraph shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance
with paragraph (e) of this Section.
(c)
The Administrative Agent, acting for this purpose as an agent of the Parent
Borrower, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers,
shall maintain at one of its offices in The City of New York a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the Register). The
entries in the Register shall be conclusive, and Holdings, the Parent Borrower,
the Subsidiary Term Borrowers, the Foreign Subsidiary Borrowers, the
Administrative Agent, the Issuing Bank and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Parent
Borrower, the Subsidiary Term Borrowers, the Foreign Subsidiary Borrowers, the
Issuing Bank and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(d)
Upon its receipt of a duly completed Assignment and Acceptance executed by an
assigning Lender and an assignee, the assignees completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the processing
and recordation fee referred to in paragraph (b) of this Section and any
written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Acceptance
and record the information contained therein in the Register. No assignment
shall be effective for purposes of this Agreement unless it has been recorded
in the Register as provided in this paragraph.
123
(e)
Any Lender may, without the consent of the Parent Borrower, any Subsidiary Term
Borrower or any Foreign Subsidiary Borrower, the Administrative Agent, the
Issuing Bank or the Swingline Lender, sell participations to one or more banks
or other entities (a Participant) in all or a portion of such Lenders
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans and its Deposit owing to it); provided that
(i) such Lenders obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) Holdings, the
Parent Borrower, the Subsidiary Term Borrowers, the Foreign Subsidiary
Borrowers, the Administrative Agent, the Issuing Bank and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lenders rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce the Loan Documents and
to approve any amendment, modification or waiver of any provision of the Loan
Documents; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to Section
10.02(b) that affects such Participant. Subject to paragraph (f) of this
Section, the Parent Borrower, the Subsidiary Term Borrowers and the Foreign
Subsidiary Borrowers agree that each Participant shall be entitled to the
benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 10.08 as
though it were a Lender, provided such Participant agrees to be subject to
Section 2.18(c) as though it were a Lender.
(f)
A Participant shall not be entitled to receive any greater payment under
Section 2.15 or 2.17 than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with the prior written
consent of the Parent Borrower and, to the extent applicable, each relevant
Subsidiary Term Borrower and Foreign Subsidiary Borrower. A Participant that
would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 2.17 unless the Parent Borrower and, to the extent
applicable, each relevant Foreign Subsidiary Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Parent Borrower and, to the extent applicable, each relevant
Foreign Subsidiary Borrower, to comply with Section 2.17(e) as though it were a
Lender.
(g)
Any Lender may, without the consent of the Parent Borrower or the
Administrative Agent, at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment
of a security interest; provided that no such pledge or assignment of a
security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
124
SECTION
10.05. Survival. All covenants, agreements, representations and
warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to this
Agreement or any other Loan Document shall be considered to have been relied
upon by the other parties hereto and shall survive the execution and delivery
of the Loan Documents and the making of any Loans and issuance of any Letters
of Credit, regardless of any investigation made by any such other party or on
its behalf and notwithstanding that the Administrative Agent, the Issuing Bank
or any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Commitments have not expired or terminated. The provisions of
Sections 2.15, 2.16, 2.17 and 10.03 and Article VIII shall survive and remain
in full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit and the Commitments or the termination of this
Agreement or any provision hereof.
SECTION
10.06. Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which
when taken together shall constitute a single contract. This Agreement, the
other Loan Documents and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the
subject matter hereof. Except as provided in Section 4.01, this Agreement shall
become effective when it shall have been executed by the Administrative Agent
and when the Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of the other parties
hereto, and thereafter shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement.
SECTION
10.07. Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability
without affecting the validity, legality and enforceability of the remaining
provisions hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION
10.08. Right of Setoff. If an Event of Default shall have occurred and
be continuing, each Lender and each of its Affiliates is hereby authorized at
any time and from time to time, to the fullest extent permitted by law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other obligations at any time owing
by such Lender or Affiliate to or for the
125
credit or the account of the Parent Borrower, any
Subsidiary Term Borrower or any Foreign Subsidiary Borrower against any of and
all the obligations of the Parent Borrower, any Subsidiary Term Borrower or any
Foreign Subsidiary Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
SECTION
10.09. Governing Law; Jurisdiction; Consent to Service of Process. (a) This
Agreement shall be construed in accordance with and governed by the law of the
State of New York.
(b)
Each of Holdings, the Parent Borrower, each Subsidiary Term Borrower and each
Foreign Subsidiary Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to any Loan Document, or for recognition or enforcement of
any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the
extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Agreement or any other
Loan Document shall affect any right that the Administrative Agent, the Issuing
Bank or any Lender may otherwise have to bring any action or proceeding
relating to this Agreement or any other Loan Document against Holdings, the
Parent Borrower, any of the Subsidiary Term Borrowers, any of the Foreign
Subsidiary Borrowers or their properties in the courts of any jurisdiction.
(c)
Each of Holdings, the Parent Borrower, each Subsidiary Term Borrower and each
Foreign Subsidiary Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or any other Loan Document in any
court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d)
Each party to this Agreement irrevocably consents to service of process in the
manner provided for notices in Section 10.01. Nothing in this Agreement or
any other Loan Document will affect the right of any party to this Agreement to
serve process in any other manner permitted by law.
126
SECTION
10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION
10.11. Headings. Article and Section headings and the Table of Contents
used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION
10.12. Confidentiality. Each of the Administrative Agent, the Issuing
Bank and the Lenders agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (a) to its
and its Lender Affiliates directors, officers, employees and agents, including
accountants, legal counsel and other advisors (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
pursuant to the terms hereof), (b) to the extent requested by any
regulatory or quasi-regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process,
(d) to any other party to this Agreement, (e) in connection with the
exercise of any remedies hereunder or any suit, action or proceeding relating
to this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Parent Borrower, any Subsidiary Term Borrower, any
Foreign Subsidiary Borrower and their respective obligations, (g) with the
consent of the Parent Borrower or (h) to the extent such Information
(i) is publicly available at the time of disclosure or becomes publicly
available other than as a result of a breach of this Section or
(ii) becomes available to the Administrative Agent, the Issuing Bank or
any Lender on a nonconfidential basis from a source other than Holdings, the
Parent Borrower or any Subsidiary (including the Receivables Subsidiary). For
the purposes of this Section, Information means all information
received from Holdings, the Parent Borrower or any Subsidiary (including the
Receivables Subsidiary) relating to Holdings, the Parent Borrower or any
Subsidiary (including the Receivables Subsidiary) or its business, other than
any such information
127
that is available to the Administrative Agent, the
Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by
Holdings, the Parent Borrower or any Subsidiary (including the Receivables
Subsidiary); provided that, in the case of information received from
Holdings, the Parent Borrower or any Subsidiary (including the Receivables
Subsidiary) after the Restatement Effective Date, such information is clearly
identified at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
SECTION
10.13. Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together
with all fees, charges and other amounts which are treated as interest on such
Loan under applicable law (collectively the Charges), shall exceed the
maximum lawful rate (the Maximum Rate) which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefor) until such cumulated
amount, together with interest thereon at the Federal Funds Effective Rate to
the date of repayment, shall have been received by such Lender.
SECTION
10.14. Judgment Currency. (a) The obligations hereunder of the
Parent Borrower, the Subsidiary Term Borrowers and the Foreign Subsidiary
Borrowers and under the other Loan Documents to make payments in dollars or in
the Foreign Currencies, as the case may be, (the Obligation Currency)
shall not be discharged or satisfied by any tender or recovery pursuant to any
judgment expressed in or converted into any currency other than the Obligation
Currency, except to the extent that such tender or recovery results in the
effective receipt by the Administrative Agent, the Collateral Agent or a Lender
of the full amount of the Obligation Currency expressed to be payable to the
Administrative Agent, Collateral Agent or Lender under this Agreement or the
other Loan Documents. If, for the purpose of obtaining or enforcing judgment
against the Parent Borrower, any Subsidiary Term Borrower, any Foreign
Subsidiary Borrower or any other Loan Party in any court or in any
jurisdiction, it becomes necessary to convert into or from any currency other
than the Obligation Currency (such other currency being hereinafter referred to
as the Judgment Currency) an amount due in the Obligation Currency,
the conversion shall be made, at the Dollar Equivalent of such amount, in each
case, as of the date immediately preceding the day on which the judgment is
given (such Business Day being hereinafter referred to as the Judgment Currency
Conversion Date).
128
(b)
If there is a change in the rate of exchange prevailing between the Judgment
Currency Conversion Date and the date of actual payment of the amount due, the
Parent Borrower, each Subsidiary Term Borrower and each Foreign Subsidiary
Borrower, as the case may be, covenants and agrees to pay, or cause to be paid,
such additional amounts, if any (but in any event not a lesser amount), as may
be necessary to ensure that the amount paid in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of payment, will
produce the amount of the Obligation Currency which could have been purchased
with the amount of Judgment Currency stipulated in the judgment or judicial
award at the rate of exchange prevailing on the Judgment Currency Conversion
Date.
(c)
For purposes of determining the Dollar Equivalent, such amounts shall include
any premium and costs payable in connection with the purchase of the Obligation
Currency.
SECTION
10.15. Obligations Joint and Several. (a) Each Term Loan Borrower
agrees that it shall, jointly with the other Term Loan Borrowers and severally,
be liable for all the Obligations in respect of the Term Loans and Term Loan
Commitments (the Term Loan Obligations). Each Term Loan Borrower
further agrees that the Term Loan Obligations of the other Term Loan Borrowers
may be extended and renewed, in whole or in part, without notice to or further
assent from it, and that it will remain bound upon its agreement hereunder
notwithstanding any extension or renewal of any Term Loan Obligation of the
other Term Loan Borrowers.
(b)
Each Term Loan Borrower waives presentment to, demand of payment from and
protest to the other Term Loan Borrowers of any of the Term Loan Obligations or
the other Term Loan Borrowers of any Term Loan Obligations, and also waives
notice of acceptance of its obligations and notice of protest for nonpayment.
The Term Loan Obligations of a Term Loan Borrower hereunder shall not be
affected by (i) the failure of any Term Loan Lender or the Issuing Bank or
the Administrative Agent or the Collateral Agent to assert any claim or demand
or to enforce any right or remedy against the other Term Loan Borrowers under
the provisions of this Agreement or any of the other Loan Documents or
otherwise; (ii) any rescission, waiver, amendment or modification of any of the
terms or provisions of this Agreement, any of the other Loan Documents or any
other agreement; or (iii) the failure of any Term Loan Lender or the
Issuing Bank to exercise any right or remedy against any other Term Loan
Borrower.
(c)
Each Term Loan Borrower further agrees that its agreement hereunder constitutes
a promise of payment when due and not of collection, and waives any right to
require that any resort be had by any Term Loan Lender or the Issuing Bank to
any balance of any deposit account or credit on the books of any Term Loan
Lender or the Issuing Bank in favor of any other Term Loan Borrower or any
other person.
(d)
The Term Loan Obligations of each Term Loan Borrower hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including compromise, and shall not be subject to any defense or setoff,
129
counterclaim, recoupment or termination whatsoever
by reason of the invalidity, illegality or unenforceability of the Term Loan
Obligations of the other Term Loan Borrowers or otherwise. Without limiting the
generality of the foregoing, the Term Loan Obligations of each Term Loan
Borrower hereunder shall not be discharged or impaired or otherwise affected by
the failure of the Administrative Agent, the Collateral Agent or any Term Loan
Lender or the Issuing Bank to assert any claim or demand or to enforce any
remedy under this Agreement or under any other Loan Document or any other
agreement, by any waiver or modification in respect of any thereof, by any
default, failure or delay, willful or otherwise, in the performance of the Term
Loan Obligations of the other Term Loan Borrowers or by any other act or
omission which may or might in any manner or to any extent vary the risk of
such Term Loan Borrower or otherwise operate as a discharge of such Term Loan
Borrower as a matter of law or equity.
(e)
Each Term Loan Borrower further agrees that its obligations hereunder shall
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of principal of or interest on any Term Loan
Obligation of the other Term Loan Borrowers is rescinded or must otherwise be
restored by the Administrative Agent, the Collateral Agent or any Term Loan
Lender or the Issuing Bank upon the bankruptcy or reorganization of any of the
other Term Loan Borrowers or otherwise.
(f)
In furtherance of the foregoing and not in limitation of any other right which
the Administrative Agent, the Collateral Agent or any Term Loan Lender or the
Issuing Bank may have at law or in equity against any Term Loan Borrower by
virtue hereof, upon the failure of a Term Loan Borrower to pay any Term Loan
Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, each other Term Loan
Borrower hereby promises to and will, upon receipt of written demand by the
Administrative Agent, forthwith pay, or cause to be paid, in cash the amount of
such unpaid Term Loan Obligations, and thereupon each Term Loan Lender shall,
in a reasonable manner, assign the amount of the Term Loan Obligations of the
other Term Loan Borrowers owed to it and paid by such Term Loan Borrower
pursuant to this Section 10.15 to such Term Loan Borrower, such assignment to
be pro tanto to the extent to
which the Term Loan Obligations in question were discharged by such Term Loan
Borrower or make such disposition thereof as such Term Loan Borrower shall
direct (all without recourse to any Term Loan Lender and without any
representation or warranty by any Term Loan Lender).
(g)
Notwithstanding any other provision herein, the Parent Borrower shall be
entitled, at any time and in its sole discretion, to designate any Term Loan
Borrower (including itself) to replace any other Term Borrower as a borrower
hereunder with respect to any outstanding Term Loans.
130
Exhibit 99.2
FOR IMMEDIATE RELEASE
|
CONTACT:
|
Mike Szudarek
|
|
|
Robert Moll
|
|
|
248.855.6777
|
TRIMAS CORPORATION COMPLETES REFINANCE OF
CREDIT FACILITIES
Bloomfield Hills, Mich. August 3, 2006
TriMas Corporation announced today that it has closed on the previously
announced refinancing of its existing $410.0 million senior secured credit
facilities. Proceeds from the amended and restated credit facilities will be
used to refinance all outstanding amounts under the existing senior credit
facilities and for general corporate purposes.
The amended and restated credit facility provides for: (a) a $260.0
million term loan facility maturing in December 2013; (b) up to a $90.0 million
senior secured revolving credit facility and a $60.0 million deposit-linked
supplemental revolving credit facility, which mature in December 2011; and (c)
additional incremental term loans not to exceed $100.0 million under certain
circumstances.
This improvement to our credit facilities allows us to extend
maturities and substantially increase our companys liquidity, said E.R. Skip
Autry, Chief Financial Officer of TriMas Corporation. The new credit
facilities will reduce the companys borrowing costs and enhance the companys
financial and operational flexibility going forward.
JP Morgan Chase Bank NA served as Administrative and Collateral Agent
of the new agreement, while Comerica Bank acted as Syndication Agent.
About TriMas
Headquartered in Bloomfield Hills, Michigan, TriMas is a diversified
growth company of high-end, specialty niche businesses manufacturing a variety
of products for commercial, industrial and consumer markets worldwide. TriMas
is organized into five strategic business segments: Packaging Systems, Energy
Products, Industrial Specialties, RV & Trailer Products and Recreational
Accessories. TriMas has about 5,000 employees at 80 different facilities in 10
countries. For more information, visit www.trimascorp.com.
This press release may contain forward-looking statements within the
meaning of the federal securities laws. Forward-looking statements may be
identified by words such as expects, anticipates, intends, plans, believes,
seeks, estimates, will or words of similar meaning and include, but are
not limited to, statements about TriMas strategic, operational and financial
goals and objectives. TriMas cannot guarantee that
the transaction described herein will achieve its intended objective. These
statements are based on managements current expectations and are inherently
subject to uncertainties and changes in circumstances. These forward-looking
statements are subject to numerous assumptions, risks and uncertainties and,
accordingly, actual results may differ materially from those expressed or
implied by the forward-looking statements. All forward-looking statements
included in this press release are made only as of the date of this press
release, and TriMas does not undertake any obligation to publicly update or
correct any forward-looking statements to reflect events or circumstances that
subsequently occur or of which TriMas hereafter becomes aware.
###
Exhibit 99.3
FOR IMMEDIATE RELEASE
|
CONTACT:
|
Mike Szudarek
|
|
|
Robert Moll
|
|
|
248.855.6777
|
TRIMAS
CORPORATION ANNOUNCES STRATEGIC ADDITION TO
BOARD OF DIRECTORS
Bloomfield Hills, Mich. August
3, 2006 TriMas Corporation announced today that Richard M. Gabrys has been
elected to its board of directors.
Gabrys is a retired vice chairman for Deloitte
& Touche and interim dean of the School of Business Administration of Wayne
State University. He also serves on the
board for Dana Corporation and is the chair of the audit committee and a member
of the finance committee.
We are proud to have Dick on our board of
directors, said Grant Beard, CEO of TriMas Corporation. His many years of experience in public
accounting as well as his board experience complement the insight and
leadership provided by our current board.
Gabrys received his bachelors of science from
Kings College. He is a graduate of
Stanford University and Northwestern University executive programs. He also is a graduate of the executive
program at the International Institute of Management Development in Lausanne,
Switzerland. He is a certified public
accountant licensed in Michigan.
In a move to increase its percentage of
independent directors, TriMas also announced today the departure of board
members Gary M. Banks, Timothy D. Leuliette and W. Gerald McConnell. Additionally, Arthur W. Huge resigned from
the board of directors, as well as the companys audit committee, citing the demands
of his primary professional commitments.
About TriMas
Headquartered in Bloomfield Hills, Michigan, TriMas is
a diversified growth company of high-end, specialty niche businesses
manufacturing a variety of products for commercial, industrial and consumer
markets worldwide. TriMas is organized into five strategic business segments:
Packaging Systems, Energy
Products, Industrial Specialties, RV &
Trailer Products and Recreational Accessories. TriMas has about 5,000 employees
at 80 different facilities in 10 countries. For more information, visit
www.trimascorp.com.
# # #