exv4w6
EXECUTION COPY
TERM LOAN CREDIT AGREEMENT
Dated as of December 2, 2010
Among
AAH HOLDINGS CORPORATION,
AMSCAN HOLDINGS, INC,
THE SUBSIDIARIES OF AMSCAN HOLDINGS, INC.
FROM TIME TO TIME PARTY HERETO,
THE FINANCIAL INSTITUTIONS PARTY HERETO
as the Lenders,
and
CREDIT SUISSE AG,
as Administrative Agent and Collateral Agent,
CREDIT SUISSE SECURITIES (USA) LLC
and
GOLDMAN SACHS LENDING PARTNERS LLC
as Joint Lead Arrangers
CREDIT SUISSE SECURITIES (USA) LLC,
GOLDMAN SACHS LENDING PARTNERS LLC,
BARCLAYS CAPITAL,
DEUTSCHE BANK SECURITIES INC.
and
WELLS FARGO SECURITIES, LLC
as Joint Bookrunners
GOLDMAN SACHS LENDING PARTNERS LLC
and
WELLS FARGO SECURITIES, LLC
as Co-Syndication Agents
BARCLAYS CAPITAL
and
DEUTSCHE BANK SECURITIES INC.
as Co-Documentation Agents
TABLE OF CONTENTS
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Page |
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ARTICLE 1 Definitions |
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Section 1.01. Defined Terms |
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1 |
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Section 1.02. Classification of Loans and Borrowings |
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39 |
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Section 1.03. Terms Generally |
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39 |
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Section 1.04. Effectuation of Transactions |
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40 |
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Section 1.05. Accounting Terms; GAAP |
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40 |
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Section 1.06. Timing of Payment of Performance |
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40 |
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ARTICLE 2 The Credits |
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Section 2.01. Commitments |
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40 |
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Section 2.02. Loans and Borrowings |
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41 |
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Section 2.03. Request for Borrowing on the Closing Date |
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41 |
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Section 2.04. Funding of the Borrowing on the Closing Date |
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42 |
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Section 2.05. Type; Interest Elections |
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43 |
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Section 2.06. Termination of Commitments |
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44 |
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Section 2.07. Repayment of Loans; Evidence of Debt |
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44 |
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Section 2.08. Optional Prepayment of Loans |
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46 |
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Section 2.09. Mandatory Prepayment of Term Loans |
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47 |
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Section 2.10. Fees |
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49 |
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Section 2.11. Interest |
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49 |
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Section 2.12. Alternate Rate of Interest |
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50 |
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Section 2.13. Increased Costs |
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50 |
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Section 2.14. Break Funding Payments |
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52 |
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Section 2.15. Taxes |
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52 |
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Section 2.16. Payments Generally; Allocation of Proceeds; Sharing of Set-offs |
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55 |
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Section 2.17. Mitigation Obligations; Replacement of Lenders |
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57 |
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Section 2.18. Illegality |
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58 |
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Section 2.19. Incremental Term Loan Commitments |
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58 |
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Section 2.20. Refinancing Amendments |
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60 |
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Section 2.21. Extensions of Term Loans |
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62 |
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Page |
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ARTICLE 3 Representations and Warranties |
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Section 3.01. Organization; Powers |
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64 |
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Section 3.02. Authorization; Enforceability |
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64 |
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Section 3.03. Governmental Approvals; No Conflicts |
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64 |
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Section 3.04. Financial Condition; No Material Adverse Change |
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65 |
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Section 3.05. Properties |
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65 |
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Section 3.06. Litigation and Environmental Matters |
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66 |
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Section 3.07. Compliance with Laws and Agreements; Licenses and Permits |
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67 |
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Section 3.08. Investment Company Status |
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67 |
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Section 3.09. Taxes |
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67 |
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Section 3.10. ERISA |
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67 |
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Section 3.11. Disclosure |
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67 |
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Section 3.12. Material Contracts |
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68 |
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Section 3.13. Solvency |
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68 |
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Section 3.14. Insurance |
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69 |
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Section 3.15. Capitalization and Subsidiaries |
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69 |
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Section 3.16. Security Interest in Collateral |
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69 |
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Section 3.17. Labor Disputes |
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69 |
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Section 3.18. Federal Reserve Regulations |
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70 |
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Section 3.19. Senior Debt |
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70 |
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Section 3.20. Sanctioned Persons |
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70 |
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ARTICLE 4 Conditions |
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Section 4.01. Closing Date |
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70 |
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ARTICLE 5 Affirmative Covenants |
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Section 5.01. Financial Statements and Other Reports |
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73 |
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Section 5.02. Existence |
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77 |
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Section 5.03. Payment of Taxes and Claims |
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78 |
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Section 5.04. Maintenance of Properties |
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78 |
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Section 5.05. Insurance |
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78 |
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Section 5.06. Inspections |
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79 |
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Section 5.07. Lenders Meetings |
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79 |
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Section 5.08. Compliance with Laws |
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79 |
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Section 5.09. Environmental |
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79 |
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Section 5.10. Maintenance of Ratings |
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81 |
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Section 5.11. Use of Proceeds |
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81 |
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Section 5.12. Additional Collateral; Further Assurances |
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81 |
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Section 5.13. Post-closing Items |
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82 |
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ii
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Page |
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ARTICLE 6 Negative Covenants |
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Section 6.01. Indebtedness |
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83 |
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Section 6.02. Liens |
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86 |
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Section 6.03. Equitable Lien |
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89 |
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Section 6.04. No Further Negative Pledges |
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89 |
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Section 6.05. Restricted Junior Payments |
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90 |
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Section 6.06. Restrictions on Subsidiary Distributions |
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92 |
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Section 6.07. Investments |
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92 |
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Section 6.08. [Reserved] |
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95 |
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Section 6.09. Fundamental Changes; Disposition of Assets; Acquisitions |
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95 |
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Section 6.10. Disposal of Subsidiary Interests |
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97 |
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Section 6.11. Sales and Lease-backs |
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98 |
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Section 6.12. Transactions with Shareholders and Affiliates |
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98 |
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Section 6.13. Conduct of Business |
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99 |
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Section 6.14. Amendments or Waivers of Certain Related Agreements |
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99 |
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Section 6.15. Amendments of or Waivers with Respect to Certain Indebtedness |
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99 |
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Section 6.16. Fiscal Year |
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99 |
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Section 6.17. Permitted Activities of Holdings |
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99 |
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ARTICLE 7 Events of Default |
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Section 7.01. Events of Default |
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100 |
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ARTICLE 8 The Agents |
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ARTICLE 9 Miscellaneous |
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Section 9.01. Notices |
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105 |
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Section 9.02. Waivers; Amendments |
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107 |
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Section 9.03. Expenses; Indemnity; Damage Waiver |
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110 |
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Section 9.04. Successors and Assigns |
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112 |
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Section 9.05. Survival |
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118 |
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Section 9.06. Counterparts; Integration; Effectiveness |
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119 |
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Section 9.07. Severability |
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119 |
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Section 9.08. Right of Setoff |
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119 |
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Section 9.09. Governing Law; Jurisdiction; Consent to Service of Process |
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120 |
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Section 9.10. WAIVER OF JURY TRIAL |
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120 |
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Section 9.11. Headings |
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121 |
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Section 9.12. Confidentiality |
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121 |
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Section 9.13. Several Obligations; Violation of Law |
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121 |
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Section 9.14. USA PATRIOT Act |
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121 |
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Section 9.15. Disclosure |
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122 |
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Section 9.16. Appointment for Perfection |
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122 |
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Section 9.17. Interest Rate Limitation |
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122 |
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Section 9.18. INTERCREDITOR AGREEMENT |
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122 |
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Section 9.19. Designation Of Subsidiaries |
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123 |
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Section 9.20. No Fiduciary Duty |
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123 |
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ARTICLE 10 Loan Guaranty |
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Section 10.01. Guaranty |
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124 |
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Section 10.02. Guaranty of Payment |
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124 |
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Section 10.03. No Discharge or Diminishment of Loan Guaranty |
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124 |
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Section 10.04. Defenses Waived |
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125 |
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Section 10.05. Rights of Subrogation |
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125 |
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Section 10.06. Reinstatement; Stay of Acceleration |
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126 |
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Section 10.07. Information |
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126 |
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Section 10.08. Taxes |
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126 |
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Section 10.09. Maximum Liability |
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126 |
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Section 10.10. Contribution |
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127 |
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Section 10.11. Liability Cumulative |
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127 |
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Section 10.12. Release of Loan Guarantors |
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127 |
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SCHEDULES: |
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Schedule 1.01(a)
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Mortgaged Properties |
Schedule 2.01
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Commitment Schedule |
Schedule 3.06
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Litigation |
Schedule 3.14
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Insurance |
Schedule 3.15
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Capitalization and Subsidiaries |
Schedule 4.01(b)
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Local Counsel |
Schedule 6.01(i)
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Existing Indebtedness |
Schedule 6.01(t)
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Corporate Leases Assigned/Sold/Transferred |
Schedule 6.02
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Existing Liens |
Schedule 6.07
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Existing Investments |
Schedule 6.12
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Transactions with Affiliates |
Schedule 9.01
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Borrowers Website Address for Electronic
Delivery |
iv
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EXHIBITS: |
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Exhibit A
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Form of Administrative Questionnaire |
Exhibit B
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Form of Assignment and Assumption |
Exhibit C
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Form of Compliance Certificate |
Exhibit D
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Joinder Agreement |
Exhibit E
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Form of Borrowing Request |
Exhibit F
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Form of Promissory Note |
Exhibit G
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Form of Interest Election Request |
Exhibit H
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Auction Procedures |
Exhibit I
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Form of United States Tax Compliance Certificate |
v
TERM LOAN CREDIT AGREEMENT dated as of December 2, 2010 (this Agreement), among AMSCAN
HOLDINGS, INC., a Delaware corporation (the Borrower), AAH HOLDINGS CORPORATION, a Delaware
corporation (Holdings), each subsidiary of the Borrower from time to time party hereto, the
Lenders (as defined in Article 1), and CREDIT SUISSE AG, as administrative agent (in such capacity,
the Administrative Agent) and collateral agent (in such capacity, the Collateral Agent) for the
Lenders hereunder.
The Borrower has requested the Lenders to extend credit in the form of Term Loans on the
Closing Date, in an aggregate principal amount not in excess of $675,000,000. The proceeds of the
Term Loans are to be used solely to finance the Existing Debt Refinancing, the Special Dividend,
and the Transaction Costs.
The Lenders are willing to extend such credit to the Borrower and its Subsidiaries on the
terms and subject to the conditions set forth herein. Accordingly, the parties hereto agree as
follows:
ARTICLE 1
Definitions
Section 1.01. Defined Terms. As used in this Agreement, the following terms have the
meanings specified below:
ABL Agent shall mean Wells Fargo Bank, National Association, successor by merger to Wells
Fargo Retail Finance, LLC, in its capacity as administrative agent and collateral agent under the
Senior Secured Asset-Based Revolving Credit Facility, or any successor administrative agent or
collateral agent under the Senior Secured Asset-Based Revolving Credit Facility.
ABL Security Documents means any and all security agreements, pledge agreements, mortgages
and other agreements and documents pursuant to which any Liens are granted by any Loan Party to
secure any Indebtedness or other obligations in respect of the Senior Secured Asset-Based Revolving
Credit Facility.
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.
Additional Lender shall have the meaning assigned to such term in Section 2.20.
Adjusted LIBO Rate means, for any Interest Period, the rate obtained by dividing (a) the
LIBO Rate for such Interest Period by (b) a percentage equal to 1 minus the stated maximum rate
(stated as a decimal) of all reserves, if any, required to be maintained against Eurocurrency
liabilities as specified in Regulation D (including any marginal, emergency, special or
supplemental reserves); provided that at no time shall the Adjusted LIBO Rate be less than 1.50%
per annum.
1
Administrative Agent has the meaning assigned to such term in the preamble to this
Agreement.
Administrative Questionnaire means an Administrative Questionnaire in the form of Exhibit A.
Advent means Advent International Corporation and shall include any fund affiliated with
Advent International Corporation.
Adverse Proceeding means any action, suit, proceeding (whether administrative, judicial or
otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of the
Borrower or any of its Subsidiaries) at law or in equity, or before or by any Governmental
Authority, domestic or foreign (including any Environmental Claims), whether pending or, to the
knowledge of the Borrower or any of its Subsidiaries, threatened against or affecting the Borrower
or any of its Subsidiaries or any property of the Borrower or any of its Subsidiaries.
Affiliate means, as applied to any Person, any other Person directly or indirectly
controlling, controlled by, or under common control with, that Person. For the purposes of this
definition, control, (including, with correlative meanings, the terms controlling, controlled
by and under common control with), as applied to any Person, means the possession, directly or
indirectly, of the power (i) to vote 10% or more of the Capital Stock having the ordinary voting
power for the election of directors of such Person or (ii) to direct or cause the direction of the
management and policies of that Person, whether through the ownership of voting securities or by
contract or otherwise, but excluding any Person that would be an Affiliate solely because it is
an unrelated portfolio company of either Sponsor.
Affiliated Debt Fund shall mean any Affiliate of any Sponsor that is a bona fide debt fund
or an investment vehicle that is engaged in the making, purchasing, holding or otherwise investing
in commercial loans, bonds and similar extensions of credit in the ordinary course of business and
with respect to which such Sponsor and investment vehicles managed or advised by such Sponsor that
are not engaged primarily in making, purchasing, holding or otherwise investing in commercial
loans, bonds and similar extensions of credit in the ordinary course of business do not make
investment decisions for such entity.
Affiliated Lender shall mean, at any time, any Lender that is a Sponsor at such time;
provided, that notwithstanding the foregoing, Affiliated Lender shall not include Holdings, the
Borrower or any Subsidiary of Holdings or the Borrower or any natural person.
Agents means the Administrative Agent and the Collateral Agent.
Alternate Base Rate means, for any day, a rate per annum equal to the greatest of (a) the
Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 1/2
of 1% and (c) the Adjusted LIBO Rate for a one month Interest Period determined on such day (or if
such day is not a Business Day, the immediately preceding Business Day) plus
2
1%; provided that, for
the avoidance of doubt, the Adjusted LIBO Rate for any day shall be
based on the rate determined on such day at approximately 11 a.m. (London time) by reference
to the British Bankers Association Interest Settlement Rates for deposits in Dollars (as set forth
by any service selected by the Administrative Agent that has been nominated by the British Bankers
Association as an authorized vendor for the purpose of displaying such rates). Any change in the
Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the
Adjusted LIBO Rate shall be effective from and including the effective date of such change in the
Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate, as the case may be.
Applicable Margin means, for any day (a) with respect to any LIBO Rate Loan (other than
Other Term Loans) 5.25%, (b) with respect to any ABR Loan (other than Other Term Loans) 4.25%, and
(c) with respect to any Other Term Loan as specified in the appropriate Incremental Assumption
Agreement.
Applicable Percentage means, with respect to any Lender, a percentage equal to a fraction
the numerator of which is the aggregate outstanding principal amount of the Loans (or, if no Loans
are then outstanding, the Commitment) of such Lender and the denominator of which is the aggregate
outstanding principal amount of the Loans (or, if no Loans are then outstanding, the Commitments)
of all Lenders.
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.
Arrangers means Credit Suisse Securities (USA) LLC and Goldman Sachs Lending Partners LLC.
Asset Sale means the sale by Holdings or any of its Subsidiaries to any Person other than
the Borrower or any of its wholly-owned Subsidiaries of (i) any of the Capital Stock of any of
Holdings Subsidiaries (including by the issuance of such Capital Stock), (ii) substantially all of
the assets of any division or line of business of the Borrower or any of its Subsidiaries, or (iii)
any other assets (whether tangible or intangible) of the Borrower or any of its Subsidiaries (other
than (a) inventory sold in the ordinary course of business, (b) sales of Cash Equivalents for the
fair market value thereof, and (c) any such other assets to the extent that (x) the aggregate value
of such assets sold in any single transaction or related series of transactions is equal to
$5,000,000 or less and (y) the aggregate value of such assets sold is equal to $15,000,000 or less
in any Fiscal Year).
Assignment and Assumption means an assignment and assumption entered into by a Lender and an
assignee (with the consent of any party whose consent is required by Section 9.04), and accepted by
the Administrative Agent, in the form of Exhibit B or any other form approved by the Administrative
Agent and the Borrower.
3
Assignment Taxes has the meaning assigned to such term in Section 2.15(b).
Auction Manager means Credit Suisse Securities (USA) LLC (CS Securities) (or, if CS
Securities declines to act as Auction Manager, an investment bank of recognized standing selected
by the Borrower), which shall be engaged to act in such capacity on terms and conditions reasonably
satisfactory to CS Securities (or such other investment bank).
Auction Procedures means the auction procedures with respect to non-pro rata assignments of
Term Loans pursuant to Section 9.04(f) and Section 9.04(h) set forth in Exhibit H hereto.
Banking Services means each and any of the following bank services provided to any Loan
Party at the written request of such Loan Party by the Administrative Agent, any Lender or any of
their Affiliates: (a) commercial credit cards, (b) stored value cards, (c) purchasing cards and (d)
treasury management services (including, without limitation, controlled disbursement, ACH
transactions, return items and interstate depository network services).
Banking Services Obligations of the Loan Parties means any and all obligations of the Loan
Parties, whether absolute or contingent and however and whenever created, arising, evidenced or
acquired (including all renewals, extensions and modifications thereof and substitutions therefor),
in connection with Banking Services.
Bankruptcy Code means Title 11 of the United States Code entitled Bankruptcy, as now and
hereafter in effect, or any successor statute.
Berkshire means Berkshire Partners LLC and shall include any fund affiliated with Berkshire
Partners LLC.
Board means the Board of Governors of the Federal Reserve System of the United States of
America.
Bookrunners means Credit Suisse Securities (USA) LLC, Goldman Sachs Lending Partners LLC,
Barclays Capital, the investment banking division of Barclays Bank PLC, Deutsche Bank Securities
Inc., and Wells Fargo Securities, LLC.
Borrower has the meaning assigned to such term in the preamble to this Agreement.
Borrowing means any Loans of the same Class and Type made, converted or continued on the
same date and, in the case of LIBO Rate Loans, as to which a single Interest Period is in effect.
Borrowing Base means, as of any date, an amount equal to the sum of:
(1) 85% of the book value of all accounts receivable owned by the Borrower and its
Subsidiaries as of such date, plus
4
(2) 85% of the book value of all inventory,
all calculated on a consolidated basis and in accordance with GAAP. In the event that
information with respect to any element of the Borrowing Base is not available as of any date then
the most recently available information will be utilized.
Borrowing Request means a request by the Borrower for a Borrowing in accordance with Section
2.03 and substantially in the form attached hereto as Exhibit E, or such other form as shall be
approved by the Administrative Agent.
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, when used
in connection with a LIBO Rate Loan, 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.
Capital Lease means, as applied to any Person, any lease of any property (whether real,
personal or mixed) by that Person as lessee that, in conformity with GAAP, is or should be
accounted for as a capital lease on the balance sheet of that Person.
Capital Stock means any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation), including, without limitation, partnership interests and
membership interests, and any and all warrants, rights or options to purchase or other arrangements
or rights to acquire any of the foregoing.
Cash means money, currency or a credit balance in any demand or Deposit Account.
Cash Equivalents means, as at any date of determination, (i) marketable securities (a)
issued or directly and unconditionally guaranteed as to interest and principal by the United States
Government or (b) issued by any agency of the United States the obligations of which are backed by
the full faith and credit of the United States, in each case maturing within one year after such
date; (ii) marketable direct obligations issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality thereof, in each case
maturing within one year after such date and having, at the time of the acquisition thereof, a
rating of at least A-2 from S&P or at least P-2 from Moodys; (iii) commercial paper maturing no
more than one year from the date of creation thereof and having, at the time of the acquisition
thereof, a rating of at least A-1 from S&P or at least P-1 from Moodys; (iv) certificates of
deposit or bankers acceptances maturing within one year after such date and issued or accepted by
any Lender or by any commercial bank organized under the laws of the United States of America or
any state thereof or the District of Columbia that has Tier 1 capital (as defined in the
regulations of its primary federal banking regulator) of not less than $100,000,000 (each Lender
and each commercial bank referred to herein as a Cash Equivalent Bank); (v) shares of any money
market mutual fund that (a) has substantially all of its assets invested continuously in the types
of investments referred to in clauses (i) and (ii) above, (b) has net assets of not less than
5
$250,000,000, and (c) has the highest rating obtainable from either S&P or Moodys; and (vi) with
respect to Foreign Subsidiaries, investments of the types described in clause (iv) above issued by
a Cash Equivalent Bank or any commercial bank of recognized international standing
chartered in the country where such Foreign Subsidiary is domiciled having unimpaired capital
and surplus of at least $250,000,000.
Change in Law means (a) the adoption of any law, rule or regulation after the date of this
Agreement, (b) any change in any law, rule or regulation or in the interpretation or application
thereof by any Governmental Authority after the date of this Agreement or (c) compliance by any
Lender (or, for purposes of Section 2.13(b), by any lending office of such Lender or by such
Lenders 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 date of this Agreement
(other than any such request, guideline or directive to comply with any law, rule or regulation
that was in effect on the date of this Agreement); provided, however, that notwithstanding anything
herein to the contrary, the Dodd-Frank Wall Street Reform and Consumer Protection Act, and all
requests, rules, guidelines or directives promulgated thereunder shall be deemed to be a Change in
Law, regardless of the date enacted or adopted.
Change of Control means, at any time, (i) if Sponsors shall cease to beneficially own and
control 50% or more of the combined voting power of all of the Capital Stock of Holdings, (ii) any
Person (other than one or more Sponsors) or Persons (other than one or more Sponsors) that are
together a group (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act) shall have
after the Closing Date obtained the power (whether or not exercised) to elect a majority of the
members of the board of directors (or similar governing body) of Holdings, (iii) the majority of
the seats (other than vacant seats) on the board of directors (or similar governing body) of
Holdings cease to be occupied by Persons who either (a) were members of the board of directors of
Holdings on the Closing Date or (b) were nominated for election by a majority of the board of
directors of Holdings, who were either (I) directors on the Closing Date or (II) whose election or
nomination for election was previously approved by a majority of such directors or by Sponsors,
(iv) Holdings shall cease to own 100% of the Capital Stock of the Borrower or (v) any change of
control or similar event under the (a) Senior Subordinated Note Indenture (or any other agreement
or instrument evidencing or related to any refinancing Indebtedness with respect thereto), (b) the
Senior Secured Asset-Based Revolving Credit Facility or (c) any other Indebtedness for borrowed
money with an outstanding aggregate principal amount (in the case of this clause (c)) in excess of
$20,000,000 shall occur.
Charges has the meaning assigned to such term in Section 9.17.
Chester Distribution Center means the distribution center located at 47 Elizabeth Drive,
Chester, New York.
Chester Distribution Center Collateral means the land and improvements comprising the
Chester Distribution Center.
6
Chester Distribution Center Permanent Financing means Indebtedness of the Borrower pursuant
to that certain mortgage dated December 20, 2001 with the New York Job Development Authority in an
individual principal amount, as of the Closing Date, of $7,916,919, the proceeds of which have been
used by the Borrower to finance a portion of the construction and development of the Chester
Distribution Center.
Class when used in reference to (a) any Loan or Borrowing, refers to whether such Loan, or
the Loans comprising such Borrowing, are Term Loans, Incremental Term Loans, Refinancing Term Loans
or Extended Term Loans, (b) any Commitment, refers to whether such Commitment is a Term Loan
Commitment, Incremental Term Loan Commitment or Refinancing Term Loan Commitment and (c) any
Lender, refers to whether such Lender has a Loan or Commitment with respect to a particular Class
of Loans or Commitments. Refinancing Term Loan Commitments, Refinancing Term Loans, Other Term
Loans and each tranche of Extended Term Loans that have different terms and conditions, and shall
be construed to be in different Classes.
Closing Date means December 2, 2010, which is the date on which the conditions specified in
Article 4 are satisfied (or waived in accordance with Section 9.02).
Code means the Internal Revenue Code of 1986, as amended from time to time.
Co-Documentation Agents means Barclays Capital, the investment banking division of Barclays
Bank PLC, and Deutsche Bank Securities Inc.
Collateral means any and all property of a Loan Party subject to a Lien under the Collateral
Documents and any and all other property of any Loan Party, now existing or hereafter acquired,
that is or becomes subject to a Lien pursuant to the Collateral Documents in favor of the
Collateral Agent, on behalf of itself and the Lenders, to secure the Secured Obligations.
Collateral Agent has the meaning assigned to such term in the preamble to this Agreement.
Collateral Documents means, collectively, the Pledge and Security Agreement, the Mortgages
and any other documents granting a Lien upon the Collateral as security for payment of the Secured
Obligations.
Commitment means, with respect to each Lender, the commitment, if any, of such Lender to
make a Term Loan hereunder, expressed as an amount representing the maximum principal amount of the
Term Loan to be made by such Lender hereunder, as such commitment may be (a) reduced from time to
time pursuant to Section 2.07 and (b) reduced or increased from time to time pursuant to (i)
assignments by or to such Lender pursuant to an Assignment and Assumption, (ii) an Incremental
Assumption Agreement, (iii) a Refinancing Amendment or (iv) an Extension. The initial amount of
each Lenders Commitment is set forth on the Commitment Schedule or, otherwise, in the Assignment
and Assumption, Incremental Assumption Agreement
7
or Refinancing Amendment pursuant to which such
Lender shall have assumed its Commitment, as the case may be. The initial aggregate amount of the
Commitments is $675,000,000.
Commitment Schedule means Schedule 2.01 attached hereto.
Compliance Certificate means a Compliance Certificate substantially in the form of Exhibit
C.
Consolidated Adjusted EBITDA means, for any period, an amount determined for Holdings and
its Subsidiaries on a consolidated basis equal to the total of (I) Consolidated Net Income for such
period plus (II) the sum, without duplication, of (to the extent deducted in calculating
Consolidated Net Income) the amounts of:
(a) Consolidated Interest Expense;
(b) taxes paid and provisions for taxes based on income or profits;
(c) total depreciation expense;
(d) total amortization expense;
(e) other non-cash items reducing Consolidated Net Income including without limitation
provisions for minority interests, and items resulting from marking hedging obligations to market,
purchase accounting, deferred rent and from compensation charges due to Capital Stock and in the
case of any such Capital Stock, any charges or expenses arising out of the repricing or revaluation
thereof (including, without limitation, any repricing or revaluation of Capital Stock arising out
of the Transactions) (excluding any such non-cash item to the extent that it represents (x) an
accrual or reserve for potential cash items in any future period, (y) amortization of a prepaid
Cash item that was paid in a prior period or (z) a reserve against or write down or write-off of
inventory in accordance with GAAP);
(f) Transaction Costs;
(g) any non-recurring or unusual Cash costs incurred in the relevant period which are properly
classified as such on the income statement of Holdings in accordance with GAAP; provided that the
aggregate amount of such non-recurring or unusual Cash costs included in this clause (g) incurred
during any Fiscal Year shall not exceed $5,000,000;
(h) Management Fees accrued or paid in such period (excluding any Management Fees paid in such
period to the extent they represent an accrual in a prior period); and
(i) any reasonable expenses or charges related to any issuance of Capital Stock, Investments
permitted under Section 6.07, Permitted Acquisitions, asset sales permitted pursuant to Section
6.09(d), (p), (q) or (r) or Indebtedness permitted to be incurred under Section 6.01 (or related to
any similar event occurring prior to the Closing Date to the extent such expenses or charges were
incurred in such period), in each case whether or not consummated; and
8
minus (III) non-cash items increasing Consolidated Net Income for such period.
Notwithstanding anything to the contrary contained herein, for purposes of determining Consolidated
EBITDA under this Agreement for any period that includes any of the Fiscal Quarters ended or ending
(as applicable) March 31, 2010, June 30, 2010 or September 30, 2010, Consolidated Adjusted EBITDA
for such Fiscal Quarters shall be deemed to be $22,757,086, $49,171,500 and $32,061,682,
respectively.
Consolidated Cash Interest Expense means, for any period, Consolidated Interest Expense for
such period, excluding (a) any amount not paid or payable currently in cash, (b) amortization of
deferred financing costs and (c) Transaction Costs otherwise included in Consolidated Interest
Expense.
Consolidated Interest Expense means, for any period, total interest expense (including that
portion attributable to Capital Leases in accordance with GAAP and capitalized interest) of
Holdings and its Subsidiaries on a consolidated basis with respect to all outstanding Indebtedness
of Holdings and its Subsidiaries, including (i) all commissions, discounts and other fees and
charges owed with respect to letters of credit and (ii) any commitment fees on the unused portion
of the revolving commitments as set forth in the Senior Secured Asset-Based Revolving Credit
Agreement. For avoidance of doubt, Consolidated Interest Expense shall be net of payments made or
received under interest rate Hedge Agreements.
Notwithstanding anything to the contrary contained herein, for purposes of determining
Consolidated Interest Expense for any period ending prior to the first anniversary of the Closing
Date, Consolidated Interest Expense shall be an amount equal to actual Consolidated Interest
Expense from the Closing Date through the date of determination multiplied by a fraction the
numerator of which is 365 and the denominator of which is the number of days from the Closing Date
through the date of determination.
Consolidated Net Income means, for any period, the net income (or loss) of Holdings and its
Subsidiaries on a consolidated basis for such period taken as a single accounting period determined
in conformity with GAAP, provided that there shall be excluded, without duplication, (a) the income
(or loss) of any Person (other than a Subsidiary of the Borrower and other than Amscan de Mexico,
S.A. de C.V. for so long as it is treated as a consolidated subsidiary of the Borrower in
accordance with GAAP) in which any other Person (other than Holdings or any of its Subsidiaries)
has a joint interest, except to the extent of the amount of dividends or other distributions
actually paid to Holdings or any of its Subsidiaries by such Person during such period, (b) the
income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of Holdings or is
merged into or consolidated with Holdings or any of its Subsidiaries or that Persons assets are
acquired by Holdings or any of its Subsidiaries, (c) the income of any Subsidiary of Holdings to
the extent that the declaration or payment of dividends or similar distributions by that Subsidiary
of that income is not at the time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable
to that Subsidiary, (d) any after-tax gains or losses attributable to Asset Sales or returned
surplus assets of any Pension Plan, and (e) any net extraordinary gains or net extraordinary
losses.
9
Consolidated Total Debt means, as at any date of determination, the aggregate stated balance
sheet amount of all Indebtedness of Holdings and its Subsidiaries determined on a consolidated
basis in accordance with GAAP; provided that up to $50 million of Indebtedness outstanding
permitted under Section 6.01(w) shall be excluded for purposes of determining the Leverage Ratio
for purposes of clause (ii) of the proviso to Section 6.05(f).
Contractual Obligation means, as applied to any Person, any provision of any Security issued
by that Person or of any material indenture, mortgage, deed of trust, contract, undertaking,
agreement or other instrument to which that Person is a party or by which it or any of its
properties is bound or to which it or any of its properties is subject.
Controlled Investment Affiliate means, as to any Person, any other Person, other than any
Sponsor, which directly or indirectly is in control of, is controlled by, or is under common
control with such Person and is organized by such Person (or any Person controlling such Person)
primarily for making direct or indirect equity or debt investments in the Borrower and/or other
companies.
Co-Syndication Agents means Goldman Sachs Lending Partners LLC and Wells Fargo Securities,
LLC.
Credit Facility means the Term Loans, the Extended Term Loans, the Other Term Loans or the
Refinancing Term Loans, as the context may require.
Credit Agreement Refinancing Indebtedness shall mean (a) Permitted First Priority
Refinancing Debt, (b) Permitted Second Priority Refinancing Debt, (c) Permitted Unsecured
Refinancing Debt or (d) Indebtedness incurred pursuant to a Refinancing Amendment, in each case,
issued, incurred or otherwise obtained (including by means of the extension or renewal of existing
Indebtedness) in exchange for, or to extend, renew, replace or refinance, in whole or part,
existing Term Loans or any then-existing Credit Agreement Refinancing Indebtedness (Refinanced
Debt); provided that (i) such extending, renewing, replacing or refinancing Indebtedness is in an
original aggregate principal amount (or accreted value, if applicable) not greater than the
aggregate principal amount (or accreted value, if applicable) of the Refinanced Debt except by an
amount equal to unpaid accrued interest and premium thereon plus other reasonable and customary
fees and expenses (including upfront fees and original issue discount) in connection with such
exchange, modification, refinancing, refunding, renewal, replacement or extension, (ii) such
Indebtedness has a maturity and a Weighted Average Life to Maturity equal to or greater than the
Refinanced Debt, and (iii) such Refinanced Debt shall be repaid, defeased or satisfied and
discharged with 100% of the Net Proceeds of the applicable Credit Agreement Refinancing
Indebtedness and all accrued interest, fees and premiums (if any) in connection therewith shall be
paid, on the date such Credit Agreement Refinancing Indebtedness is issued, incurred or obtained.
10
Declined Proceeds has the meaning assigned to such term in Section 2.09(e).
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 Account means a demand, time, savings, passbook or like account with a bank, savings
and loan association, credit union or like organization, other than an account evidenced by a
negotiable certificate of deposit.
Derivative Transaction means (a) an interest-rate transaction, including an interest-rate
swap, basis swap, forward rate agreement, interest rate option (including a cap, collar and floor),
and any other instrument linked to interest rates that gives rise to similar credit risks
(including when-issued securities and forward deposits accepted), (b) an exchange-rate transaction,
including a cross-currency interest-rate swap, a forward foreign-exchange contract, a currency
option, and any other instrument linked to exchange rates that gives rise to similar credit risks,
(c) an equity derivative transaction, including an equity-linked swap, an equity-linked option, a
forward equity-linked contract, and any other instrument linked to equities that gives rise to
similar credit risk and (d) a commodity (including precious metal) derivative transaction,
including a commodity-linked swap, a commodity-linked option, a forward commodity-linked contract,
and any other instrument linked to commodities that gives rise to similar credit risks; provided
that no phantom stock or similar plan providing for payments only on account of services provided
by current or former directors, officers, employees or consultants of Holdings or its subsidiaries
shall be a Derivative Transaction.
Disqualified Capital Stock means any Capital Stock which, by its terms (or by the terms of
any security into which it is convertible or for which it is exchangeable), or upon the happening
of any event, (i) matures (excluding any maturity as the result of an optional redemption by the
issuer thereof) or is mandatorily redeemable (other than for Qualified Capital Stock), pursuant to
a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other
than for Qualified Capital Stock), in whole or in part, on or prior to the first anniversary of the
Maturity Date, (ii) is convertible into or exchangeable (unless at the sole option of the issuer
thereof) for (a) debt securities or (b) any Capital Stock referred to in (i) above, in each case at
any time on or prior to the first anniversary of the Maturity Date, or (iii) contains any
repurchase obligation which may come into effect prior to payment in full of all Obligations;
provided, however, that any Capital Stock that would not constitute Disqualified Capital Stock but
for provisions thereof giving holders thereof (or the holders of any security into or for which
such Capital Stock is convertible, exchangeable or exercisable) the right to require the issuer
thereof to redeem such Capital Stock upon the occurrence of a change in control or an asset sale
occurring prior to the first anniversary of the Maturity Date shall not constitute Disqualified
Capital Stock if such Capital Stock provides that the issuer thereof will not redeem any such
Capital Stock pursuant to such provisions prior to the repayment in full of the Obligations.
Dollars or $ refers to lawful money of the United States of America.
11
Domestic Subsidiaries means all Subsidiaries incorporated or organized under the laws of the
United States of America, any State thereof or the District of Columbia.
Dutch Auction shall mean an auction conducted by Holdings, the Borrower or an Affiliated
Lender in order to purchase Term Loans as contemplated by Section 9.04(f) or Section 9.04(h), as
applicable, in accordance with the procedures set forth in Exhibit H.
Eligible Assignee means (i) a Lender, (ii) a commercial bank, insurance company, company or
financial institution engaged in the business of making, investing in or purchasing commercial
loans or a commercial finance company, which Person, together with its Affiliates,
has a combined capital and surplus in excess of $1,000,000,000, (iii) any Affiliate of a
Lender under common control with such Lender or (iv) an Approved Fund of a Lender, provided that in
any event, Eligible Assignee shall not include (w) any natural person, (x) Holdings or the
Borrower or any Affiliate thereof, or (y) any Sponsor or any of their respective Affiliates (it
being understood that assignments to Holdings, the Borrower or an Affiliated Lender may only be
made pursuant to Section 9.04(f) or Section 9.04(h), as applicable).
Employee Benefit Plan means any employee benefit plan as defined in Section 3(3) of ERISA
which is or was sponsored, maintained or contributed to by, or required to be contributed by, the
Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates.
Environmental Claim means any investigation, notice, notice of violation, claim, action,
suit, proceeding, demand, abatement order or other order or directive (conditional or otherwise),
by any Governmental Authority or any other Person, arising (i) pursuant to or in connection with
any actual or alleged violation of any Environmental Law; (ii) in connection with any Hazardous
Material or any actual or alleged Hazardous Materials Activity; or (iii) in connection with any
actual or alleged damage, injury, threat or harm to health, safety, natural resources or the
environment.
Environmental Laws means any and all current or future foreign or domestic, federal or state
(or any subdivision of either of them), statutes, ordinances, orders, rules, regulations,
judgments, Governmental Authorizations, or any other requirements of Governmental Authorities and
the common law relating to (i) environmental matters, including those relating to any Hazardous
Materials Activity; (ii) the generation, use, storage, transportation or disposal of Hazardous
Materials; or (iii) occupational safety and health, industrial hygiene, land use or the protection
of human, plant or animal health or welfare, in any manner applicable to the Borrower or any of its
Subsidiaries or any Facility.
Environmental Liability means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or (e) any contract,
12
agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to
any of the foregoing.
ERISA means the Employee Retirement Income Security Act of 1974, as amended from time to
time, and any successor thereto.
ERISA Affiliate means, as applied to any Person, (i) any corporation which is a member of a
controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code
of which that Person is a member; and (ii) any trade or business (whether or not incorporated)
which is a member of a group of trades or businesses under common control within the meaning of
Section 414(c) of the Internal Revenue Code of which that Person is a member.
ERISA Event means (i) a reportable event within the meaning of Section 4043 of ERISA and
the regulations issued thereunder with respect to any Pension Plan (excluding those for which the
30-day notice period has been waived); (ii) the failure to meet the minimum funding standard of
Section 412 of the Code, (iii) the provision by the administrator of any Pension Plan pursuant to
Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination
described in Section 4041(c) of ERISA; (iv) the withdrawal by the Borrower, any of its Subsidiaries
or any of their respective ERISA Affiliates from any Pension Plan with two or more contributing
sponsors or the termination of any such Pension Plan resulting in liability to the Borrower, any of
its Subsidiaries or any of their respective Affiliates pursuant to Section 4063 or 4064 of ERISA;
(v) the institution by the PBGC of proceedings to terminate any Pension Plan, or the occurrence of
any event or condition which could reasonably be expected to constitute grounds under ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan; (vi) the
imposition of liability on the Borrower, any of its Subsidiaries or any of their respective ERISA
Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section
4212(c) of ERISA; (vii) the withdrawal of the Borrower, any of its Subsidiaries or any of their
respective ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections
4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential liability therefore,
or the receipt by the Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates
of notice from any Multiemployer Plan that it is in reorganization or insolvency pursuant to
Section 4241 or 4245 of ERISA, or that it intends to terminate or has terminated under Section
4041A or 4042 of ERISA; (viii) the occurrence of an act or omission which could reasonably be
expected to give rise to the imposition on the Borrower, any of its Subsidiaries or any of their
respective ERISA Affiliates of fines, penalties, taxes or related charges under Chapter 43 of the
Internal Revenue Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in
respect of any Employee Benefit Plan; or (ix) the imposition of a Lien pursuant to Section
401(a)(29) or 412(n) of the Internal Revenue Code or pursuant to ERISA with respect to any Pension
Plan.
Event of Default has the meaning assigned to such term in Article 7.
Excess Cash Flow means, for any period, an amount (if positive) equal to:
13
(i) the sum, without duplication, of the amounts for such period of Consolidated
Adjusted EBITDA, minus
(ii) the sum, without duplication, of the amounts for such period of:
(a) scheduled repayments of Consolidated Total Debt;
(b) capital expenditures (net of any proceeds of (x) any related financings
with respect to such expenditures (other than loans under the Senior Secured
Asset-Based Revolving Credit Facility or any other revolving credit facility) and
(y) any sales of assets used to finance such expenditures) but only to the extent
that such proceeds are not included in calculating Consolidated Net Income for the
applicable period);
(c) Consolidated Cash Interest Expense;
(d) expenditures during such period relating to Permitted Acquisitions which
are not paid for by borrowings or financed with equity;
(e) Transaction Costs and any non-recurring or unusual Cash costs to the extent
they were added back to derive Consolidated Adjusted EBITDA;
(f) taxes based on income or profits of Holdings and its Subsidiaries payable
in Cash with respect to such period; and
(g) Management Fees pursuant to clause (h) of the definition of Consolidated
Adjusted EBITDA.
Exchange Act means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the SEC promulgated thereunder.
Excluded Subsidiary means any (a) Domestic Subsidiary that is treated as a partnership or
that is disregarded as a separate entity for federal income tax purposes and that has substantially
no assets (directly or indirectly) other than the Capital Stock of Foreign Subsidiaries, (b) any
Foreign Subsidiary of the Borrower or of any other direct or indirect Domestic Subsidiary or
Foreign Subsidiary and (c) any Domestic Subsidiary that is a subsidiary of a Foreign Subsidiary
that is a controlled foreign corporation within the meaning of Section 957 of the Code.
Excluded Taxes means, with respect to any Agent, any Lender or any other recipient of any
payment to be made by or on account of any obligation of the Borrower or any other Loan Party
hereunder, (a) any Taxes imposed on or measured by its net income (however denominated) and
franchise and similar Taxes imposed on it in lieu of net income Taxes by the United States of
America, or by the jurisdiction under the laws of which such recipient is organized (or where such
recipient is otherwise treated as a residing for Tax purposes), in which its principal office is
located or, in the case of any Lender, in which its applicable lending office is located, or in
14
which such Lender is otherwise subject to Tax without regard to the transactions contemplated by
this Agreement , (b) any branch profits Taxes imposed by the United States of America or any
similar Tax imposed by any other jurisdiction in which the Borrower or any other Loan Party is
located, (c) in the case of a Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.17(b)), any withholding Tax that is imposed on amounts payable to such Lender at
the time such Lender becomes a party to this Agreement (or designates a new lending office), except
to the extent that such Lender (or its assignor, if any) was entitled, at the time of such
assignment or designation of a new lending office (or assignment), to receive additional amounts
from the Borrower or any other Loan Party with respect to such withholding Tax pursuant to Section
2.15(a), (d) any Tax attributable to its failure to comply with Section 2.15(e), (e) any
withholding Tax to the extent imposed as a result of its (A) failure to comply with the applicable
requirements of FATCA in such a way to reduce such tax to zero or (B) election under Section
1471(b)(3) of the Code, and (f) any U.S. federal backup withholding Taxes imposed under Section
3406 of the Code.
Existing Credit Agreement means the Term Loan Credit Agreement, dated as of May 25, 2007,
among Holdings, the Borrower, the subsidiaries of the Borrower from time to time party thereto, the
lenders from time to time party thereto and Credit Suisse AG (f/k/a Credit Suisse), as
administrative agent and collateral agent, as the same may be amended, restated, modified,
refinanced, replaced, extended, renewed or supplemented from time to time.
Existing Debt Refinancing means the payment in full of all amounts due or owing under the
Existing Credit Agreement and the termination of all commitments thereunder and the release and
discharge of all guarantees thereof and all security therefor.
Extended Term Loans shall have the meaning assigned to such term in Section 2.21(a).
Extending Term Lender shall have the meaning assigned to such term in Section 2.21(a).
Extension shall have the meaning assigned to such term in Section 2.21(a).
Extension Offer shall have the meaning assigned to such term in Section 2.21(a).
Facility means any real property (including all buildings, fixtures or other improvements
located thereon) now, hereafter or, except with respect to Articles 5 and 6, heretofore owned,
leased, operated or used by the Borrower or any of its Subsidiaries or any of their respective
predecessors or Affiliates.
FATCA means Sections 1471 through 1474 of the Code, as in effect on the date hereof, and any
applicable Treasury regulation promulgated thereunder or published administrative guidance
implementing such Sections, whether in existence on the Closing Date or promulgated or published
thereafter.
15
Federal Funds Effective Rate means, for any day, the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published 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 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.
Fee Letter means that certain Agent Fee Letter dated as of November 12, 2010, by and among
the Borrower and the Administrative Agent.
Financial Officer of any person means the chief financial officer, treasurer, assistant
treasurer, vice president of finance or controller of such person.
Financial Officer Certification means, with respect to the financial statements for which
such certification is required, the certification of the chief financial officer of the Borrower
that such financial statements fairly present, in all material respects, the financial
condition of the Borrower and its Subsidiaries as at the dates indicated and the results of
their operations and their cash flows for the periods indicated, subject to changes resulting from
audit and normal year-end adjustments.
Financial Plan as defined in Section 5.01(i).
First Lien Intercreditor Agreement shall mean a pari passu intercreditor agreement among
the Collateral Agent, the ABL Agent, Holdings, the Borrower and one or more Senior Representatives
for holders of Permitted First Priority Refinancing Debt in form and substance reasonably
satisfactory to the Collateral Agent.
First Priority means, with respect to any Lien purported to be created in any Collateral
pursuant to any Collateral Document, that such Lien is the only Lien to which such Collateral is
subject, other than any Permitted Lien.
Fiscal Quarter means a fiscal quarter of any Fiscal Year.
Fiscal Year means the fiscal year of Holdings and its Subsidiaries ending on December 31 of
each calendar year or the Saturday closest to December 31 of each calendar year.
Flood Hazard Property means any Real Estate Asset subject to a Mortgage and located in an
area designated by the Federal Emergency Management Agency as having special flood or mud slide
hazards.
Foreign Lender means a Lender that is not a United States person within the meaning of
Section 7701(a)(30) of the Code.
Foreign Subsidiary means any Subsidiary that is not a Domestic Subsidiary.
16
GAAP means generally accepted accounting principles in the United States of America in
effect and applicable to that accounting period in respect of which reference to GAAP is being
made, subject to the provisions of Section 1.05.
Governmental Authority means any federal, state, municipal, national or other government,
governmental department, commission, board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity or officer exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to any government or any court, in each
case whether associated with a state or locality of the United States, the United States, or a
foreign government.
Governmental Authorization means any permit, license, authorization, plan, directive,
consent order or consent decree of or from any Governmental Authority.
Granting Lender has the meaning assigned to such term in Section 9.04(e).
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 monetary 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 monetary 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 monetary 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 monetary obligation or (d) as an account party in respect of any letter
of credit or letter of guaranty issued to support such Indebtedness or monetary obligation;
provided, that the term Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business, or customary and reasonable indemnity obligations in effect on the
Closing Date or entered into in connection with any acquisition or disposition of assets permitted
under this Agreement (other than such obligations with respect to Indebtedness). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith.
Guaranteed Obligations has the meaning assigned to such term in Section 10.01.
Guarantor Percentage has the meaning assigned to such term in Section 10.10.
Hazardous Materials means any chemical, material, substance or waste, or any constituent
thereof, exposure to which is prohibited, limited or regulated by any Environmental Law or any
Governmental Authority or which may or could pose a hazard to the health and safety or to the
indoor or outdoor environment.
17
Hazardous Materials Activity means any past, current, proposed or threatened activity,
event or occurrence involving any Hazardous Material, including the use, manufacture, possession,
storage, holding, presence, existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment, abatement, removal, remediation,
disposal, disposition or handling of any Hazardous Material, and any corrective action or response
action with respect to any of the foregoing.
Hedge Agreement means any agreement with respect to any Derivative Transaction between the
Borrower or any Subsidiary and any other Person.
Hedging Obligations means, with respect to any Person, the obligations of such Person under
any Hedge Agreement, in each case designed to protect such Person against fluctuations in currency
exchange, interest rates or commodity prices.
Holdings has the meaning assigned to such term in the preamble to this Agreement.
Immaterial Subsidiary means, as of any date, any Subsidiary whose total assets, as of that
date, are less than $100,000 and whose total revenues for the most recent twelve-month period do
not exceed $100,000; provided that the total asset value and total revenues of all Subsidiaries
designated as such shall not exceed $500,000 in the aggregate.
Immediate Family Member means with respect to any individual, such individuals child,
stepchild, grandchild or more remote descendant, parent, stepparent, grandparent, spouse, former
spouse, qualified domestic partner, sibling, mother-in-law, father-in-law, son-in-law and
daughter-in-law (including adoptive relationships) and any trust, partnership or other bona fide
estate-planning vehicle the only beneficiaries of which are any of the foregoing individuals or any
private foundation or fund that is controlled by any of the foregoing individuals or any
donor-advised fund of which any such individual is the donor.
Incremental Assumption Agreement means an Incremental Assumption Agreement in form and
substance reasonably satisfactory to the Administrative Agent, among the Borrower, the
Administrative Agent and one or more Incremental Term Lenders.
Incremental Term Borrowing means a Borrowing comprised of Incremental Term Loans.
Incremental Term Facility Maturity Date means, with respect to any series or tranche of
Incremental Term Loans established pursuant to an Incremental Assumption Agreement, the maturity
date for as set forth in such Incremental Assumption Agreement.
Incremental Term Lender means a Lender with an Incremental Term Loan Commitment or an
outstanding Incremental Term Loan.
Incremental Term Loan Commitment means the commitment of any Lender, established pursuant to
Section 2.19, to make Incremental Term Loans to the Borrower.
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Incremental Term Loans means Term Loans made by one or more Lenders to the Borrower pursuant
to Section 2.01(b). Incremental Term Loans may be made in the form of additional Term Loans or, to
the extent permitted by Section 2.19 and provided for in the relevant Incremental Assumption
Agreement, Other Term Loans.
Indebtedness, as applied to any Person, means, without duplication, (i) all indebtedness for
borrowed money; (ii) that portion of obligations with respect to Capital Leases that is properly
classified as a liability on a balance sheet in conformity with GAAP; (iii) notes payable and
drafts accepted representing extensions of credit whether or not representing obligations for
borrowed money; (iv) any obligation owed for all or any part of the deferred purchase price of
property or services (excluding any earn out obligation or purchase price adjustment until such
obligation becomes a liability on the balance sheet in accordance with GAAP and any such
obligations incurred under ERISA), which purchase price is (a) due more than six months from the
date of incurrence of the obligation in respect thereof or twelve months in the case of a bona fide
trade payable or (b) evidenced by a note or similar written instrument; (v) all indebtedness
secured by any Lien on any property or asset owned or held by that Person regardless of whether the
indebtedness secured thereby shall have been assumed by that Person or is nonrecourse to the credit
of that Person; (vi) the face amount of any letter of credit issued for the account of that Person
or as to which that Person is otherwise liable for reimbursement of drawings; (vii) the direct or
indirect guaranty, endorsement (otherwise than for collection or deposit in the ordinary course of
business), co-making, discounting with recourse or sale with recourse by such Person of the
obligation of another; (viii) any obligation of such Person the primary purpose or intent of which
is to provide assurance to an obligee that the obligation of the obligor thereof will be paid or
discharged, or any agreement relating thereto will be complied with, or the holders thereof will be
protected (in whole or in part) against loss in respect thereof; (ix) any liability of such Person
for the obligation of another through any agreement (contingent or otherwise) (a) to purchase,
repurchase or otherwise acquire such obligation or any security therefor, or to provide funds for
the payment or discharge of such obligation (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise) or (b) to maintain the solvency or any balance sheet
item, level of income or financial condition of another if, in the case of any agreement described
under subclause (a) or (b) of this clause (ix), the primary purpose or intent thereof is as
described in clause (viii) above; and (x) all net obligations of such Person in respect of any
Derivative Transaction, including, without limitation, any Hedge Agreement, whether or not entered
into for hedging or speculative purposes; provided in no event shall obligations under any Hedge
Agreement be deemed Indebtedness for any calculation of the Leverage Ratio, the Interest Coverage
Ratio, the Senior Leverage Ratio or the Senior Secured Leverage Ratio under this Agreement.
Indemnified Taxes means Taxes other than Excluded Taxes.
Information has the meaning set forth in Section 3.11(a).
Information Memorandum means the Confidential Information Memorandum dated November 15,
2010, relating to the Borrower and the Transactions.
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Intercreditor Agreement means the Lien Subordination and Intercreditor Agreement, dated as
of December 2, 2010, among the ABL Agent, as agent for the Revolving Facility Secured Parties
referred to therein, the Administrative Agent, as agent for the Term Loan Secured Parties referred
to therein, Holdings, the Borrower and the Subsidiaries of the Borrower from time to time party
thereto (as amended, restated, modified or supplemented from time to time) or any other
intercreditor agreement among the ABL Agent, one or more Senior Representatives of Permitted First
Priority Refinancing Debt or Permitted Second Priority Refinancing Debt and the Collateral Agent on
terms that are no less favorable in any material respect to the Secured Parties as those contained
in the Intercreditor Agreement dated as of the Closing Date (as amended, restated, modified or
supplemented from time to time).
Interest Coverage Ratio means the ratio as of the last day of any Fiscal Quarter of (i)
Consolidated Adjusted EBITDA for the four-Fiscal Quarter period then ended, to (ii) Consolidated
Cash Interest Expense for such four-Fiscal Quarter period plus the product of (a) all dividends,
whether paid or accrued and whether or not in cash, on any series of preferred stock of the
Borrower or any of its Subsidiaries, other than dividends on Capital Stock payable solely in
Capital Stock of the Borrower (other than Disqualified Capital Stock) or to the Borrower or a
Subsidiary of the Borrower, times (b) a fraction, the numerator of which is one and the denominator
of which is one minus the then current combined federal, state and local statutory tax rate of the
Borrower, expressed as a decimal, in each case, determined on a consolidated basis in accordance
with the GAAP.
Interest Election Request means a request by the Borrower in the form of Exhibit G here or
such other form reasonably acceptable to the Administrative Agent to convert or continue a
Borrowing in accordance with Section 2.05.
Interest Payment Date means (a) with respect to any ABR Loan, the last Business Day of each
March, June, September and December (commencing with the last Business Day of March 2011) and the
Maturity Date (or the Incremental Term Facility Maturity Date in the case of Incremental Term
Loans, if any) and (b) with respect to any LIBO Rate 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 LIBO Rate Borrowing
with an Interest Period of more than three months duration, each day that would have been an
Interest Payment Date had successive Interest Periods of three months duration been applicable to
such Borrowing.
Interest Period means with respect to any LIBO Rate 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 (or, with the written consent of each Lender, nine or twelve
months) thereafter, as the Borrower may elect provided, that (i) 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 (ii) 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
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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.
Investment means (i) any direct or indirect purchase or other acquisition by Holdings or any
of its Subsidiaries of, or of a beneficial interest in, any of the Securities of any other Person
(other than the Borrower or a Subsidiary Guarantor); (ii) any direct or indirect redemption,
retirement, purchase or other acquisition for value, by any Subsidiary of Holdings from any Person
(other than Holdings, the Borrower or any Subsidiary Guarantor), of any Capital Stock of such
Subsidiary; and (iii) any direct or indirect loan, advance (other than advances to employees for
moving, entertainment and travel expenses, drawing accounts and similar expenditures in the
ordinary course of business) or capital contribution by Holdings or any of its Subsidiaries to any
other Person (other than Holdings, the Borrower or any Subsidiary Guarantor), including all
indebtedness and accounts receivable from that other Person that are not current assets or did not
arise from sales to that other Person in the ordinary course of business. The amount of any
Investment shall be the original cost of such Investment plus the cost of all additions thereto,
without any adjustments for increases or decreases in value, or write-ups, write-downs or
write-offs with respect to such Investment.
Joinder Agreement has the meaning assigned to such term in Section 5.12(a).
Junior Financing shall mean any Subordinated Indebtedness and any other Indebtedness that is
required to be subordinated to the Obligations.
Junior Financing Documentation shall mean any documentation governing any Junior Financing.
Latest Maturity Date shall mean, at any date of determination, the latest maturity or
expiration date applicable to any Loan hereunder at such time, including the latest maturity or
expiration date of any Incremental Term Loan, any Refinancing Term Loan, or any Extended Term Loan,
in each case as extended in accordance with this Agreement from time to time.
Lenders means the Term Lenders.
Leverage Ratio means the ratio as of any date of determination of (i) Consolidated Total
Debt as of such date to (ii) Consolidated Adjusted EBITDA for the four-Fiscal Quarter period ended
on such date (or if such date of determination is not the last day of a Fiscal Quarter, for the
four-Fiscal Quarter period ended as of the most recently concluded Fiscal Quarter).
LIBO Rate means, with respect to any Interest Period, (a) the rate per annum determined by
the Administrative Agent at approximately 11:00 a.m., London time, on the day that is two (2)
Business Days prior to the first day of such Interest Period by reference to the British Bankers
Association Interest Settlement Rates for deposits in Dollars (for delivery on the first day of
such Interest Period and as set forth by the Bloomberg Information Service, or if the Bloomberg
Information Service is unavailable, any service selected by the Administrative Agent
21
that has been nominated by the British Bankers Association as an authorized information vendor
for the purpose of displaying such rates) for a period equal to such Interest Period and (b)
if such rate is not available at such time for any reason, an interest rate per annum reasonably
determined by the Administrative Agent in good faith to be the average of the rates per annum at
which deposits in Dollars are offered for such relevant Interest Period to major banks in the
London interbank market in London, England by the Administrative Agent at approximately 11:00 a.m.
two (2) Business Days prior to the commencement of such Interest Period.
Lien means (i) any lien, mortgage, pledge, assignment, security interest, charge or
encumbrance of any kind (including any agreement to give any of the foregoing, any conditional sale
or other title retention agreement, and any lease in the nature thereof) and any option, trust or
other preferential arrangement having the practical effect of any of the foregoing and (ii) 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, any promissory notes issued pursuant to the Agreement,
the Collateral Documents and the Intercreditor Agreement. Any reference in this Agreement or any
other Loan Document to a Loan Document shall include all appendices, exhibits or schedules thereto,
and all amendments, restatements, supplements or other modifications thereto.
Loan Guarantor means each Loan Party (other than the Borrower).
Loan Guaranty means Article 10 of this Agreement.
Loan Parties means Holdings, the Borrower, each Domestic Subsidiary of the Borrower, and any
other Person who becomes a party to this Agreement as a Loan Party pursuant to a Joinder Agreement,
and their respective successors and assigns.
Loans means the Term Loans, the Incremental Term Loans, the Refinancing Term Loans, and the
Extended Term Loans.
Management Agreement means the amended and restated management agreement by and among
Berkshire Partners LLC, Weston Presidio Service Company LLC and the Borrower dated November 10,
2006, and any amendments made thereto.
Management Fees means the fees paid by the Borrower to Sponsors under the Management
Agreement in exchange for services provided to the Borrower under the Management Agreement.
Margin Stock shall have the meaning assigned to such term in Regulation U.
Material Adverse Effect means (i) a material adverse change in the condition (business,
financial or otherwise), assets or results of operations of Holdings or any of its Subsidiaries,
taken as a whole, or (ii) the impairment (other than as a result of circumstances of the type
described in clause (i) above) in any material respect of the ability of the Loan Parties,
22
taken as a whole, to perform, or of the Administrative Agent, Collateral Agent or the Lenders
to enforce, the Obligations.
Material Contract means any contract or other arrangement to which the Borrower or any of
its Subsidiaries is a party (other than the Loan Documents or other agreements evidencing or
relating to Indebtedness) for which breach, nonperformance, cancellation or failure to renew could
reasonably be expected to have a Material Adverse Effect.
Material Real Estate Asset means (i) any fee-owned Real Estate Asset owned as of the Closing
Date and (ii) any fee-owned Real Estate Asset acquired by any Loan Party after the Closing Date
having a fair market value in excess of $2,000,000 as of the date of acquisition thereof shall be a
Material Real Estate Asset.
Maturity Date means (i) with respect to the Term Loans, December 2, 2017 (the Term Loan
Maturity Date), (ii) with respect to any tranche of Extended Term Loans, the final maturity date
as specified in the applicable Extension Offer accepted by the respective Lender or Lenders, (iii)
with respect to any Refinancing Term Loans, the final maturity date as specified in the applicable
Refinancing Amendment and (iv) with respect to any Incremental Term Loans, the Incremental Term
Facility Maturity Date; provided that if any such day is not a Business Day, the applicable
Maturity Date shall be the Business Day immediately succeeding such day; provided, however, that
such date will automatically become (i) January 30, 2014 for the Term Loans, Extended Term Loans,
Refinancing Term Loans and Incremental Term Loans if all the Senior Subordinated Notes are not
extended, renewed or refinanced pursuant to Section 6.01(p) on or prior to January 30, 2014, which
Permitted Refinancing will not mature or require any scheduled amortization or payments of
principal prior to the date that is ninety-one (91) days after December 2, 2017.
Maximum Liability has the meaning assigned to such term in Section 10.09.
Maximum Rate has the meaning assigned to such term in Section 9.17.
Minimum Extension Condition shall have the meaning assigned to such term in Section 2.21(c).
Moodys means Moodys Investors Service, Inc. and any successor to its rating agency
business.
Mortgaged Properties means, initially, the owned real properties of the Loan Parties
specified on Schedule 1.01(a), and shall include each other parcel of real property and
improvements thereto with respect to which a Mortgage is required to be granted pursuant to Section
5.12.
Mortgages means any mortgage, deed of trust or other agreement which conveys or evidences a
Lien in favor of the Collateral Agent, for the benefit of the Collateral Agent and the Lenders, on
owned real property of a Loan Party.
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Multiemployer Plan means any Employee Benefit Plan which is a multiemployer plan as
defined in Section 3(37) of ERISA.
Narrative Report means, with respect to the financial statements for which such narrative
report is required, a narrative report describing the operations of Holdings and its Subsidiaries
in the form prepared for presentation to senior management thereof for the applicable Fiscal
Quarter or Fiscal Year and for the period from the beginning of the then current Fiscal Year to the
end of such period to which such financial statements relate.
Net Insurance/Condemnation Proceeds means an amount equal to: (i) any cash payments or
proceeds (including Cash Equivalents) received by Holdings or any of its Subsidiaries (a) under any
casualty insurance policy in respect of a covered loss thereunder of any assets of Holdings or any
of its Subsidiaries or (b) as a result of the taking of any assets of Holdings or any of its
Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or otherwise, or
pursuant to a sale of any such assets to a purchaser with such power under threat of such a taking,
minus (ii) (a) any actual and reasonable costs incurred by Holdings or any of its Subsidiaries in
connection with the adjustment, settlement or collection of any claims of Holdings or such
Subsidiary in respect thereof, (b) payment of the outstanding principal amount of, premium or
penalty, if any, and interest on any Indebtedness (other than the Loans) that is secured by a Lien
on the assets in question and that is required to be repaid under the terms thereof as a result of
such loss, taking or sale, (c) amounts required to be prepaid pursuant to the mandatory prepayment
provisions under the Senior Secured Asset-Based Revolving Credit Agreement in connection therewith,
(d) in the case of a taking, the reasonable costs of putting any affected property in a safe and
secure position and (e) any bona fide direct costs incurred in connection with any sale of such
assets as referred to in clause (i)(b) of this definition, including income taxes payable as a
result of any gain recognized in connection therewith; provided, however, that, (x) if the Borrower
shall deliver a certificate of a Financial Officer to the Administrative Agent at the time of
receipt thereof setting forth the Borrowers intent to reinvest such proceeds in productive assets
of a kind then used or usable in the business of the Borrower and its Subsidiaries (or to acquire
all of the Capital Stock of a Person substantially all of whose assets are used or useful in the
business of the Borrower and its Subsidiaries) within 365 days of receipt of such proceeds, and (y)
no Event of Default shall have occurred and shall be continuing at the time of such certificate,
such proceeds shall not constitute Net Insurance/Condemnation Proceeds except to the extent not so
used or contractually committed with a third party that is not an Affiliate to be so used (it being
understood that if any portion of such proceeds are not so used within such 365 day period but
within such 365 day period are contractually committed with a third party that is not an Affiliate
to be used, then upon the termination of such contract or if such Net Proceeds are not so used
within the later of such 365 day period and 180 days from the entry into such contractual
commitment, such remaining portion shall be deemed to be Net Insurance/Condemnation Proceeds as of
the date of such termination or expiry without giving effect to this proviso).
Net Proceeds means (a) with respect to any Asset Sale, the cash proceeds (including Cash
Equivalents and cash proceeds subsequently received (as and when received) in respect of noncash
consideration initially received), net of (i) selling costs and expenses (including
24
reasonable brokers fees or commissions, legal fees, deed or mortgage recording Taxes,
transfer and similar Taxes, (ii) Taxes paid or reasonably estimated (by the Borrowers good faith
estimate) to be paid or payable in connection with such sale (including, where the proceeds are
realized by a Subsidiary of the Borrower, any incremental foreign, state and/or local income Taxes
imposed as a result of distributing (or the deemed distribution of) the relevant proceeds from any
Subsidiary to the Borrower)), (iii) amounts provided as a reserve, in accordance with GAAP, against
any liabilities under any indemnification obligations or purchase price adjustment associated with
such Asset Sale (provided that, to the extent and at the time any such amounts are released from
such reserve, such amounts shall constitute Net Proceeds), (iv) the principal amount, premium or
penalty, if any, interest and other amounts on any Indebtedness for borrowed money which is secured
by the asset sold in such Asset Sale and which is required to be repaid with such proceeds (other
than any such Indebtedness assumed by the purchaser of such asset), (v) cash escrows (until
released from escrow to the Borrower or any of its Subsidiaries) from the sale price for such Asset
Sale and (vi) amounts required to be prepaid pursuant to the mandatory prepayment provisions of the
Senior Secured Asset-Based Revolving Credit Agreement resulting from such Asset Sale; provided,
however, that, if (x) the Borrower shall deliver a certificate of a Financial Officer to the
Administrative Agent at the time of receipt thereof setting forth the Borrowers intent to reinvest
such proceeds in productive assets of a kind then used or usable in the business of the Borrower
and its Subsidiaries (or to acquire all of the Capital Stock of a Person substantially all of whose
assets are used or useful in the business of the Borrower and its Subsidiaries) within 365 days of
receipt of such proceeds, and (y) no Event of Default shall have occurred and shall be continuing
at the time of such certificate, such proceeds shall not constitute Net Proceeds except to the
extent not so used or contractually committed with a third party that is not an Affiliate to be so
used (it being understood that if any portion of such proceeds are not so used within such 365 day
period but within such 365 day period are contractually committed with a third party that is not an
Affiliate to be used, then upon the termination of such contract or if such Net Proceeds are not so
used the later of such 365 day period and 180 days from the entry into such contractual commitment,
such remaining portion shall constitute Net Proceeds as of the date of such termination or expiry
without giving effect to this proviso); provided, further, that if the amount of any estimated
Taxes pursuant to subclause (ii) exceeds the amount of Taxes actually required to be paid in cash
in respect of such Asset Sale, the aggregate amount of such excess shall constitute Net Proceeds;
and (b) with respect to any issuance or incurrence of Indebtedness, the cash proceeds thereof, net
of all Taxes and customary fees, commissions, costs, underwriting discounts and other expenses
incurred in connection therewith (including, where the proceeds are realized by a Subsidiary of the
Borrower, any incremental foreign, state and/or local income taxes imposed as a result of
distributing (or a deemed distribution of) the relevant proceeds from any Subsidiary to the
Borrower).
Non-Consenting Lender has the meaning assigned to such term in Section 9.02(e).
Non-Extended Term Loans shall have the meaning assigned to such term in Section 2.21(b).
Non-Paying Guarantor has the meaning assigned to such term in Section 10.10.
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Obligated Party has the meaning assigned to such term in Section 10.02.
Obligations means all unpaid principal of and accrued and unpaid interest (including
interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, all
accrued and unpaid fees and all expenses, reimbursements, indemnities and other obligations of the
Loan Parties to the Lenders or to any Lender, the Agents or any indemnified party arising under the
Loan Documents.
OFAC has the meaning assigned to such term in Section 3.20.
Officer means the Chairman of the Board, the Chief Executive Officer, the Chief Financial
Officer, the President, any Executive Vice President, Senior Vice President or Vice President, any
Treasurer, Assistant Treasurer, Secretary, Assistant Secretary or Manager of the Borrower.
Officers Certificate means, as applied to any corporation, a certificate executed on behalf
of such corporation by its chairman of the board (if an officer) or its president or one of its
vice presidents and by its chief financial officer or its treasurer.
OID shall have the meaning assigned to such term in Section 2.20(c).
Organizational Documents means (i) with respect to any corporation, its certificate or
articles of incorporation or organization, as amended, and its by-laws, as amended, (ii) with
respect to any limited partnership, its certificate of limited partnership, as amended, and its
partnership agreement, as amended, (iii) with respect to any general partnership, its partnership
agreement, as amended, and (iv) with respect to any limited liability company, its articles of
organization or certificate of formation, as amended, and its operating agreement, as amended. In
the event any term or condition of this Agreement or any other Loan Document requires any
Organizational Document to be certified by a secretary of state or similar governmental official,
the reference to any such Organizational Document shall only be to a document of a type
customarily certified by such governmental official.
Other Applicable Indebtedness has the meaning assigned to such term in Section 2.09(b)(i).
Other Information has the meaning assigned to such term in Section 3.11(b).
Other Taxes means any and all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or from
the execution, delivery or enforcement of, or otherwise with respect to, this Agreement, but not
including, for the avoidance of doubt, the Excluded Taxes.
Other Term Loans has the meaning assigned to such term in Section 2.19.
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Parent Company means (a) Holdings and (b) any other Person (i) of which the Borrower is an
indirect wholly-owned Subsidiary and (ii) substantially all of the assets of which consist of its
indirect investment in the Borrower.
Participant has the meaning assigned to such term in Section 9.04.
Participant Register has the meaning assigned to such term in Section 9.04(c)(iii).
Paying Guarantor has the meaning assigned to such term in Section 10.10.
PBGC means the Pension Benefit Guaranty Corporation or any successor thereto.
Pension Plan means any Employee Benefit Plan, other than a Multiemployer Plan, which is
subject to Section 412 of the Internal Revenue Code or Section 302 of ERISA.
Perfection Certificate means a certificate in the form of Exhibit D to the Pledge and
Security Agreement or any other form approved by the Collateral Agent.
Perfection Certificate Supplement means a certificate supplement in the form of Exhibit D-1
to the Pledge and Security Agreement or any other form approved by the Collateral Agent.
Permitted Acquisition means any acquisition by the Borrower or any of its Subsidiaries,
whether by purchase, merger or otherwise, of all or substantially all of the assets of, all or
substantially all of the Capital Stock of, or a business line or unit or a division or any
operating stores of, any Person; provided that
(i) immediately prior to, and after giving effect thereto, no Default or Event of Default
shall have occurred and be continuing or would result therefrom; provided that this clause (i)
shall not apply to any acquisition where the aggregate amount of consideration is less than
$2,500,000;
(ii) all transactions in connection therewith shall be consummated, in all material respects,
in accordance with all applicable laws and in conformity with all applicable Governmental
Authorizations;
(iii) in the case of the acquisition of Capital Stock, all of the Capital Stock (except for
any such Securities in the nature of directors qualifying shares required pursuant to applicable
law) acquired or otherwise issued by such Person or any newly formed Subsidiary of the Borrower in
connection with such acquisition shall be owned by the Borrower or a Subsidiary thereof, and
Company shall have taken, or caused to be taken, as of the date such Person becomes a Subsidiary of
the Borrower, each of the actions set forth in Section 5.12, as applicable;
(iv) the Borrower shall have delivered to the Administrative Agent at least ten (10) Business
Days prior to such acquisition, (A) all relevant financial information with respect to such
acquired assets, including, without limitation, the aggregate consideration for such
27
acquisition and any other information required to demonstrate compliance with clause (iv)
above and (B) an Officers Certificate stating that any related incurrence of Indebtedness is
permitted pursuant to this Agreement; provided that this clause (iv) shall not apply to any
acquisition or series of related acquisitions during a Fiscal Year where the aggregate amount of
consideration for such acquisition or series of related acquisitions is less than $10,000,000, so
long as the aggregate amount of consideration for such acquisition or series of related
acquisitions, together with the aggregate amount of consideration for all other Permitted
Acquisitions in the same Fiscal Year (excluding any Permitted Acquisition previously subject to the
delivery requirements of this clause (iv)) is less than $30,000,000; and
(v) any Person or assets or division as acquired in accordance herewith shall be in the same
business or lines of business in which Holdings and/or its Subsidiaries are engaged as of the
Closing Date or similar or related businesses.
Permitted First Priority Refinancing Debt shall mean any secured Indebtedness incurred by
the Borrower in the form of one or more series of senior secured notes; provided that (i) such
Indebtedness may only be secured by assets consisting of Collateral on a pari passu basis (but
without regard to the control of remedies) with the Obligations and may not be secured by any
property or assets of Holdings, the Borrower or any Subsidiary Guarantor other than the Collateral,
(ii) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness, (iii) such
Indebtedness does not mature or have scheduled amortization or payments of principal and is not
subject to mandatory redemption, repurchase, prepayment or sinking fund obligation (except
customary asset sale or change of control provisions), in each case prior to the date that is
ninety-one (91) days after the then Latest Maturity Date, (iv) such Indebtedness is not at any time
guaranteed by any Subsidiaries other than Subsidiaries that are Subsidiary Guarantors, (v) the
other terms and conditions of such Indebtedness (excluding pricing, premiums and optional
prepayment or optional redemption provisions) are customary market terms for securities of such
type (provided, that such terms shall in no event include any financial maintenance covenants) and,
in any event, when taken as a whole, are not more favorable to the investors providing such
Indebtedness than the terms and conditions of the applicable Refinanced Debt (except with respect
to any terms (including covenants) and conditions contained in such Indebtedness that are
applicable only after the then Latest Maturity Date) (provided that a certificate of a Responsible
Officer delivered to the Administrative Agent at least five Business Days prior to the incurrence
of such Indebtedness, together with a reasonably detailed description of the material terms and
conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the
Borrower has determined in good faith that such terms and conditions satisfy the requirement of
this clause (v) shall be conclusive evidence that such terms and conditions satisfy such
requirement unless the Administrative Agent notifies the Borrower within such five Business Day
period that it disagrees with such determination (including a reasonable description of the basis
upon which it disagrees)), (vi) no Default shall exist immediately prior to or after giving effect
to such incurrence, (vii) the security agreements relating to such Indebtedness are substantially
the same as the applicable Collateral Documents (with such differences as are reasonably
satisfactory to the Administrative Agent) and (viii) a Senior Representative acting on behalf of
the holders of such Indebtedness shall have become party to (1) the Intercreditor Agreement and (2)
the First Lien Intercreditor Agreement; provided that if
28
such Indebtedness is the initial Permitted First Priority Refinancing Debt incurred by the
Borrower, then the Borrower, Holdings, the Subsidiary Guarantors, the Collateral Agent and the
Senior Representative for such Indebtedness shall have executed and delivered the First Lien
Intercreditor Agreement. Permitted First Priority Refinancing Debt will include any Registered
Equivalent Notes issued in exchange therefor.
Permitted Repricing Amendment has the meaning assigned to such term in Section 9.02(b).
Permitted Refinancing shall mean, with respect to any Person, any modification, refinancing,
refunding, renewal, replacement or extension of any Indebtedness of such Person; provided that (a)
the principal amount (or accreted value, if applicable) thereof does not exceed the principal
amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded,
renewed, replaced or extended except (i) by an amount equal to unpaid accrued interest and premium
(including tender premiums) thereon plus other reasonable and customary fees and expenses
(including upfront fees and original issue discount) incurred in connection with such modification,
refinancing, refunding, renewal, replacement or extension and (ii) by an amount equal to any
existing commitments unutilized thereunder, (b) other than with respect to a Permitted Refinancing
in respect of Indebtedness permitted pursuant to Section 6.01(m), the Indebtedness resulting from
such modification, refinancing, refunding, renewal, replacement or extension has a final maturity
date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity
equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified,
refinanced, refunded, renewed, replaced or extended, (c) other than with respect to a Permitted
Refinancing in respect of Indebtedness permitted pursuant to Section 6.01(m), at the time thereof,
no Default shall have occurred and be continuing, and (d) if such Indebtedness being modified,
refinanced, refunded, renewed, replaced or extended is Indebtedness permitted pursuant to Section
6.01(c), (i), (z) or Section 6.01(aa), is otherwise a Junior Financing, (i) to the extent such
Indebtedness being modified, refinanced, refunded, renewed, replaced or extended is subordinated in
right of payment or in lien priority to the Obligations, the Indebtedness resulting from such
modification, refinancing, refunding, renewal, replacement or extension is subordinated in right of
payment or in lien priority, as applicable, to the Obligations on terms at least as favorable to
the Lenders as those contained in the documentation governing the Indebtedness being modified,
refinanced, refunded, renewed, replaced or extended, (ii) the other terms and conditions
(including, if applicable, as to collateral but excluding as to subordination, pricing, premiums
and optional prepayment or optional redemption provisions) of any such modified, refinanced,
refunded, renewed, replaced or extended Indebtedness, taken as a whole, are not materially less
favorable to the Loan Parties or the Lenders than the terms and conditions of the Indebtedness
being modified, refinanced, refunded, renewed, replaced or extended, taken as a whole (provided
that a certificate of a Responsible Officer delivered to the Administrative Agent at least five
Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed
description of the material terms and conditions of such Indebtedness or drafts of the
documentation relating thereto, stating that the Borrower has determined in good faith that such
terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such terms
and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the
Borrower within
29
such five Business Day period that it disagrees with such determination (including a
reasonable description of the basis upon which it disagrees)) and (iii) the obligors (including any
guarantors) in respect of the Indebtedness resulting from such modification, refinancing,
refunding, renewal, replacement or extension shall be the same as the obligors (including any
guarantors) of the Indebtedness being modified, refinanced, refunded, renewed, replaced or
extended. When used with respect to any specified Indebtedness, Permitted Refinancing shall mean
the Indebtedness incurred to effectuate a Permitted Refinancing of such specified Indebtedness.
Permitted Second Priority Refinancing Debt shall mean secured Indebtedness incurred by the
Borrower in the form of one or more series of second lien secured notes or second lien secured
loans; provided that (i) such Indebtedness may only be secured by assets consisting of Collateral
on a second lien, subordinated basis to the Obligations, the obligations in respect of any
Permitted First Priority Refinancing Debt and the obligations in respect of the Senior Secured
Asset-Based Revolving Credit Facility and may not be secured by any property or assets of Holdings,
the Borrower or any Subsidiary Guarantor other than the Collateral, (ii) such Indebtedness
constitutes Credit Agreement Refinancing Indebtedness, (iii) such Indebtedness does not mature or
have scheduled amortization or payments of principal and is not subject to mandatory redemption,
repurchase, prepayment or sinking fund obligation (except customary asset sale or change of control
provisions), in each case prior to the date that is ninety-one (91) days after the then Latest
Maturity Date, (iv) such Indebtedness is not at any time guaranteed by any Subsidiaries other than
Subsidiaries that are Subsidiary Guarantors, (v) the other terms and conditions of such
Indebtedness (excluding pricing, premiums and optional prepayment or optional redemption
provisions) are customary market terms for securities of such type and, in any event, when taken as
a whole, are not more favorable to the investors or lenders providing such Indebtedness than the
terms and conditions of the applicable Refinanced Debt (except with respect to any terms (including
covenants) and conditions contained in such Indebtedness that are applicable only after the then
Latest Maturity Date) (provided that a certificate of a Responsible Officer delivered to the
Administrative Agent at least five Business Days prior to the incurrence of such Indebtedness,
together with a reasonably detailed description of the material terms and conditions of such
Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has
determined in good faith that such terms and conditions satisfy the requirement of this clause (v)
shall be conclusive evidence that such terms and conditions satisfy such requirement unless the
Administrative Agent notifies the Borrower within such five Business Day period that it disagrees
with such determination (including a reasonable description of the basis upon which it disagrees)),
(vi) the security agreements relating to such Indebtedness reflect the second lien nature of the
security interests and are otherwise substantially the same as the applicable Collateral Documents
(with such differences as are reasonably satisfactory to the Administrative Agent), (vii) no
Default shall exist immediately prior to or after giving effect to such incurrence and (viii) a
Senior Representative acting on behalf of the holders of such Indebtedness shall have become party
to (1) the Intercreditor Agreement and (2) the Second Lien Intercreditor Agreement; provided that
if such Indebtedness is the initial Permitted Second Priority Refinancing Debt incurred by the
Borrower, then the Borrower, Holdings, the Subsidiary Guarantors, the Collateral Agent and the
Senior Representative for such Indebtedness shall have executed and delivered the Second Lien
30
Intercreditor Agreement. Permitted Second Priority Refinancing Debt will include any
Registered Equivalent Notes issued in exchange therefor.
Permitted Liens means each Lien permitted pursuant to Section 6.02.
Permitted Unsecured Refinancing Debt shall mean unsecured Indebtedness incurred by the
Borrower in the form of one or more series of unsecured notes or loans; provided that (i) such
Indebtedness constitutes Credit Agreement Refinancing Indebtedness, (ii) such Indebtedness does not
mature or have scheduled amortization or payments of principal and is not subject to mandatory
redemption, repurchase, prepayment or sinking fund obligation (except customary asset sale or
change of control provisions), in each case prior to the date that is ninety-one (91) days after
the then Latest Maturity Date, (iii) such Indebtedness is not at any time guaranteed by any
Subsidiaries other than Subsidiaries that are Subsidiary Guarantors, (iv) such Indebtedness
(including any guarantee thereof) is not secured by any Lien on any property or assets of Holdings,
the Borrower or any Subsidiary, (v) the other terms and conditions of such Indebtedness (excluding
pricing, premiums and optional prepayment or optional redemption provisions) are customary market
terms for securities of such type and, in any event, when taken as a whole, are not more favorable
to the lenders or investors providing such Indebtedness than the terms and conditions of the
applicable Refinanced Debt (except with respect to any terms (including covenants) and conditions
contained in such Indebtedness that are applicable only after the then Latest Maturity Date)
(provided that a certificate of a Responsible Officer delivered to the Administrative Agent at
least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably
detailed description of the material terms and conditions of such Indebtedness or drafts of the
documentation relating thereto, stating that the Borrower has determined in good faith that such
terms and conditions satisfy the requirement of this clause (v) shall be conclusive evidence that
such terms and conditions satisfy such requirement unless the Administrative Agent notifies the
Borrower within such five Business Day period that it disagrees with such determination (including
a reasonable description of the basis upon which it disagrees)) and (vi) no Default shall exist
immediately prior to or after giving effect to such incurrence. Permitted Unsecured Refinancing
Debt will include any Registered Equivalent Notes issued in exchange therefor.
Person means any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or any other entity.
Pledge and Security Agreement means that certain Pledge and Security Agreement, dated as of
the date hereof, between the Loan Parties and the Collateral Agent, for the benefit of the
Collateral Agent and the Lenders.
Preferred Stock means any Capital Stock with preferential rights of payment of dividends or
upon liquidation, dissolution, or winding up.
Prime Rate means the rate of interest per annum determined from time to time by Credit
Suisse as its prime rate in effect at its principal office in New York City and notified to the
Borrower.
31
Pro Forma Basis means with respect to any determination of the Interest Coverage Ratio,
Leverage Ratio, Senior Leverage Ratio or Senior Secured Leverage Ratio after giving effect to
Permitted Acquisitions, Asset Sales or the incurrence or assumption of any Indebtedness (each, a
Subject Transaction), Consolidated Adjusted EBITDA shall be calculated with respect to such
period on a pro forma basis (including pro forma adjustments arising out of events which are
directly attributable to such Subject Transactions or which are to be implemented by the business
subject to the Subject Transaction or by the Borrower and its Subsidiaries as a result of the
Subject Transaction, are factually supportable and are expected to have a continuing impact, which
would include cost savings resulting from head count reduction, closure of facilities and similar
restructuring charges and raw material and other cost savings expected to be realized in connection
with the Subject Transaction, which pro forma adjustments are certified by an Officers Certificate
and which are determined (i) on a basis consistent with Article 11 of Regulation S-X promulgated
under the Securities Act and as interpreted by the staff of the Securities and Exchange Commission
or (ii) solely in the case of additional pro forma adjustments to Consolidated Adjusted EBITDA not
determined in a manner consistent with clause (i) above (for all Subject Transactions during the
period of determination) not to exceed 5.0% of pro forma Consolidated Adjusted EBITDA (as
reformulated) and realizable within one year of the date of determination for the period of
determination, on such other basis as may be certified by Officers Certificate to be in compliance
with the requirements of this definition), using the historical financial statements of any
business so acquired or to be acquired or sold or to be sold and the consolidated financial
statements of the Borrower and its Subsidiaries which shall be reformulated as if such Subject
Transaction, and any Indebtedness incurred or repaid in connection therewith, had been consummated
or incurred or repaid at the beginning of such period (and assuming that such Indebtedness bears
interest during any portion of the applicable measurement period prior to the relevant acquisition
at the weighted average of the interest rates applicable to outstanding Loans incurred during such
period).
For purposes of such calculations any Indebtedness incurred under Section 6.01(n) or otherwise
incurred or assumed in connection with Permitted Acquisitions subsequent to the beginning of the
four quarter calculation period, but on or prior to the date of calculation of the Leverage Ratio,
Senior Leverage Ratio or Senior Secured Leverage Ratio, shall be deemed to have been incurred or
assumed at the beginning of such four quarter calculation period. In addition, Permitted
Acquisitions that have been made or are being made by the Borrower or any of its Subsidiaries
during the four-quarter reference period or subsequent to such reference period and on or prior to
the calculation date (including through mergers or consolidations and including any related
financing transactions) shall be deemed to have occurred on the first day of the four-quarter
reference period.
Projections means the projections of the Borrower and the Subsidiaries included in the
Information Memorandum.
Pro Rata Share shall mean, with respect to each Lender at any time a fraction (expressed as
a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the
Commitments (or, if Commitments have been terminated, the principal amount of the Loans) under the
applicable Credit Facility or Credit Facilities of such Lender at such time
32
and the denominator of which is the amount of the aggregate Commitments (or, if the
Commitments have been terminated, the principal amount of the Loans) under the applicable Credit
Facility or Credit Facilities at such time.
Qualified Capital Stock of any Person means any Capital Stock of such Person that is not
Disqualified Capital Stock.
Real Estate Asset means, at any time of determination, any interest (fee, leasehold or
otherwise) in real property then owned by any Loan Party.
Refinanced Debt shall have the meaning specified in the definition of Credit Agreement
Refinancing Indebtedness.
Refinancing Amendment shall mean an amendment to this Agreement executed by each of (a) the
Borrower and Holdings, (b) the Administrative Agent, (c) each Additional Lender and (d) each
existing Lender that agrees to provide any portion of the Credit Agreement Refinancing Indebtedness
being incurred pursuant thereto, in accordance with Section 2.20.
Refinancing Term Loan Commitments shall mean one or more Classes of Term Loan Commitments
hereunder that result from a Refinancing Amendment.
Refinancing Term Loans shall mean one or more Classes of Term Loans that result from a
Refinancing Amendment.
Register has the meaning assigned to such term in Section 9.04.
Registered Equivalent Notes shall mean, with respect to any notes originally issued in a
Rule 144A or other private placement transaction under the Securities Act of 1933, substantially
identical notes (having the same Guarantees) issued in a dollar-for-dollar exchange therefor
pursuant to an exchange offer registered with the SEC.
Regulation T means Regulation T of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof, and any successor provision thereto.
Regulation U means Regulation U of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof, and any successor provision thereto.
Regulation X means Regulation X of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof, and any successor provision thereto.
Related Agreement means the Management Agreement.
Related Funds has the meaning assigned thereto in Section 9.04.
33
Related Parties means, with respect to any specified Person, such Persons Affiliates and
the respective directors, officers, partners, members, trustees, employees, agents, advisors and
successors and assigns of such Person and such Persons Affiliates.
Release means any release, spill, emission, leaking, pumping, pouring, injection, escaping,
deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material
into the indoor or outdoor environment (including the abandonment or disposal of any barrels,
containers or other closed receptacles containing any Hazardous Material), including the movement
of any Hazardous Material through the air, soil, surface water or groundwater.
Repayment Date has the meaning assigned to such term in Section 2.07(a).
Repricing Transaction shall mean the prepayment, refinancing, substitution or replacement of
all or a portion of the Term Loans with the incurrence by the Borrower or any Subsidiary of any
debt financing having an effective interest cost or weighted average yield (with the comparative
determinations to be made by the Administrative Agent consistent with generally accepted financial
practices, after giving effect to, among other factors, margin, interest rate floors, upfront or
similar fees or original issue discount shared with all providers of such financing, but excluding
the effect of any arrangement, structuring, syndication or other fees payable in connection
therewith that are not shared with all providers of such financing, and without taking into account
any fluctuations in the LIBO Rate) that is less than the effective interest cost or weighted
average yield (as determined by the Administrative Agent on the same basis) of such Term Loans,
including without limitation, as may be effected through any amendment to this Agreement relating
to the interest rate for, or weighted average yield of, such Term Loans (including, for the
avoidance of doubt, a Permitted Repricing Amendment).
Required Class Lenders means, as of any date of determination, subject to the provisions of
Section 9.04(g), Lenders of a Class having more than 50% of the sum of the outstanding Loans and
unused Commitments of the applicable Class.
Required Lenders means, as of any date of determination, subject to the provisions of
Section 9.04(g), Lenders having more than 50% of the sum of all outstanding Loans at such time.
Requirements of Law means, with respect to any Person, collectively, the Organizational
Documents of such Person and the common law and all federal, state, local, foreign, multinational
or international laws, statutes, codes, treaties, standards, rules and regulations, guidelines,
ordinances, orders, judgments, writs, injunctions, decrees (including administrative or judicial
precedents or authorities) and the interpretation or administration thereof by, and other
determinations, directives, requirements or requests of, any Governmental Authority, in each case
whether or not having the force of law and that are applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is subject.
34
Responsible Officer of any Person means the chief executive officer, the president, any vice
president, the chief operating officer or any Financial Officer of such Person and any other
officer or similar official thereof responsible for the administration of the obligations of such
Person in respect of this Agreement, and, as to any document delivered on the Closing Date (but
subject to the express requirements set forth in Article 4), shall include any secretary or
assistant secretary of a Loan Party. Any document delivered hereunder that is signed by a
Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by
all necessary corporate, partnership and/or other action on the part of such Loan Party and such
Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
Restricted Junior Payment means (i) any dividend or other distribution, direct or indirect,
on account of any shares of any class of stock of Holdings or the Borrower now or hereafter
outstanding, except a dividend payable solely in shares of that class of stock to the holders of
that class; (ii) any redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class of stock of Holdings or the
Borrower now or hereafter outstanding; (iii) any payment made to retire, or to obtain the surrender
of, any outstanding warrants, options or other rights to acquire shares of any class of stock of
Holdings or the Borrower now or hereafter outstanding; (iv) any payment or prepayment of principal
of, premium, if any, or interest on, or redemption, purchase, retirement, defeasance (including
in-substance or legal defeasance), sinking fund or similar payment with respect to, Subordinated
Indebtedness and (v) any payment of management or similar fees to the Sponsor or any of its
Affiliates.
S&P means Standard & Poors Ratings Services, a division of the McGraw-Hill Companies, Inc.,
and any successor to its rating agency business.
Sale and Lease-Back Transaction means any arrangement with any Person providing for the
leasing by the Borrower or any Subsidiary of any real or tangible personal property, which property
has been or is to be sold or transferred by the Borrower or such Subsidiary to such Person in
contemplation of such leasing.
Scheduled Loan Repayment has the meaning assigned to such term in Section 2.07(a).
SEC means the Securities and Exchange Commission, or any Governmental Authority succeeding
to any or all of its functions.
Second Lien Intercreditor Agreement shall mean a junior lien intercreditor agreement among
the Collateral Agent and one or more Senior Representatives for holders of Permitted Second
Priority Refinancing Debt, in form and substance reasonably satisfactory to the Collateral Agent.
Secured Hedging Obligations means all Hedging Obligations under each Hedge Agreement that
(a) is in effect on the Closing Date with a counterparty that is the Administrative Agent or a
Lender or an Affiliate of the Administrative Agent or a Lender as of the Closing Date or (b) is
entered into after the Closing Date with any counterparty that is the Administrative
35
Agent or a
Lender or an Affiliate of the Administrative Agent or a Lender at the time such Hedge Agreement is
entered into.
Secured Indebtedness means any Indebtedness secured by a Lien.
Secured Obligations means all Obligations, together with all Banking Services Obligations
and Secured Hedging Obligations.
Securities means any stock, shares, partnership interests, voting trust certificates,
certificates of interest or participation in any profit-sharing agreement or arrangement, options,
warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured,
convertible, subordinated or otherwise, or in general any instruments commonly known as
securities or any certificates of interest, shares or participations in temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire,
any of the foregoing; provided that Securities shall not include any earnout agreement or
obligation or any employee bonus or other incentive compensation plan or agreement.
Securities Act means the Securities Act of 1933, as amended, and the rules and regulations
of the SEC promulgated thereunder.
Senior Leverage Ratio means the ratio as of any date of determination of (i) Consolidated
Total Debt at such date less Subordinated Indebtedness at such date to (ii) Consolidated Adjusted
EBITDA for the four-Fiscal Quarter period ended on such date (or if such date of determination is
not the last day of a Fiscal Quarter, for the four-Fiscal Quarter period ended as of the most
recently concluded Fiscal Quarter).
Senior Representative shall mean, with respect to any series of Permitted First Priority
Refinancing Debt or Permitted Second Priority Refinancing Debt, the trustee, administrative agent,
collateral agent, security agent or similar agent under the indenture or agreement pursuant to
which such Indebtedness is issued, incurred or otherwise obtained, as the case may be, and each of
their successors in such capacities.
Senior Secured Asset-Based Revolving Credit Agreement means the ABL Credit Agreement dated
as of August 13, 2010, among Holdings, the Borrower, the subsidiaries of the Borrower from time to
time party thereto, the ABL Agent, and the lenders from time to time party thereto, as the same may
be amended, restated, modified, refinanced, replaced, extended, renewed or supplemented from time
to time.
Senior Secured Asset-Based Revolving Credit Facility means the credit facility provided
under the Senior Secured Asset-Based Revolving Credit Agreement, including any guarantees,
collateral documents, instruments and agreements executed in connection therewith, and any
amendments, supplements, modifications, extensions, replacements, renewals, restatements,
refundings or refinancings thereof and any indentures or credit facilities or commercial paper
facilities with banks or other institutional lenders or investors that extend, replace, refund,
refinance, renew or defease any part of the loans, notes, other credit facilities or
36
commitments
thereunder, including any such replacement, refunding or refinancing facility or indenture that
increases the amount borrowable thereunder or alters the maturity thereof (provided that such
increase in borrowings is permitted under Section 6.01).
Senior Secured Leverage Ratio means the ratio as of any date of determination of (i) Secured
Indebtedness of the Borrower and its Subsidiaries determined on a consolidated basis as of such
date to (ii) Consolidated Adjusted EBITDA for the Four-Fiscal Quarter period end or most recently
ended prior to such date.
Senior Subordinated Notes means the Borrowers 8.75% Senior Subordinated Notes due 2014, in
an original aggregate principal amount of $175,000,000.
Senior Subordinated Notes Indenture means the Indenture dated as of April 30, 2004, among
the Borrower, as issuer, certain of its subsidiaries and Holdings, as guarantors, and The Bank of
New York, as trustee, pursuant to which the Senior Subordinated Notes are issued.
Senior Subordinated Note Documents means the Senior Subordinated Notes Indenture and all
other instruments, agreements and other documents evidencing the Senior Subordinated Notes or
providing for any guarantee or other right in respect thereof.
SPC has the meaning assigned to such term in Section 9.04(e).
Special Dividend means a one-time cash dividend made on or within 3 Business Days of the
Closing Date by the Borrower to Holdings in an amount not to exceed $311,600,000, the proceeds of
which will be used by Holdings to make one-time cash Restricted Junior Payments to its
shareholders, optionholders and warrantholders.
Sponsor Equity Contributions means equity contributions made on or after the Closing Date by
any Sponsor or its Affiliates and any other stockholder of Holdings on the Closing Date to
Holdings.
Sponsors means collectively Advent, Berkshire and Weston.
Subordinated Indebtedness means (i) Indebtedness of the Borrower evidenced by the Senior
Subordinated Notes and (ii) any other Indebtedness of the Borrower expressly subordinated in right
of payment to the Obligations pursuant to documentation containing maturities, amortization
schedules, covenants, defaults, remedies, subordination provisions and other material terms in form
and substance satisfactory to the Administrative Agent and Required Lenders.
subsidiary means, with respect to any Person, any corporation, partnership, limited
liability company, association, joint venture or other business entity of which more than 50% of
the total voting power of shares of stock or other ownership interests entitled (without regard to
the occurrence of any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions) having the power to
direct or cause the direction of the management and policies thereof is at the time owned or
37
controlled, directly or indirectly, by that Person or one or more of the other subsidiaries of that
Person of a combination thereof; provided, in determining the percentage of ownership interests of
any Person controlled by another Person, no ownership interest in the nature of a qualifying
share of the former Person shall be deemed to be outstanding.
Subsidiary means any subsidiary of Holdings other than an Unrestricted Subsidiary.
Subsidiary Guarantor means each Subsidiary of the Borrower that is a Loan Party and that
executes this Agreement as a Loan Guarantor on the Closing Date and each other
Subsidiary of the Borrower that thereafter guarantees the Secured Obligations pursuant to the
terms of this Agreement.
Taxes means any and all present and future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority, including any interest, additions to
tax or penalties in respect of the foregoing.
Term Lenders means the Persons listed on the Commitment Schedule as Term Lenders and any
other Person that shall have become a party hereto pursuant to an Assignment and Assumption, an
Incremental Assumption Agreement or a Refinancing Amendment, other than any such Person that ceases
to be a party hereto pursuant to an Assignment and Assumption.
Term Loan Commitment means, with respect to each Lender, the commitment of such Lender to
make Term Loans hereunder as set forth on Schedule 2.01.
Term Loan First Lien Collateral has the meaning set forth in the Intercreditor Agreement.
Term Loans means the term loans made to the Borrower pursuant to Section 2.01(a).
tranche shall have the meaning assigning to such term in Section 2.21(a)
Transaction Costs means fees and expenses payable or otherwise borne by Holdings, the
Borrower and its subsidiaries in connection with the Transactions and the transactions contemplated
thereby and including, for the avoidance of doubt, any portion of the Special Dividend to the
extent any such amount reduces Consolidated Net Income.
Transactions means, collectively, (a) the execution, delivery and performance by the Loan
Parties of the Loan Documents to which they are a party and the making of the Borrowings hereunder,
(b) the execution, delivery and performance by Holdings, the Borrower and the Subsidiaries party
thereto of Amendment No. 1 to the Senior Secured Asset-Based Revolving Credit Facility and all
other documents entered into in connection therewith, (c) the execution, delivery and performance
by all parties thereto of the Intercreditor Agreement, (d) the Existing Debt Refinancing, (e) the
payment of the Special Dividend and (f) the payment of the Transaction Costs.
38
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.
UCC means the Uniform Commercial Code as in effect from time to time in the State of New
York or any other state the laws of which are required to be applied in connection with the issue
of perfection of security interests.
United States Tax Compliance Certificate has the meaning assigned to such term in Section
2.15(e)(i)(C).
Unliquidated Obligations means, at any time, any Secured Obligations (or portion thereof)
that are contingent in nature or unliquidated at such time, including any Secured Obligation that
is: (i) an obligation to reimburse a bank for drawings not yet made under a letter of credit issued
by it; (ii) any other obligation (including any guarantee) that is contingent in nature at such
time; or (iii) an obligation to provide collateral to secure any of the foregoing types of
obligations, but excluding unripened or contingent obligations related to indemnification under
Section 9.03 for which no written demand has been made.
Unrestricted Subsidiary means any subsidiary of the Borrower designated by the board of
directors of the Borrower as an Unrestricted Subsidiary pursuant to Section 9.19 subsequent to the
Closing Date.
USA PATRIOT Act means The Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed
into law October 26, 2001)), as amended or modified from time to time.
Weston means Weston Presidio Service LLC and shall include any fund affiliated with Weston
Presidio Service LLC.
Weighted Average Life to Maturity means, when applied to any Indebtedness, Disqualified
Capital Stock or Preferred Stock, as the case may be, at any date, the quotient obtained by
dividing (1) the sum of the products of the number of years from the date of determination to the
date of each successive scheduled principal payment of such Indebtedness or redemption or similar
payment with respect to such Disqualified Capital Stock or Preferred Stock multiplied by the amount
of such payment, by (2) the sum of all such payments.
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 Term Loan) or by Type (e.g., a LIBO Rate
Loan or a LIBO Rate Borrowing).
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.
39
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, amended and restated, supplemented or otherwise modified
(subject to any restrictions on such amendments, amendment and restatements, 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, (e) in the computation of periods of time from a specified date to a later
specified date, the word from means from and including,
the words to and including and (f) 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. Effectuation of Transactions. Each of the representations and warranties of
the Loan Parties contained in this Agreement (and all corresponding definitions) are made after
giving effect to the Transactions, unless the context otherwise requires.
Section 1.05. Accounting Terms; GAAP. (a) Except as otherwise expressly provided herein, all
financial statements to be delivered pursuant to this Agreement shall be prepared in accordance
with GAAP as in effect from time to time and all terms of an accounting or financial nature that
are used in the computation of any covenant (including the computation of any financial covenant)
set forth in any Loan Document shall be construed and interpreted in accordance with GAAP, as in
effect on September 30, 2010, unless otherwise agreed to by the Borrower and the Required Lenders.
Section 1.06. Timing of Payment of Performance. Except as otherwise provided herein, when
payment of any obligation or the performance of any covenant, duty or obligation is stated to be
due or performance required on a day which is not a Business Day, the date of such payment (other
than as described in the definition of Interest Period) or performance shall extend to the
immediately succeeding Business Day.
ARTICLE 2
The Credits
Section 2.01. Commitments. Subject to the terms and conditions set forth herein:
(a) each Term Lender agrees, severally and not jointly, to make a Term Loan to the Borrower on
the Closing Date, in a principal amount equal to its Term Loan Commitment; provided that the gross
proceeds required to be funded by each Term Lender with respect to its Term Loans shall be equal to
99.0% of the principal amount of such Term Loan. Amounts prepaid or repaid in respect of Term
Loans may not be reborrowed.
40
(b) each Lender having an Incremental Term Loan Commitment agrees, subject to the terms and
conditions set forth in the applicable Incremental Assumption Agreement, to make Incremental Term
Loans to the Borrower, in an aggregate principal amount equal to its Incremental Term Loan
Commitment.
Section 2.02. Loans and Borrowings. (a) Each Loan shall be made as part of a Borrowing
consisting of Loans of the same Type made by the Lenders ratably in accordance with their
respective Commitments. The failure of any Lender to make any Loan required to be made by it shall
not relieve any other Lender of its obligations hereunder; provided that the Commitments of the
Lenders are several and no Lender shall be responsible for any other Lenders failure to make Loans
as required.
(b) Subject to Section 2.12, each Borrowing shall be comprised entirely of ABR Loans or LIBO
Rate Loans as the Borrower may request in accordance herewith. Each Lender at its option may make
any LIBO Rate Loan by causing any domestic or foreign branch or Affiliate of such Lender to make
such Loan; provided that (i) any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan in accordance with the terms of this Agreement, (ii) such LIBO Rate
Loan shall be deemed to have been made and held by such Lender, and the obligation of the Borrower
to repay such LIBO Rate Loan shall nevertheless be to such Lender for the account of such domestic
or foreign branch or Affiliate of such Lender, (iii) the making of such LIBO Rate Loan by such
domestic or foreign branch or Affiliate of such Lender shall not result in any additional tax
liability to the Borrower, and (iv) in exercising such option, such Lender shall use reasonable
efforts to minimize any increase in the Adjusted LIBO Rate or increased costs to the Borrower
resulting therefrom (which obligation of such Lender shall not require it to take, or refrain from
taking, actions that it determines would result in increased costs for which it will not be
compensated hereunder or that it otherwise determines would be disadvantageous to it and in the
event of such request for costs for which compensation is provided under this Agreement, the
provisions of Section 2.13 shall apply).
(c) At the commencement of each Interest Period for any LIBO Rate Borrowing, such Borrowing
shall comprise an aggregate principal amount that is an integral multiple of $100,000 and not less
than $1,000,000. Each ABR Borrowing when made shall be in a minimum principal amount of $100,000;
provided that an ABR Borrowing may be maintained in a lesser amount equal to the difference between
the aggregate principal amount of all other Borrowings and the total amount of Loans at such time
outstanding. Borrowings of more than one Type may be outstanding at the same time; provided that
there shall not at any time be more than a total of five (5) different Interest Periods in effect
for LIBO Rate Borrowings at any time outstanding.
(d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled
to elect to convert or continue any Borrowing if the Interest Period requested with respect thereto
would end after the Maturity Date (or the Incremental Term Facility Maturity Date with respect to
Incremental Term Loans, if any).
Section 2.03. Request for Borrowing on the Closing Date. (a) To request the making of the
Loans hereunder on the Closing Date, the Borrower shall notify the Administrative Agent of
41
such
request either in writing by delivery of a Borrowing Request (by hand or facsimile) signed by the
Borrower or by telephone not later than 12:00 noon, New York City time, two (2) Business Days
before the proposed Closing Date (or such later time as shall be acceptable to the Administrative
Agent). A telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by
hand delivery or facsimile to the Administrative Agent of a written Borrowing Request signed by the
Borrower. Each such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.01:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of the Borrowing, which shall be a Business Day;
(iii) whether the Borrowing is to be an ABR Borrowing or a LIBO Rate Borrowing;
(iv) in the case of a LIBO Rate Borrowing, the initial Interest Period to be applicable
thereto, which shall be a period contemplated by the definition of the term Interest
Period; and
(v) the location and number of the Borrowers account or any other designated account
to which funds are to be disbursed.
(b) If no election as to the Type of Borrowing is specified, then the requested Borrowing
shall be an ABR Borrowing. If no Interest Period is specified with respect to any LIBO Rate
Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one months
duration. Promptly following receipt of the Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the amount of such
Lenders Loan to be made as part of the requested Borrowing.
Section 2.04. Funding of the Borrowing on the Closing Date. (a) Each Lender shall make the
Loan to be made by it hereunder on the Closing Date by wire transfer of immediately available funds
by 12:00 (noon), New York City time, to the account of the Administrative Agent most recently
designated by it for such purpose by notice to the Lenders, in an amount equal to such Lenders
Applicable Percentage of the aggregate principal amount of the Loans made on the Closing Date.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the
Closing Date that such Lender will not make available to the Administrative Agent such Lenders
share of the Borrowing on the Closing Date, the Administrative Agent may assume that such Lender
has made such share available on the Closing Date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a corresponding amount.
In such event, if a Lender has not in fact made its share of the Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand (without duplication) such corresponding amount with
interest thereon, for each day from and including the date such
42
amount
is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of
such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in
the case of the Borrower, the interest rate applicable to ABR Loans. If such Lender pays such
amount to the Administrative Agent, then such amount shall constitute such Lenders Loan included
in the Borrowing on the Closing Date. Nothing herein shall be deemed to relieve any Lender from
its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent
or the Borrower or any Loan Party may have against any Lender as a result of any default by such
Lender hereunder.
Section 2.05. Type; Interest Elections. (a) The Loans initially shall be of the Type
specified in the Borrowing Request and, in the case of a LIBO Rate Borrowing, shall have an initial
Interest Period (not to exceed two (2) months duration) as specified in such Borrowing
Request. Thereafter, the Borrower may elect to convert all or any portion of any Borrowing
(subject to the minimum amounts for Borrowings of the applicable Type specified in Section 2.02(c))
to a different Type or to continue such Borrowing and, in the case of a LIBO Rate Borrowing, may
elect Interest Periods therefor, all as provided in this Section. The Borrower 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.
(b) To make an election pursuant to this Section, the Borrower shall notify the Administrative
Agent of such election by telephone (i) in the case of an election to convert to or continue as a
LIBO Rate Borrowing, not later than 12:00 noon, New York City time, three (3) Business Days before
the date of the proposed conversion or continuation or (ii) in the case of an election to convert
to or continue as an ABR Borrowing, not later than 12:00 noon, New York City time, one Business Day
prior to the date of the proposed conversion or continuation. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand delivery or facsimile
to the Administrative Agent of a written Interest Election Request in a form approved by the
Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02(c):
(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;
43
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a LIBO Rate
Borrowing; and
(iv) if the resulting Borrowing is a LIBO Rate 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 LIBO Rate Borrowing but does not specify an
Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one (1)
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 the Borrower fails to deliver a timely Interest Election Request with respect to a LIBO
Rate Borrowing 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. 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 Borrower, then, so long as an Event of Default is continuing (i) no
outstanding Borrowing may be converted to or continued as a LIBO Rate Borrowing and (ii) unless
repaid, each LIBO Rate Borrowing shall be converted to an ABR Borrowing at the end of the then
current Interest Period applicable thereto.
Section 2.06. Termination of Commitments. The Term Loan Commitments shall automatically
terminate upon the making of the Term Loans on the Closing Date.
Section 2.07. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby unconditionally
promises to pay to the Administrative Agent for the account of each Lender the then unpaid
principal amount of each Term Loan, if any, on the Term Loan Maturity Date and the then unpaid
principal amount of each other Loan on the applicable Maturity Date for such Loans. The Borrower
shall pay to the Administrative Agent, for the account of the Lenders, on the dates set forth
below, or if any such date is not a Business Day, on the next preceding Business Day (each such
date being called a Repayment Date and such payments being called Scheduled Loan Repayments) a
principal amount of the Term Loans (as adjusted from time to time pursuant to Sections 2.08,
2.09(e) and 2.19(e) equal to the amount set forth below for such date), together in each case with
accrued and unpaid interest on the principal amount to be paid to but excluding the date of such
payment:
44
|
|
|
|
|
Repayment Date |
|
Amount |
|
December 31, 2010 |
|
$ |
1,687,500 |
|
March 31, 2011 |
|
$ |
1,687,500 |
|
June 30, 2011 |
|
$ |
1,687,500 |
|
September 30, 2011 |
|
$ |
1,687,500 |
|
December 31, 2011 |
|
$ |
1,687,500 |
|
March 31, 2012 |
|
$ |
1,687,500 |
|
June 30, 2012 |
|
$ |
1,687,500 |
|
September 30, 2012 |
|
$ |
1,687,500 |
|
December 31, 2012 |
|
$ |
1,687,500 |
|
March 31, 2013 |
|
$ |
1,687,500 |
|
June 30, 2013 |
|
$ |
1,687,500 |
|
September 30, 2013 |
|
$ |
1,687,500 |
|
December 31, 2013 |
|
$ |
1,687,500 |
|
March 31, 2014 |
|
$ |
1,687,500 |
|
June 30, 2014 |
|
$ |
1,687,500 |
|
September 30, 2014 |
|
$ |
1,687,500 |
|
December 31, 2014 |
|
$ |
1,687,500 |
|
March 31, 2015 |
|
$ |
1,687,500 |
|
June 30, 2015 |
|
$ |
1,687,500 |
|
September 30, 2015 |
|
$ |
1,687,500 |
|
December 31, 2015 |
|
$ |
1,687,500 |
|
March 31, 2016 |
|
$ |
1,687,500 |
|
June 30, 2016 |
|
$ |
1,687,500 |
|
September 30, 2016 |
|
$ |
1,687,500 |
|
December 31, 2016 |
|
$ |
1,687,500 |
|
March 31, 2017 |
|
$ |
1,687,500 |
|
June 30, 2017 |
|
$ |
1,687,500 |
|
September 30, 2017 |
|
$ |
1,687,500 |
|
Maturity Date |
|
All amounts outstanding |
(b) In the event that any Incremental Term Loans are made on an Increased Amount Date (as
defined in Section 2.19), the Borrower shall repay such Incremental Term Loans on the dates and in
the amounts set forth in the applicable Incremental Assumption Agreement.
(c) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such
Lender, including the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
(d) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder, the Class and Type thereof and the Interest Period (if any) applicable
thereto, (ii) the amount of any principal or interest due and payable or to become due and payable
from the Borrower 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.
45
(e) The entries made in the accounts maintained pursuant to paragraph (c) or (d) of this
Section shall be prima facie evidence of the existence and amounts of the obligations recorded
therein (absent manifest error); provided that the failure of any Lender or the Administrative
Agent to maintain such accounts or any manifest error therein shall not in any manner affect the
obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement. In
the event of any conflict between the Register and the accounts and records of any Lender or the
Administrative Agent in respect of such matters, the Register shall control in the absence of
manifest error.
(f) Any Lender may request that Loans made by it be evidenced by a promissory note. In such
event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to
such Lender and its registered assigns and in substantially the form of Exhibit F hereto.
Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or more promissory
notes in such form payable to the payee named therein and its registered assigns.
Section 2.08. Optional Prepayment of Loans. (a) Upon prior notice in accordance with
paragraph (b) of this Section, the Borrower shall have the right at any time and from time to time
to prepay any Borrowing without premium or penalty in whole or in part (but subject to Section
2.10(b) and Section 2.14).
(b) The Borrower shall notify the Administrative Agent by telephone (confirmed by facsimile)
of any prepayment hereunder (i) in the case of prepayment of a LIBO Rate Borrowing, not later than
12:00 noon, New York City time, three (3) Business Days before the date of prepayment or (ii) in
the case of prepayment of an ABR Borrowing, not later than 12:00 noon, New York City time, one
Business Day prior to the day of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date and the principal amount of each Borrowing or portion thereof to be
prepaid; provided, that a notice of prepayment delivered by the Borrower may state that such notice
is conditioned upon the effectiveness of other transactions, in which case such notice may be
revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied. Promptly following receipt of any such notice
relating to a prepayment, 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 a Borrowing of the same Type as provided in Section 2.02. Each prepayment made
pursuant to this Section 2.08 shall be applied as directed by the Borrower, provided that any
optional prepayment of Loans shall be applied first to ABR Loans to the full extent thereof before
application to any LIBO Rate Loans in a manner that minimizes the amount of payments to be made by
the Borrower pursuant to Section 2.14.
(c) In the event that, on or prior to the first anniversary of the Closing Date, the Borrower
(x) prepays, refinances, substitutes or replaces any Term Loans in connection with a Repricing
Transaction (including, for avoidance of doubt, any prepayment made pursuant to Section 2.09(c)
that constitutes a Repricing Transaction), or (y) effects any amendment of this Agreement resulting
in a Repricing Transaction, the Borrower shall pay to the Administrative Agent, for the ratable
account of each of the applicable Lenders, (I) in the case of clause (x), a
46
prepayment premium of
1.00% of the aggregate principal amount of the Term Loans so prepaid, refinanced, substituted or
replaced and (II) in the case of clause (y), a fee equal to 1.00% of the aggregate principal amount
of the applicable Term Loans outstanding immediately prior to such amendment. Such amounts shall
be due and payable on the date of effectiveness of such Repricing Transaction.
Section 2.09. Mandatory Prepayment of Term Loans. (a) No later than ten (10) Business Days
after the date on which the financial statements with respect to each fiscal year of the Borrower
are required to be delivered pursuant to Section 5.01(a), commencing with the fiscal year ending on
December 31, 2011, the Borrower shall prepay outstanding Term Loans in an aggregate principal
amount equal to (A) 50% of Excess Cash Flow for the fiscal year then ended, minus (B) the amount of
any prepayments of Term Loans made pursuant to Section 2.08 during such fiscal year (other than any
buybacks made pursuant to Section 9.04(h)), except to the extent that such prepayments were
financed with the proceeds of other Indebtedness of the Borrower or its Subsidiaries; provided that
(i) such percentage of Excess Cash Flow shall be reduced to 25% of such Excess Cash Flow if the
Leverage Ratio at the end of such fiscal year
shall be equal to or less than 3.50 to 1.00, but greater than 2.50 to 1.00, and (ii) such
prepayment shall not be required if the Leverage Ratio at the end of such fiscal year shall be
equal to or less than 2.50 to 1.00.
(b) (i) Not later than the third Business Day following the receipt of Net Proceeds in
respect of any Asset Sale, the Borrower shall apply an amount equal to 100% of the Net Proceeds
received with respect thereto to prepay outstanding Term Loans in accordance with Section 2.09(e),
provided, that if at the time that any such prepayment would be required, the Borrower is required
to offer to repurchase Permitted First Priority Refinancing Debt (or any Permitted Refinancing
thereof that is secured on a pari passu basis with the Obligations) pursuant to the terms of the
documentation governing such Indebtedness with Net Proceeds (such Permitted First Priority
Refinancing Debt (or Permitted Refinancing thereof) required to be offered to be so repurchased,
Other Applicable Indebtedness), then the Borrower may apply such excess Net Proceeds on a pro
rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans
and Other Applicable Indebtedness at such time; provided, that the portion of such excess Net
Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such excess
Net Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms
thereof, and the remaining amount, if any, of such excess Net Proceeds shall be allocated to the
Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the
repurchase of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that
would have otherwise been required pursuant to this Section 2.09(b)(i) shall be reduced
accordingly; provided further, that to the extent the holders of Other Applicable Indebtedness
decline to have such indebtedness repurchased, the declined amount shall promptly (and in any event
within 10 Business Days after the date of such rejection) be applied to prepay the Term Loans in
accordance with the terms hereof.
(ii) Not later than the third Business Day following the receipt of Net
Insurance/Condemnation Proceeds in excess of $5,000,000 arising from any event or
47
series of
related events or in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an
amount equal to 100% of such excess Net Insurance/Condemnation Proceeds to prepay
outstanding Term Loans in accordance with Section 2.09(e), provided, that if at the time
that any such prepayment would be required, the Borrower is required to offer to repurchase
Other Applicable Indebtedness pursuant to the terms of the documentation governing such
indebtedness with Net Insurance/Condemnation Proceeds, then the Borrower may apply such
excess Net Insurance/Condemnation Proceeds on a pro rata basis (determined on the basis of
the aggregate outstanding principal amount of the Term Loans and Other Applicable
Indebtedness at such time; provided, that the portion of such excess Net
Insurance/Condemnation Proceeds allocated to the Other Applicable Indebtedness shall not
exceed the amount of such excess Net Insurance/Condemnation Proceeds required to be
allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the
remaining amount, if any, of such excess Net Insurance/Condemnation Proceeds shall be
allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the
Term Loans and to the repurchase of Other Applicable Indebtedness, and the amount of
prepayment of the Term Loans that
would have otherwise been required pursuant to this Section 2.09(b)(ii) shall be
reduced accordingly; provided further, that to the extent the holders of Other Applicable
Indebtedness decline to have such indebtedness repurchased, the declined amount shall
promptly (and in any event within 10 Business Days after the date of such rejection) be
applied to prepay the Term Loans in accordance with the terms hereof.
(c) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net
Proceeds from the issuance or incurrence of Indebtedness for money borrowed of any Loan Party or
any Subsidiary of a Loan Party (other than any cash proceeds from the issuance of Indebtedness for
money borrowed permitted pursuant to Section 6.01 (other than clause (i) of Section 6.01(z) or
clause (i) of Section 6.01(aa)), the Borrower shall, substantially simultaneously with (and in any
event not later than the third Business Day next following) (or, in the case of Credit Agreement
Refinancing Indebtedness, on the date of) the receipt of such Net Proceeds by such Loan Party or
such Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay outstanding Term
Loans in accordance with Section 2.09(d).
(d) Except as may otherwise be set forth in any amendment contemplated by Section 2.21(c), any
Refinancing Amendment or any Incremental Amendment, each prepayment of Term Loans pursuant to
Section 2.09 shall be applied ratably to each Class of Term Loans then outstanding; provided, that
any prepayment of Term Loans pursuant to the parenthetical in Section 2.09(c) shall be applied
solely to the applicable Refinanced Debt.
(e) Each Lender may elect, by notice to the Administrative Agent at or prior to the time and
in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required
to be made by the Borrower pursuant to this Section 2.09, to decline all (but not a portion) of its
Pro Rata Share of or other applicable share of such prepayment (such declined amounts, the
Declined Proceeds); provided that, for the avoidance of doubt, no Lender may reject any
prepayment made with proceeds of Indebtedness permitted under clause (i) of Section 6.01(z) or
clause (i) of Section 6.01(aa). With respect to each Class of Term Loans, all accepted
48
prepayments
shall be applied to the repayment of the next eight scheduled repayments of such Loans (in the case
of the Term Loans, required pursuant to Section 2.07) in direct order of maturity and then to the
extent of any excess, ratably to the remaining scheduled repayments of such Loans (in the case of
the Term Loans, required pursuant to Section 2.07); and each such prepayment shall be paid to the
Lenders in accordance with their respective Pro Rata Share, subject to this Section 2.09(e) and
with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied
on a pro rata basis to the then outstanding Loans being prepaid irrespective of whether such
outstanding Loans are ABR Term Loans or Adjusted LIBO Rate Term Loans; provided that if no Lenders
exercise their right to waive a given mandatory prepayment, the amount thereof shall be applied
first to ABR Term Loans to the full extent thereof before application to LIBO Rate Term Loans in a
manner that minimizes the amount of any payments required to be made by the Borrower pursuant to
Section 2.14. Thereafter, the remaining Declined Proceeds may be retained by the Borrower.
(f) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment
required under this Section 2.09, (i) a certificate signed by a Financial Officer of the
Borrower setting forth in reasonable detail the calculation of the amount of such prepayment
and (ii) to the extent practicable, at least three (3) Business Days prior written notice of such
prepayment. Each notice of prepayment shall specify the prepayment date, the Type and Class of
each Term Loan being prepaid and the principal amount of each Term Loan (or portion thereof) to be
prepaid. Prepayments shall be accompanied by accrued interest as required by Section 2.11. All
prepayments of Borrowings under this Section 2.09 shall be subject to Section 2.14, but shall
otherwise be without premium or penalty.
Section 2.10. Fees. (a) The Borrower agrees to pay to the Administrative Agent, for its own
account, the agency fees set forth in the Fee Letter, payable in the amounts and at the times
specified therein or as so otherwise agreed upon by the Borrower and the Administrative Agent, or
such agency fees as may otherwise be separately agreed upon by the Borrower and the Administrative
Agent.
(b) Upon and as a condition to any optional prepayment of the Term Loans pursuant to Section
2.08 (in whole or in part) any time prior to the first anniversary of the Closing Date (other than
with the proceeds of an underwritten initial public offering of common stock of Holdings or the
Borrower or an optional prepayment of the Term Loan in full substantially contemporaneous with a
Change of Control), the Borrower shall pay a premium equal to 1.00% of the principal amount
prepaid.
Section 2.11. Interest. (a) The Loans comprising each ABR Borrowing shall bear interest at
the Alternate Base Rate plus the Applicable Margin.
(b) The Loans comprising each LIBO Rate Borrowing shall bear interest at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable Margin.
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(c) During the continuance of a Default under Section 7.01(a) or an Event of Default under
Section 7.01(f) or Section 7.01(g), 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 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; 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, 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 LIBO Rate Loan prior to 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
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, Adjusted
LIBO Rate or LIBO Rate shall be determined by the Administrative Agent, and such determination
shall be conclusive absent manifest error.
Section 2.12. Alternate Rate of Interest. If prior to the commencement of any Interest
Period for a LIBO Rate Borrowing:
(a) the Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO
Rate or the LIBO Rate, as applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or
the LIBO Rate, as applicable, for such Interest Period will not adequately and fairly reflect the
cost to such Lenders of making or maintaining their Loans included in such Borrowing for such
Interest Period;
then the Administrative Agent shall promptly give notice thereof to the Borrower and the Lenders by
telephone or facsimile as promptly as practicable thereafter and, until the Administrative Agent
notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist (which the Administrative Agent agrees promptly to do), any Interest Election Request that
requests the conversion of any Borrowing to, or continuation of any Borrowing as, a LIBO Rate
Borrowing shall be ineffective and such Borrowing shall be converted to an ABR Borrowing on the
last day of the Interest Period applicable thereof.
Section 2.13. Increased Costs. (a) If any Change in Law shall:
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(i) impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any other condition affecting
this Agreement or LIBO Rate Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any LIBO Rate Loan or to reduce the amount of any sum received or receivable by such
Lender hereunder (whether of principal, interest or otherwise), then, following delivery of the
certificate contemplated by paragraph (c) of this Section, the Borrower will pay to such Lender
such additional amount or amounts as will compensate such Lender for such additional costs incurred
or reduction suffered (except for any Taxes, which shall be dealt with exclusively pursuant to
Section 2.15); provided, however, that the Borrower shall not be liable for such compensation if
(i) the relevant Change in Law occurs on a date prior to the date such Lender becomes a party
hereto, or (ii) the Lender invokes Section 2.18.
(b) If any Lender determines that any Change in Law regarding capital requirements has or
would have the effect of reducing the rate of return on such Lenders capital or on the capital of
such Lenders holding company, if any, as a consequence of this Agreement or the Loans made by such
Lender to a level below that which such Lender or such Lenders holding company could have achieved
but for such Change in Law (other than due to Taxes, which shall be dealt with exclusively pursuant
to Section 2.15) (taking into consideration such Lenders policies and the policies of such
Lenders holding company with respect to capital adequacy), then from time to time following
delivery of the certificate contemplated by paragraph (c) of this Section the Borrower will pay to
such Lender such additional amount or amounts as will compensate such Lender or such Lenders
holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts necessary to compensate such
Lender or its holding company as specified in paragraph (a) or (b) of this Section and setting
forth in reasonable detail the manner in which such amount or amounts was determined shall be
delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within ten (10) days after receipt
thereof.
(d) Failure or delay on the part of any Lender to demand compensation pursuant to this Section
shall not constitute a waiver of such Lenders right to demand such compensation; provided that the
Borrower shall not be required to compensate a Lender pursuant to this Section for any increased
costs or reductions incurred more than 180 days prior to the date that such Lender notifies the
Borrower of the Change in Law giving rise to such increased costs or reductions and of such
Lenders intention to claim compensation therefor; provided further that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the 180-day period referred
to above shall be extended to include the period of retroactive effect thereof.
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Section 2.14. Break Funding Payments. In the event of (a) the payment of any principal of
any LIBO Rate Loan other than on the last day of an Interest Period applicable thereto (including
as a result of an Event of Default but except as provided in Section 2.18), (b) the conversion of
any LIBO Rate Loan other than on the last day of the Interest Period applicable thereto, (c) the
failure to borrow, convert, continue or prepay any LIBO Rate Loan on the date specified in any
notice delivered pursuant hereto, or (d) the assignment of any LIBO Rate Loan other than on the
last day of the Interest Period applicable thereto as a result of a request by the Borrower
pursuant to Section 2.17, then, in any such event, the Borrower shall compensate each Lender for
the loss, cost and expense attributable to such event (other than loss of profit). In the case of
a LIBO Rate Loan, such loss, cost or expense to any Lender shall be deemed to be the amount
reasonably determined by such Lender to be the excess, if any, of (i) the amount of interest which
would have accrued on the principal amount of such Loan had such event not occurred, at the
Adjusted LIBO Rate that would have been applicable to such Loan, for the period from the date of
such event to the last day of the then current Interest Period therefor (or, in the case of a
failure to borrow, 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 dollar deposits of a comparable amount and period from other banks in the eurodollar
market. A certificate of any Lender setting forth any amount or amounts that such Lender is
entitled to receive pursuant to this Section and the basis therefor and setting forth in reasonable
detail the manner in which such amount or amounts was determined shall be delivered to the Borrower
and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown
as due on any such certificate within ten (10) Business Days after receipt thereof.
Section 2.15. Taxes. (a) Any and all payments by or on account of any obligation of any
Loan Party hereunder shall be made free and clear of and without deduction for any Indemnified
Taxes or Other Taxes; provided that if a Loan Party shall be required to deduct any Indemnified
Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as necessary
so that after making all required deductions (including deductions applicable to additional sums
payable under this Section) the Administrative Agent or Lender (as applicable) receives an amount
equal to the sum it would have received had no such deductions been made, (ii) such Loan Party
shall make such deductions and (iii) such Loan Party shall timely pay the full amount deducted to
the relevant Governmental Authority in accordance with applicable law. If at any time a Loan Party
is required by applicable law to make any deduction or withholding from any sum payable hereunder,
such Loan Party shall promptly notify the relevant Lender or Administrative Agent upon becoming
aware of the same. In addition, each Lender or the Administrative Agent shall promptly notify a
Loan Party upon becoming aware of any circumstances as a result of which a Loan Party is or would
be required to make any deduction or withholding from any sum payable hereunder.
(b) In addition, the Loan Parties shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law excluding, in each case, such amounts that result from
an Agent or Lenders Assignment and Assumption, grant of a Participation, transfer or assignment to
or designation of a new applicable lending office or other
52
office for receiving payments under any Loan Document (collectively, Assignment Taxes)
except for Assignment Taxes resulting from assignment or participation that is requested in writing
by the Borrower.
(c) Each Loan Party shall indemnify each Agent and each Lender, within ten (10) days after
written demand therefor (setting forth in reasonable detail the basis and calculation of
such amounts), for the full amount of any Indemnified Taxes or Other Taxes paid by such Agent or
such Lender, as applicable, on or with respect to any payment by or on account of any obligation of
such Loan Party hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other
Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority,
provided that if the Loan Party reasonably believes that such Taxes were not correctly or legally
asserted, the Agent, Lender or Issuing Bank, as applicable, will use reasonable efforts to
cooperate (including, when appropriate, by promptly applying for a refund) with the Loan Party to
obtain a refund of such Taxes (which shall be repaid to the Loan Party in accordance with Section
2.15(f)) so long as such efforts would not, in the sole determination of such Agent, Lender or
Issuing Bank cause the Lender or Agent, as applicable, to suffer any material economic, legal or
regulatory disadvantage (the Borrower shall reimburse the Lender or Agent, as applicable, for all
reasonable out-of-pocket expenses of the Lender or Agent incurred in pursuing such refund);
provided, further, that the Loan Party shall not be required to compensate any Agent, Lender or
Issuing Bank pursuant to this Section 2.15 for any amounts incurred more than one hundred and
eighty (180) days prior to the date that such Agent or Lender notifies the Borrower of the event
that gives rise to such claim; provided, further, that if the circumstances giving rise to such
claim have a retroactive effect (e.g., in connection with the audit of a prior tax year), then the
beginning of such one hundred and eighty (180) day period shall be extended to include such period
of retroactive effect. A certificate as to the amount of such payment or liability (setting forth
in reasonable detail the basis and calculation of such amounts) delivered to the Borrower by a
Lender, or by an Agent on its own behalf or on behalf of a Lender, shall be conclusive absent
manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by a Loan
Party to a Governmental Authority, such Loan Party shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Each Lender shall deliver to the Borrower and to the Administrative Agent, at the time or
times prescribed by applicable law, and otherwise whenever reasonably requested by the Borrower or
the Administrative Agent, such properly completed and duly executed documentation prescribed by
applicable Laws and such other reasonably requested information as will permit the Borrower or the
Administrative Agent, as the case may be, (A) to determine, if applicable, the required rate of
withholding or deduction and (B) to establish such Lenders entitlement to any available exemption
from, or reduction of, applicable Taxes in respect of any payments to be made to such Lender
pursuant to any Loan Document or otherwise to establish
53
such Lenders status for withholding tax purposes in an applicable jurisdiction. In addition,
each Lender and Agent shall deliver to the Borrower and the Administrative Agent such other tax
forms or other documents as shall be prescribed by applicable Law, to the extent applicable, (x) to
demonstrate that payments to such Lender or Agent under this Agreement and the other Loan Documents
are exempt from any United States federal withholding tax imposed pursuant to FATCA or (y) to allow
the Borrower and the Administrative Agent to determine the amount to deduct or withhold under FATCA
from a payment hereunder. Without limiting the generality of the foregoing:
(i) Any Foreign Lender and Agent that is not a United States person (as defined in
Section 7701(a)(30) of the Code) shall deliver to the Borrower and the Administrative Agent
on or before the date on which it becomes a party to this Agreement whichever of the
following is applicable:
(A) two properly completed and duly signed original copies of Internal Revenue
Service Form W-8BEN (or any successor forms) claiming eligibility for the benefits
of an income tax treaty to which the United States is a party, and such other
documentation as required under the Code,
(B) two properly completed and duly signed original copies of Internal Revenue
Service Form W-8ECI (or any successor forms) and, in the case of an Agent, a
withholding certificate that satisfies the requirements of Treasury Regulation
Sections 1.1441-1(b)(2)(iv) and 1.441-1(e)(3)(v) as applicable to a U.S. branch
that has agreed to be treated as a U.S. person for withholding tax purposes,
(C) in the case of a Lender claiming the benefits of the exemption for
portfolio interest under Section 881(c) of the Code, (A) a certificate
substantially in the form of Exhibit I (any such certificate a United States Tax
Compliance Certificate) and (B) two properly completed and duly signed original
copies of Internal Revenue Service Form W-8BEN, or
(D) to the extent a Lender is not the beneficial owner (for example, where the
Lender is a partnership, or is a participant holding a participation granted by a
participating Lender), Internal Revenue Service Form W-8IMY (or any successor
forms) of the Lender, accompanied by a Form W-8ECI, W-8BEN, United States Tax
Compliance Certificate, Form W-9, Form W-8IMY or any other required information
from each beneficial owner, as applicable (provided that, if one or more beneficial
owners are claiming the portfolio interest exemption, the United States Tax
Compliance Certificate may be provided by such Lender on behalf of such beneficial
owner).
(ii) Each Lender that is a United States person within the meaning of Section
7701(a)(30) of the Code agrees to deliver to the Borrower a duly completed and executed copy
of Internal Revenue Service Form W-9 or successor form establishing that
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such U.S. Lender is a United States person that is not subject to U.S. backup
withholding tax.
Each Lender and Agent shall deliver to the Borrower and the Administrative Agent two further
original copies of any previously delivered form or certification (or any applicable successor
form) on or before the date that any such form or certification expires or becomes obsolete or
inaccurate and promptly after the occurrence of any event requiring a change in the most recent
form previously delivered by it to the Borrower or the Administrative Agent, or promptly notify the
Borrower and the Administrative Agent that it is unable to do so. Each Lender and Agent shall
promptly notify the Administrative Agent at any time it determines that it is no longer in a
position to provide any previously delivered form or certification to the Borrower or the
Administrative Agent.
(f) If the Administrative Agent or a Lender determines, in its sole discretion, that it has
received a refund (whether received in cash or as an overpayment applied to a future Tax payment)
of any Indemnified Taxes or Other Taxes as to which it has been indemnified by a Loan Party or with
respect to which such Loan Party has paid additional amounts pursuant to this Section 2.15, it
shall pay over such refund to such Loan Party (but only to the extent of indemnity payments made,
or additional amounts paid, by such Loan Party under this Section 2.15, with respect to the Taxes
or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative
Agent or such Lender (including any Taxes imposed with respect to such refund) as is determined by
the Administrative Agent or such Lender in good faith in its reasonable discretion, and without
interest (other than any interest paid by the relevant Governmental Authority with respect to such
refund); provided, that such Loan Party, upon the request of the Administrative Agent or such
Lender, agrees to repay the amount paid over to such Loan Party (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such
Lender in the event the Administrative Agent or such Lender is required to repay such refund to
such Governmental Authority. This Section shall not be construed to 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 such Loan Party or any other Person.
Section 2.16. Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) Unless
otherwise specified, the Borrower shall make each payment required to be made by it hereunder
(whether of principal, interest or fees, or of amounts payable under Sections 2.13, 2.14 or 2.15,
or otherwise) prior to 1:30 p.m., New York City time, on the date when due, in immediately
available funds, without set-off or counterclaim. Any amounts received after such time on any date
may, in the discretion of the Administrative Agent, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon. All such payments shall be
made to the Administrative Agent to the applicable account designated to the Borrower by the
Administrative Agent, except that payments pursuant to Sections 2.13, 2.14, 2.15 and 9.03 may at
the Borrowers election be made directly to the Persons entitled thereto. The Administrative Agent
shall distribute any such payments received by it, except as otherwise provided, for the account of
any other Person to the appropriate recipient promptly following receipt thereof. Unless otherwise
specified, if any payment hereunder shall be due on a day that
55
is not a Business Day, the date for payment shall be extended to the next succeeding Business
Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the
period of such extension. All payments hereunder shall be made in Dollars. Any payment required
to be made by the Administrative Agent hereunder shall be deemed to have been made by the time
required if the Administrative Agent shall, at or before such time, have taken the necessary steps
to make such payment in accordance with the regulations or operating procedures of the clearing or
settlement system used by the Administrative Agent to make such payment.
(b) Subject in all respects to the provisions of the Intercreditor Agreement, all proceeds of
Collateral received by the Agents after an Event of Default has occurred and is continuing and all
or any portion of the Loans shall have been accelerated hereunder pursuant to Article 7, shall upon
election by the Agents or at the direction of the Required Lenders be applied, first, to, ratably,
pay any fees, indemnities, or expense reimbursements then due to the Agents, second, ratably, to
pay any fees or expense reimbursements then due to the Lenders from the Borrower, third, to pay
interest due and payable in respect of the Loans and any other Secured Obligations, ratably,
fourth, to (i) payment of that portion of the Obligations constituting unpaid principal of the
Loans and (ii) payment of breakage, termination and other amounts owing in respect of any Secured
Hedging Obligations between any Loan Party, on the one hand, and an Agent or any Lender or any of
their Affiliates, on the other hand, to the extent such Secured Hedging Obligations are permitted
hereunder, ratably, fifth, to the payment of any other Secured Obligation due to the Agents or any
Lender (or any Affiliate thereof) by the Borrower, sixth, as provided for under the Intercreditor
Agreement, and seventh, to the Borrower or as the Borrower shall direct.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Loans resulting in such
Lender receiving payment of a greater proportion of the aggregate amount of its Loans and accrued
interest thereon than the proportion received by any other Lender, then the Lender receiving such
greater proportion shall purchase (for cash at face value) participations in the Loans of other
Lenders at such time outstanding to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans; provided that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent of such recovery,
without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement
or any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans to any assignee or participant, other than to the Borrower or any
subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The
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 Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower in the amount of
such participation.
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(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of the Lenders that
the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has
made such payment on such date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith
on demand the amount so distributed to such Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by
the Administrative Agent in accordance with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to
Sections 2.03(a), 2.16(c) or 9.03(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.
Section 2.17. Mitigation Obligations; Replacement of Lenders. (a) If any Lender requests
compensation under Section 2.13 or such Lender determines it can no longer make or maintain LIBO
Rate Loans pursuant to Section 2.18, or if the Borrower is required to pay any additional amount to
any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.15,
then such Lender shall use reasonable efforts to designate a different lending office for funding
or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the reasonable judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.13 or 2.15, as
applicable, in the future and (ii) would not subject such Lender to any material unreimbursed cost
or expense and would not otherwise be disadvantageous to such Lender in any material respect. The
Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.13 or such Lender determines it can no
longer make or maintain LIBO Rate Loans pursuant to Section 2.18, or if the Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.15 or such Lender determines it can no longer make or maintain LIBO Rate
Loans pursuant to Section 2.18, then the Borrower may, at its sole expense and effort, upon notice
to such Lender and the Administrative Agent, replace such Lender by requiring such Lender to assign
and delegate (and such Lender shall be obligated to assign and delegate), without recourse (in
accordance with and subject to the restrictions contained in Section 9.04), all its interests,
rights and obligations under this Agreement to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) the
Borrower shall have received the prior written consent of the Administrative Agent (if such
assignee is not an existing 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,
accrued interest thereon, accrued fees and all
57
other amounts payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all other amounts) and
(iii) in the case of any such assignment resulting from a claim for compensation under Section 2.13
or payments required to be made pursuant to Section 2.15, such assignment will result in a
reduction in such compensation or payments. Each Lender agrees that if it is replaced pursuant to
this Section 2.17, it shall execute and deliver to the Administrative Agent an Assignment and
Assumption to evidence such sale and purchase and shall deliver to the Administrative Agent any
promissory note (if the assigning Lenders Loans are evidenced by promissory notes) subject to such
Assignment and Assumption; provided that the failure of any Lender replaced pursuant to this
Section 2.17 to execute an Assignment and Assumption shall not render such sale and purchase (and
the corresponding assignment) invalid.
Section 2.18. Illegality. If any Lender reasonably determines that any Change in Law has
made it unlawful, or that any Governmental Authority has asserted after the Closing Date that it is
unlawful, for such Lender or its applicable lending office to make or maintain any LIBO Rate Loans,
then, on notice thereof by such Lender to the Borrower through the Administrative Agent, any
obligations of such Lender to make or continue LIBO Rate Loans or to convert ABR Borrowings to LIBO
Rate Borrowings shall be suspended until such Lender notifies the Administrative Agent and the
Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of
such notice, the Borrower shall upon demand from such Lender (with a copy to the Administrative
Agent), either convert all LIBO Rate Borrowings of such Lender to ABR Borrowings, either on the
last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such
LIBO Rate Borrowings to such day, or immediately, if such Lender may not lawfully continue to
maintain such Loans (in which case the Borrower shall not be required to make payments pursuant to
Section 2.14 in connection with such payment). Upon any such prepayment or conversion, the
Borrower shall also pay accrued interest on the amount so prepaid or converted. Each Lender agrees
to designate a different lending office if such designation will avoid the need for such notice and
will not, in the determination of such Lender, otherwise be disadvantageous to it.
Section 2.19. Incremental Term Loan Commitments. (a) The Borrower may, by written notice to
the Administrative Agent (signed by a Responsible Officer of the Borrower) from time to time,
request Incremental Term Loan Commitments, in an aggregate amount not to exceed $175,000,000 from
one or more Incremental Term Lenders (which may include any existing Lender) willing to provide
such Incremental Term Loans in their own discretion. Such notice shall set forth (i) the amount of
the Incremental Term Loan Commitments being requested (which shall be in an aggregate amount of not
less than $10,000,000 and in integral multiples of $1,000,000 in excess thereof), (ii) the date on
which such Incremental Term Loan Commitments are requested to become effective (the Increased
Amount Date), (iii) whether such Incremental Term Loan Commitments are to be commitments to make
additional Term Loans or commitments to make term loans with pricing and/or amortization terms
different from the Term Loans (Other Term Loans).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the
Administrative Agent an Incremental Assumption Agreement and such other documentation as
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the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan
Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify
the terms of the applicable Incremental Term Loans; provided that (i) the Other Term Loans shall
rank pari passu or junior in right of payment and of security with the Term Loans and, except as to
pricing, amortization and final maturity date, shall have (x) the same terms as the Term Loans or
(y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the
final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date,
(iii) the terms applicable to each series of Other Term Loans shall not require any prepayment
thereof in excess of the pro rata share of such series relative to all Term Loans (including the
Term Loans made on the Closing Date and all other Term Loans) and (iv) the Weighted Average Life to
Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to
Maturity of the Term Loans. If the Applicable Margin (which, for purposes of this sentence only,
shall be deemed to include all upfront or similar fees or original issue discount payable to all
Lenders providing such Term Loans, as applicable) relating to any Incremental Term Loan Commitment
exceeds the Applicable Margin relating to the Term Loans immediately prior to the effectiveness of
the applicable Incremental Assumption Agreement by more than 0.50%, the Applicable Margin relating
to the Term Loans shall be adjusted to be equal to the Applicable Margin relating to such
Incremental Term Loan Commitment minus 0.50%.
(c) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental
Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent)
necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced
thereby as provided for in Section 9.02(f). Any such deemed amendment may be memorialized in
writing by the Administrative Agent with the Borrowers consent (not to be unreasonably withheld)
and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective
under this Section 2.19 unless (i) the Administrative Agent shall have received customary legal
opinions, board resolutions and other customary closing certificates and documentation as required
by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative
Agent, consistent with those delivered on the Closing Date under Section 4.01 and such additional
customary documents and filings (including amendments to the Mortgages and other Collateral
Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to
assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the
extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption
Agreement, junior to) the existing Term Loans, (ii) after giving effect to such Incremental Term
Loan Commitments and the Loans to be made thereunder and the application of the proceeds therefrom
as if made and applied on such date, the Senior Secured Leverage Ratio would be no greater than 4.0
to 1.0 and (iii) both before and after giving effect to such Incremental Term Loan Commitments and
the Loans to be made thereunder and the application of the proceeds therefrom as if made and
applied on such date, no Default or Event of Default shall have occurred and be continuing.
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(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and
all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than
Other Term Loans) in the form of additional Term Loans, when originally made, are included in each
Borrowing of outstanding Term Loans on a pro rata basis. The Borrower agrees that Section 2.16
shall apply to any conversion of LIBO Rate Loans to ABR Loans reasonably required by the
Administrative Agent to effect the foregoing. If any Incremental Term Loan is to be allocated to
an existing Interest Period for a LIBO Rate Loan, then the interest rate thereon for such Interest
Period and the other economic consequences thereof shall be as set forth in the applicable
Incremental Assumption Agreement. In addition, to the extent any Incremental Term Loans are not
Other Term Loans, the scheduled amortization payments under Section 2.07(a) required to be made
after the making of such Incremental Term Loans shall be ratably increased by the aggregate
principal amount of such Incremental Term Loans.
Section 2.20. Refinancing Amendments.
(a) At any time after the Closing Date, the Borrower may obtain, from any Lender or any other
bank, other financial institution or investor (any such other bank, other financial institution or
investor being called an Additional Lender), Credit Agreement Refinancing Indebtedness in respect
of all or any portion of the Term Loans then outstanding under this Agreement (which for purposes
of this clause (a) will be deemed to include any then outstanding Refinancing Term Loans,
Incremental Term Loans or Extended Term Loans), in the form of Refinancing Term Loans or
Refinancing Term Loan Commitments pursuant to a Refinancing Amendment; provided that such Credit
Agreement Refinancing Indebtedness (A) will rank pari passu in right of payment and of security
with the other Loans and Commitments hereunder, (B) will have such pricing and optional prepayment
terms as may be agreed by the Borrower and the Lenders thereof (provided, that such Credit
Agreement Refinancing Indebtedness may participate on a pro rata basis or on a less than pro rata
basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments
hereunder, as specified in the applicable Refinancing Amendment), (C) will have a maturity date
later than the maturity date of, and will have a Weighted Average Life to Maturity that is not
shorter than, the Term Loans being refinanced, (D) subject to clause (B) above, will have terms and
conditions that are substantially identical to, or less favorable to the lenders or investors
providing such Credit Agreement Refinancing Indebtedness than, the Refinanced Debt, (E) the
proceeds of such Credit Agreement Refinancing Indebtedness shall be applied, substantially
concurrently with the incurrence thereof, to the prepayment of outstanding Term Loans being so
refinanced; provided further that the terms and conditions applicable to such Credit Agreement
Refinancing Indebtedness may provide for any additional or different financial or other covenants
or other provisions that are agreed between the Borrower and the Lenders thereof and applicable
only during periods after the then Latest Maturity Date that is in effect on the date such Credit
Agreement Refinancing Indebtedness is issued, incurred or obtained and (F) the applicable yield
relating to any term loans incurred pursuant to such Refinancing Amendment (each facility
thereunder, the Refinanced Facility), as applicable, shall not exceed the applicable yield with
respect to the Term Loans by more than 0.50% per annum unless the yield applicable to the Term
Loans is increased so that the yield applicable to the applicable Refinanced Facility does not
exceed the yield applicable to the Term Loans by more than 0.50% per annum; provided that in
determining
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the yield applicable to the Term Loans and the applicable Refinanced Facility, (i) original
issue discount (OID) or upfront fees (which shall be deemed to constitute like amounts of OID)
payable by the Borrower to the Lenders of the Term Loans or the applicable Refinanced Facility in
the primary syndication thereof shall be included (with OID being equated to interest based on an
assumed four-year life to maturity or, if less, the remaining life to maturity of the applicable
Refinanced Facility), (ii) customary arrangement or commitment fees payable to the Bookrunners (or
their affiliates) in connection with the Term Loans or to one or more arrangers (or their
affiliates) of the applicable Refinanced Facility shall be excluded and (iii) if the Adjusted LIBO
Rate in respect of such Refinanced Facility includes a floor in excess of 1.50%, such excess shall
be equated to interest margin for purposes of determining any increase to the applicable yield
under the Term Loans. The effectiveness of any Refinancing Amendment shall be subject to the
satisfaction on the date thereof of each of the conditions set forth in Section 4.01 (and for
purposes thereof the incurrence of the Credit Agreement Refinancing Indebtedness shall be deemed to
be a Borrowing Request) and, to the extent reasonably requested by the Administrative Agent,
receipt by the Administrative Agent of customary legal opinions, board resolutions and officers
certificates, in each case consistent with those delivered on the Closing Date under Section 4.01
(other than changes to such legal opinions resulting from a change in law, change in fact or change
to counsels form of opinion reasonably satisfactory to the Administrative Agent), and customary
reaffirmation agreements. Each Class of Credit Agreement Refinancing Indebtedness incurred under
this Section 2.20(a) shall be in an aggregate principal amount that is (x) not less than
$25,000,000 and (y) an integral multiple of $1,000,000 in excess thereof. The Administrative Agent
shall promptly notify each Lender as to the effectiveness of each Refinancing Amendment. Each of
the parties hereto hereby agrees that, upon the effectiveness of any Refinancing Amendment, this
Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the
existence and terms of the Credit Agreement Refinancing Indebtedness incurred pursuant thereto
(including any amendments necessary to treat the Loans and Commitments subject thereto as
Refinancing Term Loans and/or Refinancing Term Loan Commitments).
(b) Any Refinancing Amendment may, without the consent of any other Lenders, effect such
amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in
the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of
this Section. Notwithstanding the foregoing, each of the Administrative Agent and the Collateral
Agent shall have the right (but not the obligation) to seek the advice or concurrence of the
Required Lenders with respect to any matter contemplated by this Section 2.20 and, if either the
Administrative Agent or the Collateral Agent seeks such advice or concurrence, it shall be
permitted to enter into such amendments with the Borrower in accordance with any instructions
actually received by such Required Lenders and shall also be entitled to refrain from entering into
such amendments with the Borrower unless and until it shall have received such advice or
concurrence; provided, however, that whether or not there has been a request by the Administrative
Agent or the Collateral Agent for any such advice or concurrence, all such amendments entered into
with the Borrower by the Administrative Agent or the Collateral Agent hereunder shall be binding
and conclusive on the Lenders.
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(c) This Section 2.20 shall supersede any provisions in Section 2.09, Section 2.16 or 9.02 to
the contrary.
Section 2.21. Extensions of Term Loans.
(a) Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers
(each, an Extension Offer) made from time to time by the Borrower to all Lenders of Term Loans
with a like Maturity Date on a pro rata basis (based on the aggregate outstanding principal amount
of the respective Term Loans with the same Maturity Date) and on the same terms to each such
Lender, the Borrower may from time to time with the consent of any Lender that shall have accepted
such offer extend the maturity date of any Term Loans and otherwise modify the terms of such Term
Loans of such Lender pursuant to the terms of the relevant Extension Offer (including, without
limitation, by increasing the interest rate or fees payable in respect of such Term Loans and/or
modifying the amortization schedule in respect of such Term Loans) (each, an Extension, and each
group of Term Loans as so extended, as well as the original Term Loans not so extended, being a
tranche; any Extended Term Loans shall constitute a separate tranche of Term Loans from the
tranche of Term Loans from which they were converted), so long as the following terms are
satisfied: (i) no Default shall exist at the time the notice in respect of an Extension Offer is
delivered to the Lenders, and no Default shall exist immediately prior to or after giving effect to
the effectiveness of any Extended Term Loans, (ii) except as to interest rates, fees, amortization,
final maturity date, premium, required prepayment dates and participation in prepayments (which
shall, subject to immediately succeeding clauses (iii), (iv) and (v), be determined by the Borrower
and set forth in the relevant Extension Offer), the Term Loans of any Term Lender (an Extending
Term Lender) extended pursuant to any Extension (Extended Term Loans) shall have the same terms
as the tranche of Term Loans subject to such Extension Offer, (iii) the final maturity date of any
Extended Term Loans shall be no earlier than the then Latest Maturity Date and the amortization
schedule applicable to Term Loans pursuant to Section 2.07 for periods prior to the Term Loan
Maturity Date may not be increased, (iv) the Weighted Average Life to Maturity of any Extended Term
Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans
extended thereby, (v) any Extended Term Loans may participate on a pro rata basis or on a less than
pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments
hereunder, as specified in the applicable Extension Offer, (vi) if the aggregate principal amount
of Term Loans (calculated on the face amount thereof) in respect of which Term Lenders shall have
accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of Term
Loans offered to be extended by the Borrower pursuant to such Extension Offer, then the Term Loans
of such Term Lenders shall be extended ratably up to such maximum amount based on the respective
principal amounts (but not to exceed actual holdings of record) with respect to which such Term
Lenders have accepted such Extension Offer, (vii) all documentation in respect of such Extension
shall be consistent with the foregoing, and (viii) any applicable Minimum Extension Condition shall
be satisfied unless waived by the Borrower.
(b) If, at the time any Extension becomes effective, not all of the Term Loans that were
subject to the applicable Extension Offer shall have been extended (such non-extended Term
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Loans with respect to any Extension, the Non-Extended Term Loans), then if the effective
interest rate (which, for this purpose, shall be reasonably determined by the Administrative Agent
and shall take into account any interest rate floors or similar devices and be deemed to include
(without duplication) all fees, including up front or similar fees or original issue discount
(amortized over the shorter of (x) the life of such new Extended Term Loans and (y) the four years
following the date of the respective Extension) payable to Lenders with such new Extended Term
Loans, but excluding any arrangement, structuring or other fees payable in connection therewith
that are not generally shared with the relevant extending Lenders) in respect of such new Extended
Term Loans shall at any time (over the life of such new Extended Term Loans) exceed the effective
interest rate applicable to the applicable Non-Extended Term Loans by more than 0.50% (determined
on the same basis as provided in the first parenthetical in this sentence), then the Applicable
Margin applicable to such Non-Extended Term Loans shall be increased to the extent necessary so
that at all times thereafter such Non-Extended Term Loans do not receive less effective interest
rate than the effective interest rate applicable to such new Extended Term Loans minus 0.50%.
(c) With respect to all Extensions consummated by the Borrower pursuant to this Section 2.21,
(i) such Extensions shall not constitute voluntary or mandatory payments or prepayments for
purposes of Section 2.08 or Section 2.09 and (ii) no Extension Offer is required to be in any
minimum amount or any minimum increment, provided that the Borrower may at its election specify as
a condition (a Minimum Extension Condition) to consummating any such Extension that a minimum
amount (to be determined and specified in the relevant Extension Offer in the Borrowers sole
discretion and may be waived by the Borrower) of Term Loans of any or all applicable tranches be
tendered. The Administrative Agent and the Lenders hereby consent to the Extensions and the other
transactions contemplated by this Section 2.21 (including, for the avoidance of doubt, payment of
any interest, fees or premium in respect of any Extended Term Loans on such terms as may be set
forth in the relevant Extension Offer) and hereby waive the requirements of any provision of this
Agreement (including, without limitation, Section 2.08, Section 2.09 and Section 2.16) or any other
Loan Document that may otherwise prohibit any such Extension or any other transaction contemplated
by this Section 2.21.
(d) The Lenders hereby irrevocably authorize the Administrative Agent and Collateral Agent to
enter into amendments to this Agreement and the other Loan Documents with the Borrower as may be
necessary in order to establish new tranches or sub-tranches in respect of Term Loans so extended
and such technical amendments as may be necessary or appropriate in the reasonable opinion of the
Administrative Agent and the Borrower in connection with the establishment of such new tranches or
sub-tranches, in each case on terms consistent with this Section 2.21. Notwithstanding the
foregoing, each of the Administrative Agent and the Collateral Agent shall have the right (but not
the obligation) to seek the advice or concurrence of the Required Lenders with respect to any
matter contemplated by this Section 2.21(d) and, if either the Administrative Agent or the
Collateral Agent seeks such advice or concurrence, it shall be permitted to enter into such
amendments with the Borrower in accordance with any instructions actually received by such Required
Lenders and shall also be entitled to refrain from entering into such amendments with the Borrower
unless and until it shall have received such advice or concurrence; provided, however, that whether
or not there has been a request by the
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Administrative Agent or the Collateral Agent for any such advice or concurrence, all such
amendments entered into with the Borrower by the Administrative Agent or the Collateral Agent
hereunder shall be binding and conclusive on the Lenders. Without limiting the foregoing, in
connection with any Extensions the respective Loan Parties shall (at their expense) amend (and the
Collateral Agent is hereby directed to amend) any Mortgage that has a maturity date prior to the
then Latest Maturity Date so that such maturity date is extended to the then Latest Maturity Date
(or such later date as may be advised by local counsel to the Collateral Agent).
(e) In connection with any Extension, the Borrower shall provide the Administrative Agent at
least 5 Business Days (or such shorter period as may be agreed by the Administrative Agent) prior
written notice thereof, and shall agree to such procedures, if any, as may be established by, or
acceptable to, the Administrative Agent, in each case acting reasonably to accomplish the purposes
of this Section 2.21.
(f) This Section 2.21 shall supersede any provisions in Section 2.09, 2.16 or Section 9.02 to
the contrary.
ARTICLE 3
Representations and Warranties
Each Loan Party represents and warrants to the Lenders that:
Section 3.01. Organization; Powers. Each of the Loan Parties and each of its Subsidiaries 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 own its property and assets and to carry on
its business as now conducted and, except where the failure to do so, individually or in the
aggregate, would 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.
Section 3.02. Authorization; Enforceability. The Transactions are within each applicable
Loan Partys corporate or other organizational powers and have been duly authorized by all
necessary corporate or other organizational action of such Loan Party. Each Loan Document to which
each Loan Party is a party has been duly executed and delivered by such Loan Party and is a legal,
valid and binding obligation of such Loan Party, enforceable in accordance with its terms, subject
to applicable bankruptcy, insolvency or similar laws affecting creditors rights generally and to
general principles of equity.
Section 3.03. Governmental Approvals; No Conflicts. The Transactions (a) do not require any
consent or approval of, registration or filing with, or any other action by, any Governmental
Authority, except such as have been obtained or made and are in full force and effect, except for
filings necessary to perfect Liens created pursuant to the Loan Documents and the ABL Security
Documents and participation of the Orange County Industrial Development Agency, as the owner of the
fee simple interest, in the Mortgage, including any amendment to an
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existing mortgage in favor of the Collateral Agent under the Existing Credit Agreement with
respect to the Chester Distribution Center, and consent of the New York Job Development
Authority to the grant of a security interest in fixtures and other personal property located at
the Chester Distribution Center, (b) will not violate any Requirements of Law applicable to any
Loan Party or any of its Subsidiaries, (c) will not violate or result in a default under any
Contractual Obligation of any of the Loan Parties which could 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 any Loan Party or any of its Subsidiaries, except Liens created pursuant to the Loan
Documents and the ABL Security Documents.
Section 3.04. Financial Condition; No Material Adverse Change. (a) The Borrower has
heretofore furnished to the Lenders its consolidated balance sheet and related consolidated
statements of operations and cash flows and stockholders equity as of and for (i) the fiscal years
ended December 31, 2008 and December 31, 2009, each reported on by Ernst & Young LLP, independent
public accountants, and (ii) the fiscal quarter ended on September 30, 2010, 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 the Borrower and its consolidated
Subsidiaries as of such dates and for such periods in accordance with GAAP, subject to the absence
of footnotes and normal year-end adjustments in the case of the statements referred to in clause
(ii) above.
(b) The Borrower has heretofore delivered to the Lenders its unaudited pro forma consolidated
balance sheet and related pro forma consolidated statements of operations and cash flows and
stockholders equity as of September 30, 2010, prepared giving effect to the Transactions as if
they had occurred, with respect to such balance sheet, on such date and, with respect to such other
financial statements, on the first day of the 12-month period ending on such date. Such pro forma
financial statements have been prepared in good faith by the Borrower, based on the assumptions
used to prepare the pro forma financial information contained in the Information Memorandum (which
assumptions are believed by the Borrower on the Closing Date to be reasonable), are based on the
best information available to the Borrower as of the date of delivery thereof, accurately reflect
all adjustments required to be made to give effect to the Transactions and present fairly in all
material respects on a pro forma basis the estimated consolidated financial position of the
Borrower and its consolidated Subsidiaries as of such date and for such period, assuming that the
Transactions had actually occurred at such date or at the beginning of such period, as the case may
be.
(c) No event, change or condition has occurred that has had, or would reasonably be expected
to have, a Material Adverse Effect, since December 31, 2009.
Section 3.05. Properties. (a) As of the date of this Agreement, the Perfection Certificate
sets forth the address of each parcel of real property (or each set of parcels that collectively
comprise one operating property) that is owned or leased by each Loan Party.
(b) Each of the Borrower and each of the Subsidiaries has good fee simple title to, or valid
leasehold interests in, or easements or other limited property interests in, all its Real Estate
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Assets (including any Mortgaged Properties) and has good and marketable title to its personal
property and assets, in each case, except for defects in title that do not materially interfere
with its ability to conduct its business as currently conducted or to utilize such properties and
assets for their intended purposes and except where the failure to have such title would not
reasonably be expected to have a Material Adverse Effect. All such properties and assets are free
and clear of Liens, other than (i) Permitted Liens, (ii) Liens arising by operation of law and
(iii) minor defects in title that do not materially interfere with the ability of Holdings and its
Subsidiaries to conduct their businesses.
(c) As of the Closing Date, no Responsible Officer of Holdings, the Borrower or any Subsidiary
has received any written notice of, nor has any knowledge of, any pending or contemplated
condemnation proceeding affecting any of the Mortgaged Properties or any sale or disposition
thereof in lieu of condemnation.
(d) To the knowledge of each Responsible Officer of the Borrower, as of the Closing Date, none
of the Borrower or any Subsidiary is obligated under any right of first refusal, option or other
contractual right to sell, assign or otherwise dispose of any Mortgaged Property or any interest
therein.
(e) To the knowledge of each Responsible Officer of the Borrower, each of the Borrower and
each of the Subsidiaries has complied with all obligations under all leases to which it is a party,
except where the failure to comply would not reasonably be expected to have, a Material Adverse
Effect, and all such leases are in full force and effect, except leases in respect of which the
failure to be in full force and effect would not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect.
(f) Each of the Borrower and the Subsidiaries owns or possesses, or is licensed to use, all
patents, trademarks, service marks, trade names and copyrights and all licenses and rights with
respect to the foregoing, necessary for the present conduct of its business, without any conflict
with the rights of others, and free from any burdensome restrictions on the present conduct of its
business, except where such failure to own, possess or hold pursuant to a license or such conflicts
and restrictions would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
Section 3.06. Litigation and Environmental Matters. (a) Other than as listed on Schedule
3.06, there are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of any Loan Party, threatened against or affecting
the Loan Parties or any of their Subsidiaries (i) which would reasonably be expected, individually
or in the aggregate, to result in a Material Adverse Effect or (ii) that involve any Loan Documents
or the Transactions.
(b) Except for any matters that, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect (i) no Loan Party nor any of its Subsidiaries has
received notice of any claim with respect to any Environmental Liability or knows of any basis for
any Environmental Liability and (ii) no Loan Party nor any of its Subsidiaries (A) has
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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 or (B) has become subject to any Environmental
Liability.
Section 3.07. Compliance with Laws and Agreements; Licenses and Permits. (a) Each Loan
Party is in compliance with all Requirements of Law applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property, except in each case
where the failure to do so, individually or in the aggregate, would not reasonably be expected to
result in a Material Adverse Effect.
(b) Each Loan Party and its Subsidiaries has obtained and holds in full force and effect, all
franchises, licenses, leases, permits, certificates, authorizations, qualifications, easements,
rights of way and other rights and approvals which are necessary or advisable for the operation of
its businesses as presently conducted and as proposed to be conducted, except where the failure to
have so obtained or hold or to be in force, individually or in the aggregate, would not reasonably
be expected to result in a Material Adverse Effect. No Loan Party or any of its Subsidiaries is in
violation of the terms of any such franchise, license, lease, permit, certificate, authorization,
qualification, easement, right of way, right or approval, except where any such violation,
individually or in the aggregate, would not reasonably be expected to result in a Material Adverse
Effect.
Section 3.08. Investment Company Status. No Loan Party is an investment company as defined
in, or is required to be registered under, the Investment Company Act of 1940.
Section 3.09. Taxes. Each Loan Party and its Subsidiaries 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) Taxes that are being contested in good faith by
appropriate proceedings and for which such Loan Party or such Subsidiary, as applicable, has set
aside on its books adequate reserves in accordance with GAAP or (b) to the extent that the failure
to do so, individually or in the aggregate, would not reasonably be expected to result in a
Material Adverse Effect.
Section 3.10. ERISA. No ERISA Event has occurred in the five (5) year period prior to the
date on which this representation is made or deemed made and is continuing or is reasonably
expected to occur that, when taken together with all other such ERISA Events for which liability is
reasonably expected to occur, would reasonably be expected to result in a Material Adverse Effect.
Except as would not reasonably be expected to have a Material Adverse Effect, the present value of
all accumulated benefit obligations under all Pension 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 the fair market value of the assets of
such Pension Plans, in the aggregate.
Section 3.11. Disclosure. (a) All written information (other than the Projections and the
pro forma financial statements and estimates and information of a general economic nature)
concerning Holdings, the Borrower, the Subsidiaries, the Transactions and any other transactions
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contemplated hereby included in the Information Memorandum or otherwise prepared by or on behalf of
the foregoing or their representatives and made available to any Lender or the Administrative Agent
in connection with the Transactions on or before the date hereof (the Information), when taken as
a whole, as of the date such Information was furnished to the Lenders and as of the Closing Date,
did not contain any untrue statement of a material fact as of
any such date or omit to state a material fact necessary in order to make the statements
contained therein not materially misleading in light of the circumstances under which such
statements were made.
(b) The Projections and pro forma financial statements prepared by or on behalf of the
Borrower or any of its representatives and that have been made available to any Lenders or the
Administrative Agent in connection with the Transactions on or before the date hereof (the Other
Information) (i) have been prepared in good faith based upon assumptions believed by the Borrower
to be reasonable as of the date thereof (it being understood that actual results may vary
materially from the Other Information), and (ii) as of the Closing Date, have not been modified in
any material respect by the Borrower.
Section 3.12. Material Contracts. No Loan Party is in default in any material respect in the
performance, observance or fulfillment of any of its obligations contained in (i) any Material
Contract to which it is a party or (ii) any agreement or instrument to which it is a party
evidencing or governing Indebtedness, with an aggregate principal amount in excess of $10,000,000,
except, in any case, where any such default would not reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect.
Section 3.13. Solvency. (a) Immediately after the consummation of the Transactions to occur
on the Closing Date and immediately following the making of each Loan and after giving effect to
the application of the proceeds of each Loan (i) the fair value of the assets of the Loan Parties
on a consolidated basis, at a fair valuation, will exceed the debts and liabilities, direct,
subordinated, contingent or otherwise, of the Loan Parties on a consolidated basis; (ii) the
present fair saleable value of the property of the Loan Parties on a consolidated basis will be
greater than the amount that will be required to pay the probable liability of the Loan Parties on
a consolidated basis, on their debts and other liabilities, direct, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute and matured; (iii) the Loan Parties
on a consolidated basis will be able to pay their debts and liabilities, direct, subordinated,
contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) the
Loan Parties on a consolidated basis will not have unreasonably small capital with which to conduct
the businesses in which they are engaged as such businesses are now conducted and are proposed to
be conducted following the Closing Date.
(b) The Loan Parties do not intend to incur debts beyond their ability to pay such debts as
they mature, taking into account the timing and amounts of cash to be received by the Loan Parties
and the timing and amounts of cash to be payable by the Loan Parties on or in respect of their
Indebtedness.
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Section 3.14. Insurance. Schedule 3.14 sets forth a true, complete and correct description
of all insurance maintained by or on behalf of the Loan Parties and the Subsidiaries as of the
Closing Date. As of the Closing Date, all such insurance is in full force and effect and all
premiums in respect of such insurance have been duly paid. The Borrower believes that the
insurance maintained by or on behalf of the Borrower and the Subsidiaries is adequate and is in
accordance with normal industry practice for similar companies engaged in the same business as the
Borrower and its Subsidiaries located in similar countries.
Section 3.15. Capitalization and Subsidiaries. Schedule 3.15 sets forth, in each case as of
the Closing Date, (a) a correct and complete list of the name and relationship to the Borrower of
each and all of the Borrowers Subsidiaries, (b) a true and complete listing of each class of each
of the Borrowers authorized Capital Stock, of which all of such issued shares are validly issued,
outstanding, fully paid and non-assessable, and owned beneficially and of record by the Persons
identified on Schedule 3.15, and (c) the type of entity of the Borrower and each of its
Subsidiaries. All of the issued and outstanding Capital Stock of the Subsidiaries owned by any
Loan Party have been (to the extent such concepts are relevant with respect to such ownership
interests) duly authorized and issued and are fully paid and non-assessable free and clear of all
Liens (other than Liens created under the Loan Documents, the ABL Security Documents and
non-consensual Permitted Liens).
Section 3.16. Security Interest in Collateral. The provisions of this Agreement and the
other Loan Documents create legal and valid Liens on all the Collateral of the type in which a
security interest can be created under Article 9 of the UCC in favor of the Collateral Agent, for
the benefit of the Collateral Agent and the Lenders; and upon the proper filing of UCC financing
statements required pursuant to paragraph (l) of Article 4 and any Mortgages with respect to any
Mortgaged Properties, including any amendment to an existing mortgage with respect to each
applicable Mortgaged Property, such Liens constitute perfected and continuing Liens on the
Collateral (to the extent a security interest in such Collateral and any proceeds of any item of
Collateral can be perfected through the filing of UCC financing statements), securing the Secured
Obligations, enforceable against the applicable Loan Party and all third parties, and having
priority over all other Liens on the Collateral except in the case of (a) Permitted Liens, to the
extent any such Permitted Liens would have priority over the Liens in favor of the Collateral Agent
pursuant to any applicable law, (b) Liens perfected only by possession (including possession of any
certificate of title) to the extent the Collateral Agent has not obtained or does not maintain
possession of such Collateral and (c) subject to and as provided for under the terms of the
Intercreditor Agreement, the Liens granted under the ABL Security Documents.
Section 3.17. Labor Disputes. As of the Closing Date, except as, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect: (a) there are no
strikes, lockouts or slowdowns against any Loan Party pending or, to the knowledge of the Borrower,
threatened, (b) the hours worked by and payments made to employees of the Loan Parties and the
Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable
Federal, state, local or foreign law dealing with such matters and (c) all payments due from any
Loan Party 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
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the Loan Party or such
Subsidiary to the extent required by GAAP. Except as, 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 a right of termination or right of renegotiation on the part of any union under
any collective bargaining agreement to which Holdings, the Borrower or any of the Subsidiaries (or
any predecessor) is a party or by which Holdings, the Borrower or any of the Subsidiaries (or any
predecessor) is bound.
Section 3.18. Federal Reserve Regulations. (a) On the Closing Date, none of the Collateral
is Margin Stock.
(b) None of Holdings, the Borrower and the Subsidiaries 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.
(c) No part of the proceeds of any Loan will be used, whether directly or indirectly, and
whether immediately, incidentally or ultimately, for any purpose that entails a violation of, or
that is inconsistent with, the provisions of Regulation T, U or X.
Section 3.19. Senior Debt. The Obligations constitute Senior Debt and Designated Senior
Debt under and as defined in the Senior Subordinated Note Documents.
Section 3.20. Sanctioned Persons. None of Holdings, the Borrower or any Subsidiary nor, to
the knowledge of the Borrower, any director, officer, agent, employee or Affiliate of Holdings, the
Borrower or any Subsidiary is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department (OFAC); and the Borrower will not directly
or indirectly use the proceeds of the Loans or otherwise make available such proceeds to any
person, for the purpose of financing the activities of any person currently subject to any U.S.
sanctions administered by OFAC.
ARTICLE 4
Conditions
Section 4.01. Closing Date. The obligations of the Lenders to make Loans hereunder shall not
become effective until the date on which each of the following conditions is satisfied (or waived
in accordance with Section 9.02):
(a) Credit Agreement and Loan Documents. The Administrative Agent (or its counsel) shall have
received (i) from each party hereto either (A) a counterpart of this Agreement signed on behalf of
such party or (B) written evidence reasonably satisfactory to the Administrative Agent (which may
include facsimile transmission of a signed signature page of this Agreement) that such party has
signed a counterpart of this Agreement and (ii) duly executed copies of the Loan Documents and such
other certificates, documents, instruments and agreements as the Administrative Agent shall
reasonably request in connection with the transactions contemplated
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by this Agreement and the other
Loan Documents, including any promissory notes requested by a Lender at least three (3) Business
Days prior to the Closing Date pursuant to Section 2.07.
(b) Legal Opinions. The Administrative Agent shall have received, on behalf of itself and the
Lenders on the Closing Date, a favorable written opinion of (i) Ropes & Gray LLP, counsel for
Holdings and the Borrower, in form and substance reasonably satisfactory to the Administrative
Agent and (ii) local or other counsel reasonably satisfactory to the Administrative Agent as
specified on Schedule 4.01(b) (other than local counsel opinions relating to the Mortgages,
including any amendment to an existing mortgage with respect to each applicable
Mortgaged Property to grant a security interest in favor of the Collateral Agent for the
benefit of the Collateral Agent and the Lenders, which shall be delivered as provided in Section
5.13), in each case (A) dated the Closing Date, (B) addressed to the Agents and the Lenders and (C)
in form and substance reasonably satisfactory to the Administrative Agent and covering such other
matters relating to the Loan Documents and the Transactions as the Administrative Agent shall
reasonably request.
(c) Financial Statements and Pro Forma Financial Statements. The Administrative Agent shall
have received the financial statements and pro forma financial statements referred to in Section
3.04(a) and (b).
(d) Closing Certificates; Certified Certificate of Incorporation; Good Standing Certificates.
The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the
Closing Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the
resolutions of its board of directors, members or other body authorizing the execution, delivery
and performance of the Loan Documents to which it is a party, (B) identify by name and title and
bear the signatures of the officers of such Loan Party authorized to sign the Loan Documents to
which it is a party, and (C) contain appropriate attachments, including the certificate or articles
of incorporation or organization of each Loan Party certified by the relevant authority of the
jurisdiction of organization of such Loan Party and a true and correct copy of its by-laws or
operating, management or partnership agreement, and (ii) a good standing certificate as of a recent
date for each Loan Party from its jurisdiction of organization.
(e) No Default Certificate. The Administrative Agent shall have received a certificate,
signed by the chief financial officer or vice president of finance of the Borrower, dated the
Closing Date (i) stating that no Default has occurred and is continuing and (ii) stating that the
representations and warranties contained in Article 3 are true and correct in all material respects
as of such date; provided, that any such representation and warranty that is qualified by
materiality, material adverse effect or similar language shall be true and correct in all
respects (after giving effect to such qualification therein) on and as of the Closing Date with the
same effect as though made on and as of such date or such earlier date, as applicable.
(f) Fees. The Agents shall have received all fees required to be paid by the Borrower, and
all expenses for which invoices have been presented (including the reasonable fees and expenses of
legal counsel), on or before the Closing Date.
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(g) Lien and Judgment Searches. The Administrative Agent shall have received the results of
recent lien and judgment searches reasonably required by the Administrative Agent, and such search
shall reveal no material judgments and no liens on any of the assets of the Loan Parties except for
Permitted Liens or Liens discharged on or prior to the Closing Date pursuant to a pay-off letter or
other documentation reasonably satisfactory to the Administrative Agent.
(h) Pay-Off Letter. The Administrative Agent shall have received a pay-off letter reasonably
satisfactory to it in respect of the repayment of all amounts outstanding under or in respect of
the Existing Credit Agreement, confirming that all Liens upon any of the property of
the Loan Parties constituting Collateral arising under the Existing Credit Agreement have been
or will be terminated concurrently with such payment.
(i) Solvency. The Administrative Agent shall have received a third party solvency opinion of
Pendo Advisors, LLC, dated as of the Closing Date.
(j) Pledged Stock; Stock Powers; Pledged Notes. The Collateral Agent (or its bailee) shall
have received (i) the certificates representing the Capital Stock pledged pursuant to the Pledge
and Security Agreement, together with an undated stock power for each such certificate executed in
blank by a duly authorized officer of the pledgor thereof and (ii) each promissory note (if any)
pledged to the Collateral Agent (or its bailee) pursuant to the Pledge and Security Agreement
endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the
pledgor thereof.
(k) Perfection Certificate; Filings, Registrations and Recordings. The Administrative Agent
shall have received a completed Perfection Certificate dated the Closing Date and signed by a
Responsible Officer of the Borrower, together with all attachments contemplated thereby. Each
document (including any UCC financing statement) required by the Collateral Documents (except for
the Mortgages, including any amendment to an existing mortgage with respect to each applicable
Mortgaged Property) or under law or reasonably requested by the Agents to be filed, registered or
recorded in order to create in favor of the Collateral Agent, for the benefit of the Lenders, a
perfected Lien on the Collateral described therein, prior and superior in right to any other Person
(other than with respect to Permitted Liens), shall be in proper form for filing, registration or
recordation. The Collateral Agent, on behalf of the Lenders, shall have a security interest in the
Collateral of the type and priority described in the Collateral Documents (except for the
Mortgages, including any amendment to an existing mortgage with respect to each applicable
Mortgaged Property) (subject to Liens permitted by Section 6.02 and, subject to the terms of the
Intercreditor Agreement, the Liens granted under the ABL Security Documents).
(l) Other Indebtedness. After giving effect to the Transactions and the other transactions
contemplated hereby, Holdings, the Borrower and the Subsidiaries shall not have any outstanding
Indebtedness or Preferred Stock other than (i) the Obligations, (ii) Indebtedness under the Senior
Secured Asset-Based Revolving Credit Facility, (iii) the Senior Subordinated Notes, and (iv)
Indebtedness permitted under Section 6.01.
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(m) Amendment to Senior Secured Asset-Based Revolving Credit Agreement. The Senior Secured
Asset-Based Revolving Credit Agreement shall have been amended pursuant to an amendment, in form
and substance reasonably satisfactory to the Administrative Agent, to, among other things, permit
the incurrence of debt under this Agreement and consummate the other Transactions, and the
Administrative Agent shall have received a copy of such amendment to the Senior Secured Asset-Based
Revolving Credit Agreement.
(n) Insurance. The Administrative Agent shall have received evidence of insurance coverage in
compliance with the terms of Section 5.05 and Section 5.13 hereof and Section 4.10 of the Pledge
and Security Agreement.
(o) Intercreditor Agreement. The Administrative Agent shall have received a certificate of a
Responsible Officer of the Borrower certifying that the Intercreditor Agreement attached to such
certificate is a true, correct and complete copy of it and such agreement is in full force and
effect.
(p) USA PATRIOT Act. The Administrative Agent shall have received all documentation and other
information reasonably requested by it that is required by regulatory authorities under applicable
know your customer and anti-money laundering rules and regulations, including the USA PATRIOT
Act.
ARTICLE 5
Affirmative Covenants
Until the Commitments have expired or terminated and the principal of and interest on each
Loan and all fees, expenses and other amounts payable under any Loan Document (other than
contingent indemnification obligations for which no claim has been made) have been paid in full in
cash, the Loan Parties covenant and agree, jointly and severally, with the Lenders that:
Section 5.01. Financial Statements and Other Reports. The Borrower will deliver to the
Administrative Agent for delivery to each Lender:
(a) Monthly Reports. As soon as available, and in any event within thirty-five (35) days
after the end of each fiscal month ending after the Closing Date (or within forty-five (45) days
after the end of each month (x) which ends a Fiscal Quarter or (y) for the first six months after
the Closing Date), the consolidated balance sheet of the Borrower and its Subsidiaries as at the
end of such month and the related consolidated statements of income, stockholders equity and cash
flows of the Borrower and its Subsidiaries for such month and for the period from the beginning of
the then current Fiscal Year to the end of such month, setting forth in each case in comparative
form the corresponding figures for the corresponding periods of the previous Fiscal Year and the
corresponding figures from the Financial Plan for the current Fiscal Year, to the extent prepared
on a monthly basis, all in reasonable detail, together with a Financial Officer Certification with
respect thereto;
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(b) Quarterly Financial Statements. As soon as available, and in any event within forty-five
(45) days after the end of each of the first three Fiscal Quarters of each Fiscal Year (or any
later date by which under applicable Securities and Exchange Commission rules the Borrower is
required to file its Quarterly Report on Form 10-Q) the consolidated balance sheet of the Borrower
and its Subsidiaries as at the end of such Fiscal Quarter and the related consolidated (including
with respect to statements of income, a breakdown between wholesale and retail operations)
statements of income, stockholders equity and cash flows of the Borrower and its Subsidiaries for
such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to the
end of such Fiscal Quarter, setting forth in each case in comparative form the corresponding
figures for the corresponding periods of the previous Fiscal Year and the
corresponding figures from the Financial Plan for the current Fiscal Year, all in reasonable
detail, together with a Financial Officer Certification and a Narrative Report with respect
thereto;
(c) Annual Financial Statements. As soon as available, and in any event within ninety (90)
days after the end of each Fiscal Year (or any later date by which under applicable Securities and
Exchange Commission rules the Borrower is required to file its Annual Report on Form 10-K), (i) the
consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such Fiscal Year
and the related consolidated (with respect to statements of income, a breakdown between wholesale
and retail operations) statements of income, stockholders equity and cash flows of the Borrower
and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the
corresponding figures for the previous Fiscal Year and the corresponding figures from the Financial
Plan for the Fiscal Year covered by such financial statements, in reasonable detail, together with
a Financial Officer Certification and a Narrative Report with respect thereto; and (ii) with
respect to such consolidated financial statements a report thereon of Ernst & Young LLP or other
independent certified public accountants of recognized national standing selected by the Borrower,
and reasonably satisfactory to the Administrative Agent (which report shall be unqualified as to
going concern and scope of audit, and shall state that such consolidated financial statements
fairly present, in all material respects, the consolidated financial position of the Borrower and
its Subsidiaries as at the dates indicated and the results of their operations and their cash flows
for the periods indicated in conformity with accounting principles generally accepted in the United
States and that the examination by such accountants in connection with such consolidated financial
statements has been made in accordance with generally accepted auditing standards) together with a
written statement by the independent certified public accountants giving the report thereon (a)
stating that their audit examination has included a review of the terms of this Agreement and the
other Loan Documents as they relate to accounting matters, (b) stating whether, in connection with
their audit examination, any condition or event that constitutes an Event of Default or Default has
come to their attention and, if such a condition or event has come to their attention, specifying
the nature and period of existence thereof; provided that such accountants shall not be liable by
reason of any failure to obtain knowledge of any such Event of Default or Default that would not be
disclosed in the course of their audit examination, and (c) stating that based on their audit
examination nothing has come to their attention that causes them to believe either or both that the
information contained in the certificates delivered therewith pursuant to this Section 5.01(c)
above is not correct or that the matters set forth in the Compliance Certificates delivered
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therewith pursuant to Section 5.01(d) for the applicable Fiscal Year are not stated in accordance
with the terms of this Agreement;
(d) Compliance Certificate. Together with each delivery of financial statements of the
Borrower and its Subsidiaries (i) pursuant to Section 5.01(b) and 5.01(c) a duly executed and
completed Compliance Certificate demonstrating in reasonable detail compliance during and at the
end of the applicable accounting periods with the restrictions contained in Article 6, in each case
to the extent compliance with such restrictions is required to be tested at the end of the
applicable accounting period and (ii) pursuant to Section 5.01(c) with respect to any Net Proceeds
received by the Borrower or any of its Subsidiaries during the Fiscal Year covered by
such financial statements, whether or not all or any portion of such Net Proceeds have been
re-invested or committed to be re-invested pursuant to the definition of Net Proceeds;
(e) Statements of Reconciliation After Change in Accounting Principles. If, as a result of
any change in accounting principles and policies from those used in the preparation of the
consolidated financial statements of the Borrower and its Subsidiaries for the Fiscal Year ended
December 31, 2009, the consolidated financial statements of the Borrower and its Subsidiaries
delivered pursuant to Section 5.01(b) or 5.01(c) will differ in any material respect from the
consolidated financial statements that would have been delivered pursuant to such subdivisions had
no such change in accounting principles and policies been made, then, together with the first
delivery of such financial statements after such change, one or more statements of reconciliation
in form and substance reasonably satisfactory to the Administrative Agent;
(f) Notice of Default. Promptly upon any officer of Holdings or the Borrower obtaining
knowledge (i) of any condition or event that constitutes a Default or an Event of Default or that
notice has been given to the Borrower with respect thereto; (ii) that any Person has given any
notice to the Borrower or any of its Subsidiaries or taken any other action with respect to any
event or condition set forth in Section 7.01(b); or (iii) of the occurrence of any event or change
that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect, an
Officers Certificate specifying the nature and period of existence of such condition, event or
change, or specifying the notice given or action taken by any such Person and the nature of such
claimed Event of Default, Default, default, event or condition, and what action the Borrower has
taken, is taking and proposes to take with respect thereto;
(g) Notice of Litigation. Promptly upon any officer of Holdings or the Borrower obtaining
knowledge of (i) the institution of, or non-frivolous threat of, any Adverse Proceeding not
previously disclosed in writing by the Borrower to the Lenders, or (ii) any material development in
any Adverse Proceeding that, in the case of either (i) or (ii) if adversely determined, could be
reasonably expected to have a Material Adverse Effect, or seeks to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief as a result of, the transactions
contemplated hereby, written notice thereof together with such other information as may be
reasonably available to the Borrower to enable the Lenders and their counsel to evaluate such
matters;
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(h) ERISA. (i) Promptly upon becoming aware of the occurrence of any ERISA Event, a written
notice specifying the nature thereof, and (ii) upon reasonable prior request and with reasonable
promptness, copies of (1) each Schedule B (Actuarial Information) to the annual report (Form 5500
Series) filed by the Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates
with the Internal Revenue Service with respect to each Pension Plan; (2) all notices received by
the Borrower or any of its Subsidiaries from a Multiemployer Plan sponsor or ERISA Affiliate
concerning an ERISA Event; and (3) copies of such other documents or governmental reports or
filings relating to any Employee Benefit Plan as the Administrative Agent shall reasonably request;
(i) Financial Plan. As soon as practicable and in any event no later than forty-five (45)
days after the beginning of each Fiscal Year, a consolidated plan and financial forecast for such
Fiscal Year and each Fiscal Year (or portion thereof) through the final maturity date of the
Loans (a Financial Plan), including (i) a forecasted consolidated balance sheet and forecasted
consolidated statements of income and cash flows of the Borrower and its Subsidiaries for each such
Fiscal Year, together with pro forma Compliance Certificates for each such Fiscal Year and an
explanation of the assumptions on which such forecasts are based, (ii) forecasted consolidated
statements of income and cash flows of the Borrower and its Subsidiaries for each month of the
first such Fiscal Year;
(j) Insurance Report. Together with the financial statements required by Section 5.01(c) for
each Fiscal Year, a report in form and substance satisfactory to the Administrative Agent outlining
all material insurance coverage maintained as of the date of such report by the Borrower and its
Subsidiaries and all material insurance coverage planned to be maintained by the Borrower and its
Subsidiaries in the immediately succeeding Fiscal Year;
(k) Notice of Change in Board of Directors. With reasonable promptness, written notice of any
change in the board of directors (or similar governing body) of Holdings;
(l) Notice Regarding Material Contracts. Promptly, and in any event within ten (10) Business
Days after any Material Contract of the Borrower or any of its Subsidiaries is terminated or
amended in a manner that is materially adverse to the Borrower or such Subsidiary, as the case may
be;
(m) Information Regarding Collateral. The Borrower will furnish to the Collateral Agent
prompt written notice of any change (i) in any Loan Partys corporate name, (ii) in any Loan
Partys identity or corporate structure, (iii) in any Loan Partys jurisdiction of organization (to
the extent permitted by the Pledge and Security Agreement) or (iv) in any Loan Partys Federal
Taxpayer Identification Number or organizational identification number. The Borrower agrees not to
effect or permit any change referred to in the preceding sentence unless all filings have been made
under the Uniform Commercial Code or otherwise that are required in order for the Collateral Agent
to continue at all times following such change to have a valid, legal and perfected security
interest in all the Collateral as contemplated in the Collateral Documents. The Borrower also
agrees promptly to notify the Collateral Agent if any material portion of the Collateral is damaged
or destroyed;
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(n) Annual Collateral Verification. Each year, at the time of delivery of annual financial
statements with respect to the preceding Fiscal Year pursuant to Section 5.01(c), the Borrower
shall deliver to the Collateral Agent a Perfection Certificate Supplement either confirming that
there has been no change in such information since the date of the Perfection Certificate delivered
on the Closing Date or the date of the most recent certificate delivered pursuant to this Section
and/or identifying such changes; and
(o) Other Information. (A) Promptly upon their becoming available, copies of (i) all
financial statements, reports, notices and proxy statements sent or made available generally by the
Borrower to its security holders acting in such capacity or by any Subsidiary of the Borrower to
its security holders other than the Borrower or another Subsidiary of the Borrower, (ii) all
regular and periodic reports and all registration statements (other than on Form S-8 or similar
form) and prospectuses, if any, filed by the Borrower or any of its Subsidiaries with any
securities exchange or with the Securities and Exchange Commission or any governmental or private
regulatory authority, (iii) all press releases and other statements made available generally by the
Borrower or any of its Subsidiaries to the public concerning material developments in the business
of the Borrower or any of its Subsidiaries, and (B) such other information and data with respect to
the Borrower or any of its Subsidiaries as from time to time may be reasonably requested by the
Administrative Agent or any Lender.
Documents required to be delivered pursuant to this Section 5.01 may be delivered
electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which
the Borrower posts such documents, or provides a link thereto on the Borrowers website on the
Internet at the website address listed on Schedule 9.01; (ii) on which such documents are posted on
the Borrowers behalf on IntraLinks/SyndTrak or another relevant website, if any, to which each
Lender and the Administrative Agent have access (whether a commercial, third-party website or
whether sponsored by the Administrative Agent); or (iii) the date on which executed certificates or
other documents are faxed to the Administrative Agent (or electronically mailed to an address
provided by the Administrative Agent); provided that: (i) upon written request by the
Administrative Agent, the Borrower shall deliver paper copies of such documents to the
Administrative Agent for further distribution to each Lender until a written request to cease
delivering paper copies is given by the Administrative Agent and (ii) the Borrower shall notify
(which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such
documents and provide to the Administrative Agent by electronic mail electronic versions (i.e.,
soft copies) of such documents.
Section 5.02. Existence. Except as otherwise permitted under Section 6.09, each Loan Party
will, and will cause each of its Subsidiaries to, at all times preserve and keep in full force and
effect its existence and all rights and franchises, licenses and permits material to its business
except to the extent failure to do so could not reasonably be expected to result in a Material
Adverse Effect; provided, no Loan Party or any of its Subsidiaries shall be required to preserve
any such existence, right or franchise, licenses and permits if such Persons board of directors
(or similar governing body) shall determine that the preservation thereof is no longer desirable in
the conduct of the business of such Person, and that the loss thereof is not disadvantageous in any
material respect to such Person or to the Lenders.
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Section 5.03. Payment of Taxes and Claims. Each Loan Party will, and will cause each of its
Subsidiaries to, pay all material Taxes imposed upon it or any of its properties or assets or in
respect of any of its income, businesses or franchises before any penalty or fine accrues thereon,
and all claims (including claims for labor, services, materials and supplies) for sums that have
become due and payable and that by law have or may become a Lien upon any of its properties or
assets, prior to the time when any penalty or fine shall be incurred with respect thereto;
provided, no such Tax or claim need be paid if (i) it is being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted, so long as (a) adequate
reserve or other appropriate provision, as shall be required in conformity with GAAP, shall have
been made therefor, and (b) in the case of a Tax or claim which has or may become a Lien against
any of the Collateral, such contest proceedings conclusively operate to stay the sale of
any portion of the Collateral to satisfy such Tax or claim or (ii) failure to pay or discharge
the same could not reasonably be expected to result in a Material Adverse Effect. No Loan Party
will, nor will it permit any of its Subsidiaries to, file or consent to the filing of any
consolidated income tax return with any Person (other than Holdings or any of its Subsidiaries).
Section 5.04. Maintenance of Properties. Each Loan Party will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained in good repair, working order and condition,
ordinary wear and tear excepted, all material properties used in the business of the Borrower and
its Subsidiaries and from time to time will make or cause to be made all appropriate repairs,
renewals and replacements thereof except where the failure to maintain such properties could not
reasonably be expected to have a Material Adverse Effect.
Section 5.05. Insurance. Holdings will maintain or cause to be maintained, with financially
sound and reputable insurers, such public liability insurance, third party property damage
insurance, business interruption insurance and casualty insurance with respect to liabilities,
losses or damage in respect of the assets, properties and businesses of Holdings and its
Subsidiaries as may customarily be carried or maintained under similar circumstances by Persons of
established reputation engaged in similar businesses, in each case in such amounts (giving effect
to self-insurance), with such deductibles, covering such risks and otherwise on such terms and
conditions as shall be customary for such Persons. Without limiting the generality of the
foregoing, the Borrower will maintain or cause to be maintained (a) flood insurance with respect to
each Flood Hazard Property that is located in a community that participates in the National Flood
Insurance Program, in each case in compliance with any applicable regulations of the Board of
Governors of the Federal Reserve System, and (b) replacement value casualty insurance on the
Collateral under such policies of insurance, with such insurance companies, in such amounts, with
such deductibles, and covering such risks as are at all times carried or maintained under similar
circumstances by Persons of established reputation engaged in similar businesses. Each such policy
of insurance shall (i) name the Collateral Agent, on behalf of the Lenders as an additional insured
thereunder as its interests may appear and (ii) in the case of each casualty insurance policy,
contain a loss payable clause or endorsement, satisfactory in form and substance to the Collateral
Agent, that names the Collateral Agent, on behalf of the Lenders as the loss payee thereunder for
any covered loss in excess of $1,500,000 and provides for at least thirty (30) days prior written
notice to the Collateral Agent of any modification or cancellation of such policy.
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Section 5.06. Inspections. Each Loan Party will, and will cause each of its Subsidiaries to,
permit any authorized representatives designated by any Agent to visit and inspect any of the
properties of any Loan Party and any of its respective Subsidiaries, to inspect, copy and take
extracts from its and their financial and accounting records, and to discuss its and their affairs,
finances and accounts with its and their officers and independent public accountants (provided that
the Borrower may, if it so chooses, be present at or participate in any such discussion), all upon
reasonable notice and at such reasonable times during normal business hours and as often as may
reasonably be requested; provided, that, excluding such visits and inspections during the
continuation of an Event of Default, only the Administrative Agent on behalf of the Lenders may
exercise the rights of the Administrative Agent and the Lenders under this Section 5.06 and the
Administrative Agent shall not exercise such rights more often than two (2) times during any
calendar year, absent the existence of an Event of Default and only one (1) such time shall be at
the Borrowers expense; provided further that when an Event of Default has occurred and is
continuing, the Administrative Agent or any Lender (or any of their respective representatives or
independent contractors) may do any of the foregoing at the expense of the Borrower at any time
during normal business hours and upon reasonable advance notice.
Section 5.07. Lenders Meetings. The Borrower will, upon the request of the Administrative
Agent or Required Lenders, participate in a meeting of the Administrative Agent and the Lenders
once during each Fiscal Year to be held at the Borrowers corporate offices (or at such other
location as may be agreed to by the Borrower and the Administrative Agent) at such time as may be
agreed to by the Borrower and the Administrative Agent.
Section 5.08. Compliance with Laws. Each Loan Party will comply, and shall cause each of its
Subsidiaries and all other Persons, if any, on or occupying any Facilities to comply, with the
requirements of all applicable laws, rules, regulations and orders of any Governmental Authority
(including all Environmental Laws), noncompliance with which could reasonably be expected to have a
Material Adverse Effect.
Section 5.09. Environmental.
(a) Environmental Disclosure. The Borrower will deliver to the Administrative Agent and the
Lenders:
(i) as soon as practicable following receipt thereof, copies of all environmental
audits, investigations, analyses and reports of any kind or character, whether prepared by
personnel of the Borrower or any of its Subsidiaries or by independent consultants,
governmental authorities or any other Persons, with respect to significant environmental
matters at any Facility or with respect to any Environmental Claims that might reasonably be
expected to have a Material Adverse Effect;
(ii) promptly upon the occurrence thereof, written notice describing in reasonable
detail (1) any Release required to be reported by the Borrower or any of its Subsidiaries to
any federal, state or local governmental or regulatory agency under any applicable
Environmental Laws, (2) any remedial action taken by the Borrower or any of
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its Subsidiaries
or any other Persons of which the Borrower has knowledge in response to (A) any Hazardous
Materials Activities the existence of which has a reasonable possibility of resulting in one
or more Environmental Claims having, individually or in the aggregate, a Material Adverse
Effect, or (B) any Environmental Claims that, individually or in the aggregate, have a
reasonable possibility of resulting in a Material Adverse Effect, and (3) the Borrowers
discovery of any occurrence or condition on any real property adjoining or in the vicinity
of any Facility that reasonably could be expected to cause such Facility or any part thereof
to be subject to any material restrictions on the ownership, occupancy, transferability or
use thereof under any Environmental Laws;
(iii) as soon as practicable following the sending or receipt thereof by the Borrower
or any of its Subsidiaries, a copy of any and all written communications with respect to (1)
any Environmental Claims that, individually or in the aggregate, have a reasonable
possibility of giving rise to a Material Adverse Effect, (2) any Release required to be
reported by the Borrower or any of its Subsidiaries to any federal, state or local
governmental or regulatory agency, and (3) any request made to the Borrower or any of its
Subsidiaries for information from any governmental agency that suggests such agency is
investigating whether the Borrower or any of its Subsidiaries may be potentially responsible
for any Hazardous Materials Activity which is reasonably expected to have a Material Adverse
Effect;
(iv) prompt written notice describing in reasonable detail (1) any proposed acquisition
of stock, assets, or property by the Borrower or any of its Subsidiaries that could
reasonably be expected to (A) expose the Borrower or any of its Subsidiaries to, or result
in, Environmental Claims that could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect or (B) result in the Borrower or any of its
Subsidiaries failing to maintain in full force and effect all material Governmental
Authorizations required under any Environmental Law for their respective operations and (2)
any proposed action to be taken by the Borrower or any of its Subsidiaries to modify current
operations in a manner that could reasonably be expected to subject the Borrower or any of
its Subsidiaries to any additional material obligations or requirements under any
Environmental Law; and
(v) with reasonable promptness, such other documents and information as from time to
time may be reasonably requested by the Administrative Agent in relation to any matters
disclosed pursuant to this Section 5.09(a).
(b) Hazardous Materials Activities, Etc. Each Loan Party shall promptly take, and shall cause
each of its Subsidiaries promptly to take, any and all actions necessary to (i) cure any violation
of applicable Environmental Laws by such Loan Party or its Subsidiaries that could reasonably be
expected to have a Material Adverse Effect, and (ii) make an appropriate response to any
Environmental Claim against such Loan Party or any of its Subsidiaries and discharge any
obligations it may have to any Person thereunder where failure to do so could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.
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Section 5.10. Maintenance of Ratings. Holdings and the Borrower shall use their commercially
reasonable efforts to (i) maintain a corporate rating of the Borrower from S&P and a corporate
family rating of the Borrower from Moodys and (ii) cause the credit facility provided for herein
to be continuously rated by S&P and Moodys.
Section 5.11. Use of Proceeds. The proceeds of the Loans will be used only for the purposes
specified in the introductory statement to this Agreement. No part of the proceeds of any Loan
will be used, whether directly or indirectly, for any purpose that would entail a violation of
Regulations T, U or X.
Section 5.12. Additional Collateral; Further Assurances. (a) Subject to applicable law, the
Borrower and each Subsidiary that is a Loan Party shall cause each of its Domestic Subsidiaries
(other than Excluded Subsidiaries) formed or acquired after the date of this Agreement to become a
Loan Party as promptly thereafter as reasonably practicable by executing a Joinder Agreement in
substantially the form set forth as Exhibit D hereto (the Joinder Agreement). Upon execution and
delivery thereof, each such Person (i) shall automatically become a Loan Guarantor hereunder and
thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under
the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter
grant Liens to the Collateral Agent, for the benefit of the Collateral Agent and the Lenders and
each other Secured Party, in each case to the extent required by the terms thereof, in any property
(subject to the limitations with respect to Capital Stock set forth in paragraph (b) of this
Section 5.12, the limitations with respect to real property set forth in paragraph (e) of this
Section 5.12, and any other limitations set forth in the Pledge and Security Agreement) of such
Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of
the Collateral Documents and in such priority as may be required pursuant to the terms of the
Intercreditor Agreement.
(b) The Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued
and outstanding Capital Stock of each of its Domestic Subsidiaries, other than any Domestic
Subsidiary taxed as a partnership for Federal income tax purposes that holds Capital Stock of a
Foreign Subsidiary whose Capital Stock is pledged pursuant to clause (ii) below or any other
Excluded Subsidiaries and (ii) 65% of the issued and outstanding Capital Stock entitled to vote
(within the meaning of Treas. Reg. Section 1.956 2(c)(2)) and 100% of the issued and outstanding
Capital Stock not entitled to vote (within the meaning of Treas. Reg. Section 1.956 2(c)(2)) in
each Foreign Subsidiary (other than Excluded Subsidiaries) directly owned by the Borrower or any
Subsidiary that is a Loan Party to be subject at all times to a first priority (subject to
Permitted Liens and the Intercreditor Agreement) perfected Lien in favor of the Collateral Agent
pursuant to the terms and conditions of the Loan Documents or other security documents as the
Agents shall reasonably request.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that
is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Agents such
documents, agreements and instruments, and will take or cause to be taken such further actions
(including the filing and recording of financing statements, fixture filings, mortgages, deeds of
trust and other documents and such other actions or deliveries of the type
81
required by Article 4,
as applicable, which the Agents may, from time to time, reasonably request) to carry out the terms
and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority
of the Liens created or intended to be created by the Collateral Documents (to the extent required
therein), all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.12, if any Material
Real Estate Assets are acquired by any Loan Party after the Closing Date (other than assets
constituting Collateral under the Pledge and Security Agreement that become subject to the Lien in
favor of the Collateral Agent upon acquisition thereof), the Borrower will notify the
Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or
the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing
the Secured Obligations and will take, and cause the Loan Parties that are Subsidiaries 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 (c) of this Section, all at the
expense of the Loan Parties.
(e) Notwithstanding anything to the contrary in this Section 5.12, real property required to
be mortgaged under this Section 5.12, shall be limited to Material Real Estate Assets (provided
that the cost of perfecting such Lien is not unreasonable in relation to the benefits to the
Lenders of the security afforded thereby in the Administrative Agents reasonable judgment after
consultation with the Borrower).
Section 5.13. Post-closing Items. (a) Holdings and the Borrower shall, and the Borrower
shall cause each Subsidiary to, take all necessary actions to within 30 days following the Closing
Date or such longer period as the Administrative Agent may agree in its sole discretion (or 90 days
or such longer period as the Administrative Agent may agree in its sole discretion in the case of
the Mortgage with respect to the Chester Distribution Center, including any amendment to an
existing mortgage in favor of the Collateral Agent with respect thereto) cause the Mortgages,
including any amendment to an existing mortgage with respect to each applicable Mortgaged Property,
to be recorded and in connection therewith deliver title insurance policies, or bringdowns thereof
(including endorsements thereon), existing surveys, local counsel opinions and other documentation
that the Administrative Agent shall reasonably require.
(b) Holdings and the Borrower shall, and the Borrower shall cause each Subsidiary to, take all
necessary actions to within 30 Business Days following the Closing Date or such longer period as
the Administrative Agent may agree in its sole discretion cause clause (ii) of Section 5.05(b)(ii)
to be satisfied.
ARTICLE 6
Negative Covenants
Until the Commitments have expired or terminated and the principal of and interest on each
Loan and all fees, expenses and other amounts payable under any Loan Document (other
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than contingent indemnification obligations for which no claim has been made) have been paid
in full in cash, the Loan Parties covenant and agree, jointly and severally, with the Lenders that:
Section 6.01. Indebtedness. No Loan Party shall, nor shall it permit any of its Subsidiaries
to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain
directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations;
(b) (i) Indebtedness of any Subsidiary Guarantor to the Borrower or to any other Subsidiary
Guarantor, or of the Borrower to any Subsidiary Guarantor; provided (ii) all such Indebtedness
shall be evidenced by intercompany promissory notes and all such notes shall be subject to a First
Priority Lien pursuant to the Pledge and Security Agreement, (iii) all such Indebtedness shall be
unsecured and subordinated in right of payment to the Obligations pursuant to the terms of the
applicable promissory notes or an intercompany subordination agreement that in any such case is
reasonably satisfactory to the Administrative Agent and (iv) any Indebtedness owed by a Foreign
Subsidiary to a Loan Party; provided that (v) all such Indebtedness shall be evidenced by
promissory notes and all such notes shall be subject to a First Priority Lien pursuant the Pledge
and Security Agreement and (vi) the aggregate outstanding principal amount of Indebtedness of, and
the aggregate amount of Investments in, Foreign Subsidiaries pursuant to this Section 6.01(b)(iv),
Section 6.01(j), Section 6.01(q) and Section 6.07(g) shall not exceed $60,000,000 at any time
outstanding;
(c) the Senior Subordinated Notes;
(d) Indebtedness incurred by the Borrower or any of its Subsidiaries arising from agreements
providing for indemnification, adjustment of purchase price or similar obligations, contingent
earnout obligations incurred in connection with Asset Sales or other sales or purchases of assets,
or from guaranties or letters of credit, surety bonds or performance bonds securing the performance
of the Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted
Acquisitions or permitted dispositions of any business, assets or Subsidiary of the Borrower or any
of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties or performance,
surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(f) Indebtedness in respect of Banking Services Obligations and other netting services,
overdraft protections and otherwise in connection with Deposit Accounts;
(g) guaranties of the obligations of suppliers, customers, franchisees and licensees by the
Borrower and its Subsidiaries in the ordinary course of business and consistent with past practice;
(h) guaranties by the Borrower of Indebtedness or other obligations of a Subsidiary Guarantor
or guaranties by a Subsidiary of the Borrower of Indebtedness or other obligations of
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the Borrower or a Subsidiary Guarantor with respect, in each case, to Indebtedness otherwise
permitted to be incurred pursuant to this Section 6.01 or obligations not prohibited by this
Agreement; provided that (x) no Guarantee by Holdings or any Subsidiary of any Indebtedness
permitted pursuant to Section 6.01(w), the Senior Subordinated Notes, any Junior Financing, any
Permitted First Priority Refinancing Debt, any Permitted Second Priority Refinancing Debt, any
Permitted Unsecured Refinancing Debt or any Permitted Refinancing of any of the foregoing shall be
permitted unless such guaranteeing party shall have also provided a Guarantee of the Obligations on
the terms set forth herein and (y) if the Indebtedness being Guaranteed is Junior Financing, such
Guarantee shall be subordinated to the Guarantee of the Obligations on terms at least as favorable
to the Lenders as those contained in the subordination of such Junior Financing;
(i) Indebtedness described in Schedule 6.01(i);
(j) the Borrowers Foreign Subsidiaries may become and remain liable with respect to
Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness of, and the
aggregate amount of Investments in, Foreign Subsidiaries pursuant to Section 6.01(b)(iv), this
Section 6.01(j), Section 6.01(q) and Section 6.07(g) shall not exceed $60,000,000 at any time
outstanding;
(k) Indebtedness of the Borrower and its Subsidiaries with respect to the Chester Distribution
Center Permanent Financing;
(l) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay
obligations contained in supply arrangements, in each case, in the ordinary course of business;
(m) Indebtedness with respect to Capital Leases and purchase money Indebtedness, in each case
incurred within 180 days of the acquisition or completion of construction or installation of the
assets acquired in connection with the incurrence of such Indebtedness in an aggregate amount not
to exceed $50,000,000 at any time outstanding (including any Indebtedness acquired in connection
with a Permitted Acquisition); provided any such Indebtedness (i) shall be secured only to the
asset acquired in connection with the incurrence of such Indebtedness and (ii) shall constitute not
less than 50% of the aggregate consideration paid with respect to such asset;
(n) Indebtedness of a Person that becomes a Subsidiary or Indebtedness assumed in connection
with a Permitted Acquisition after the Closing Date; provided that (i) such Indebtedness existed at
the time such Person became a Subsidiary and was not created in anticipation thereof and (ii) the
aggregate amount of such Indebtedness shall not exceed $50,000,000 at any time outstanding;
(o) Indebtedness of Holdings owed to stockholders to repurchase stock or options from such
stockholders; provided that (i) such Indebtedness shall be subordinated in right of payment to the
Obligations on terms and conditions satisfactory to the Administrative Agent and the Arrangers,
(ii) matures after the Maturity Date, (iii) requires no scheduled payment of principal
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or cash interest payments prior to its maturity and (iv) the aggregate amount of such
Indebtedness shall not exceed $20,000,000 in any Fiscal Year and $50,000,000 in the aggregate
from the Closing Date to the date of determination;
(p) the Borrower and its Subsidiaries may become and remain liable for any Indebtedness
replacing or refinancing any Indebtedness permitted under clauses (c), (i), (k), (m), (n), and (v)
of this Section 6.01; provided that (i) the principal amount of such Indebtedness does not exceed
the principal amount of the Indebtedness being refinanced or replaced, (ii) such Indebtedness has a
final maturity on or later than the final maturity of the Indebtedness being refinanced or replaced
and a weighted average life to maturity equal to or greater than the weighted average life to
maturity of the Indebtedness being refinanced or replaced, (iii) the covenants, defaults and
prepayment provisions, taken as a whole, are not more burdensome or restrictive on the Borrower and
its Subsidiaries than those applicable to the Indebtedness being refinanced or replaced, (iv) such
Indebtedness is secured only by Liens permitted under Section 6.02 for the Indebtedness being
refinanced or replaced, (v) such Indebtedness is incurred by the Borrower or the Subsidiary that is
the obligor on the Indebtedness being refinanced or replaced, (vi) if the Indebtedness being
refinanced or replaced is subordinated to the Obligations, such Indebtedness is subordinated to the
Obligations on terms not less favorable to the Lenders than those applicable to the Indebtedness
being refinanced or replaced and (vii) Indebtedness of the Borrower or a Subsidiary shall not
refinance Indebtedness of an Unrestricted Subsidiary;
(q) Foreign Subsidiaries may become and remain liable with respect to Indebtedness in respect
of other commercial letters of credit obtained in the ordinary course of business; provided that
the aggregate outstanding principal amount of Indebtedness of, and the aggregate amount of
Investments in, Foreign Subsidiaries pursuant to Section 6.01(b)(iv), Section 6.01(j), this Section
6.01(q) and Section 6.07(g) shall not exceed $60,000,000 at any time outstanding;
(r) guaranties by the Borrower of Indebtedness of a Foreign Subsidiary that is permitted to be
incurred pursuant to Section 6.01(j);
(s) Indebtedness under any Hedge Agreements entered into for the purpose of hedging risks
associated with Holdings and its Subsidiaries operations and not for speculative purposes;
(t) contingent obligations in respect of corporate leases assigned, sold or otherwise
transferred (i) set forth on Schedule 6.01(t) or (ii) incurred or created after the date hereof in
connection with the sale of retail stores; provided that in the case of clause (ii) above all such
contingent obligations shall be unsecured and shall not permit a cross-default to this Agreement;
(u) Indebtedness of the Borrower and its Subsidiaries in an aggregate amount not to exceed
$60,000,000 at any time outstanding;
(v) Indebtedness if the Interest Coverage Ratio is at least 2.00 to 1.00, determined on a Pro
Forma basis after giving effect to the incurrence of such Indebtedness;
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(w) Indebtedness incurred pursuant to the Senior Secured Asset-Based Revolving Credit Facility
by the Borrower or any Subsidiary; provided that immediately after giving effect to any such
incurrence, the aggregate principal amount of all Indebtedness incurred under this
clause (w) then outstanding does not exceed the greater of (A) $450,000,000 and (B) the
Borrowing Base at such time;
(x) Indebtedness incurred in connection with Sale-Leaseback Transactions permitted pursuant to
Section 6.11; and
(y) without duplications of any other Indebtedness, non-cash accruals of interest, accretion
or amortization of original issue discount and payment-in-kind interest with respect to
Indebtedness hereunder.
(z) (i) Permitted Unsecured Refinancing Debt of a Loan Party and (ii) any Permitted
Refinancing thereof; and
(aa) (i) Permitted First Priority Refinancing Debt and Permitted Second Priority Refinancing
Debt, in each case of a Loan Party and (ii) any Permitted Refinancing thereof.
Section 6.02. Liens. No Loan Party shall, nor shall it permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or permit to exist any Lien on or with respect to any
property or asset of any kind (including any document or instrument in respect of goods or accounts
receivable) of Holdings or any of its Subsidiaries, whether now owned or hereafter acquired, or any
income or profits therefrom, or file or permit the filing of, or permit to remain in effect, any
financing statement or other similar notice of any Lien with respect to any such property, asset,
income or profits under the UCC of any State or under any similar recording or notice statute,
except:
(a) Liens granted pursuant to the Collateral Documents to secure the Secured Obligations;
(b) Liens for Taxes not then due or if due obligations with respect to such Taxes that are not
at such time required to be paid pursuant to Section 5.03 or which are being contested in good
faith by appropriate proceedings promptly instituted and diligently conducted;
(c) statutory Liens of landlords, banks (and rights of set-off), carriers, warehousemen,
mechanics, repairmen, workmen and materialmen, and other Liens imposed by law (other than any such
Lien imposed pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue Code or by ERISA), in
each case incurred in the ordinary course of business (i) for amounts not yet overdue or (ii) for
amounts that are overdue and that (in the case of any such amounts overdue for a period in excess
of thirty (30) days) are being contested in good faith by appropriate proceedings, so long as such
reserves or other appropriate provisions, if any, as shall be required by GAAP shall have been made
for any such contested amounts;
(d) Liens incurred (i) in the ordinary course of business in connection with workers
compensation, unemployment insurance and other types of social security, or (ii) in the ordinary
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course of business to secure the performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, trade contracts, performance and return-of-money bonds
and other similar obligations (exclusive of obligations for the payment of borrowed money
or other Indebtedness), or (iii) pledges and deposits in the ordinary course of business
securing liability for reimbursement or indemnification obligations of (including obligations in
respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing
property, casualty or liability insurance to Holdings and its Subsidiaries;
(e) easements, rights-of-way, restrictions, encroachments, and other minor defects or
irregularities in title, in each case which do not and could not reasonably be expected to have a
Material Adverse Effect;
(f) any (i) interest or title of a lessor or sublessor under any lease of real estate
permitted hereunder, (ii) landlord liens permitted by the terms of any lease; (iii) restriction or
encumbrance that the interest or title of such lessor or sublessor may be subject to or (iv)
subordination of the interest of the lessee or sublessee under such lease to any restriction or
encumbrance referred to in the preceding clause (iii);
(g) Liens solely on any cash earnest money deposits made by the Borrower or any of its
Subsidiaries in connection with any letter of intent or purchase agreement permitted hereunder;
(h) purported Liens evidenced by the filing of precautionary UCC financing statements relating
solely to operating leases of personal property entered into in the ordinary course of business;
(i) Liens in favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods;
(j) any zoning, building or similar law or right reserved to or vested in any governmental
office or agency to control or regulate the use or dimensions of any real property or structure
thereon;
(k) (i) licenses of patents, trademarks and other intellectual property rights granted by the
Borrower or any of its Subsidiaries in the ordinary course of business and not interfering in any
material respect with the ordinary conduct of the business of the Borrower or such Subsidiary and
(ii) leases or subleases granted by Holdings or any of its Subsidiaries to third parties in respect
of surplus property that the Borrower determines is not necessary to the operation of the business
in the ordinary course of business; provided that such leases and subleases are on arms-length
commercial terms and are otherwise satisfactory to the Administrative Agent;
(l) Liens described in Schedule 6.02 and any modifications, replacements, renewals or
extensions thereof; provided that (i) the Lien does not extend to any additional property other
than (A) after-acquired property that is affixed or incorporated into the property covered by such
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Lien or financed by Indebtedness permitted under Section 6.01, and (B) proceeds and products
thereof, and (ii) the renewal, extension or refinancing of the obligations secured or benefited by
such Liens is permitted by Section 6.01;
(m) Liens on the Chester Distribution Center Collateral securing the Chester Distribution
Center Permanent Financing; provided that such Liens attach only to the Chester Distribution Center
Collateral;
(n) (i) Liens securing Indebtedness permitted pursuant to Sections 6.01(k), (l) and (m);
provided that any such Lien shall encumber only the asset acquired with the proceeds of such
Indebtedness; and (ii) Liens securing Indebtedness permitted pursuant to Section 6.01(p) (solely
with respect to the permitted refinancing of Indebtedness permitted pursuant to Sections 6.01(k),
(l) and (m)); provided that any such Lien not extend to any asset not covered by the Lien securing
the Indebtedness that is refinanced;
(o) (i) Indebtedness incurred pursuant to Section 6.01(n) may be secured by Liens on assets
acquired or financed through the incurrence of such Indebtedness or on the assets of the newly
acquired Subsidiary; provided that such Indebtedness was not created in contemplation of the
acquisition of such Subsidiary by the Borrower or one of its Subsidiaries; and (ii) Liens securing
Indebtedness incurred pursuant to Section 6.01(p) (solely with respect to the permitted refinancing
of Indebtedness permitted pursuant to Section 6.01(n)); provided that such Lien shall not extend to
any asset not covered by the Lien securing the Indebtedness that is refinanced;
(p) Liens that are contractual rights of setoff relating to the establishment of depositary
relations with banks not given in connection with the issuance of Indebtedness;
(q) Liens on assets of Foreign Subsidiaries securing Indebtedness permitted pursuant to
Section 6.01(j);
(r) Liens securing obligations (other than obligations representing Indebtedness for borrowed
money) under operating, reciprocal easement or similar agreements entered into in the ordinary
course of business of the Borrower and its Subsidiaries;
(s) Liens disclosed in a title report delivered on the Closing Date with respect to any
Mortgaged Property reasonably acceptable to the Collateral Agent;
(t) Liens securing the Indebtedness incurred pursuant to Section 6.01(w) and subject to the
Intercreditor Agreement;
(u) other Liens on assets securing Indebtedness in an aggregate amount not to exceed
$15,000,000 at any time outstanding;
(v) Liens securing judgments for the payment of money not constituting an Event of Default
under Section 7.01(h);
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(w) leases, licenses, subleases or sublicenses granted to others in the ordinary course of
business which do not (i) interfere in any material respect with the business of Holdings and its
Subsidiaries (other than an Immaterial Subsidiary), or (ii) secure any Indebtedness;
(x) Liens on property (i) of any Foreign Subsidiary that is not a Loan Party and (ii) that
does not constitute Collateral, which Liens secure Indebtedness of the applicable Foreign
Subsidiary permitted under Section 6.01;
(y) Liens existing on property (other than Inventory and Accounts) at the time of its
acquisition or existing on the property of any Person at the time such Person becomes a Subsidiary
Guarantor in each case after the date hereof (other than Liens on the Capital Stock of any Person
that becomes a Subsidiary Guarantor); provided that (i) such Lien was not created in contemplation
of such acquisition or such Person becoming a Subsidiary Guarantor, and (ii) such Lien does not
extend to or cover any other assets or property (other than the proceeds or products thereof and
accessions or additions thereto);
(z) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for sale of goods entered into by Holdings or any of its Subsidiaries in the ordinary
course of business permitted by this Agreement;
(aa) Liens placed on the Capital Stock of any non-wholly owned Subsidiary in the form of a
transfer restriction, purchase option, call or similar right of a third party joint venture
partner; and
(bb) Liens on the Collateral securing Permitted First Priority Refinancing Debt or Permitted
Second Priority Refinancing Debt and any Permitted Refinancing of the foregoing; provided, that (x)
any such Liens securing any Permitted Refinancing in respect of Permitted First Priority
Refinancing Debt are subject to the Intercreditor Agreement and the First Lien Intercreditor
Agreement and (y) any such Liens securing any Permitted Refinancing in respect of Permitted Second
Priority Refinancing Debt are subject to the Intercreditor Agreement and the Second Lien
Intercreditor Agreement.
Section 6.03. Equitable Lien. If any Loan Party or any of its Subsidiaries shall create or
assume any Lien upon any of its properties or assets, whether now owned or hereafter acquired,
other than Permitted Liens, it shall make or cause to be made effective provisions whereby the
Obligations will be secured by such Lien equally and ratably with any and all other Indebtedness
secured thereby as long as any such Indebtedness shall be so secured; provided, notwithstanding the
foregoing, this covenant shall not be construed as a consent by Required Lenders to the creation or
assumption of any such Lien not otherwise permitted hereby.
Section 6.04. No Further Negative Pledges. Except with respect to (a) specific property
encumbered to secure payment of particular Indebtedness or to be sold pursuant to an executed
agreement with respect to a permitted Asset Sale; (b) restrictions contained in agreements with
respect to Indebtedness incurred by Foreign Subsidiaries in accordance with this Agreement
(provided that such restrictions are limited to the property or assets of such Foreign Subsidiary
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and its Subsidiaries); (c) restrictions contained in the Senior Subordinated Notes Indenture or in
agreements with respect to Indebtedness incurred that refinances or replaces the Senior
Subordinated Notes Indenture that are no more restrictive in any material respect than those
contained in the Senior Subordinated Notes Indenture or restrictions contained in the Senior
Secured Asset-Based Revolving Credit Agreement; (d) restrictions by reason of customary
provisions restricting assignments, subletting or other transfers contained in leases,
licenses and similar agreements entered into in the ordinary course of business (provided that such
restrictions are limited to the property or assets secured by such Liens or the property or assets
subject to such leases, licenses or similar agreements, as the case may be); (e) Liens permitted to
be incurred under Section 6.02 and restrictions in the agreements relating thereto that limit the
right of the Borrower or any of its Subsidiaries to dispose of or transfer the assets subject to
such Liens; (f) provisions limiting the disposition or distribution of assets or property in joint
venture agreements, sale-leaseback agreements, stock sale agreements and other similar agreements,
which limitation is applicable only to the assets that are the subject of such agreements; (g) any
encumbrance or restriction in connection with an acquisition of property, so long as such
encumbrance or restriction relates solely to the property so acquired and was not created in
connection with or in anticipation of such acquisition; (h) restrictions imposed by customary
provisions in partnership agreements, limited liability company organizational governance
documents, joint venture agreements and other similar agreements that restrict the transfer of
ownership interests in such partnership, limited liability company, joint venture or similar
Person; (i) restrictions on cash or other deposits imposed by customers under contracts entered
into in the ordinary course of business; and (j) restrictions in any one or more agreements
governing Indebtedness entered into after the Closing Date that contain encumbrances and other
restrictions that are, taken as a whole, in the good faith judgment of the Borrower, (A) no more
restrictive in any material respect with respect to the Borrower or any Subsidiary Guarantor than
those encumbrances and other restrictions that are in effect on the Closing Date pursuant to
agreements and instruments in effect on the Closing Date or (B) no more disadvantageous to the
Lenders than the Senior Subordinated Notes Indenture, no Loan Party nor any of its Subsidiaries
shall enter into any agreement prohibiting the creation or assumption of any Lien upon any of its
properties or assets, whether now owned or hereafter acquired.
Section 6.05. Restricted Junior Payments. No Loan Party shall, nor shall it permit any of
its Subsidiaries or Affiliates through any manner or means or through any other Person to, directly
or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set
apart, any sum for any Restricted Junior Payment, except that (a) the Borrower may make regularly
scheduled payments of interest in respect of any Subordinated Indebtedness in accordance with the
terms of, and only to the extent required by, and subject to the subordination provisions contained
in, the indenture or other agreement pursuant to which such Subordinated Indebtedness was issued as
such indenture or other agreement may be amended from time to time to the extent permitted under
Section 6.14; (b) so long as no Default or Event of Default shall have occurred and be continuing
or shall be caused thereby, the Borrower may make Restricted Junior Payments (i) in an aggregate
amount not to exceed $500,000 in any Fiscal Year, to the extent necessary to permit Holdings (or
any Parent Company) to pay general administrative costs and expenses and (ii) to the extent
necessary to permit Holdings (or any
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Parent Company) to discharge the consolidated tax liabilities
of Holdings and its Subsidiaries, in each case so long as Holdings (or any Parent Company) applies
the amount of any such Restricted Junior Payment for such purpose; (c) so long as no Default or
Event of Default shall have occurred and be continuing or be caused thereby, Holdings (or any
Parent Company) may repurchase or retire for value Capital Stock of Holdings (or any Parent
Company) held by any future, present or former employee, director, officer, manager or consultant
(or any Controlled Investment Affiliate or Immediate Family Member thereof) of Holdings (or any Parent Company)
or any Subsidiary upon the death, disability, retirement or termination of employment of any such
Person or otherwise pursuant to any employee or director stock option plan or any other employee or
director benefit plan or any agreement (including any stock subscription or shareholder agreement)
with any future, present or former employee, director, officer, manager or consultant of Holdings
(or any Parent Company) or any Subsidiary (x) in exchange for notes issued pursuant to Section
6.01(o), (y) in exchange for or with the proceeds of Capital Stock of or Indebtedness issued by
Holdings (or any direct or indirect parent thereof) or (z) in exchange for Cash and Cash
Equivalents (and the Borrower may make Restricted Junior Payments to Holdings to make (or to make
Restricted Junior Payments to permit any Parent Company to make)) in an amount not to exceed
$15,000,000 in any Fiscal Year and $45,000,000 in the aggregate from the Closing Date to the date
of determination; (d) the Borrower may make payments in respect of Management Fees not to exceed
$2,500,000 in any fiscal year; (e) the Borrower and Holdings may pay (or make Restricted Junior
Payments to permit the payment of) the Special Dividend; (f) the Borrower may replace or refinance
the Senior Subordinated Notes with Indebtedness permitted by Section 6.01(p), (g) the Borrower may
repay, repurchase or retire any Junior Financing with the proceeds of, or in exchange for,
Qualified Capital Stock of the Borrower or any Parent Company or Indebtedness of any Parent Company
so long as after giving effect to such repayment, repurchase or retirement no Event of Default
shall have occurred and be continuing, (h) the Borrower may make Restricted Junior Payments (and
Holdings may itself make Restricted Junior Payments with any such Restricted Junior Payments
received by it from the Borrower); provided that at the time it is paid by the Borrower, (i) such
Restricted Junior Payment is permitted pursuant to Section 4.07(a)(3) (which paragraph, for the
avoidance of doubt, sets forth the builder basket) or Section 4.07(b)(11) of the Senior
Subordinated Notes Indenture (as in effect on the date hereof and regardless of whether the
obligations of the Borrower thereunder shall have been satisfied or discharged at or prior to such
time the Senior Subordinated Notes Indenture shall be deemed to be in effect and binding on the
Borrower for purposes of this Section 6.05) and (ii) the Senior Leverage Ratio, on a Pro Forma
Basis after giving effect to such Restricted Junior Payment, is not greater than 4.0 to 1.0; and;
and provided further that any Investment made in reliance on Section 6.07(u) will be counted as a
Restricted Junior Payment for purposes of determining compliance with this Section 6.05(h), and (i)
the Borrower may make Restricted Junior Payments (and Holdings may itself make Restricted Junior
Payments with any such Restricted Junior Payments received by it from the Borrower) in an aggregate
amount (without duplication) not to exceed $20,000,000 when combined with any Investments permitted
by Section 6.07(v); provided that (x) as of the date of making such Restricted Junior Payment and
after giving effect thereto, no Default or Event of Default shall have occurred and be continuing,
and (y) the Senior Leverage Ratio, on a Pro Forma Basis after giving effect to such Restricted
Junior Payment, is not greater than 4.0 to 1.0.
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Section 6.06. Restrictions on Subsidiary Distributions. Except as provided herein, in the
Senior Subordinated Note Indenture or in agreements with respect to Indebtedness that refinances or
replaces Indebtedness permitted under Section 6.01(c), the Senior Secured Asset- Based Revolving
Credit Agreement or (with respect to encumbrances or restrictions on the ability of any Foreign
Subsidiary only) in any documentation evidencing the Indebtedness of Foreign Subsidiaries expressly
permitted by Section 6.01(j) and Section 6.01(q) or except for
restrictions in any one or more agreements governing Indebtedness entered into after the
Closing Date that contain encumbrances and other restrictions that are, taken as a whole, in the
good faith judgment of the Borrower, (A) no more restrictive in any material respect with respect
to the Borrower or any Subsidiary Guarantor than those encumbrances and other restrictions that are
in effect on the Closing Date pursuant to agreements and instruments in effect on the Closing Date
or (B) no more disadvantageous to the Lenders than the Senior Subordinated Notes Indenture, no Loan
Party shall, nor shall it permit any of its Subsidiaries to, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction of any kind on the ability of
any Subsidiary of the Borrower to (a) pay dividends or make any other distributions on any of such
Subsidiarys Capital Stock owned by the Borrower or any other Subsidiary of the Borrower, (b) repay
or prepay any Indebtedness owed by such Subsidiary to the Borrower or any other Subsidiary of the
Borrower, (c) make loans or advances to the Borrower or any other Subsidiary of the Borrower, or
(d) transfer any of its property or assets to the Borrower or any other Subsidiary of the Borrower
other than restrictions (i) in agreements evidencing Indebtedness permitted by Section 6.01(k),
(l), (m), (n) or (p) (solely with respect to the permitted refinancing of Indebtedness permitted
pursuant to Section 6.01(c), Section 6.01(k), (l), (m), or (n)) or (w) that impose restrictions on
the property so acquired; (ii) by reason of customary provisions restricting assignments,
subletting or other transfers contained in leases, licenses, joint venture agreements and similar
agreements entered into in the ordinary course of business; (iii) that are or were created by
virtue of any transfer of, agreement to transfer or option or right with respect to any property,
assets or Capital Stock not otherwise prohibited under this Agreement; (iv) in any instrument
governing Indebtedness or Capital Stock of a Person acquired by the Borrower or any of its
Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness
or Capital Stock was incurred in connection with or in contemplation of such acquisition),which
encumbrance or restriction is not applicable to any Person, or the properties or assets of any
Person, other than the Person, or the property or assets of the Person, so acquired; provided that,
in the case of Indebtedness, such Indebtedness was permitted by Section 6.01 to be incurred; (v) in
any agreement for the sale or other disposition of a Subsidiary that restricts distributions by
that Subsidiary pending the sale or other disposition; and (vi) in provisions in agreements or
instruments which prohibit the payment of dividends or the making of other distributions with
respect to any class of Capital Stock of a Person other than on a pro rata basis.
Section 6.07. Investments. No Loan Party shall, nor shall it permit any of its Subsidiaries
to, directly or indirectly, make or own any Investment in any Person except:
(a) Cash Equivalents;
(b) equity Investments owned as of the Closing Date in any Subsidiary and Investments made
after the Closing Date in wholly-owned Subsidiaries of the Borrower
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organized under the laws of the
United States of America, any state thereof or the District of Columbia;
(c) Investments in (i) any Securities received in satisfaction or partial satisfaction thereof
from financially troubled account debtors and (ii) deposits, prepayments and other credits
to suppliers, in each case received or made in the ordinary course of business consistent with
the past practices of the Borrower and its Subsidiaries;
(d) intercompany loans to the extent permitted under Section 6.01(b)(i) and intercompany
guaranties to the extent permitted under Sections 6.01(h) and (r);
(e) Investments in any Person organized under the laws of the United States of America, any
state thereof or the District of Columbia of which at least 80% of the capital stock and voting
stock thereof will be owned by the Borrower or any Subsidiary Guarantor after giving effect to such
Investment; provided that the amount of all such Investments does not exceed $20,000,000 in the
aggregate for all such Investments at any time outstanding;
(f) Investments made in connection with Permitted Acquisitions permitted pursuant to Section
6.09;
(g) the Borrower and its wholly-owned Domestic Subsidiaries may make additional Investments in
their respective Foreign Subsidiaries; provided that the aggregate outstanding principal amount of
Indebtedness of, and the aggregate amount of Investments in, Foreign Subsidiaries pursuant to
Section 6.01(b)(iv), Section 6.01(j) and Section 6.01(q) and this Section 6.07(g) shall not exceed
$60,000,000 at any time outstanding;
(h) Investments described in Schedule 6.07 and Investments to the extent permitted under
Section 6.01(t)(ii);
(i) Investments received in lieu of Cash in connection with Asset Sales expressly permitted by
Section 6.09;
(j) Investments in any Person organized under the laws of the United States of America, any
state thereof or the District of Columbia in an aggregate amount not to exceed $25,000,000 at any
time outstanding;
(k) Investments in Unrestricted Subsidiaries not to exceed $50,000,000 plus amounts that at
the time of the Investment thereof could have been paid as a Restricted Junior Payment pursuant to
Section 6.05 but were not so paid but were used to make an Investment in an Unrestricted
Subsidiary;
(l) loans or advances to officers, directors and employees of the Holdings and its
Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation
and analogous ordinary business purposes and (ii) to the extent permitted by Requirements of Law,
in connection with such Persons purchase of Capital Stock of Holdings, provided that the amount of
such loans and advances shall be contributed to the Borrower in cash as common
93
equity, or paid to the Borrower in connection with such purchase of Capital Stock, in an
aggregate principal amount outstanding not to exceed $10,000,000 at any time outstanding;
(m) Investments consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course of business, and
Investments received in satisfaction or partial satisfaction thereof from financially troubled
account debtors and other credits to suppliers in the ordinary course of business;
(n) Investments consisting of Indebtedness permitted under Section 6.01 or Restricted Junior
Payments permitted under Section 6.05;
(o) Investments in the ordinary course of business consisting of endorsements for collection
or deposit and customary trade arrangements with customers consistent with past practices;
(p) Investments (including debt obligations and Capital Stock) received in connection with the
bankruptcy or reorganization of suppliers and customers or in settlement of delinquent obligations
of, or other disputes with, customers and suppliers arising in the ordinary course of business or
upon the foreclosure with respect to any secured Investment or other transfer of title with respect
to any secured Investment;
(q) advances of payroll payments to employees in the ordinary course of business;
(r) Investments to the extent that payment for such Investments is made solely with Capital
Stock of Holdings not resulting in a Change of Control;
(s) Investments of a Subsidiary Guarantor acquired after the Closing Date or of a Person
merged into or amalgamated with the Borrower or merged, amalgamated or consolidated with a
Subsidiary Guarantor in accordance with Section 6.08 after the Closing Date to the extent that such
Investments were not made in contemplation of or in connection with such acquisition, merger,
amalgamation, or consolidation and were in existence on the date of such acquisition, merger,
amalgamation, or consolidation;
(t) capital expenditures permitted hereby;
(u) Investments made after the date hereof in or to any Person (including, without limitation,
a joint venture, partnership or other similar arrangement, whether in corporate, partnership or
other legal form, and including any Foreign Subsidiary); provided that the Borrower would be
permitted to make a Restricted Junior Payment pursuant to Section 6.05(h) at the time of such
Investment in an amount equal to such Investment and such Investment shall be counted as a
Restricted Junior Payment for purposes of determining compliance with Section 6.05(h); and
(v) Investments made after the date hereof in or to any Person (including, without limitation,
a joint venture, partnership or similar arrangement, whether in corporate partnership or other
legal form, and including any Foreign Subsidiary); provided, that, (A) any such
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Investment made in reliance upon this clause (v), together with any Restricted Payments made
in reliance upon Section 6.05(i), shall not exceed $20,000,000 at any time outstanding and (B) as
of the date of making such Investment and after giving effect thereto, no Default or Event of
Default shall have occurred and be continuing and the Senior Leverage Ratio, on a Pro Forma Basis
after giving effect to such Investment, is not greater than 4.0 to 1.0.
Notwithstanding the foregoing, in no event shall any Loan Party make any Investment which
results in or facilitates in any manner any Restricted Junior Payment not otherwise permitted under
the terms of Section 6.05.
Section 6.08. [Reserved].
Section 6.09. Fundamental Changes; Disposition of Assets; Acquisitions. No Loan Party shall,
nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or
consolidation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution),
or convey, sell, lease or sublease (as lessor or sublessor), transfer or otherwise dispose of, in
one transaction or a series of transactions, all or any part of its business, assets or property of
any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether
now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other
acquisitions of inventory, materials, supplies and equipment in the ordinary course of business)
the business, property or fixed assets of, or stock or other evidence of beneficial ownership of,
any Person or any division or line of business or other business unit of any Person, except:
(a) any Subsidiary of Holdings may be merged with or into the Borrower or any Subsidiary
Guarantor, or be liquidated, wound up or dissolved, or all or any part of its business, property or
assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a
series of transactions, to the Borrower or any Subsidiary Guarantor; provided, in the case of such
a merger, the Borrower or such Subsidiary Guarantor, as applicable, shall be the continuing or
surviving Person and the Lien on and security interest in such Collateral granted or to be granted
in favor of the Collateral Agent under the Collateral Documents shall be maintained or created in
accordance with Section 5.12;
(b) any Foreign Subsidiary of the Borrower may be merged with or into any other Foreign
Subsidiary of the Borrower, or be liquidated, wound up or dissolved, or all or any part of its
business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of,
in one transaction or a series of transactions to the Borrower or any wholly-owned Subsidiary;
provided, in the case of such a merger, a wholly-owned Subsidiary shall be the continuing or
surviving Person; provided, further, in the case of a merger of a Foreign Subsidiary with or into a
Domestic Subsidiary, a Domestic Subsidiary shall be the continuing or surviving Person;
(c) sales or other dispositions of assets that do not constitute Asset Sales;
(d) Asset Sales, the proceeds of which (valued at the principal amount thereof in the case of
non-Cash proceeds consisting of notes or other debt Securities and valued at fair market
95
value in
the case of other non-Cash proceeds), when aggregated with the proceeds of all other
Asset Sales permitted only pursuant to this Section 6.09(d) within the same Fiscal Year, are
less than $30,000,000; provided (1) the consideration received for such assets shall be in an
amount at least equal to the fair market value thereof (determined in good faith by the board of
directors of the Borrower (or similar governing body)), (2) no less than 75% thereof shall be paid
in Cash or Cash Equivalents, and (3) the Net Proceeds thereof shall be applied as required by
Section 2.09(b)(i);
(e) disposals of obsolete, worn out or property and any assets acquired in connection with the
acquisition of another Person or a division or line of business of such Person which the Borrower
reasonably determines are surplus assets;
(f) Permitted Acquisitions; provided that the Interest Coverage Ratio on a Pro Forma Basis
after giving effect to such Permitted Acquisition shall be at least 2.0 to 1.0 as of the last day
of the four-Fiscal Quarter period ended as of the most recently concluded Fiscal Quarter prior to
the date of determination;
(g) other acquisitions, dispositions or expenditures that constitute Investments that are
permitted to be made pursuant to Section 6.07;
(h) any Subsidiary Guarantor may merge or amalgamate with any other Person in order to effect
an Investment permitted pursuant to Section 6.07; provided that the continuing or surviving Person
shall be a Subsidiary Guarantor, which shall have complied with the requirements of Section 5.12;
(i) to the extent that (i) such property is exchanged for credit against the purchase price of
similar replacement property or (ii) the proceeds of such disposition are promptly applied to the
purchase price of such replacement property;
(j) to the Borrower or to a Subsidiary Guarantor; provided that if the transferor of such
property is a Loan Party the transferee thereof must either be a Borrower or a Subsidiary
Guarantor, in which event the Collateral Agent shall retain its perfected Lien on the property so
disposed of, subject to the same priority as existed prior to such disposition;
(k) sales, discounting or forgiveness of accounts receivable in the ordinary course of
business or in connection with the collection or compromise thereof;
(l) leases, subleases, licenses or sublicenses (including the provision of software under an
open source license), in each case in the ordinary course of business and which (i) do not
materially interfere with the business of the Holdings and it Subsidiaries, or (ii) relate to
closed stores;
(m) termination of leases in the ordinary course of business;
(n) transfers of property subject to casualty, eminent domain or condemnation;
96
(o) licenses for the conduct of licensed departments within the Loan Parties stores in the
ordinary course of business;
(p) as long as no Event of Default hereof then exists or would arise therefrom, bulk sales or
other dispositions of the Loan Parties inventory not in the ordinary course of business in
connection with store closings, at arms length, provided that (i) such store closures and related
inventory dispositions shall not exceed, in any Fiscal Year 10% of the number of the Loan Parties
stores as of the beginning of such Fiscal Year (net of store relocations (i) occurring
substantially contemporaneously, but in no event later than 10 Business Days after the related
store closure date, or (ii) wherein a binding lease has been entered into prior to the related
store closure date), and (ii) as of any date after the Closing Date, the aggregate number of such
store closures since the Closing Date shall not exceed 20% of the greater of (x) the number of the
Loan Parties stores in existence as of the Closing Date or (y) the number of the Loan Parties
stores as of the first day of any Fiscal Year beginning after the Closing Date (net of store
relocations (i) occurring substantially contemporaneously, but in no event later than 10 Business
Days after the related store closure date or (ii) wherein a binding lease has been entered into
prior to the related store closure date), provided that all sales of Inventory in connection with
store closings in a transaction or series of related transactions shall be in accordance with
liquidation agreements and with professional liquidators reasonably acceptable to the
Administrative Agent; provided further that all Net Proceeds received in connection therewith are
applied to the Obligations, if then required in accordance with this Agreement;
(q) sales of non-core assets acquired in connection with a Permitted Acquisition and sales of
Real Estate Assets acquired in a Permitted Acquisition which, within thirty days of the date of the
acquisition, are designated in writing to the Administrative Agent as being held for sale and not
for the continued operation of a store;
(r) exchanges or swaps, including, without limitation, transactions covered by Section 1031 of
the Code, of Real Estate Assets of the Loan Parties so long as the exchange or swap is made for
fair value and on an arms length basis, provided that upon the consummation of such exchange or
swap, (x) the Collateral Agent has a perfected Lien having the same priority as any Lien held on
the Real Estate Assets so exchanged or swapped and (y) the Net Proceeds, if any, received in
connection with any such exchange or swap are applied to the Obligations if then required in
accordance with this Agreement;
(s) Sale-Leaseback Transactions permitted by Section 6.11; and
(t) Restricted Payments permitted by Section 6.05.
Section 6.10. Disposal of Subsidiary Interests. Except for any sale of all of its interests
in the Capital Stock of any of its Subsidiaries in compliance with the provisions of Section 6.09
and except for issuances of Capital Stock by Foreign Subsidiaries to make Permitted Acquisitions
pursuant to Section 6.09(f) and except for Liens created under the Senior Secured Assed-Based
Revolving Credit Facility and subject to the Intercreditor Agreement, no Loan Party shall, nor
shall it permit any of its Subsidiaries to, directly or indirectly sell, assign, pledge
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or
otherwise encumber or dispose of any Capital Stock of any of its Subsidiaries, except (i) to
qualify directors if required by applicable law; or (ii) to another Loan Party (subject to the
restrictions on such disposition otherwise imposed hereunder).
Section 6.11. Sales and Lease-backs. No Loan Party shall, nor shall it permit any of its
Subsidiaries to, directly or indirectly, become or remain liable as lessee or as a guarantor or
other surety with respect to any lease of any property (whether real, personal or mixed), whether
now owned or hereafter acquired, which such Loan Party (a) has sold or transferred or is to sell or
to transfer to any other Person (other than the Borrower or any of its Subsidiaries), or (b)
intends to use for substantially the same purpose as any other property which has been or is to be
sold or transferred by such Loan Party to any Person (other than the Borrower or any of its
Subsidiaries) in connection with such lease; provided that a Sale and Lease-Back Transaction shall
be permitted so long as (a) such Sale and Lease-Back Transaction is either (x) permitted by Section
6.01(m), or (y) (i) is made for cash consideration in an amount not less than the fair value of the
applicable property, (ii) is pursuant to a lease on market terms, (iii) is consummated within two
hundred and seventy (270) days after such Loan Party acquires or completes the construction of the
applicable property and (iv) the net proceeds received from such Sale and Lease-Back Transaction,
(x) when combined with the net proceeds of all other Sale and Lease-Back Transactions permitted
hereunder, does not exceed $15,000,000, and (y) are applied to repay the Term Loans to the extent
required by Section 2.09.
Section 6.12. Transactions with Shareholders and Affiliates. No Loan Party shall, nor shall
it permit any of its Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction (including the purchase, sale, lease or exchange of any property or the rendering of
any service) with any Affiliate of the Borrower or of any such holder on terms that are less
favorable to the Borrower or that Subsidiary, as the case may be, than those that might be obtained
at the time from a Person who is not such a holder or Affiliate; provided that the foregoing
restriction shall not apply to (a) any transaction between or among (x) the Borrower and/or one or
more Subsidiary Guarantors or (y) one or more Foreign Subsidiaries; (b) reasonable and customary
fees paid to members of the board of directors (or similar governing body) of Holdings and its
Subsidiaries; (c) compensation arrangements (including severance) for officers and other employees
of Holdings and its Subsidiaries entered into in the ordinary course of business; (d) transactions
permitted in Sections 6.01(o) and 6.05(b), (c), (d), and (e); (f) the transaction described on
Schedule 6.12; (g) commercial transactions between or among the Borrower and/or one or more
Subsidiaries in the ordinary course of business and consistent with past practices; (h) the
Transactions and the payment of fees and expenses relating to the Transactions, including
Transaction Costs, (i) payments due pursuant to the Management Agreement, (j) equity issuances,
repurchases, retirements or other acquisitions or retirements of Capital Stock of Holdings
permitted under Section 6.05, (k) loans and other transactions by the Loan Parties to the extent
permitted under this Article 6, (l) the payment of customary fees, compensation, and reasonable out
of pocket costs to, and indemnities provided on behalf of, directors, officers and employees of the
Loan Parties in the ordinary course of business to the extent attributable to the ownership or
operation of the Loan Parties, (m) transactions pursuant to permitted agreements in existence on
the Closing Date and set forth on Schedule 6.12 or any
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amendment thereto to the extent such an
amendment is not adverse to the Lenders in any material respect; and (n) dividends, redemptions and
repurchases permitted under Section 6.05.
Section 6.13. Conduct of Business. From and after the Closing Date, no Loan Party shall, nor
shall it permit any of its Subsidiaries to, engage in any material line of business other than (i)
the businesses engaged in by any Loan Party on the Closing Date and similar or related businesses
and (ii) such other lines of business as may be consented to by Required Lenders.
Section 6.14. Amendments or Waivers of Certain Related Agreements. No Loan Party shall, nor
shall it permit any of its Subsidiaries to, agree to any material amendment, restatement,
supplement or other modification to, or waiver of, any of its material rights under any Related
Agreement, in each case in a manner that is materially adverse to the Lenders, in each case after
the Closing Date without in each case obtaining the prior written consent of Required Lenders to
such amendment, restatement, supplement or other modification or waiver.
Section 6.15. Amendments of or Waivers with Respect to Certain Indebtedness. No Loan Party
shall, nor shall it permit any of its Subsidiaries to, amend or otherwise change the terms of (i)
any Subordinated Indebtedness, or make any payment consistent with an amendment thereof or change
thereto, if the effect of such amendment or change is to increase the interest rate on such
Subordinated Indebtedness, change (to earlier dates) any dates upon which payments of principal or
interest are due thereon, change any event of default or condition to an event of default with
respect thereto (other than to eliminate any such event of default or increase any grace period
related thereto), change the redemption, prepayment or defeasance provisions thereof or change the
subordination provisions of such Subordinated Indebtedness (or of any guaranty thereof), or if the
effect of such amendment or change, together with all other amendments or changes made, is to
increase materially the obligations of the obligor thereunder or to confer any additional rights on
the holders of such Subordinated Indebtedness (or a trustee or other representative on their
behalf) which would be adverse to any Loan Party or the Lenders or (ii) the Senior Secured
Asset-Based Revolving Credit Facility other than in accordance with the Intercreditor Agreement.
Section 6.16. Fiscal Year. No Loan Party shall, nor shall it permit any of its Subsidiaries
to, change its Fiscal Year-end to a date other than December 31 or the Saturday closest to December
31.
Section 6.17. Permitted Activities of Holdings. Holdings shall not (a) incur, directly or
indirectly, any Indebtedness or any other obligation or liability whatsoever other than the
Indebtedness and obligations under the Related Agreement, the Senior Secured Asset-Based Revolving
Credit Facility and as may be otherwise permitted under Section 6.01; (b) create or suffer to exist
any Lien upon any property or assets now owned or hereafter acquired by it other than the Liens
created under the Collateral Documents or, subject to the Intercreditor Agreement, the Senior
Secured Asset-Based Revolving Credit Facility to which it is a party or otherwise permitted under
Section 6.02; (c) engage in any business or activity or own any assets other than (i) holding 100%
of the Capital Stock of the Borrower, (ii) performing its obligations and activities incidental
thereto under the Loan Documents and the Senior Secured Asset-Based
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Revolving Credit Facility, and
to the extent not inconsistent therewith, the Related Agreement and (iii) making Restricted Junior
Payments and Investments to the extent permitted by this Agreement; (d) consolidate with or merge
with or into, or convey, transfer or lease all or
substantially all its assets to, any Person; (e) sell or otherwise dispose of any Capital
Stock of the Borrower; (f) create or acquire any Subsidiary or make or own any Investment in any
Person other than the Borrower; or (g) fail to hold itself out to the public as a legal entity
separate and distinct from all other Persons.
ARTICLE 7
Events of Default
If any of the following events (Events of Default) shall occur:
Section 7.01. Events of Default. If any one or more of the following conditions or events
shall occur:
(a) Failure To Make Payments When Due. Failure by the Borrower to pay (i) when due any
installment of principal of any Loan, whether at stated maturity, by acceleration, by notice of
voluntary prepayment, by mandatory prepayment or otherwise; or (ii) any interest on any Loan or any
fee or any other amount due hereunder within five (5) days after the date due; or
(b) Default in Other Agreements. (i) Failure of any Loan Party or any of their respective
Subsidiaries to pay when due any principal of or interest on or any other amount payable in respect
of one or more items of Indebtedness (other than Indebtedness referred to in (a) above) with an
aggregate principal amount of $20,000,000 or more, in each case beyond the grace period, if any,
provided therefor; or (ii) breach or default by any Loan Party with respect to any other material
term of (1) one or more items of Indebtedness in the individual or aggregate principal amounts
referred to in clause (i) above or (2) any loan agreement, mortgage, indenture or other agreement
relating to such item(s) of Indebtedness, in each case beyond the grace period, if any, provided
therefor, if the effect of such breach or default is to cause, or to permit the holder or holders
of that Indebtedness (or a trustee on behalf of such holder or holders) to cause, that Indebtedness
to become or be declared due and payable (or redeemable) prior to its stated maturity or the stated
maturity of any underlying obligation, as the case may be; provided that with respect to any breach
or default with respect to Section 6.18 of the Senior Secured Asset-Based Revolving Credit
Facility, such breach or default shall constitute an Event of Default under this Agreement if such
failure, event or condition is not cured or waived within 60 days after the occurrence of such
breach or default; or
(c) Breach of Certain Covenants. Failure of any Loan Party to perform or comply with any term
or condition contained in Article 6; or
(d) Breach of Representations, Etc. Any representation, warranty, certification or other
statement made or deemed made by any Loan Party in any Loan Document or in any statement or
certificate at any time given by any Loan Party or any of its Subsidiaries in writing pursuant
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hereto or thereto or in connection herewith or therewith shall be false in any material respect as
of the date made or deemed made; or
(e) Other Defaults Under Loan Documents. Any Loan Party shall default in the performance of
or compliance with any term contained herein or any of the other Loan Documents, other than any
such term referred to in any other Section of this Article 7, and such default shall not have been
remedied or waived within thirty (30) days after the earlier of (i) an executive officer of such
Loan Party becoming aware of such default or (ii) receipt by the Borrower of notice from the
Administrative Agent or any Lender of such default; or
(f) Involuntary Bankruptcy; Appointment of Receiver, Etc. (i) A court of competent
jurisdiction shall enter a decree or order for relief in respect of Holdings or any of its
Subsidiaries (other than an Immaterial Subsidiary) in an involuntary case under the Bankruptcy Code
or under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect,
which decree or order is not stayed; or any other similar relief shall be granted under any
applicable federal or state law; or (ii) an involuntary case shall be commenced against Holdings or
any of its Subsidiaries (other than an Immaterial Subsidiary) under the Bankruptcy Code or under
any other applicable bankruptcy, insolvency or similar law now or hereafter in effect; or a decree
or order of a court having jurisdiction in the premises for the appointment of a receiver,
liquidator, sequestrator, trustee, custodian or other officer having similar powers over Holdings
or any of its Subsidiaries other than its Immaterial Subsidiaries, or over all or a substantial
part of its property, shall have been entered; or there shall have occurred the involuntary
appointment of an interim receiver, trustee or other custodian of Holdings or any of its
Subsidiaries other than its Immaterial Subsidiaries for all or a substantial part of its property;
or a warrant of attachment, execution or similar process shall have been issued against any
substantial part of the property of Holdings or any of its Subsidiaries other than its Immaterial
Subsidiaries, and any such event described in this clause (ii) shall continue for sixty (60) days
without having been dismissed, bonded or discharged; or
(g) Voluntary Bankruptcy; Appointment of Receiver, Etc. (i) Holdings or any of its
Subsidiaries (other than an Immaterial Subsidiary) shall have an order for relief entered with
respect to it or shall commence a voluntary case under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in effect, or shall consent to
the entry of an order for relief in an involuntary case, or to the conversion of an involuntary
case to a voluntary case, under any such law, or shall consent to the appointment of or taking
possession by a receiver, trustee or other custodian for all or a substantial part of its property;
or Holdings or any of its Subsidiaries (other than an Immaterial Subsidiary) shall make any
assignment for the benefit of creditors; or (ii) Holdings or any of its Subsidiaries (other than an
Immaterial Subsidiary) shall be unable, or shall fail generally, or shall admit in writing its
inability, to pay its debts as such debts become due; or the board of directors (or similar
governing body) of Holdings or any of its Subsidiaries (other than an Immaterial Subsidiary) (or
any committee thereof) shall adopt any resolution or otherwise authorize any action to approve any
of the actions referred to herein or in Section 7.01(f); or
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(h) Judgments and Attachments. Any one or more money judgments, writs or warrants of
attachment or similar process involving in the aggregate at any time an amount in excess of
$20,000,000 (in either case to the extent not adequately covered by insurance as to which a solvent
and unaffiliated insurance company has acknowledged coverage) shall be entered or filed
against the Borrower or any of its Subsidiaries or any of their respective assets and shall
remain undischarged, unvacated, unbonded or unstayed for a period of sixty (60) days (or in any
event later than five days prior to the date of any proposed sale thereunder); or
(i) Dissolution. Any order, judgment or decree shall be entered against any Loan Party
decreeing the dissolution or split up of such Loan Party and such order shall remain undischarged
or unstayed for a period in excess of thirty (30) days; or
(j) Employee Benefit Plans. (i) There shall occur one or more ERISA Events which individually
or in the aggregate results in liability of Holdings or any of its Subsidiaries in excess of
$20,000,000 during the term hereof; or (ii) there shall occur the imposition of a Lien or security
interest under Section 412(n) of the Internal Revenue Code or under ERISA; or
(k) Change of Control. A Change of Control shall occur; or
(l) Guaranties, Collateral Documents and Other Loan Documents. At any time after the
execution and delivery thereof, (i) the Guaranty for any reason, other than the satisfaction in
full of all Obligations, shall cease to be in full force and effect (other than in accordance with
its terms) or shall be declared to be null and void or any Guarantor shall repudiate its
obligations thereunder, (ii) this Agreement or any Collateral Document ceases to be in full force
and effect (other than by reason of a release of Collateral in accordance with the terms hereof or
thereof or the satisfaction in full of the Obligations in accordance with the terms hereof or any
other termination of such Collateral Document in accordance with the terms thereof) or shall be
declared null and void, or the Collateral Agent shall not have or shall cease to have a valid and
perfected Lien in any Collateral purported to be covered by the Collateral Documents with the
priority required by the relevant Collateral Document, in each case for any reason other than the
failure of the Collateral Agent or any Secured Party to take any action within its control or (iii)
any Loan Party shall contest the validity or enforceability of any Loan Document in writing or deny
in writing that it has any further liability, including with respect to future advances by the
Lenders, under any Loan Document to which it is a party; or
(m) Subordination. The Obligations shall cease to constitute senior indebtedness under the
subordination provisions of any document or instrument evidencing any permitted Subordinated
Indebtedness (including the Indebtedness under the Senior Subordinated Notes as evidenced by the
Senior Subordinated Note Documents) or such subordination provision shall be invalidated or
otherwise cease, for any reason, to be valid, binding and enforceable obligations of the parties
thereto; then, and in every such event (other than an event with respect to any Loan Party
described in clause (f) or (g) 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 Borrower, 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
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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 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 Borrower; provided that upon the
occurrence of an event with respect to any Loan Party
described in clause (f) or (g) of this Article, the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations of the 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 Borrower, without further action of
the Administrative Agent or any Lender. Upon the occurrence and the continuance of an Event of
Default, the Agents may, and at the request of the Required Lenders shall, exercise any rights and
remedies provided to the Agents under the Loan Documents or at law or equity, including all
remedies provided under the UCC.
ARTICLE 8
The Agents
Each of the Lenders hereby irrevocably appoints the Administrative Agent and the Collateral
Agent as its agents and authorizes the Agents to take such actions on its behalf, including
execution of the other Loan Documents, and to exercise such powers as are delegated to the Agents
by the terms of the Loan Documents, together with such actions and powers as are reasonably
incidental thereto.
Each Person serving as an 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 an Agent,
and such Person and its Affiliates may accept deposits from, lend money to and generally engage in
any kind of business with the Loan Parties or any subsidiary of a Loan Party or other Affiliate
thereof as if it were not an Agent hereunder.
The Agents shall not have any duties or obligations except those expressly set forth in the
Loan Documents. Without limiting the generality of the foregoing, (a) neither Agent shall be
subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and
is continuing, (b) neither Agent shall 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 applicable Agent is required to exercise in writing as directed by the Required
Lenders (or such other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02), and (c) except as expressly set forth in the Loan
Documents, the Agents shall not have any duty to disclose, and shall not be liable for the failure
to disclose, any information relating to any Loan Party or any of its Subsidiaries that is
communicated to or obtained by the Person serving as an Agent or any of its Affiliates in any
capacity. Neither Agent shall 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 9.02) or in the absence of its
own gross negligence or willful misconduct. Neither Agent shall be deemed to have knowledge
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of any
Default unless and until written notice thereof is given to such Agent by the Borrower or a Lender,
and the Agents 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 hereunder or in connection with any
Loan Document, (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, (v) the creation, perfection or priority of Liens on the Collateral or the
existence of the Collateral, or (vi) the satisfaction of any condition set forth in Article 4 or
elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be
delivered to the Agents.
The Agents 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. Each 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. Each Agent may consult with
legal counsel (who may be counsel for the 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.
Each 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 such Agent. Each 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 the Agents and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facility provided for herein as well as
activities as Agent. For the avoidance of doubt, the Borrower shall make all payments pursuant to
Section 2.07 to the Administrative Agent and not to any sub-agent described in this paragraph.
Subject to the appointment and acceptance of a successor Agent as provided in this paragraph,
each Agent may resign at any time by notifying the other Agent, the Lenders and the Borrower. Upon
any such resignation, the Required Lenders shall have the right, with the consent (not to be
unreasonably withheld or delayed) of the Borrower, to appoint a successor Agent; provided that,
during the existence and continuation of an Event of Default, no consent of the Borrower shall be
required. If no successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within thirty (30) days after the retiring Agent gives notice of its
resignation, then the retiring Agent may, on behalf of the other Agent and the Lenders, appoint a
successor Agent which shall be a commercial bank or an Affiliate of any such commercial bank
reasonably acceptable to the Borrower. If no successor Agent has been appointed pursuant to the
immediately preceding sentence by the 30th day after the date such notice of resignation was given
by such Agent, such Agents resignation shall become effective and the Required Lenders shall
thereafter perform all the duties of such Agent hereunder and/or under any other Loan Document
until such time, if any, as the Required Lenders appoint a
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successor Administrative Agent and/or
Collateral Agent, as the case may be. Upon the acceptance of its appointment as an Agent hereunder
by a successor, such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations hereunder. The fees payable by the Borrower to a successor Agent shall be
the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such successor. After an Agents
resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for
the benefit of such retiring 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 an Agent.
Each Lender acknowledges that it has, independently and without reliance upon either 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 either 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 Arrangers, Bookrunners, Co-Syndication Agents and Co-Documentation Agents shall not have
any right, power, obligation, liability, responsibility or duty under this Agreement other than
those applicable to all Lenders as such.
ARTICLE 9
Miscellaneous
Section 9.01. Notices. (a) Except in the case of notices and other communications expressly
permitted to be given by telephone (and subject to paragraph (b) below), all notices and other
communications provided for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by facsimile, as follows:
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(i)
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if to any Loan Party, to the Borrower at: |
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80 Grasslands Road |
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Elmsford, New York 10523 |
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Attn: Michael A. Correale, Chief Financial Officer |
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Fax: (914) 345-2056 |
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with copy to: |
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Ropes & Gray LLP |
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1211 Avenue of the Americas |
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New York, New York 10036 |
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Attn: Sunil W. Savkar, Esq. |
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Fax: (212) 596-9090 |
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(ii)
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if to the Administrative Agent, to Credit Suisse AG at: |
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Eleven Madison Avenue, |
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New York, NY 10010 |
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Attention: Sean Portrait, Agency Manager |
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Telephone No.: (919) 994-6369 |
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Facsimile No: (212) 322-2291 |
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Email: agency.loanops@credit-suisse.com |
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(iii)
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if to the Collateral Agent, to Credit Suisse AG at: |
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Eleven Madison Avenue |
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New York, NY 10010 |
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Attention: Sean Portrait, Agency Manager |
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Telephone No.: (919) 994-6369 |
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Facsimile No: (212) 322-2291 |
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Email: agency.loanops@credit-suisse.com |
(iv) if to any other Lender, to it at its address or facsimile number set forth in its
Administrative Questionnaire.
All such notices and other communications (i) sent by hand or overnight courier service, or
mailed by certified or registered mail, shall be deemed to have been given when received or (ii)
sent by facsimile shall be deemed to have been given when sent and when receipt has been confirmed
by telephone; provided that if not given during normal business hours for the recipient, shall be
deemed to have been given at the opening of business on the next Business Day for the recipient.
(b) Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communications (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent; provided that the foregoing shall not apply to
notices pursuant to Article 2 unless otherwise agreed by the Administrative Agent and the
applicable Lender. Each Agent or the Borrower (on behalf of the Loan Parties) may, in its
discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; provided that approval of such procedures may
be limited to particular notices or communications. All such notices and other communications (i)
sent to an e-mail address shall be deemed received upon the senders receipt of an acknowledgement
from the intended recipient (such as by the return receipt requested function, as available,
return e-mail or other written acknowledgement), provided that if not given during the normal
business hours of the recipient, such notice or communication shall be deemed to have been given at
the opening of business on the next Business Day for the recipient, and (ii) posted to an Internet
or intranet website shall be deemed received upon the deemed
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receipt by the intended recipient at
its e-mail address as described in the foregoing clause (b)(i) of notification that such notice or
communication is available and identifying the website address therefor.
(c) Any party hereto may change its address or facsimile number for notices and other
communications hereunder by notice to the other parties hereto.
Section 9.02. Waivers; Amendments. (a) No failure or delay by any Agent or 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 Agents and the
Lenders hereunder and under any other Loan Document 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, to the extent permitted by law, the making of a Loan shall not be
construed as a waiver of any Default, regardless of whether any Agent or any Lender 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 (i) in the case of this Agreement, pursuant to an agreement
or agreements in writing entered into by the Borrower and the Required Lenders (or the
Administrative Agent with the consent of the Required Lenders) or (ii) in the case of any other
Loan Document (other than any such amendment to effectuate any modification thereto expressly
contemplated by the terms of such other Loan Documents), 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, with the consent of the Required Lenders; provided that no such agreement shall
(A) increase the Commitment of any Lender without the written consent of such Lender; it being
understood that a waiver of any condition precedent set forth in Article 4 or the waiver of any
Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender,
(B) reduce or forgive the principal amount of any Loan or reduce the rate of interest thereon, or
reduce or forgive any interest or fee payable hereunder without the written consent of each Lender
directly affected thereby; provided that only the consent of the Required Lenders shall be
necessary to amend the provisions of Section 2.11(c) providing for the default rate of interest, or
to waive any obligations of the Borrower to pay interest at such default rate, (C) postpone any
scheduled date of payment of the principal amount of any Loan or any date for the payment of any
interest or other Obligations payable hereunder, or reduce the amount of, waive or excuse any such
payment, without the written consent of each Lender directly affected thereby; provided that only
the consent of the Required Lenders shall be necessary to amend the provisions of Section 2.11(c)
providing for the default rate of interest, or to waive any obligations of the Borrower to pay
interest at such default rate, (D) change Section 2.16(b) or (c) in a manner that would alter the
manner in which payments are shared, without the written consent of each Lender; provided that
modifications to Section 2.09, Section 2.16 or any
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other provision requiring pro rata payments or
sharing of payments in connection with (I) any buy back of Term Loans by Holdings or the Borrower
pursuant to Section 9.04(h) or pursuant to any similar program that may in the future be permitted
hereunder, (II) any Incremental Amendment or (III) any Extension, shall only require approval (to
the extent any such approval is otherwise required) of the Required Lenders, (E) change the
provisions of any Loan Document in a manner that by its terms adversely affects the rights of
Lenders holding Loans of one Class differently from the rights of Lenders holding Loans of any
other Class without the prior written
consent of the Required Class Lenders with respect to each adversely affected Class, (F)
change any of the provisions of this Section or the definition of Required Lenders or any other
provision of any Loan Document specifying the number or percentage of Lenders 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, (G) release all or substantially all of the value of
the Loan Guaranties (except as otherwise permitted herein or in the other Loan Documents), without
the written consent of each Lender, (H) except as provided in clauses (c) and (d) of this Section
or in any Collateral Document, release all or substantially all of the Collateral, without the
written consent of each Lender, and (I) modify the definition of Required Class Lenders without
the consent of the Required Class Lenders with respect to each Class of Loans or Commitments;
provided further that (x) no Lender consent is required to effect a Refinancing Amendment or an
Incremental Amendment or an Extension (except as expressly provided in Section 2.19, 2.20 or
Section 2.21, as applicable), (y) in connection with an amendment that addresses solely a
re-pricing transaction in which any tranche of Term Loans is refinanced with a replacement tranche
of term loans bearing (or is modified in a manner such that the resulting term loans bear) a lower
effective yield (a Permitted Repricing Amendment), only the consent of the Lenders holding Term
Loans subject to such permitted repricing transaction that will continue as a Lender in respect of
the repriced tranche of Term Loans or modified Term Loans shall be required for such Permitted
Repricing Amendment, and (z) no such agreement shall amend, modify or otherwise affect the rights
or duties of any Agent hereunder without the prior written consent of such Agent. The
Administrative Agent may also amend the Commitment Schedule to reflect assignments entered into
pursuant to Section 9.04.
(c) The Lenders hereby irrevocably agree that the Liens granted to the Collateral Agent by the
Loan Parties on any Collateral shall be automatically released (i) upon the payment and
satisfaction in full in cash of all Secured Obligations (other than Unliquidated Obligations) in a
manner satisfactory to the Agents, (ii) upon the sale or other disposition of the property
constituting such Collateral (including as part of or in connection with any other sale or other
disposition permitted hereunder) to any Person other than another Loan Party, to the extent such
sale or other disposition is made in compliance with the terms of this Agreement (and the Agents
may rely conclusively on a certificate to that effect provided to it by any Loan Party upon its
reasonable request without further inquiry), (iii) provided that such release would not result in a
release of all or substantially all of the Collateral, if the release of such Lien is approved,
authorized or ratified in writing by the Required Lenders, (iv) to the extent the property
constituting such Collateral is owned by any Loan Guarantor, upon the release of such Loan
Guarantor from its obligations under its Loan Guaranty in accordance with the provisions of this
Agreement, (v) as required to effect any sale or other disposition of such Collateral in connection
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with any exercise of remedies of the Agents and the Lenders pursuant to the Collateral Documents or
(vi) as required pursuant to the terms of the Intercreditor Agreement. Any such release shall not
in any manner discharge, affect, or impair the Obligations or any Liens (other than those expressly
being released) upon (or obligations of the Loan Parties in respect of) all interests retained by
the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute
part of the Collateral to the extent required under the provisions of the Loan Documents.
(d) Notwithstanding anything to the contrary contained in this Section 9.02, pledge agreements
and related documents (if any) executed by Foreign Subsidiaries in connection with this Agreement
may be in a form reasonably determined by the Administrative Agent and may be amended and waived
with the consent of the Administrative Agent at the request of the Borrower without the need to
obtain the consent of any other Lenders if such amendment or waiver is delivered in order (i) to
comply with local law or advice of local counsel, (ii) to cure ambiguities or defects or (iii) to
cause such pledge agreement or other document to be consistent with this Agreement and the other
Loan Documents.
(e) If, in connection with any proposed amendment, waiver or consent requiring the consent of
each Lender or each Lender directly affected thereby, the consent of the Required Lenders is
obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent
is necessary but not obtained being referred to herein as a Non-Consenting Lender), then the
Borrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement; provided
that, concurrently with such replacement, (i) another bank or other entity which is a Lender or is
reasonably satisfactory to the Borrower and the Administrative Agent shall agree, as of such date,
to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender pursuant to
an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to
assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply
with the requirements of Section 9.04(b), (ii) the Borrower or replacement Lender shall pay the
processing and recordation fee referred to in Section 9.04(b)(ii)(C), if applicable in accordance
with the terms of such Section, (iii) the replacement Lender shall grant its consent with respect
to the applicable proposed amendment, waiver or consent and (iv) the Borrower shall pay to such
Non-Consenting Lender in same day funds on the day of such replacement (1) all interest, fees and
other amounts then accrued but unpaid to such Non-Consenting Lender by the Borrower hereunder to
and including the date of termination, including without limitation payments due to such
Non-Consenting Lender under Section 2.13 and 2.15, and (2) an amount, if any, equal to the payment
which would have been due to such Lender on the day of such replacement under Section 2.14 had the
Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the replacement
Lender. Each Lender agrees that if it is replaced pursuant to this Section 9.02(e), it shall
execute and deliver to the Administrative Agent an Assignment and Assumption to evidence such sale
and purchase and shall deliver to the Administrative Agent any promissory note (if the assigning
Lenders Loans are evidenced by promissory notes) subject to such Assignment and Assumption;
provided that the failure of any Lender replaced pursuant to this Section 9.02(e) to execute an
Assignment and Assumption shall not render such sale and purchase (and the corresponding
assignment) invalid.
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(f) Notwithstanding the foregoing provisions of this Section 9.02, technical and conforming
modifications to the Loan Documents may be made with the consent of the Borrower and the
Administrative Agent to the extent necessary to integrate any Incremental Term Loan Commitments on
substantially the same basis as the Term Loans.
(g) Notwithstanding anything in this Agreement or the other Loan Documents to the contrary,
each Affiliated Lender (other than an Affiliated Debt Fund) hereby agrees that, if a
proceeding under the U.S. Bankruptcy Code or any other Federal, state or foreign bankruptcy,
insolvency, receivership or similar law shall be commenced by or against the Borrower or any other
Loan Party at a time when such Lender is an Affiliated Lender, such Affiliated Lender irrevocably
authorizes and empowers the Administrative Agent to vote on behalf of such Affiliated Lender with
respect to the Loans by such Affiliated Lender as directed by the Administrative Agent on behalf of
the Lenders, unless the Administrative Agent instructs such Affiliated Lender to vote, in which
case such Affiliated Lender shall vote with respect to the Loans held by it as the Administrative
Agent directs; provided that such Affiliated Lender shall be entitled to vote in accordance with
its sole discretion (and not in accordance with the direction of the Administrative Agent) in
connection with any plan of reorganization to the extent any such plan of reorganization proposes
to treat any Obligations held by such Affiliated Lender in a manner that is less favorable in any
material respect to such Affiliated Lender than the proposed treatment of similar Obligations held
by Lenders that are not Affiliates of the Borrower.
Section 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay (i) all
reasonable out-of-pocket expenses incurred by the Agents, the Arrangers, the Bookrunners and their
Affiliates, including the reasonable fees, charges and disbursements of Davis Polk & Wardwell LLP,
counsel for the Agents and Arrangers, in connection with the syndication and distribution
(including, without limitation, via the Internet or through a service such as Intralinks) of the
credit facilities provided for herein, the preparation of the Loan Documents and related
documentation, (ii) all reasonable out-of-pocket expenses incurred by the Agents and their
Affiliates, including the reasonable fees, charges and disbursements of one outside legal counsel
to the Agents, in connection with any amendments, modifications or waivers of the provisions of any
Loan Documents (whether or not the transactions contemplated thereby shall be consummated), (iii)
all reasonable out-of-pocket expenses incurred by the Agents, the Arrangers, the Bookrunners and
the Lenders, including the reasonable fees, charges and disbursements of any counsel for the Agents
and for one law firm retained by the Lenders (unless the interests of any Lender or group of
Lenders are sufficiently divergent, in which case one additional counsel for each such Lender or
group of Lenders may be retained), in connection with the enforcement, collection or protection of
its rights in connection with the Loan Documents, including its rights under this Section, or in
connection with the Loans made hereunder, including all such reasonable out-of-pocket expenses
incurred during any workout, restructuring or related negotiations in respect of such Loans, and
(iv) subject to any other provisions of this Agreement, of the Loan Documents or of any separate
agreement entered into by the Borrower and the Administrative Agent with respect thereto, all
reasonable out-of-pocket expenses incurred by the Administrative Agent in the administration of the
Loan Documents. Expenses reimbursable by the Borrower under this Section include, without limiting
the generality of the foregoing, subject
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to any other applicable provision of any Loan Document,
reasonable out-of-pocket costs and expenses incurred in connection with:
(v) lien and title searches and title insurance; and
(vi) taxes, fees and other charges for recording the Mortgages, including any amendment
to an existing mortgage with respect to each applicable Mortgaged Property,
filing financing statements and continuations, and other actions to perfect, protect,
and continue the Collateral Agents Liens.
Other than to the extent required to be paid on the Closing Date, all amounts due under this
paragraph (a) shall be payable by the Borrower within ten (10) Business Days of receipt of an
invoice relating thereto and setting forth such expenses in reasonable detail.
(b) The Borrower shall indemnify each Agent, Arranger, Bookrunner and 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, penalties, 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 syndication of credit facilities provided for herein and all activities related thereto,
the execution or delivery of the Loan Documents or any agreement or instrument contemplated
thereby, the performance by the parties hereto of their respective obligations thereunder or the
consummation of the Transactions or any other transactions contemplated hereby, (ii) any
Environmental Liability related in any way to the Borrower or any of its Subsidiaries or to any
property owned or operated by the Borrower or any of its Subsidiaries, or (iii) 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 (and regardless of whether such matter is initiated by a third party or by the
Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages,
penalties, liabilities or related expenses are determined by a court of competent jurisdiction by
final and non-appealable judgment to have resulted from the gross negligence or willful misconduct
of such Indemnitee or to the extent such judgment finds such Indemnitee in material breach of any
material obligation under the Loan Documents and the proceeding was initiated by Holdings, the
Borrower or any of the Borrowers Subsidiaries directly against such Indemnitee for such material
breach of a material obligation under the Loan Documents.
(c) To the extent that the Borrower fails to pay any amount required to be paid by it to an
Agent under paragraph (a) or (b) of this Section, each Lender severally agrees to pay to such Agent
such Lenders Applicable Percentage (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, penalty, liability or related expense, as the case may
be, was incurred by or asserted against such Agent in its capacity as such.
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(d) To the extent permitted by applicable law, no party to this Agreement shall assert, and
each hereby waives, any claim against any other party hereto or any Related Party thereof, 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 the use of the proceeds
thereof.
(e) All amounts due under this Section shall be paid promptly after written demand therefor.
Section 9.04. Successors and Assigns. (a) The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that (i) the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no
Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance
with this Section (any attempted assignment or transfer not complying with the terms of this
Section shall be null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants (to the extent provided in paragraph (c) of this Section)
and, to the extent expressly contemplated hereby, the Related Parties of each of the Agents and the
Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign
to one or more Eligible Assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment or the Loans at the time owing to it) with
the prior written consent (such consent not to be unreasonably withheld or delayed) of:
(A) the Borrower; provided that no consent of the Borrower shall be required
for an assignment to another Lender, an Affiliate of a Lender, an Approved Fund, a
Related Fund, or, if an Event of Default under Section 7.01(a), Section 7.01(f) or
Section 7.01(g) has occurred and is continuing, any other Eligible Assignee and
provided further that no consent of the Borrower shall be required for an
assignment during the primary syndication of the Loans to Persons identified in
writing by the Administrative Agent to the Borrower on or prior to the Closing Date
and reasonably acceptable to the Borrower; and
(B) the Administrative Agent; provided that no consent of the Administrative
Agent shall be required for an assignment to another Lender, an Affiliate of a
Lender, an Approved Fund, or a Related Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to another Lender, an Affiliate of a
Lender or an Approved Fund or an assignment of the entire
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remaining amount of the
assigning Lenders Commitment or Loans, the amount of the Commitment or the
principal amount of Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent and determined on an aggregate
basis in the event of concurrent assignments to Related Funds or by Related Funds
(as defined below)) shall not be less than $1,000,000 unless each of the Borrower
and the Administrative Agent otherwise consent;
(B) each partial assignment shall be made as an assignment of a proportionate
part of all the assigning Lenders rights and obligations under this Agreement;
(C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption via an electronic settlement
system acceptable to the Administrative Agent (or, if previously agreed with the
Agent, manually), and shall pay to the Administrative Agent a processing and
recordation fee of $3,500 (which fee may be waived or reduced in the sole
discretion of the Administrative Agent); and
(D) the assignee, if it shall not be a Lender, shall deliver on or prior to
the effective date of such assignment, to the Administrative Agent (1) an
Administrative Questionnaire and (2) if applicable, any Internal Revenue Service
forms required under Section 2.15.
The term Related Funds shall mean with respect to any Lender that is an Approved Fund, any
other Approved Fund that is managed or advised by the same investment advisor as such Lender or by
an Affiliate of such investment advisor.
(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and Assumption the
assignee thereunder shall be a party hereto and, to the extent of the interest assigned by
such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned
by such Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning 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 2.13, 2.14, 2.15 and 9.03 with
respect to facts and circumstances occurring on or prior to the effective date of such
assignment). Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 9.04 shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and obligations in
accordance with paragraph (c) of this Section.
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(iv) The Administrative Agent, acting solely for this purpose as a non-fiduciary agent
of the Borrower, shall maintain at one of its offices a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and addresses of
the Lenders and their respective successors and assigns, and the Commitment of, or principal
amount of and interest on the Loans owing to, each Lender pursuant to the terms hereof from
time to time (the Register). The entries in the Register shall be conclusive, absent
manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose
name is recorded in the Register pursuant to the terms hereof as a Lender hereunder and the
owner of its interests as indicated in the Register for all purposes of this Agreement,
notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an assignee, the assignees completed Administrative Questionnaire and
tax certifications required by Section 9.04(b)(ii)(D)(2) (unless the assignee shall already
be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section, if applicable, and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent promptly shall accept such
Assignment and Assumption and record the information contained therein in the Register;
provided that if either the assigning Lender or the assignee shall have failed to make any
payment required to be made by it pursuant to Sections 2.04(a), 2.16(c) or 9.03(c), the
Administrative Agent shall have no obligation to accept such Assignment and Assumption and
record the information therein in the Register unless and until such payment shall have been
made in full, together with all accrued interest thereon. No assignment shall be effective
for purposes of this Agreement unless it has been recorded in the Register as provided in
this paragraph.
(vi) By executing and delivering an Assignment and Assumption, the assigning Lender
thereunder and the assignee thereunder shall be deemed to confirm to and agree with each
other and the other parties hereto as follows: (A) such assigning Lender warrants that it is
the legal and beneficial owner of the interest being assigned thereby free and clear of any
adverse claim and that its Commitment, and the outstanding balances of its Loans, in each
case without giving effect to assignments thereof which have not become effective, are as
set forth in such Assignment and Assumption, (B) except as set forth in (A) above, such
assigning Lender makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in connection with this
Agreement, or the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement, any other Loan Document or any other instrument or document
furnished pursuant hereto, or the financial condition of the Borrower or any Subsidiary or
the performance or observance by the Borrower or any Subsidiary of any of its obligations
under this Agreement, any other Loan Document or any other instrument or document furnished
pursuant hereto; (C) such assignee represents and warrants that it is an Eligible Assignee,
legally authorized to enter into such Assignment and Assumption; (D) such assignee confirms
that it has
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received a copy of this Agreement and the Intercreditor Agreement, together with
copies of the most recent financial statements referred to in Section 3.04(a) or delivered
pursuant to Section 5.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such Assignment and
Assumption; (E) such assignee will independently and without reliance upon the Agents, such
assigning Lender or any other Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in taking or not
taking action under this Agreement; (F) such assignee appoints and authorizes each Agent to
take such action as agent on its behalf and to exercise such powers under this Agreement as
are delegated to such Agent, by the terms hereof,
together with such powers as are reasonably incidental thereto; and (G) such assignee
agrees that it will perform in accordance with their terms all the obligations which by the
terms of this Agreement are required to be performed by it as a Lender.
(c) (i) Any Lender may, without the consent of the Borrower or the Administrative Agent, sell
participations to one or more banks or other entities (a Participant) in all or a portion of such
Lenders rights and obligations under this Agreement (including all or a portion of its Commitment
or the Loans owing to it); provided that (A) such Lenders obligations under this Agreement shall
remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations and (C) the Borrower, the Agents and the 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 this
Agreement and to approve any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver described in the first
proviso to Section 9.02(b) that affects such Participant. Subject to paragraph (c)(ii) of this
Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections
2.13, 2.14 and 2.15 (subject to the requirements and limitations with respect thereto) 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 9.08 as though it were a Lender; provided such Participant agrees to be subject
to Section 2.16(c) as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater payment under Sections
2.13, 2.14 and 2.15 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 Borrowers prior written consent. A Participant that
would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of
Section 2.15 unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with Section 2.15(e)
as though it were a Lender.
(iii) Each Lender that sells a participation shall, acting for this purpose solely as a
non-fiduciary agent of the Borrower, maintain a register on which it enters the name
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and address of each participant and the principal amounts (and interest thereon)
of each participants interest in the Loans or other Obligations under this Agreement (the
Participant Register). The entries in such Participant Register shall be, in the absence
of manifest error, conclusive, and (to the extent that the Participant requests payment from
the Borrowers) Borrowers, Agent and the Lenders shall treat each Person whose name is
recorded therein pursuant to the terms hereof as the owner of such participation for the
purposes of this Agreement, notwithstanding any notice to the contrary.
(d) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including without limitation
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.
(e) Notwithstanding anything to the contrary contained herein, any Lender (a Granting
Lender) may grant to a special purpose funding vehicle (an SPC), identified as such in writing
from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option
to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be
obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein
shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise
such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall
be obligated to make such Loan pursuant to the terms hereof and (iii) the Granting Lender shall for
all purposes remain the Lender hereunder. The making of a Loan by an SPC hereunder shall utilize
the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such
Granting Lender. Each party hereto hereby agrees that (i) neither the grant to any SPC nor the
exercise by any SPC of such option shall increase the costs or expenses or otherwise increase or
change the obligations of the Borrower under this Agreement (including its obligations under
Sections 2.13, 2.14 and 2.15) and no SPC shall be entitled to any greater amount under Sections
2.13, 2.14 and 2.15 or any other provision of this Agreement or any other Loan Document that the
Granting Lender would have been entitled to receive, (ii) no SPC shall be liable for any indemnity
or similar payment obligation under this Agreement (all liability for which shall remain with the
Granting Lender) and (iii) the Granting Lender shall for all purposes including approval of any
amendment, waiver or other modification of any provision of the Loan Documents, remain the Lender
of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the date that is one year
and one day after the payment in full of all outstanding commercial paper or other senior
indebtedness of any SPC, it will not institute against, or join any other Person in instituting
against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any state thereof; provided, however, that (i)
in the case of the Borrower, such SPCs Granting Lender is in compliance in all material respects
with its obligations to the Borrower hereunder and (ii) each Lender designating any SPC hereby
agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or
expense arising out of its inability to institute such a proceeding against such SPC during such
period of forbearance. In
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addition, notwithstanding anything to the contrary contained in this Section 9.04, any SPC may
(i) with notice to, but without the prior written consent of, the Borrower or the Administrative
Agent and without paying any processing fee therefor, assign all or a portion of its interests in
any Loans to the Granting Lender or to any financial institutions (consented to by the Borrower and
Administrative Agent) providing liquidity and/or credit support to or for the account of such SPC
to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any
nonpublic information relating to its Loans to any rating agency, commercial paper dealer or
provider of any surety, guarantee or credit or liquidity enhancement to such SPC.
(f) Any Lender may, at any time, assign all or a portion of its rights and obligations under
this Agreement in respect of its Term Loans to any Affiliated Lender on a non-pro rata basis
through (x) Dutch Auctions open to all Lenders on a pro rata basis in accordance with the Auction
Procedures or (y) open market purchases, subject to the following limitations:
(i) each Affiliated Lender (other than any Affiliated Debt Fund) shall represent and
warrant as of the date of any such purchase and assignment, that no Sponsor nor any of their
respective Affiliates nor any of their respective directors or officers has any material
non-public information with respect to Holdings, the Borrower or any of their Subsidiaries
or securities that has not been made available to the Lenders (other than those Lenders that
do not wish to receive material non-public information with respect to Holdings, the
Borrower and their respective Subsidiaries or securities) prior to such date to the extent
such information could reasonably be expected to have a material effect upon, or otherwise
be material, to a Term Lenders decision to assign Term Loans to such Affiliated Lenders;
(ii) Affiliated Lenders (other than Affiliated Debt Funds) will not be entitled to
receive, and will not receive, information provided solely to Lenders by the Administrative
Agent or any Lender and will not be permitted to attend or participate, and will not attend
or participate in, meetings attended solely by the Lenders and the Administrative Agent,
other than the right to receive notices of Borrowings, notices of prepayments and other
administrative notices in respect of its Loans or Commitments required to be delivered to
Lenders pursuant to Article 2; and
(iii) the aggregate principal amount of Term Loans held at any one time by Affiliated
Lenders (other than Affiliated Debt Funds) may not exceed 20% of the aggregate principal
amount of all Term Loans (including any Incremental Term Loans and Other Term Loans)
outstanding at such time under this Agreement.
(g) Notwithstanding anything in Section 9.02 or the definition of Required Lenders or
Required Class Lenders to the contrary, for purposes of determining whether the Required Lenders
or Required Class Lenders have (i) consented (or not consented) to any amendment, modification,
waiver, consent or other action with respect to any of the terms of any Loan Document or any
departure by any Loan Party therefrom, or, subject to Section 9.02(g), any plan of reorganization
pursuant to the U.S. Bankruptcy Code, (ii) otherwise acted on any matter related to any Loan
Document, or (iii) directed or required the Administrative Agent, Collateral
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Agent or any Lender to undertake any action (or refrain from taking any action) with respect to
or under any Loan Document, all Term Loans (or Commitments in respect thereof) held by any
Affiliated Lenders that are not Affiliated Debt Funds shall be deemed to be not outstanding for all
purposes of calculating whether the Required Lenders or Required Class Lenders have taken any
actions.
(h) So long as no Default has occurred or is continuing or would result therefrom, any Lender
may, at any time, assign all or a portion of its rights and obligations under this Agreement in
respect of its Term Loans to Holdings or the Borrower on a non-pro rata basis solely through Dutch
Auctions open to all Lenders on a pro rata basis in accordance with the Auction Procedures, subject
to the following limitations and other provisions:
(i) Holdings and the Borrower shall represent and warrant as of the date of any such
purchase and assignment that neither Holdings nor the Borrower nor any of their respective
directors or officers has any material non-public information with respect to Holdings, the
Borrower or any of their Subsidiaries or securities that has not been made available to the
Lenders (other than those Lenders that do not wish to receive material non-public
information with respect to Holdings, the Borrower and their respective Subsidiaries or
securities) prior to such date to the extent such information could reasonably be expected
to have a material effect upon, or otherwise be material, to a Term Lenders decision to
assign Term Loans to such Affiliated Lenders;
(ii) borrowings shall not be made under the Senior Secured Asset-Based Revolving Credit
Agreement to directly or indirectly fund the purchase or assignment;
(iii) any Term Loans purchased by Holdings or the Borrower shall be automatically and
permanently cancelled immediately upon acquisition by Holdings or the Borrower;
(iv) notwithstanding anything to the contrary contained herein (including in the
definitions of Consolidated Net Income and Consolidated EBITDA) any non-cash gains in
respect of cancellation of indebtedness resulting from the cancellation of any Term Loans
purchased by Holdings or the Borrower shall be excluded from the determination of
Consolidated Net Income and Consolidated EBITDA; and
(v) the cancellation of Term Loans in connection with a Dutch Auction shall not
constitute a voluntary or mandatory prepayment for purposes of Section 2.08 or Section 2.09,
but the face amount of Term Loans cancelled as provided for in clause (iii) above shall be
applied on a pro rata basis to the remaining scheduled installments of principal due in
respect of the Term Loans.
Section 9.05. 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
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and delivery of the Loan Documents and the making of any Loans, regardless of any investigation made by any such
other party or on its behalf and notwithstanding that an Agent 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 and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.13, 2.14 and 2.15 and 9.03 and Article 8 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 Commitments
or the termination of this Agreement or any provision hereof.
Section 9.06. 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 the Fee Letter and any separate letter agreements with
respect to fees payable to the Agents 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 Article 4, this Agreement
shall become effective when it shall have been executed by the Agents 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 facsimile shall be effective as delivery of a
manually executed counterpart of this Agreement.
Section 9.07. Severability. To the extent permitted by law, any provision of any Loan
Document 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 thereof;
and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such
provision in any other jurisdiction.
Section 9.08. 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 credit or the account of the Borrower or any Loan Guarantor
against any of and all the Secured Obligations held by such Lender, irrespective of whether or not
such Lender shall have made any demand under the Loan Documents and although such obligations may
be unmatured. The applicable Lender shall notify the Borrower and the Administrative Agent of such
set-off or application, provided that any failure to give or any delay in giving such notice shall
not affect the validity of any such set-off or application under this Section 9.08. 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.
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Section 9.09. Governing Law; Jurisdiction; Consent to Service of Process. (a) THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY
SET FORTH IN OTHER LOAN DOCUMENTS) AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR
RELATED TO THIS AGREEMENT OR THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
(b) Each party hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the exclusive jurisdiction of any U.S. Federal or New York State court sitting in the
Borough of Manhattan, New York, New York in any suit, action or proceeding arising out of or
relating to any Loan Documents, the transactions contemplated thereby, 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 suit, action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such Federal court;
provided that suit for the recognition or enforcement of any judgment obtained in any such U.S.
Federal or New York State court may be brought in any other court of competent jurisdiction. 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.
(c) Each party hereto 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) To the extent permitted by law, each party to this Agreement hereby irrevocably waives
personal service of any and all process upon it and agrees that all such service of process may be
made by registered mail (return receipt requested) directed to it at its address for notices as
provided for in Section 9.01. 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.
Section 9.10. 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 THEREBY (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
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PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 9.11. 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 9.12. Confidentiality. Each Agent and each Lender agrees (and each Lender agrees to
cause its SPC, if any) to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Affiliates directors, officers,
partners, 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), (b) to the extent
required by any regulatory, governmental or administrative authority, (c) to the extent required by
law or by any subpoena or similar legal process; provided, that unless specifically prohibited by
applicable law, reasonable efforts shall be made to notify the Borrower of any such request, (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 or at least as restrictive as or at least restrictive 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, including, without limitation, any SPC,
(ii) any pledgee referred to in Section 9.04(d) or (iii) any actual or prospective counterparty (or
its advisors) to any swap or derivative transaction relating to the Loan Parties and their
obligations, (g) with the prior written consent of the Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of this Section by
such Person or (ii) becomes available to an Agent or any Lender on a nonconfidential basis other
than as a result of a breach of this Section from a source other than the Borrower. For the
purposes of this Section, Information means all information received from any Loan Party relating
to the Loan Parties or their businesses, the Sponsor or the Transactions other than any such
information that is available to any Agent or any Lender on a nonconfidential basis prior to
disclosure by any Loan Party.
Section 9.13. Several Obligations; Violation of Law. The respective obligations of the
Lenders hereunder are several and not joint and the failure of any Lender to make any Loan or
perform any of its obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. Anything contained in this Agreement to the contrary notwithstanding, the
Lender shall be obligated to extend credit to the Borrower in violation of any Requirement of Law.
Section 9.14. USA PATRIOT Act. Each Bookrunner and Lender that is subject to the
requirements of the USA PATRIOT Act hereby notifies the Borrower that pursuant to the requirements
of the USA PATRIOT Act, it is required to obtain, verify and record information that identifies the
Loan Parties, which information includes the name and address of each Loan
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Party and other information that will allow such Bookrunners and Lenders to identify the Loan
Parties in accordance with the USA PATRIOT Act.
Section 9.15. Disclosure. Each Loan Party and each Lender hereby acknowledges and agrees
that the Agents and/or their Affiliates from time to time may hold investments in, make other loans
to or have other relationships with any of the Loan Parties and their respective Affiliates. In
addition, each Loan Party and each Lender hereby acknowledges that the Administrative Agent or its
Affiliate may be a lender under the Senior Secured Asset-Based Revolving Credit Facility.
Section 9.16. Appointment for Perfection. Each Lender hereby appoints each other Lender as
its agent for the purpose of perfecting Liens, for the benefit of the Collateral Agent and the
Lenders, in assets which, in accordance with Article 9 of the UCC or any other applicable law can
be perfected only by possession. Should any Lender (other than the Collateral Agent) obtain
possession of any such Collateral, such Lender shall notify the Collateral Agent thereof, and,
promptly upon the Collateral Agents request therefor shall deliver such Collateral to the
Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agents
instructions.
Section 9.17. 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 9.18. INTERCREDITOR AGREEMENT. REFERENCE IS MADE TO THE INTERCREDITOR AGREEMENT.
EACH LENDER HEREUNDER (A) CONSENTS TO THE SUBORDINATION OF LIENS PROVIDED FOR IN THE INTERCREDITOR
AGREEMENT, (B) AGREES THAT IT WILL BE BOUND BY AND WILL TAKE NO ACTIONS CONTRARY TO THE PROVISIONS
OF THE INTERCREDITOR AGREEMENT AND (C) AUTHORIZES AND INSTRUCTS THE COLLATERAL AGENT TO ENTER INTO
THE INTERCREDITOR AGREEMENT AS TERM LOAN AGENT AND ON BEHALF OF SUCH LENDER. THE FOREGOING
PROVISIONS ARE INTENDED AS AN INDUCEMENT TO THE LENDERS UNDER THE SENIOR SECURED ASSET-BASED
REVOLVING CREDIT AGREEMENT TO EXTEND CREDIT AND SUCH LENDERS ARE INTENDED THIRD PARTY BENEFICIARIES
OF SUCH PROVISIONS AND THE PROVISIONS OF THE INTERCREDITOR AGREEMENT.
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Section 9.19. Designation Of Subsidiaries. (a) The board of directors of the Borrower may
at any time designate any subsidiary of the Borrower as an Unrestricted Subsidiary or any
Unrestricted Subsidiary as a Subsidiary; provided that (i) immediately before and after such
designation, no Default shall have occurred and be continuing, (ii) the Borrower may not be
designated as an Unrestricted Subsidiary, (iii) no subsidiary may be designated as an Unrestricted
Subsidiary if it is a Subsidiary for the purpose of the Senior Secured Asset-Based Revolving
Credit Facility, (iv) no Subsidiary may be designated as an Unrestricted Subsidiary if it was
previously designated an Unrestricted Subsidiary, (v) no Unrestricted Subsidiary shall own any
Capital Stock in the Borrower or its Subsidiaries, (vi) no Unrestricted Subsidiary shall hold any
Indebtedness of, or any Lien on any property of, the Borrower or its Subsidiaries, (vii) the holder
of any Indebtedness of any Unrestricted Subsidiary shall not have any recourse to the Borrower or
its Subsidiaries with respect to such Indebtedness except as permitted pursuant to this Agreement,
(viii) no Unrestricted Subsidiary shall be a party to any transaction or arrangement with the
Borrower or its Subsidiaries that would not be permitted by Section 6.11, and (ix) none of Holdings
or any of its Subsidiaries shall have any obligation to subscribe for additional Capital Stock of
any Unrestricted Subsidiary or to preserve or maintain the financial condition of any Unrestricted
Subsidiary if such obligation would result in a Default. The designation of any subsidiary as an
Unrestricted Subsidiary shall constitute an Investment by the Borrower therein at the date of
designation in an amount equal to the net book value of the Borrowers investment therein (and such
designation shall only be permitted to the extent such Investment is permitted under Section 6.07).
The designation of any Unrestricted Subsidiary as a Subsidiary shall constitute the incurrence at
the time of designation of any Indebtedness or Liens of such Subsidiary existing at such time.
Section 9.20. No Fiduciary Duty. Each Agent, Bookrunner, Lender and their Affiliates
(collectively, solely for purposes of this paragraph, the Lenders), may have economic interests
that conflict with those of the Borrower. The Borrower agrees that nothing in the Loan Documents
or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or
other implied duty between the Lenders and the Borrower, its stockholders or its affiliates. You
acknowledge and agree that (i) the transactions contemplated by the Loan Documents are arms-length
commercial transactions between the Lenders, on the one hand, and the Borrower, on the other, (ii)
in connection therewith and with the process leading to such transaction each of the Lenders is
acting solely as a principal and not the agent or fiduciary of the Borrower, its management,
stockholders, creditors or any other person, (iii) no Lender has assumed an advisory or fiduciary
responsibility in favor of the Borrower with respect to the transactions contemplated hereby or the
process leading thereto (irrespective of whether any Lender or any of its affiliates has advised or
is currently advising the Borrower on other matters) or any other obligation to the Borrower except
the obligations expressly set forth in the Loan Documents, (iv) the Borrower has consulted its own
legal and financial advisors to the extent it deemed appropriate and (v) the Lenders and their
respective Affiliates may be engaged in a broad range of transactions that involve interests that
differ from those of the Borrower and its Affiliates, and no Lender has any obligation to disclose
any of such interests to the Borrower or any of its Affiliates. The Borrower further acknowledges
and agrees that it is responsible for making its own independent judgment with respect to such
transactions and the process leading
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thereto. The Borrower agrees that it will not claim that any Lender has rendered advisory
services of any nature or respect, or owes a fiduciary or similar duty to the Borrower, in
connection with such transaction or the process leading thereto.
ARTICLE 10
Loan Guaranty
Section 10.01. Guaranty. Each Loan Guarantor hereby agrees that it is jointly and severally
liable for, and, as primary obligor and not merely as surety, and absolutely and unconditionally
guarantees to the Lenders the prompt payment when due, whether at stated maturity, upon
acceleration or otherwise, and at all times thereafter, of the Secured Obligations (collectively
the Guaranteed Obligations). Each Loan Guarantor further agrees that the Guaranteed Obligations
may be extended or renewed in whole or in part without notice to or further assent from it, and
that it remains bound upon its guarantee notwithstanding any such extension or renewal.
Section 10.02. Guaranty of Payment. This Loan Guaranty is a guaranty of payment and not of
collection. Each Loan Guarantor waives any right to require any Agent or any Lender to sue the
Borrower, any Loan Guarantor, any other guarantor, or any other Person obligated for all or any
part of the Guaranteed Obligations (each, an Obligated Party), or otherwise to enforce its rights
in respect of any collateral securing all or any part of the Guaranteed Obligations.
Section 10.03. No Discharge or Diminishment of Loan Guaranty. (a) Except as otherwise
provided for herein, the obligations of each Loan Guarantor hereunder are unconditional and
absolute and not subject to any reduction, limitation, impairment or termination for any reason
(other than the payment in full in cash of the Guaranteed Obligations), including: (i) any claim of
waiver, release, extension, renewal, settlement, surrender, alteration, or compromise of any of the
Guaranteed Obligations, by operation of law or otherwise; (ii) any change in the corporate
existence, structure or ownership of the Borrower or any other guarantor of or other Person liable
for any of the Guaranteed Obligations; (iii) any insolvency, bankruptcy, reorganization or other
similar proceeding affecting any Obligated Party, or their assets or any resulting release or
discharge of any obligation of any Obligated Party; or (iv) the existence of any claim, setoff or
other rights which any Loan Guarantor may have at any time against any Obligated Party, any Agent,
any Lender, or any other Person, whether in connection herewith or in any unrelated transactions.
(b) Except for termination of a Loan Partys obligations hereunder or as expressly permitted
by Section 10.12, the obligations of each Loan Guarantor hereunder are not subject to any defense
or setoff, counterclaim, recoupment, or termination whatsoever by reason of the invalidity,
illegality, or unenforceability of any of the Guaranteed Obligations or otherwise, or any provision
of applicable law or regulation purporting to prohibit payment by any Obligated Party, of the
Guaranteed Obligations or any part thereof.
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(c) Further, the obligations of any Loan Guarantor hereunder are not discharged or impaired or
otherwise affected by: (i) the failure of any Agent or any Lender to assert any claim
or demand or to enforce any remedy with respect to all or any part of the Guaranteed
Obligations; (ii) any waiver or modification of or supplement to any provision of any agreement
relating to the Guaranteed Obligations; (iii) any release, non-perfection, or invalidity of any
indirect or direct security for the obligations of the Borrower for all or any part of the
Guaranteed Obligations or any obligations of any other guarantor of or other Person liable for any
of the Guaranteed Obligations; (iv) any action or failure to act by any Agent or any Lender with
respect to any collateral securing any part of the Guaranteed Obligations; or (v) any default,
failure or delay, willful or otherwise, in the payment or performance of any of the Guaranteed
Obligations, or any other circumstance, act, omission or delay that might in any manner or to any
extent vary the risk of such Loan Guarantor or that would otherwise operate as a discharge of any
Loan Guarantor as a matter of law or equity (other than the payment in full in cash of the
Guaranteed Obligations).
Section 10.04. Defenses Waived. To the fullest extent permitted by applicable law, and
except for termination of a Loan Partys obligations hereunder or as expressly permitted by Section
10.12, each Loan Guarantor hereby waives any defense based on or arising out of any defense of the
Borrower or any Loan Guarantor or the unenforceability of all or any part of the Guaranteed
Obligations from any cause, or the cessation from any cause of the liability of the Borrower or any
Loan Guarantor, other than the payment in full in cash of the Guaranteed Obligations. Without
limiting the generality of the foregoing, each Loan Guarantor irrevocably waives acceptance hereof,
presentment, demand, protest and, to the fullest extent permitted by law, any notice not provided
for herein, as well as any requirement that at any time any action be taken by any Person against
any Obligated Party, or any other Person. The Collateral Agent may, at its election, foreclose on
any Collateral held by it by one or more judicial or nonjudicial sales, accept an assignment of any
such Collateral in lieu of foreclosure or otherwise act or fail to act with respect to any
collateral securing all or a part of the Guaranteed Obligations, and the Administrative Agent may,
at its election, compromise or adjust any part of the Guaranteed Obligations, make any other
accommodation with any Obligated Party or exercise any other right or remedy available to it
against any Obligated Party, without affecting or impairing in any way the liability of such Loan
Guarantor under this Loan Guaranty except to the extent the Guaranteed Obligations have been fully
paid in cash. To the fullest extent permitted by applicable law, each Loan Guarantor waives any
defense arising out of any such election even though that election may operate, pursuant to
applicable law, to impair or extinguish any right of reimbursement or subrogation or other right or
remedy of any Loan Guarantor against any Obligated Party or any security.
Section 10.05. Rights of Subrogation. No Loan Guarantor will assert any right, claim or
cause of action, including, without limitation, a claim of subrogation, contribution or
indemnification that it has against any Obligated Party, or any collateral, until payment in full
in cash of the Guaranteed Obligations (other than contingent indemnification obligations for which
no claim has been made).
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Section 10.06. Reinstatement; Stay of Acceleration. If at any time any payment of any
portion of the Guaranteed Obligations is rescinded or must otherwise be restored or returned upon
the insolvency, bankruptcy, or reorganization of the Borrower or otherwise, each Loan
Guarantors obligations under this Loan Guaranty with respect to that payment shall be
reinstated at such time as though the payment had not been made. If acceleration of the time for
payment of any of the Guaranteed Obligations is stayed upon the insolvency, bankruptcy or
reorganization of the Borrower, all such amounts otherwise subject to acceleration under the terms
of any agreement relating to the Guaranteed Obligations shall nonetheless be payable by the Loan
Guarantors forthwith on demand by the Administrative Agent.
Section 10.07. Information. Each Loan Guarantor assumes all responsibility for being and
keeping itself informed of the Borrowers financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature,
scope and extent of the risks that each Loan Guarantor assumes and incurs under this Loan Guaranty,
and agrees that none of the Agents nor any Lender shall have any duty to advise any Loan Guarantor
of information known to it regarding those circumstances or risks.
Section 10.08. Taxes. All payments of the Guaranteed Obligations will be made by each Loan
Guarantor free and clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided that if any Loan Guarantor 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 applicable Agent or Lender (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) such Loan Guarantor shall make
such deductions and (iii) such Loan Guarantor shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
Section 10.09. Maximum Liability. The provisions of this Loan Guaranty are severable, and in
any action or proceeding involving any state corporate law, or any state, Federal or foreign
bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if
the obligations of any Loan Guarantor under this Loan Guaranty would otherwise be held or
determined to be avoidable, invalid or unenforceable on account of the amount of such Loan
Guarantors liability under this Loan Guaranty, then, notwithstanding any other provision of this
Loan Guaranty to the contrary, the amount of such liability shall, without any further action by
the Loan Guarantors or the Lenders, be automatically limited and reduced to the highest amount that
is valid and enforceable as determined in such action or proceeding (such highest amount determined
hereunder being the relevant Loan Guarantors Maximum Liability. This Section with respect to
the Maximum Liability of each Loan Guarantor is intended solely to preserve the rights of the
Lenders to the maximum extent not subject to avoidance under applicable law, and no Loan Guarantor
nor any other Person or entity shall have any right or claim under this Section with respect to
such Maximum Liability, except to the extent necessary so that the obligations of any Loan
Guarantor hereunder shall not be rendered voidable under applicable law. Each Loan Guarantor
agrees that the Guaranteed Obligations may at any time and from time to time exceed the Maximum
Liability of each Loan Guarantor without impairing this Loan Guaranty or affecting the rights and
remedies of the Lenders
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hereunder, provided that, nothing in this sentence shall be construed to
increase any Loan Guarantors obligations hereunder beyond its Maximum Liability.
Section 10.10. Contribution. In the event any Loan Guarantor (a Paying Guarantor) shall
make any payment or payments under this Loan Guaranty or shall suffer any loss as a result of any
realization upon any collateral granted by it to secure its obligations under this Loan Guaranty,
each other Loan Guarantor (each a Non-Paying Guarantor) shall contribute to such Paying Guarantor
an amount equal to such Non-Paying Guarantors Guarantor Percentage of such payment or payments
made, or losses suffered, by such Paying Guarantor. For purposes of this Article 10, each
Non-Paying Guarantors Guarantor Percentage with respect to any such payment or loss by a Paying
Guarantor shall be determined as of the date on which such payment or loss was made by reference to
the ratio of (i) such Non-Paying Guarantors Maximum Liability as of such date (without giving
effect to any right to receive, or obligation to make, any contribution hereunder) or, if such
Non-Paying Guarantors Maximum Liability has not been determined, the aggregate amount of all
monies received by such Non-Paying Guarantor from the Borrower after the date hereof (whether by
loan, capital infusion or by other means) to (ii) the aggregate Maximum Liability of all Loan
Guarantors hereunder (including such Paying Guarantor) as of such date (without giving effect to
any right to receive, or obligation to make, any contribution hereunder), or to the extent that a
Maximum Liability has not been determined for any Loan Guarantor, the aggregate amount of all
monies received by such Loan Guarantors from the Borrower after the date hereof (whether by loan,
capital infusion or by other means). Nothing in this provision shall affect any Loan Guarantors
several liability for the entire amount of the Guaranteed Obligations (up to such Loan Guarantors
Maximum Liability). Each of the Loan Guarantors covenants and agrees that its right to receive any
contribution under this Loan Guaranty from a Non-Paying Guarantor shall be subordinate and junior
in right of payment to the payment in full in cash of the Guaranteed Obligations. This provision
is for the benefit of the Agents, the Lenders and the Loan Guarantors and may be enforced by any
one, or more, or all of them in accordance with the terms hereof.
Section 10.11. Liability Cumulative. The liability of each Loan Party as a Loan Guarantor
under this Article 10 is in addition to and shall be cumulative with all liabilities of each Loan
Party to the Agents and the Lenders under this Agreement and the other Loan Documents to which such
Loan Party is a party or in respect of any obligations or liabilities of the other Loan Parties,
without any limitation as to amount, unless the instrument or agreement evidencing or creating such
other liability specifically provides to the contrary.
Section 10.12. Release of Loan Guarantors. Notwithstanding anything in Section 9.02(b) to
the contrary a Subsidiary Guarantor shall automatically be released from its obligations hereunder
and its Loan Guaranty shall be automatically released (A) upon the consummation of any transaction
permitted hereunder if as a result thereof such Loan Guarantor would no longer be required to
provide a guarantee of the Obligations pursuant to Section 5.12 or (B) upon the termination of the
Commitments and payment and satisfaction in full in cash of all Secured Obligations (other than
Unliquidated Obligations). In connection with any such release, the Agents shall promptly execute
and deliver to any Loan Guarantor that is a Subsidiary, at such Loan Guarantors expense, all
documents that such Loan Guarantor shall reasonably request to
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evidence termination or release. Any execution and delivery of documents pursuant to the preceding sentence of this Section 10.12
shall be without recourse to or warranty by the Agents.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by
their respective authorized officers as of the day and year first above written.
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AMSCAN HOLDINGS, INC.
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By: |
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Name: |
Michael A. Correale |
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Title: |
Chief Financial Officer |
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AAH HOLDINGS CORPORATION
AMSCAN INC.
SSY REALTY CORP.
JCS PACKAGING, INC.
AM-SOURCE, LLC
TRISAR, INC.
ANAGRAM INTERNATIONAL, INC.
ANAGRAM INTERNATIONAL HOLDINGS, INC.
M&D INDUSTRIES, INC.
PARTY CITY CORPORATION
PA ACQUISITION CORP.
PARTY AMERICA FRANCHISING, INC.
GAGS AND GAMES, INC.
FACTORY CARD & PARTY OUTLET CORP.
FACTORY CARD OUTLET OF AMERICA LTD.
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By: |
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Name: |
Michael A. Correale |
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Title: |
Vice President |
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ANAGRAM EDEN PRAIRIE PROPERTY HOLDINGS LLC
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By: |
Amscan Holdings, Inc., Sole Member
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|
|
|
By: |
|
|
|
|
Name: |
Michael A. Correale |
|
|
|
Title: |
Chief Financial Officer |
|
|
|
ANAGRAM INTERNATIONAL, LLC
|
|
|
By: |
|
|
|
|
Name: |
Michael A. Correale |
|
|
|
Title: |
Manager |
|
|
|
PARTY CITY FRANCHISE GROUP HOLDINGS, LLC
PARTY CITY FRANCHISE GROUP, LLC
|
|
|
By: |
|
|
|
|
Name: |
Michael A. Correale |
|
|
|
Title: |
Vice President Finance |
|
130
|
|
|
|
|
|
CREDIT SUISSE AG, CAYMAN
ISLANDS BRANCH, individually, as Administrative Agent, as Collateral Agent, and as a Lender
|
|
|
By: |
|
|
|
|
Name: |
|
|
|
|
Title: |
|
|
|
|
|
|
|
By: |
|
|
|
|
Name: |
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
[Bank], as Lender
|
|
|
By: |
|
|
|
|
Name: |
|
|
|
|
Title: |
|
|
Schedule 1.01(a) Mortgaged Properties
47 Elizabeth Drive, Chester, Orange County, NY 10918
7700 Anagram Drive, Eden Prairie, Hennepin County, MN 55344
Schedule 2.01 Commitment Schedule
COMMITMENT SCHEDULE
|
|
|
Lender |
|
Commitment |
Credit Suisse AG
|
|
$675,000,000 |
Total
|
|
$675,000,000 |
Schedule 3.06 Litigation
None.
Schedule 3.14 Insurance
See attached.
Schedule 3.15 Capitalization and Subsidiaries
DOMESTIC SUBSIDIARIES
3/29/2011
Schedule 3.15 Capitalization and Subsidiaries
|
|
|
|
|
|
|
|
|
Current Legal |
|
|
|
|
|
|
|
|
Entities Owned |
|
Record Owner |
|
Certificate No. |
|
No. Shares/Interest |
|
Class of Stock |
PA Acquisition Corp.
|
|
Amscan Holdings, Inc.
|
|
A-2
|
|
100
|
|
Common Stock |
Party America
Franchising, Inc.
|
|
PA Acquisition Corp.
|
|
8
|
|
8,197
|
|
Common Stock |
Party City Corporation
|
|
Amscan Holdings, Inc.
|
|
A-1
|
|
100
|
|
Common Stock |
Amscan Holdings, Inc.
|
|
AAH Holdings
Corporation
|
|
1
|
|
1,000
|
|
Common Stock |
Amscan Inc.
|
|
Amscan Holdings, Inc.
|
|
12
|
|
692.84
|
|
Capital Stock |
Trisar, Inc.
|
|
Amscan Holdings, Inc.
|
|
13
|
|
266.66
|
|
Common Stock |
JCS Packaging, Inc.
|
|
Amscan Holdings, Inc.
|
|
2
|
|
1
|
|
Capital Stock |
SSY Realty Corp.
|
|
Amscan Holdings, Inc.
|
|
9
|
|
200
|
|
Capital Stock |
Amscan Distributors
Canada, Ltd.
|
|
Amscan Holdings, Inc.
|
|
13
|
|
1,980
|
|
Capital Stock |
Amscan Distributors
Canada, Ltd.
|
|
Amscan Holdings, Inc.
|
|
14
|
|
1020 (not pledged)
|
|
Capital Stock |
Amscan (Asia Pacific)
Pty. Ltd. (A.C.N. 001
994 958)
|
|
Amscan Holdings, Inc.
|
|
18
|
|
587
|
|
Ordinary Shares |
Amscan Party
(Australia)
|
|
Amscan Holdings, Inc
|
|
19
|
|
173(not pledged)
|
|
Ordinary Shares |
Amscan Holdings
Limited (UK)
|
|
Amscan Holdings, Inc.
|
|
21
|
|
189,750
|
|
Ordinary shares |
Amscan Holdings
Limited (UK)
|
|
Amscan Holdings, Inc.
|
|
22
|
|
25,875(not pledged)
|
|
Ordinary shares |
Amscan Holdings
Limited (UK)
|
|
Amscan Holdings, Inc.
|
|
23
|
|
3,300
|
|
Preference shares |
Amscan Holdings
Limited (UK)
|
|
Amscan Holdings, Inc.
|
|
24
|
|
1,700(not pledged)
|
|
Preference shares |
Amscan de Mexico,
S.A. de C.V. (B-1
Class)
|
|
Amscan Holdings, Inc.
|
|
|
|
600 |
|
|
Amscan de Mexico,
S.A. de C.V. (B
Class)
|
|
Amscan Holdings, Inc.
|
|
|
|
30 |
|
|
Amscan de Mexico,
S.A. de C.V. (B-1
Class)
|
|
Amscan Holdings, Inc.
|
|
|
|
1,130 |
|
|
Anagram
International, Inc.
|
|
Amscan Holdings, Inc.
|
|
5 NV
(non-voting)
|
|
2,040
|
|
Common Stock |
Anagram
International, Inc.
|
|
Amscan Holdings, Inc.
|
|
16
(voting)
|
|
9,054
|
|
Common Stock |
Anagram International
Holdings, Inc.
|
|
Anagram
International, Inc.
|
|
5
|
|
1,000
|
|
Common Stock |
Christy Asia Limited
(UK)
|
|
Amscan Holdings, Inc.
|
|
|
|
1,000
|
|
Ordinary shares |
Christy Dressup
Limited (UK)
|
|
Amscan Holdings, Inc.
|
|
|
|
3,000,000
|
|
Ordinary shares |
Christy Garments &
Accessories Limited
|
|
Amscan Holdings, Inc.
|
|
|
|
1
|
|
Ordinary share |
Christys By Design
Limited (UK)
|
|
Amscan Holdings, Inc.
|
|
|
|
755,247
|
|
Ordinary shares |
|
|
|
|
|
|
|
|
|
Current Legal |
|
|
|
|
|
|
|
|
Entities Owned |
|
Record Owner |
|
Certificate No. |
|
No. Shares/Interest |
|
Class of Stock |
M&D Industries, Inc.
|
|
Anagram
International, Inc.
|
|
5
|
|
100
|
|
Common Stock |
JCS Hong Kong Limited
|
|
Amscan Holdings, Inc.
|
|
3
|
|
65
|
|
Capital Stock |
JCS Hong Kong Limited
|
|
Amscan Holdings, Inc.
|
|
1
|
|
1(not pledged)
|
|
Capital Stock |
JCS Hong Kong Limited
|
|
Amscan Holdings, Inc.
|
|
4
|
|
33(not pledged)
|
|
Capital Stock |
JCS Hong Kong Limited
|
|
Amscan Inc.
|
|
2
|
|
1(not pledged)
|
|
Capital Stock |
Am-Source, LLC
|
|
Amscan Holdings, Inc.
|
|
1
|
|
100%
|
|
Membership Units |
Anagram Eden Prairie
Property Holdings LLC
|
|
Amscan Holdings, Inc.
|
|
3
|
|
100%
|
|
Membership Units |
Anagram
International, LLC
|
|
Anagram
International, Inc.
|
|
3
|
|
98%
|
|
LLC Interests |
Anagram
International, LLC
|
|
Anagram International
Holdings, Inc.
|
|
4
|
|
2%
|
|
LLC Interests |
Amscan Partyartikel
Gmbh
|
|
Amscan Holdings Inc.
|
|
uncertificated
|
|
100%
|
|
German partnership |
Anagram International
Japan Co. Ltd
|
|
Amscan Holdings Inc.
|
|
|
|
200
|
|
Common shares |
Anagram Espana S.L.
|
|
Amscan Holdings Inc.
|
|
Notarial deed
|
|
2000
|
|
Capital stock |
Convergram de Mexico
S. de R.L.
|
|
Anagram International
Inc.
|
|
Notarial deed
|
|
49.9% of shares
($1,034,012.00Pesos)
|
|
Variable capital
stock |
Gags and Games, Inc.
|
|
Amscan Holdings, Inc.
|
|
11
|
|
1,000
|
|
Capital Stock |
Factory Card & Party
Outlet Corp.
|
|
Amscan Holdings, Inc.
|
|
1
|
|
100
|
|
Common Stock |
Factory Card Outlet
of America Ltd.
|
|
Factory Card & Party
Outlet Corp.
|
|
2
|
|
2,500
|
|
Common Stock |
Party City Franchise
Group Holdings, LLC
|
|
Party City Corporation
|
|
uncertificated
|
|
98.34%
|
|
Membership Units |
Party City Franchise
Group Holdings, LLC
|
|
PA Acquisition Corp.
|
|
uncertificated
|
|
1.66%
|
|
Membership Units |
Party City Franchise
Group, LLC
|
|
Party City Franchise
Group Holdings, LLC
|
|
uncertificated
|
|
100%
|
|
Membership Units |
Schedule 4.01(b) Local Counsel
Minnesota Counsel:
Gray Plant Mooty
500 IDS Center
80 South Eighth Street
Minneapolis, Minnesota 55402
Nevada Counsel:
McDonald Carano Wilson
100 West Liberty Street,
10th Floor
Reno, Nevada 89501
Michigan Counsel:
Miller, Canfield, Paddock and Stone, P.L.C.
840 West Long Lake Road, Suite 200
Troy, Michigan 48098
Illinois Counsel:
GoodSmith Gregg & Unruh LLP
150 S. Wacker Drive
Suite 3150
Chicago, Illinois 60606
Rhode Island Counsel:
Partridge Snow & Hahn LLP
180 South Main Street
Providence, Rhode Island 02903
Schedule 6.01(i) Existing Indebtedness
|
|
|
|
|
|
|
|
|
Equipment Leases |
|
Type |
|
Term |
|
Outstanding |
|
Amscan Inc. |
|
Various Equipment Leases |
|
Up to November 2014 |
|
$ |
558,000 |
|
Party City Corporation |
|
Various Equipment Leases |
|
Up to October 2013 |
|
$ |
3,646,000 |
|
Amscan (Asia Pacific) |
|
Equipment Lease |
|
Up to 2014 |
|
$ |
94,000 |
|
|
|
|
|
|
|
|
|
|
|
|
Lines of Credit |
|
Expires |
|
Rate |
|
Availability |
|
Outstanding |
Amscan Distributors
Canada Ltd HSBC
Bank of Canada
Revolving Credit
Agreement
|
|
4/2011
|
|
Cda Prime (+1.1%)
per annum,
floating, payable
monthly
|
|
C$400,000
|
|
$ |
0 |
|
|
|
|
|
|
|
|
|
|
|
|
Amscan Holdings
Limited (England)
Natwest Bank, PLC
Revolving Credit
Agreement
|
|
6/2011
|
|
UK Base Rate +1.75%
(First L 1,000,000)
|
|
L 1,400,000
|
|
$ |
0 |
|
Schedule 6.01(t) Corporate Leases Assigned/Sold/Transferred
Franchise Locations Guaranteed/Assigned by Party City Corporation
|
|
|
|
|
|
|
Franchise |
|
Franchise Store |
|
|
|
|
No. |
|
Address |
|
Landlord Name |
|
Landlord Address |
16
|
|
Party City of
Poplar Plaza #16,
3460 Poplar Ave.,
Memphis, TN, 38111
|
|
Finard Memphis Realty
Ltd.
|
|
3 Burlington Woods Drive,
Burlington, MA 01803 |
|
|
|
|
|
|
|
21
|
|
Party City of
Memphis (Covington)
#21, 1250 North
Germantown Pkwy.,
Suite 106, Memphis,
TN 38016
|
|
Ford-Lurie Commercial
Realty, LLC
|
|
700 Colonial Road, Suite 100,
Memphis, TN 38117 |
|
|
|
|
|
|
|
180
|
|
Party City of
Bayside, Inc. #180,
213-02 Northern
Blvd., Bayside, NY
11361
|
|
Mixed Foursome LLC
|
|
c/o Laurence R. Levy, 342
Madison Avenue, Suite 803, New
York, NY 10173 |
|
|
|
|
|
|
|
206
|
|
Party City of
Edgewater #206, 509
River Rd.,
Edgewater, NJ 07020
|
|
FB Oceanside, LLC
|
|
810 Seventh Avenue, 28th Floor,
New York, NY 10019 |
|
|
|
|
|
|
|
226
|
|
Party City, 820
East Rector Dr, Ste
100, San Antonio,
TX 78216
|
|
Concourse 410 Ltd.
|
|
200 Concord Plaza, Ste 710, San
Antonio, TX 78216 |
|
|
|
|
|
|
|
227
|
|
Party City, 8226
Agora Pkwy, Selma,
TX 78154
|
|
Kimco Forum at Olympia,
L.P.
|
|
3333 New Hyde Park Rd, New Hyde
Park, NY 11042 |
|
|
|
|
|
|
|
246
|
|
Party City #246,
2801 East Market
Street, Suite L2,
York, PA , 17402
|
|
THF York Development, LP
|
|
955 Executive Parkway, Suite
210, St. Louis, MO 63141 |
|
|
|
|
|
|
|
257
|
|
Party City of
Temecula, Inc.
#257, 40486
Winchester Rd.,
Temecula, CA 92591
|
|
Starwood Wasserman
Temecula, LLC
|
|
174 Wickenden Street,
Providence, RI 02903 |
|
|
|
|
|
|
|
396
|
|
Party City, 3501 Rt
42, Units 1a-2a,
Tunersville, NJ
08012
|
|
ACP Cross Keys Assoc.
|
|
400 Park Ave., New York, NY 10022 |
|
|
|
|
|
|
|
398
|
|
Party City of
Spanish Trail, 9620
E 22nd
St, Tucson, AZ
85748
|
|
Brown Tucson, LLC-WM
Grace Development
|
|
7575 N 16th Street,
Suite 1, Phoenix, AZ 85020 |
|
|
|
|
|
|
|
484
|
|
5031 East Ray Road,
Unit 6, Phoenix, AZ
85044
|
|
DDRA Ahwatukee
Foothills, LLC, c/o
Developers Diversified
|
|
3300 Enterprise Parkway,
Beachwood, OH 44122 |
|
|
|
|
|
|
|
536
|
|
Party City of
Towson (Anneslie)
#536, 6311 York
Rd., Baltimore, MD
21212
|
|
KR Trust
|
|
128 Fayette Street,
Conshohocken, PA 19428 |
|
|
|
|
|
|
|
553
|
|
JCs Party City
#553, Tops Market
Plaza, 2141 Elmwood
Ave., Buffalo, NY
14207
|
|
Randall Benderson
1993-1 Trust
|
|
570 Delaware Avenue, Buffalo, NY
14202 |
|
|
|
|
|
|
|
579
|
|
NN and LN DBA Party
City # 579, 7000
Hadley Rd., South
Plainfield, NJ
07080
|
|
FB Plainfield LLC
|
|
810 Seventh Avenue, 28th Floor,
New York, NY 10019 |
|
|
|
|
|
|
|
604
|
|
Party City of
Merriam #604,
Merriam Town
Center, 5808
Antioch Rd.,
Merriam, KS 66202
|
|
Merriam Town Center,
Ltd.
|
|
34555 Chagrin Blvd., Chagrin
Falls, OH 44022 |
|
|
|
|
|
|
|
616
|
|
Party City of
Wilmington #616,
4715F New Centre
Dr., Wilmington, NC
28405
|
|
JDN Realty Corp.,
|
|
3340 Peachtree Street, N.E.
Suite 1530, Atlanta, GA 30326 |
|
|
|
|
|
|
|
Franchise |
|
Franchise Store |
|
|
|
|
No. |
|
Address |
|
Landlord Name |
|
Landlord Address |
630
|
|
Party City of
Voorhees #630,
Eagle Plaza
Shopping Center,
700-3
Haddonfield-Berlin
Rd., Voorhees, NJ
08043
|
|
Eagle Plaza Associates
|
|
234 North James Street, Newport,
DE 19804 |
|
|
|
|
|
|
|
653
|
|
Party City of
Fayetteville #653,
2065-4 Skibo Rd.,
Fayetteville, NC
28314
|
|
Fourth Quarter
Properties, IX, Inc.
|
|
300 Village Green Circle,
Smyrna, GA 30080 |
|
|
|
|
|
|
|
658
|
|
Party City of
Lancaster #658, Red
Rose Commons
Shopping Center,
1700C Fruitville
Pike, Store S3
Lancaster, PA 17601
|
|
Red Rose Commons
Associates, LP
|
|
c/o The Goldenberg Group, 350
Sentry Pkwy., Building 630,
Suite 300, Blue Bell, PA 19422 |
|
|
|
|
|
|
|
659
|
|
Party City of North
Syracuse #659, 256
Northern Lights
Shopping Center,
North Syracuse, NY
13212
|
|
Norwill Associates
|
|
c/o Reisman Property Interests,
Inc. 340 West Passaic Street,
Rochelle Park, NJ 07662 |
|
|
|
|
|
|
|
676
|
|
Party City of
Blasdell #676, 4408
Milestrip Rd., Unit
8, Blasdell, NY
14219
|
|
The Benderson 85-1 Trust
|
|
570 Delaware Avenue, Buffalo, NY
14202 |
|
|
|
|
|
|
|
724
|
|
Party City, 201 W.
Lincoln Hwy, Space
400, Exton, PA
19341
|
|
Whiteland Investors LP
|
|
770 Township Line Rd, Suite 150,
Yardley, PA 19067 |
|
|
|
|
|
|
|
725
|
|
10500 Roosevelt
Blvd, Philadelphia,
PA 19116
|
|
MCE Assoc.
|
|
44 W Lancaster Ave, Ste 210,
Ardmore, PA 19003 |
|
|
|
|
|
|
|
770
|
|
3360
124th
Ave NW, Coon
Rapids, MN 55433
|
|
Ryan Companies US, Inc
|
|
700 International Centre, 900
2nd Ave S,
Minneapolis, MN 55402 |
|
|
|
|
|
|
|
771
|
|
1630 New Brighton
Blvd, Minneapolis,
MN 55413
|
|
Ryan Companies US, Inc
|
|
700 International Centre, 900
2nd Ave S,
Minneapolis, MN 55402 |
|
|
|
|
|
|
|
772
|
|
7365
153rd St
W, Apple Valley, MN
55124
|
|
HTW Investment Partners
Inc
|
|
527 Marquette Ave S, Ste 400,
Minneapolis, MN 55402 |
|
|
|
|
|
|
|
773
|
|
7989 1/2 Southtown
Ctr, Bloomington,
MN 55431
|
|
Kraus-Anderson Inc.
|
|
4220 West Old Shakopee Rd, Ste
200, Bloomington, MN 55437 |
Schedule 6.02 Existing Liens
See attached.
Schedule 6.07 Existing Investments
None.
Schedule 6.12 Transactions with Affiliates
Payments for David Reilly, who is an employee of Berkshire, as a reimbursement to Berkshire
Partners, pursuant to an oral agreement for consulting services in an amount not to exceed $400,000
per year.
Amended and Restated Management Agreement by and among Berkshire Partners LLC, Weston Presidio
Services LLC and Amscan Holdings, Inc. dated November 10, 2006 and any amendments made thereto.
Amended and Restated Stockholders Agreement dated August 19, 2008 by and among AAH Holdings
Corporation and the Stockholders (defined therein) and any amendments made thereto.
Management Rights Agreement dated August 19, 2008 by and between AAH Holdings Corporation and WPC
Entrepreneur Fund II, L.P.
Management Rights Agreement dated August 19, 2008 by and between AAH Holdings Corporation and
Weston Presidio Capital IV, L.P.
Management Rights Agreement dated August 19, 2008 by and between AAH Holdings Corporation and
Berkshire Fund IV, Limited Partnership.
Management Rights Agreement dated August 19, 2008 by and between AAH Holdings Corporation and
Berkshire Fund V, Limited Partners.
Management Rights Agreement dated August 19, 2008 by and between AAH Holdings Corporation and
Advent-Amscan Acquisition LLC.
Employment Agreement by and between AAH Holdings Corporation and Michael Heller, dated December 30,
2008.
Employment Agreement by and between Party City Franchise Group, LLC and Mark Tobin, dated November
2, 2007.
Schedule 9.01 Borrowers Website Address for Electronic Delivery
www.amscan.com
EXHIBIT A
Administrative Questionnaire
Amscan
IntraLinks Agency Access:
Please note it is IMPERATIVE that the following information is delivered to Credit Suisse in order
to provide a lender access to the IntraLinks Agency site where documents that monitor the credit on
an ongoing basis are posted.
Many Firms submit their own form so please take the time to amend the form your Firm uses to
reflect who should be granted access to the IntraLinks Agency site.
It is IMPERATIVE that you indicate EXACT details regarding who should receive access to the
IntraLinks Agency site.
Sub-Allocation of Lender Allocation:
It is very important that all of the requested information be completed accurately and that
this questionnaire be returned promptly. If your institution is sub-allocating its allocation,
please fill out an administrative questionnaire for each legal entity.
IntraLinks Agency Site Maintenance Contact Information:
|
|
|
Tonya Mitchell |
Tel:
|
|
212-325-3843 |
Fax:
|
|
212-325-8304 |
E-mail:
|
|
tonya.mitchell@credit-suisse.com |
Agent Wire Instructions:
Bank of New York
ABA
Account Name: CS Agency Cayman Account
Account Number:
A-1
Administrative Questionnaire
Legal Name of Lender to appear in Documentation:
|
|
|
|
|
|
|
Signature Block Information: |
|
|
|
|
|
|
|
|
Lender Parent: |
|
|
|
|
|
|
|
|
|
|
|
|
Signing Credit Agreement
|
|
o Yes
|
|
o No |
|
|
|
Coming in via Assignment
|
|
o Yes
|
|
o No |
|
|
|
|
|
|
|
|
|
|
|
|
Lender Domestic Address
|
|
Lender Eurodollar Address |
Type of Lender:
(Bank, Asset Manager, Broker/Dealer, CLO/CDO, Finance Company, Hedge Fund, Insurance,
Mutual Fund, Pension Fund, Other Regulated Investment Fund, Special Purpose Vehicle,
Other please specify)
Contacts/Notification Methods: Borrowings, Paydowns, Interest, Fees, etc.
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Primary Credit Contact |
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A-2
Lenders Domestic Wire Instructions
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Bank Name: |
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Account Name: |
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FFC Account Name: |
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FFC Account No.: |
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Attention: |
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Reference: |
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Please FAX the completed Administrative Questionnaire to 212-325-8304 or email with contact
information to tonya.mitchell@credit-suisse.com.
A-3
Tax Documents
NON-U.S. LENDER INSTITUTIONS:
I. Corporations:
If your institution is incorporated outside of the United States for U.S. federal income tax
purposes, and is the beneficial owner of the interest and other income it receives, you must
complete one of the following three tax forms, as applicable to your institution: a.) Form W-8BEN
(Certificate of Foreign Status of Beneficial Owner), b.) Form W-8ECI (Income Effectively Connected
to a U.S. Trade or Business), or c.) Form W-8EXP (Certificate of Foreign Government or Governmental
Agency).
A U.S. taxpayer identification number is required for any institution submitting Form W-8ECI. It
is also required on Form W-8BEN for certain institutions claiming the benefits of a tax treaty with
the U.S. Please refer to the instructions when completing the form applicable to your institution.
In addition, please be advised that U.S. tax regulations do not permit the acceptance of faxed
forms. An original tax form must be submitted.
II. Flow-Through Entities:
If your institution is organized outside the U.S., and is classified for U.S. federal income tax
purposes as either a Partnership, Trust, Qualified or Non-Qualified Intermediary, or other non-U.S.
flow-through entity, an original Form W-8IMY (Certificate of Foreign Intermediary, Foreign
Flow-Through Entity, or Certain U.S. Branches for United States Tax Withholding) must be completed
by the intermediary together with a withholding statement. Flow-through entities other than
Qualified Intermediaries are required to include tax forms for each of the underlying beneficial
owners.
Please refer to the instructions when completing this form. In addition, please be advised that
U.S. tax regulations do not permit the acceptance of faxed forms. Original tax form(s) must be
submitted.
U.S. LENDER INSTITUTIONS:
If your institution is incorporated or organized within the United States, you must complete and
return Form W-9 (Request for Taxpayer Identification Number and Certification). Please be advised
that we request that you submit an original Form W-9.
A-4
Pursuant to the language contained in the tax section of the Credit Agreement, the applicable tax
form for your institution must be completed and returned prior to the first payment of income.
Failure to provide the proper tax form when requested may subject your institution to U.S. tax
withholding.
A-5
EXHIBIT B
[FORM OF]
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the Assignment and Assumption) is dated as of the Effective
Date set forth below and is entered into by and between [Insert name of Assignor] (the Assignor)
and [Insert name of Assignee] (the Assignee). Capitalized terms used but not defined herein
shall have the meanings given to them in the Term Loan Credit Agreement identified below (as
amended, amended and restated, supplemented or otherwise modified from time to time, the Credit
Agreement), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms
and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below, (i) all of the
Assignors rights and obligations in its capacity as a Lender under the Credit Agreement and any
other documents or instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and obligations of the
Assignor under the respective facilities identified below (including any guarantees included in
such facilities) and (ii) to the extent permitted to be assigned under applicable law, all claims,
suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against
any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any
other documents or instruments delivered pursuant thereto or the loan transactions governed thereby
or in any way based on or related to any of the foregoing, including contract claims, tort claims,
malpractice claims, statutory claims and all other claims at law or in equity related to the rights
and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and
assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as the
Assigned Interest). Such sale and assignment is without recourse to the Assignor and, except as
expressly provided in this Assignment and Assumption, without representation or warranty by the
Assignor.
1. Assignor:
2. Assignee:
[and is an Affiliate/Approved Fund of [identify Lender]1]
3.
Borrower: Amscan Holdings, Inc.
4. Administrative Agent: Credit Suisse AG, as administrative agent under the Credit Agreement.
5. Credit Agreement: The Term Loan Credit Agreement dated as of December 2, 2010, among Amscan
Holdings, Inc., a Delaware corporation (the Borrower), AAH Holdings Corporation, a Delaware
corporation, the Subsidiaries of the Borrower from time to time party thereto, the Lenders parties
thereto and Credit Suisse AG, as administrative agent and as collateral agent.
B-1
6. Assigned Interest:
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Amount of |
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Percentage Assigned of |
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Commitment/Loans2 |
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CUSIP Number |
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Effective Date: , 20 [TO BE INSERTED BY THE AGENT AND WHICH SHALL BE THE
EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR].
The terms set forth in this Assignment and Assumption are hereby agreed to:
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ASSIGNOR
[NAME OF ASSIGNOR]
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ASSIGNEE
[NAME OF ASSIGNEE]
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Set forth, to at least 9 decimals, as a
percentage of the Commitment/Loans of all Lenders thereunder. |
B-2
Consented to and Accepted:
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CREDIT SUISSE AG, CAYMAN ISLANDS
BRANCH, as Administrative Agent
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[Consented to:]3
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AMSCAN HOLDINGS, INC.
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To be added only if the consent of the
Borrower is required by the terms of the Credit Agreement. |
B-3
ANNEX I
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim, (iii) its Commitment, and the outstanding balances of its
Loans, in each case without giving effect to assignments thereof which have not become effective,
are as set forth herein, and (iv) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements,
warranties or representations made in or in connection with the Credit Agreement or any other Loan
Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrower,
any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document
or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any
other Person of any of their respective obligations under any Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it is an Eligible Assignee
and has full power and authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated hereby and to become a
Lender under the Credit Agreement, (ii) it satisfies the requirements, if any, specified in the
Credit Agreement that are required to be satisfied by it in order to acquire the Assigned Interest
and become a Lender, (iii) from and after the Effective Date, it shall be bound by the provisions
of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall
have the obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement,
together with copies of the most recent financial statements referred to in Section 3.04(a) or
delivered pursuant to Section 5.01 thereof, as applicable, and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase the Assigned Interest on the basis of which it has made
such analysis and decision independently and without reliance on the Administrative Agent or any
other Lender, and (v) if it is a Foreign Lender, attached to the Assignment and Assumption is any
documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly
completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without
reliance on the Administrative Agent, the Assignor or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Loan Documents, (ii) it appoints and authorizes the
Administrative Agent to take such action on its behalf and to exercise such powers under the Credit
Agreement as are delegated to the Administrative Agent, by the terms thereof, together with such
powers as are reasonably incidental thereto, and (iii) it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are required to be performed
by it as a Lender.
B-4
2. Payments. From and after the Effective Date, the Administrative Agent shall make all
payments in respect of the Assigned Interest (including payments of principal, interest, fees and
other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date
and to the Assignee for amounts which have accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding upon, and inure to
the benefit of, the parties hereto and their respective successors and permitted assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by facsimile shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be construed
in accordance with and governed by the laws of the State of New York.
B-5
EXHIBIT C
[FORM OF]
COMPLIANCE CERTIFICATE
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To: |
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The Lenders parties to the
Credit Agreement described below |
This Compliance Certificate is furnished pursuant to that certain Term Loan Credit Agreement
dated as of December 2, 2010 (as amended, amended and restated, supplemented or otherwise modified
from time to time, the Credit Agreement), among Amscan Holdings, Inc. (the Borrower), AAH
Holdings Corporation, the Subsidiaries of the Borrower party thereto from time to time, the Lenders
party thereto and Credit Suisse AG, as administrative agent and as collateral agent for the
Lenders. Unless otherwise defined herein, capitalized terms used in this Compliance Certificate
have the meanings ascribed thereto in the Credit Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I
am the duly elected
of the Borrower and a Financial Officer
of the Borrower;
2. I have reviewed the terms of the Credit Agreement and I have made, or have caused to be
made under my supervision, a review in reasonable detail of the transactions and conditions of the
Borrower and its Subsidiaries during the accounting period covered by the attached financial
statements;
3. [Except as set forth below, the] [The] examinations described in paragraph 2 did not
disclose, and I have no knowledge of [(i)] the existence of any condition or event which
constitutes a Default or Event of Default during or at the end of the accounting period covered by
the attached financial statements or as of the date of this Compliance Certificate [and (ii) the
disclosure set forth below specifies, in reasonable detail, the nature of any such condition or
event and any action taken or proposed to be taken with respect thereto];
4. [For annual certificates (commencing with the fiscal year ending on December 31, 2011),
add: With respect to any Net Proceeds received by the Borrower or any of its Subsidiaries,
Schedule I attached hereto sets forth such Net Proceeds and the amount that has been
reinvested or committed to be re-invested pursuant to the definition of Net Proceeds for such
fiscal year;] and
The description below sets forth the exceptions, if any, to paragraph 3 by listing, in
reasonable detail, the nature of the condition or event, the period during which it has existed and
the action which the Borrower has taken, is taking, or proposes to take with respect to each such
condition or event:
The foregoing certifications, together with the information set forth in the Schedules hereto
and the financial statements delivered with this Compliance Certificate in support hereof, are made
and delivered this ___ day of __________, 20__.
C-1
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AMSCAN HOLDINGS, INC.
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C-2
SCHEDULE 1
Calculation of
Excess Cash Flow
C-3
SCHEDULE D
[FORM OF]
JOINDER AGREEMENT
THIS JOINDER AGREEMENT (this Agreement), dated as of ______________, 20___, is
entered into among ______________________, a _________________ (the New Subsidiary) and CREDIT
SUISSE AG, as administrative agent (in such capacity, the Administrative Agent) and as collateral
agent (in such capacity, the Collateral Agent), under that certain Term Loan Credit Agreement
dated as of December 2, 2010 (as amended, amended and restated, supplemented or otherwise modified
from time to time, the Credit Agreement), among Amscan Holdings, Inc., a Delaware corporation
(the Borrower), AAH Holdings Corporation, a Delaware corporation, the Subsidiaries of the
Borrower from time to time party thereto, the Lenders from time to time party thereto, the
Administrative Agent and the Collateral Agent. All capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Credit Agreement.
The New Subsidiary, the Administrative Agent and the Collateral Agent, for the benefit of the
Lenders, hereby agree as follows:
5. The New Subsidiary hereby acknowledges, agrees and confirms that, by its execution of this
Agreement, the New Subsidiary will be deemed to be a Loan Party under the Credit Agreement and a
Loan Guarantor for all purposes of the Credit Agreement and shall have all of the obligations of a
Loan Party and a Loan Guarantor thereunder as if it had executed the Credit Agreement. The New
Subsidiary hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms,
provisions and conditions contained in the Credit Agreement, including without limitation (a) all
of the representations and warranties of the Loan Parties set forth in Article III of the Credit
Agreement (to the extent made or deemed made on or after the effective date hereof), (b) all of the
covenants set forth in Articles V and VI of the Credit Agreement and (c) all of the guaranty
obligations set forth in Article X of the Credit Agreement. Without limiting the generality of the
foregoing terms of this paragraph 1, the New Subsidiary, subject to the limitations set forth in
Section 10.09 of the Credit Agreement, hereby absolutely and unconditionally guarantees, jointly
and severally with the other Loan Guarantors, to the Agent and the Lenders, the prompt payment of
the Guaranteed Obligations in full when due (whether at stated maturity, upon acceleration or
otherwise) to the extent of and in accordance with Article X of the Credit Agreement.
6. If required, the New Subsidiary is, simultaneously with the execution of this Agreement,
executing and delivering such Collateral Documents (and such other documents and instruments) as
requested by the Agent in accordance with the Credit Agreement.
7. The New Subsidiary hereby waives acceptance by the Agent and the Lenders of the guaranty by
the New Subsidiary upon the execution of this Agreement by the New Subsidiary.
8. This Agreement may be executed in any number of counterparts, each of which when so
executed and delivered shall be an original, but all of which shall constitute one and the same
instrument.
D-1
9. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
[Signature Page Follows]
D-2
IN WITNESS WHEREOF, the New Subsidiary has caused this Agreement to be duly executed by its
authorized officer, the Administrative Agent and the Collateral Agent, for the benefit of the
Lenders, has caused the same to be accepted by its authorized officer, as of the day and year first
above written.
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[NEW SUBSIDIARY]
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Acknowledged and accepted:
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Administrative Agent and as
Collateral Agent
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By: |
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D-3
EXHIBIT E
[FORM OF]
BORROWING REQUEST
Credit Suisse AG,
as Administrative Agent for the Lenders referred to below
Eleven Madison Avenue
New York, NY 10010
Attention: Agency Group
December __, 20104
Ladies and Gentlemen:
Reference is made to the Term Loan Credit Agreement dated as of December [], 2010, among Amscan
Holdings, Inc., a Delaware corporation (the Borrower), AAH Holdings Corporation, a Delaware
corporation, the Subsidiaries of the Borrower from time to time party thereto, the Lenders parties
thereto, and Credit Suisse AG, as administrative agent (in such capacity, the Administrative
Agent) and as collateral agent (as amended, amended and restated, supplemented or otherwise
modified from time to time, the Credit Agreement). Terms defined in the Credit Agreement are
used herein with the same meanings.
The undersigned hereby gives you notice pursuant to Section 2.03 of the Credit Agreement that it
requests the Borrowing under the Credit Agreement to be made on the Closing Date, and in that
connection sets forth below the terms on which the Borrowing is requested to be made:
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(A) |
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Date of Borrowing |
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(which shall be a Business Day) |
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December [], 2010 |
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Principal Amount of Borrowing |
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$675,000,000.00 |
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(C) |
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Type of Borrowing5 |
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(D) |
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Interest Period and the last day thereof |
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(in the case of a LIBO Rate Borrowing)6 |
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(E) |
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Account Number and Location |
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Must be notified in writing or by telephone
(with such telephonic notification to be confirmed promptly in writing) not
later than 12:00 p.m., New York City time, two (2) Business Days before the
proposed Closing Date (or such later time as shall be acceptable to the
Administrative Agent). |
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Specify a LIBO Rate Borrowing or an ABR
Borrowing. |
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The initial Interest Period applicable
to a LIBO Rate Borrowing shall be subject to the definition of
Interest Period. |
E-1
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AMSCAN HOLDINGS, INC.
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E-2
EXHIBIT F
[FORM OF]
PROMISSORY NOTE
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$[ ]
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New York, New York |
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[], 201[] |
FOR VALUE RECEIVED, the undersigned, AMSCAN HOLDINGS, INC., a Delaware corporation (the
Borrower), hereby promises to pay on demand to [ ] (the Lender) or its
registered assigns, at the office of Credit Suisse AG (the Agent) at Eleven Madison Avenue, New
York, New York 10010, the principal sum of $[______] or such lesser amount as is outstanding from
time to time, on the dates and in the amounts set forth in the Term Loan Credit Agreement dated as
of December 2, 2010 (as the same may be amended, amended and restated, supplemented or otherwise
modified from time to time, the Credit Agreement), among the Borrower, AAH Holdings Corporation,
the Subsidiaries from time to time party thereto, the Lenders party thereto and the Agent, in
lawful money of the United States of America. The Borrower also promises to pay interest from the
date of such Loans on the principal amount thereof from time to time outstanding, in like funds, at
said office, at the rate or rates per annum and payable on the dates provided in the Credit
Agreement. Terms used but not defined herein shall have the meanings assigned to them in the
Credit Agreement.
The Borrower promises to pay interest, on demand, on any overdue principal and, to the extent
permitted by law, overdue interest from the due dates at a rate or rates provided in the Credit
Agreement.
The Borrower hereby waives diligence, presentment, demand, protest and notice of any kind.
The non-exercise by the holder hereof of any of its rights hereunder in any particular instance
shall not constitute a waiver thereof in that or any subsequent instance.
All borrowings evidenced by this promissory note and all payments and prepayments of the
principal hereof and interest hereon and the respective dates thereof shall be endorsed by the
holder hereof on the schedules attached hereto and made a part hereof or on a continuation thereof
which shall be attached hereto and made a part hereof, or otherwise recorded by such holder in its
internal records; provided, however, that the failure of the holder hereof to make such a notation
or any error in such notation shall not affect the obligations of the Borrower under this Note.
This promissory note is one of the promissory notes referred to in the Credit Agreement that,
among other things, contains provisions for the acceleration of the maturity hereof upon the
happening of certain events, for optional and mandatory prepayment of the principal hereof prior to
the maturity hereof and for the amendment or waiver of certain provisions of the Credit Agreement,
all upon the terms and conditions therein specified. This promissory note is entitled to the
benefit of the Credit Agreement and is guaranteed and secured as provided therein and in the other
Loan Documents referred to in the Credit Agreement.
F-1
THE ASSIGNMENT OF THIS NOTE AND ANY RIGHTS WITH RESPECT THERETO IS SUBJECT TO THE
PROVISIONS OF THE CREDIT AGREEMENT INCLUDING THE PROVISIONS GOVERNING THE REGISTER AND THE
PARTICIPANT REGISTER.
THIS PROMISSORY NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.
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AMSCAN HOLDINGS, INC.
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By: |
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Title: |
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F-2
Schedule A to Note
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
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Amount of ABR |
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Amount of |
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Unpaid Principal |
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Amount of |
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Amount Converted to |
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Principal of ABR |
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to LIBO Rate |
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Balance of ABR |
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Notation |
Date |
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ABR Loans |
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ABR Loans |
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Loans Repaid |
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Loans |
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Loans |
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Made By |
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F-3
Schedule B to Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF LIBO RATE LOANS
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Amount of |
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Unpaid |
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Interest Period and |
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Amount of |
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LIBO Rate |
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Principal |
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Amount of |
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Amount |
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Adjusted LIBO |
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Principal of |
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Loans |
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Balance of |
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LIBO Rate |
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Converted to |
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with Respect |
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LIBO Rate |
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Converted to |
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LIBO Rate |
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Notation |
Date |
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Loans |
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LIBO Rate Loans |
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Thereto |
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Loans Repaid |
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ABR Loans |
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Loans |
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Made By |
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F-4
EXHIBIT G
[FORM OF]
INTEREST ELECTION REQUEST
Credit Suisse AG,
as Administrative Agent for the Lenders referred to below
Eleven Madison Avenue
New York, NY 10010
Attention: Agency Group
[], 201[]7
Ladies and Gentlemen:
Reference is made to the Term Loan Agreement dated as of December 2, 2010, among Amscan
Holdings, Inc., a Delaware corporation (the Borrower), AAH Holdings Corporation, a Delaware
corporation, the Subsidiaries of the Borrower from time to time party thereto, the Lenders parties
thereto, Credit Suisse AG, as administrative agent and collateral agent (as amended, amended and
restated, supplemented or otherwise modified from time to time, the Credit Agreement). Terms
defined in the Credit Agreement are used herein with the same meanings.
The undersigned hereby gives you notice pursuant to Section 2.05 of the Credit Agreement of an
interest rate election, and in that connection sets forth below the terms thereof:
(A) on [date] (which is a Business Day) convert $[____]8 of the aggregate
outstanding principal amount of the Term Loans, bearing interest at the [_________] Rate, into a(n)
[_____] Loan [and, in the case of a LIBO Rate Loan, having an Interest Period of [______]
month(s)];
(B) on [date] (which is a Business Day) continue $[____]2 of the aggregate
outstanding principal amount of the Term Loan, bearing interest at the LIBO Rate, as LIBO Loans
having an Interest Period of [_____] month(s)].
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Must be notified in writing or by telephone
(with such telephonic notification to be confirmed promptly in writing) (i) in
the case of a LIBO Rate Borrowing, not later than 12:00 p.m., New York City
time, three (3) Business Days before the date of the proposed Borrowing or
(ii) in the case of an ABR Borrowing, not later than 12:00 p.m., New York City
time, one (1) Business Day prior to the date of the proposed Borrowing. |
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Not less than an aggregate principal amount
as indicated in Section 2.02(c) and in an integral multiple as indicated
therein. |
G-1
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AMSCAN HOLDINGS, INC.
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By: |
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Name: |
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G-2
EXHIBIT H
AUCTION PROCEDURES
This Outline is intended to summarize certain basic terms of procedures with respect to Auctions
pursuant to and in accordance with the terms and conditions of Section 9.04(f) and Section 9.04(h)
of the Credit Agreement, of which this Exhibit H is a part. It is not intended to be a definitive
list of all of the terms and conditions of an Auction and all such terms and conditions shall be
set forth in the applicable Auction Procedures set for each Auction (the Offer Documents). None
of the Administrative Agent, the Auction Manager, any other Agent or any of their respective
affiliates makes any recommendation pursuant to the Offer Documents as to whether or not any Lender
should sell by assignment any of its Term Loans pursuant to the Offer Documents (including, for the
avoidance of doubt, by participating in the Auction as a Lender) or whether or not Holdings, the
Borrower or any Affiliated Lender should purchase by assignment any Term Loans from any Lender
pursuant to any Auction. Each Lender should make its own decision as to whether to sell by
assignment any of its Term Loans and, if so, the principal amount of and price to be sought for
such Term Loans. In addition, each Lender should consult its own attorney, business advisor or tax
advisor as to legal, business, tax and related matters concerning this Auction and the Offer
Documents. Capitalized terms not otherwise defined in this Exhibit have the meanings assigned to
them in the Credit Agreement.
For avoidance of doubt, the provisions of Section 9.04(f) shall also apply to all non-pro rata
assignments of Term Loans made to Affiliated Lenders, and the provisions of Section 9.04(h) shall
also apply to all non-pro rata assignments of Term Loans made to Holdings or the Borrower.
Summary. Affiliated Lenders, Holdings and the Borrower may purchase (by assignment)
Term Loans on a non-pro rata basis by conducting one or more auctions (each, an Auction) pursuant
to the procedures described herein; provided, that no more than one Auction may be ongoing at any
one time and no more than four Auctions may be made in any period of four consecutive fiscal
quarters of the Borrower.
Notice Procedures. In connection with each Auction, Holdings, the Borrower or the
applicable Affiliated Lender (as applicable) (the Offeror) will provide notification to the
Auction Manager (for distribution to the Lenders) of the Term Loans that will be the subject of the
Auction by delivering to the Auction Manager a written notice in form and substance reasonably
satisfactory to the Auction Manager (an Auction Notice). Each Auction Notice shall contain (i)
the maximum principal amount of Term Loans the Offeror is willing to purchase (by assignment) in
the Auction (the Auction Amount), which shall be no less than $10,000,000 or an integral multiple
of $1,000,000 in excess of thereof; (ii) the range of discounts to par (the Discount Range),
expressed as a range of prices per $1,000, at which the Offeror would be willing to purchase Term
Loans in the Auction; and (iii) the date on which the Auction will conclude, on which date Return
Bids (defined below) will be due at the time provided in the Auction Notice (such time, the
Expiration Time), as such date and time may be extended
H-1
upon notice by the Offeror to the Auction Manager not less than 24 hours before the original
Expiration Time.
Reply Procedures. In connection with any Auction, each Lender holding Term Loans
wishing to participate in such Auction shall, prior to the Expiration Time, provide the Auction
Manager with a notice of participation in form and substance reasonably satisfactory to the Auction
Manager (the Return Bid, to be included in the Offer Documents) which shall specify (i) a
discount to par that must be expressed as a price per $1,000 of Term Loans (the Reply Price)
within the Discount Range and (ii) the principal amount of Term Loans, in an amount not less than
$1,000,000, that such Lender is willing to offer for sale at its Reply Price (the Reply Amount);
provided, that each Lender may submit a Reply Amount that is less than the minimum amount and
incremental amount requirements described above only if the Reply Amount comprises the entire
amount of the Term Loans held by such Lender at such time. A Lender may only submit one Return Bid
per Auction, but each Return Bid may contain up to three component bids, each of which may result
in a separate Qualifying Bid and each of which will not be contingent on any other component bid
submitted by such Lender resulting in a Qualifying Bid. In addition to the Return Bid, a
participating Lender must execute and deliver, to be held by the Auction Manager, an Assignment and
Acceptance in the form included in the Offer Documents which shall be in form and substance
reasonably satisfactory to the Auction Manager and the Administrative Agent (the Auction
Assignment and Acceptance). The Offeror will not purchase any Term Loans at a price that is
outside of the applicable Discount Range, nor will any Return Bids (including any component bids
specified therein) submitted at a price that is outside such applicable Discount Range be
considered in any calculation of the Applicable Threshold Price (as defined below).
Acceptance Procedures. Based on the Reply Prices and Reply Amounts received by the
Auction Manager, the Auction Manager, in consultation with the Offeror, will calculate the lowest
purchase price (the Applicable Threshold Price) for the Auction within the Discount Range for the
Auction that will allow the Offeror to complete the Auction by purchasing the full Auction Amount
(or such lesser amount of Term Loans for which the Offeror has received Qualifying Bids). The
Offeror shall purchase (by assignment) Term Loans from each Lender whose Return Bid is within the
Discount Range and contains a Reply Price that is equal to or less than the Applicable Threshold
Price (each, a Qualifying Bid). All principal amount of Term Loans included in Qualifying Bids
received at a Reply Price lower than the Applicable Threshold Price will be purchased at a purchase
price equal to the applicable Reply Price and shall not be subject to proration. If a Lender has
submitted a Return Bid containing multiple component bids at different Reply Prices, then all Term
Loans of such Lender offered in any such component bid that constitutes a Qualifying Bid with a
Reply Price lower than the Applicable Threshold Price shall also be purchased at a purchase price
in cash equal to the applicable Reply Price and shall not be subject to proration.
Proration Procedures. All Term Loans offered in Return Bids (or, if applicable, any
component bid thereof) constituting Qualifying Bids equal to the Applicable Threshold Price will be
purchased at a purchase price equal to the Applicable Threshold Price; provided that if the
H-2
aggregate principal amount of all Term Loans for which Qualifying Bids have been submitted in
any given Auction equal to the Applicable Threshold Price would exceed the remaining portion of the
Auction Amount (after deducting all Term Loans purchased below the Applicable Threshold Price), the
Offeror shall purchase the Term Loans for which the Qualifying Bids submitted were at the
Applicable Threshold Price ratably based on the respective principal amounts offered and in an
aggregate amount up to the amount necessary to complete the purchase of the Auction Amount. For the
avoidance of doubt, no Return Bids (or any component thereof) will be accepted above the Applicable
Threshold Price.
Notification Procedures. The Auction Manager will calculate the Applicable Threshold
Price no later than the next Business Day after the date that the Return Bids were due. The Auction
Manager will insert the amount of Term Loans to be assigned and the applicable settlement date
determined by the Auction Manager in consultation with the Offeror onto each applicable Auction
Assignment and Acceptance received in connection with a Qualifying Bid. Upon written request of the
submitting Lender, the Auction Manager will promptly return any Auction Assignment and Acceptance
received in connection with a Return Bid that is not a Qualifying Bid.
Additional Procedures. Once initiated by an Auction Notice, the Offeror may withdraw
an Auction by written notice to the Auction Manager no later than 24 hours before the original
Expiration Time so long as no Qualifying Bids have been received by the Auction Manager at or prior
to the time the Auction Manager receives such written notice from the Borrower. Any Return Bid
(including any component bid thereof) delivered to the Auction Manager may not be modified,
revoked, terminated or cancelled; provided that a Lender may modify a Return Bid at any time prior
to the Expiration Time solely to reduce the Reply Price included in such Return Bid. However, an
Auction shall become void if the Offeror fails to satisfy one or more of the conditions to the
purchase of Term Loans set forth in Section 9.04(f) or Section 9.04(h) of the Credit Agreement, as
applicable, or to otherwise comply with any of the provisions of such Section 9.04(f) or Section
9.04(h). The purchase price for all Term Loans purchased in an Auction shall be paid in cash by the
Offeror directly to the respective assigning Lender on a settlement date as determined by the
Auction Manager in consultation with the Offeror (which shall be no later than ten (10) Business
Days after the date Return Bids are due), along with accrued and unpaid interest (if any) on the
applicable Term Loans up to the settlement date. The Offeror shall execute each applicable Auction
Assignment and Acceptance received in connection with a Qualifying Bid.
All questions as to the form of documents and validity and eligibility of Term Loans that are
the subject of an Auction will be determined by the Auction Manager, in consultation with the
Offeror, and the Auction Managers determination will be final and binding. The Auction Managers
interpretation of the terms and conditions of the Offer Document, in consultation with the Offeror,
will be final and binding.
H-3
None of the Administrative Agent, the Auction Manager, any other Agent or any of their
respective affiliates assumes any responsibility for the accuracy or completeness of the
information concerning the Borrower, the Loan Parties, or any of their affiliates contained in
the Offer Documents or otherwise or for any failure to disclose events that may have occurred and
may affect the significance or accuracy of such information.
Immediately upon the consummation of an Auction pursuant to Section 9.04(h) of the Credit
Agreement, the Term Loans subject to such Auction and all rights and obligations as a Lender
related to such Term Loans shall for all purposes (including under the Credit Agreement, the other
Loan Documents and otherwise) be deemed to be irrevocably prepaid, terminated, extinguished,
cancelled and of no further force and effect, and neither Holdings nor the Borrower shall obtain
nor have any rights as a Lender under the Credit Agreement or under the other Loan Documents by
virtue of the acquisition of any Term Loans subject to such Auction.
This Exhibit H shall not require Holdings, the Borrower or any Affiliated Lender to initiate
any Auction.
H-4
EXHIBIT I-1
FORM OF
UNITED STATES TAX COMPLIANCE CERTIFICATE
(For Non-U.S. Lenders That Are Not Partnerships or Pass-Thru Entities For U.S. Federal Income
Tax Purposes)
Reference is made to the Credit Agreement, dated as of December 2, 2010 (as amended,
supplemented or otherwise modified from time to time, the Credit Agreement), among AAH Holdings
Corporation, Amscan Holdings, Inc., certain subsidiaries of Amscan Holdings, Inc., the Lenders
party thereto from time to time and Credit Suisse AG, as Administrative Agent and Collateral Agent.
Capitalized terms used herein but not otherwise de-fined shall have the meaning given to such term
in the Credit Agreement.
Pursuant to the provisions of Section 2.15(e)(i)(C) of the Credit Agreement, the undersigned
hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any
Term Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it
is not a bank as such term is used in Section 881(c)(3)(A) of the Internal Revenue Code of 1986,
as amended, (the Code), (iii) it is not a 10-percent shareholder of the Borrower within the
meaning of Code Section 871(h)(3)(B), (iv) it is not a controlled foreign corporation within the
meaning of Section 881(c)(3)(C) of the Code and (v) no payments in connection with the Loan
Documents are effectively connected with the undersigneds conduct of a U.S. trade or business.
The undersigned has furnished the Administrative Agent with a certificate of its non-U.S.
person status on Internal Revenue Service Form W-8BEN. By executing this certificate, the
undersigned agrees that (1) if the information provided on this certificate changes, the
undersigned shall promptly so inform the Borrower and the Administrative Agent in writing and (2)
the undersigned shall furnish the Borrower and the Administrative Agent a properly completed and
currently effective certificate in either the calendar year in which payment is to be made by the
Borrower or the Administrative Agent to the undersigned, or in either of the two calendar years
preceding such payment.
[Signature Page Follows]
I-1
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[Lender] |
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By: |
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Name:
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Title: |
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[Address] |
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Dated: , 2010
I-2
EXHIBIT I-2
FORM OF
UNITED STATES TAX COMPLIANCE CERTIFICATE
(For Non-U.S. Lenders That Are Partnerships or Pass-Thru Entities For U.S. Federal Income Tax
Purposes)
Reference is made to the Credit Agreement, dated as of December 2, 2010 (as amended,
supplemented or otherwise modified from time to time, the Credit Agreement), among AAH Holdings
Corporation, Amscan Holdings, Inc., certain subsidiaries of Amscan Holdings, Inc., the Lenders
party thereto from time to time and Credit Suisse, AG, as Administrative Agent and Collateral
Agent. Capitalized terms used herein but not otherwise de-fined shall have the meaning given to
such term in the Credit Agreement.
Pursuant to the provisions of Section 2.15(e)(i)(C) of the Credit Agreement, the undersigned
hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Term Note(s)
evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its
partners/members are the sole beneficial owners of such Loan(s) (as well as any Term Note(s)
evidencing such Loan(s)), (iii) neither the undersigned nor any of its partners/members is a bank
within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as amended, (the
Code), (iv) none of its partners/members is a 10-percent shareholder of the Borrower within the
meaning of Code Section 871(h)(3)(B), (v) none of its partners/members is a controlled foreign
corporation related to the Borrower within the meaning of Section 881(c)(3)(C) of the Code and
(vi) no payments in connection with the Loan Documents are effectively connected with the
undersigneds conduct of a U.S. trade or business.
The undersigned has furnished the Administrative Agent and the Borrower with Internal Revenue
Service Form W-8IMY accompanied by an Internal Revenue Service Form W-8BEN from each of its
partners/members claiming the portfolio interest exemption, provided that, for the avoidance of
doubt, the foregoing shall not limit the obligation of the Lender to provide, in the case of a
partner/member not claiming the portfolio interest exemption, a Form W-8ECI, Form W-9 or Form
W-8IMY (including appropriate underlying certificates from each interest holder of such
partner/member), in each case establishing such partner/members any available exemption from U.S.
federal withholding tax. By executing this certificate, the undersigned agrees that (1) if the
information provided on this certificate changes, the undersigned shall promptly so inform the
Borrower and the Administrative Agent and (2) the undersigned shall have at all times furnished the
Borrower and the Administrative Agent in writing with a properly completed and currently effective
certificate in either the calendar year in which each payment is to be made to the undersigned, or
in either of the two calendar years preceding such payments.
[Signature Page Follows]
I-3
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[Lender] |
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By: |
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Name:
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Title: |
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[Address] |
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Dated: , 2010
I-4
EXHIBIT I-3
FORM OF
UNITED STATES TAX COMPLIANCE CERTIFICATE
(For Non-U.S. Participants That Are Not Partnerships or Pass-Thru Entities For U.S. Federal
Income Tax Purposes)
Reference is made to the Credit Agreement, dated as of December 2, 2010 (as amended,
supplemented or otherwise modified from time to time, the Credit Agreement), among AAH Holdings
Corporation, Amscan Holdings, Inc., certain subsidiaries of Amscan Holdings, Inc., the Lenders
party thereto from time to time and Credit Suisse, AG, as Administrative Agent and Collateral
Agent. Capitalized terms used herein but not otherwise de-fined shall have the meaning given to
such term in the Credit Agreement.
Pursuant to the provisions of Section 2.15(e)(i)(C) and Section 9.04(c) of the Credit
Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of
the participation in respect of which it is providing this certificate, (ii) it is not a bank
within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as amended, (the
Code), (iii) it is not a 10-percent shareholder of the Borrower within the meaning of Code
Section 871(h)(3)(B), (iv) it is not a controlled foreign corporation related to the Borrower
within the meaning of Section 881(c)(3)(C) of the Code and (v) no payments in connection with the
Loan Documents are effectively connected with the undersigneds conduct of a U.S. trade or
business.
The undersigned has furnished its participating non-U.S. Lender with a certificate of its
non-U.S. person status on Internal Revenue Service Form W-8BEN. By executing this certificate, the
undersigned agrees that (1) if the information provided on this certificate changes, the
undersigned shall promptly so inform such non-U.S. Lender in writing and (2) the undersigned shall
have at all times furnished such Non-U.S. Lender with a properly completed and currently effective
certificate in either the calendar year in which each payment is to be made to the undersigned, or
in either of the two calendar years preceding such payments.
[Signature Page Follows]
I-5
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[Lender] |
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By: |
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Name:
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Title: |
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[Address] |
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Dated: , 2010
I-6
EXHIBIT I-4
FORM OF
UNITED STATES TAX COMPLIANCE CERTIFICATE
(For Non-U.S. Participants That Are Partnerships or Pass-Thru Entities For U.S. Federal Income
Tax Purposes)
Reference is made to the Credit Agreement, dated as of December 2, 2010 (as amended,
supplemented or otherwise modified from time to time, the Credit Agreement), among AAH Holdings
Corporation, Amscan Holdings, Inc., certain subsidiaries of Amscan Holdings, Inc., the Lenders
party thereto from time to time and Credit Suisse, AG, as Administrative Agent and Collateral
Agent. Capitalized terms used herein but not otherwise defined shall have the meaning given to
such term in the Credit Agreement.
Pursuant to the provisions of Section 2.15(e)(i)(C) and Section 9.04(c) of the Credit
Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the
participation in respect of which it is providing this certificate, (ii) its partners/members are
the sole beneficial owners of such participation, (iii) neither the undersigned nor any of its
partners/members is a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue
Code of 1986, as amended, (the Code), (iv) none of its partners/members is a 10-percent
shareholder of the Borrower within the meaning of Code Section 871(h)(3)(B), (v) none of its
partners/members is a controlled foreign corporation related to the Borrower within the meaning
of Section 881(c)(3)(C) of the Code and (vi) no payments in connection with the Loan Documents are
effectively connected with the undersigneds conduct of a U.S. trade or business.
The undersigned has furnished its participating non-U.S. Lender with Internal Revenue Service
Form W-8IMY accompanied by an Internal Revenue Service Form W-8BEN from each of its
partners/members claiming the portfolio interest exemption, provided that, for the avoidance of
doubt, the foregoing shall not limit the obligation of the Lender to provide, in the case of a
partner/member not claiming the portfolio interest exemption, a Form W-8ECI, Form W-9 or Form
W-8IMY (including appropriate underlying certificates from each interest holder of such
partner/member), in each case establishing such partner/members any available exemption from U.S.
federal withholding tax. By executing this certificate, the undersigned agrees that (1) if the
information provided on this certificate changes, the under-signed shall promptly so inform such
non-U.S. Lender in writing and (2) the undersigned shall have at all times furnished such non-U.S.
Lender with a properly completed and currently effective certificate in either the calendar year in
which each payment is to be made to the under-signed, or in either of the two calendar years
preceding such payments.
[Signature Page Follows]
I-7
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[Lender] |
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By: |
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Name:
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Title: |
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[Address] |
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Dated: , 2010
I-8