UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 12, 2014 (November 7, 2014)
NCI Building Systems, Inc.
(Exact name of Registrant as specified in its charter)
Delaware (State or other jurisdiction of incorporation) |
001-14315 (Commission File Number) |
76-0127701 (IRS Employer Identification No.) |
10943 North Sam Houston Parkway West (Address of principal executive offices) |
77064 |
Registrant’s telephone number, including area code: (281) 897-7788
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the Registrant under any of the following provisions:
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01. Entry into a Material Definitive Agreement
Interest Purchase Agreement
On November 7, 2014, NCI Group, Inc., a Nevada corporation (“NCI”) and a wholly owned subsidiary of NCI Building Systems, Inc. (the “Company”), and Steelbuilding.com, Inc., a Delaware corporation and direct wholly owned subsidiary of NCI Group, Inc. (together with NCI, “Buyers”), entered into an Interest Purchase Agreement (“Interest Purchase Agreement”) with SMST Management Corp., a Pennsylvania corporation, and Riverfront Capital Fund, a Pennsylvania limited partnership (each a “Seller” and collectively, “Sellers”), and CENTRIA, a Pennsylvania general partnership (“CENTRIA”), pursuant to which Buyers have agreed, subject to the terms and conditions set forth therein, to acquire all of the general partnership interests of CENTRIA, in exchange for $245,000,000 in cash (such acquisition, the “Acquisition”). CENTRIA is being sold on a cash-free, debt-free basis, and the purchase price is subject to adjustment based on CENTRIA’s working capital at closing.
Each of Buyers, Sellers and CENTRIA has made customary representations and warranties and has agreed to customary covenants in the Interest Purchase Agreement. The closing of the Acquisition, which is currently expected to occur during the first quarter of NCI’s fiscal year 2015, is subject to (i) the expiration or early termination of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”) and (ii) other customary conditions to closing.
The Interest Purchase Agreement is subject to termination by either Buyers or Sellers for various reasons, including the failure of the closing of the Acquisition to occur on or before June 7, 2015, or such later date as the parties may agree upon. The obligations of Buyers to consummate the Acquisition are not subject to the availability of financing.
The Interest Purchase Agreement provides that Buyers will be required to pay to Sellers a reverse termination fee of $17,850,000 upon termination under certain specified circumstances, including in the event of Sellers’ termination due to Buyers’ failure to consummate the Acquisition if all of the conditions to its obligations have been satisfied (other than conditions which are to be satisfied by actions taken at the closing).
Buyers and Sellers have agreed to indemnify each other for losses arising from breaches of the representations, warranties and covenants of the Interest Purchase Agreement and for certain other liabilities, subject to specified limitations. The Company has agreed to guarantee the performance of Buyers’ obligations under the Interest Purchase Agreement.
The foregoing description of the Acquisition and the Interest Purchase Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Interest Purchase Agreement, which is filed as Exhibit 2.1 hereto and is incorporated herein by reference.
The Interest Purchase Agreement has been attached to provide stockholders with information regarding its terms. It is not intended to provide any other factual information about the Company, Buyers, Sellers, or CENTRIA. The Interest Purchase Agreement contains representations and warranties that Buyers, on the one hand, and the Sellers and CENTRIA, on the other hand, made to and solely for the benefit of each other as of specific dates. In particular, the assertions embodied in the representations and warranties contained in the Interest Purchase Agreement were made solely for purposes of the contract between the parties to the Interest Purchase Agreement and may be subject to important qualifications and limitations agreed by the parties in connection with negotiating the terms of the contract or contained in confidential disclosure schedules. Some of those representations and warranties (i) may not be accurate or complete as of any specified date and are modified, qualified and created in important part by the underlying disclosure schedules, (ii) may be subject to a contractual standard of materiality different from those generally applicable to stockholders or (iii) may have been used for the purpose of allocating risk between the parties to the Interest Purchase Agreement rather than establishing matters as facts. For the foregoing reasons, the representations and warranties should not be relied upon as statements of factual information. Stockholders are not third-party beneficiaries under the Interest Purchase Agreement and should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or conditions of the Company, Buyers, Sellers or CENTRIA. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Interest Purchase Agreement, which subsequent information may or may not be fully reflected in the Company’s public disclosures.
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Debt Commitment Letter
On November 7, 2014, the Company entered into a debt financing commitment letter (the “Commitment Letter”) with Credit Suisse AG, Credit Suisse Securities (USA) LLC, Citigroup Global Markets Inc., UBS AG, Stamford Branch, UBS Securities LLC, Royal Bank of Canada and RBC Capital Markets (together with one or more of their affiliates, the “Commitment Parties”). Pursuant to the Commitment Letter, certain of the Commitment Parties will act as the initial lenders, joint lead arrangers and joint bookrunners with respect to a $250.0 million (less the cash proceeds of certain unsecured debt financing that may be incurred or issued in connection with the consummation of the Acquisition) senior unsecured increasing rate loan facility (the “Bridge Facility”). Proceeds from the Bridge Facility and/or any alternative debt financing will be used, together with cash on hand and/or certain borrowings under the Loan and Security Agreement, as amended by the ABL Facility Amendment (in each case, as defined below), to finance the Acquisition, to repay, redeem, defease or otherwise discharge third party indebtedness of CENTRIA and to pay fees and expenses related to the foregoing.
The Bridge Facility will include certain representations and warranties, affirmative and negative covenants and events of default, as described in the Commitment Letter. The Commitment Parties’ obligations to provide the financing represented by the Bridge Facility are subject to the satisfaction of specified conditions, including the consummation of the Acquisition in accordance with the terms of the Interest Purchase Agreement, the accuracy of specified representations and the absence of a material adverse effect on CENTRIA, as described in the Commitment Letter.
The documentation governing the Bridge Facility has not been finalized, and accordingly the actual terms may differ from the description of such terms in the foregoing summary of the Commitment Letter. The foregoing summary of the Commitment Letter does not purport to be complete and is subject to, and qualified in its entirety by, the terms and conditions of the Commitment Letter, which is filed as Exhibit 10.1 hereto and incorporated herein by reference.
Amendment of the ABL Facility
Concurrently with the Buyers’ and the Company’s entry into the Interest Purchase Agreement, on November 7, 2014, the Company, Steelbuilding.com, Inc. (together with the Company, the “Guarantors”) and the Company’s subsidiaries NCI and Robertson-Ceco II Corporation (each a “Borrower” and collectively, the “Borrowers”) entered into Amendment No. 3 (the “ABL Facility Amendment”) to the Loan and Security Agreement (the “Loan and Security Agreement”) among the Borrowers, the Guarantors, Wells Fargo Capital Finance, LLC as administrative agent and co-collateral agent, Bank of America, N.A. as co-collateral agent and syndication agent and certain other lenders under the Loan and Security Agreement, in order to amend the Loan and Security Agreement to (i) permit the Acquisition, (ii) permit the entry by the Company into documentation with respect to the Bridge Facility and/or certain alternative debt financing and, in each case, the incurrence of debt with respect thereto, (iii) extend the maturity date, (iv) decrease the applicable margin with respect to borrowings thereunder and (v) make certain other amendments and modifications to provide greater operational and financial flexibility.
The foregoing summary of the ABL Facility Amendment does not purport to be complete and is subject to, and qualified in its entirety by, the terms and conditions of the ABL Facility Amendment, which is filed as Exhibit 10.2 hereto and incorporated herein by reference.
The Commitment Parties and Wells Fargo Capital Finance, LLC have engaged in, and may in the future engage in, investment banking and other commercial dealings with the Company and its affiliates, including Credit Suisse, AG acting as agent under the Company’s existing term loan facility. They have received, or may in the future receive, customary fees and commissions in these transactions.
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Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information relating to the Bridge Facility and the Loan and Security Agreement disclosures under Item 1.01 hereof are incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit Number | Description |
2.1 | Interest Purchase Agreement, dated as of November 7, 2014, by and among NCI Group, Inc., Steelbuilding.com, Inc., SMST Management Corp., Riverfront Capital Fund and CENTRIA |
10.1 | Commitment Letter, dated as of November 7, 2014, from Credit Suisse AG, Credit Suisse Securities (USA) LLC, Citigroup Global Markets Inc., UBS AG, Stamford Branch, UBS Securities LLC, Royal Bank of Canada and RBC Capital Markets |
10.2 | Amendment No. 3 to Loan and Security Agreement, dated as of November 7, 2014 |
4 |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
NCI BUILDING SYSTEMS, INC. | ||
BY: | /s/ Todd R. Moore | |
Todd R. Moore | ||
Executive Vice President, Secretary and General Counsel | ||
Date: November 12, 2014 |
5 |
Exhibit Index
Exhibit Number | Description |
2.1 | Interest Purchase Agreement, dated as of November 7, 2014, by and among NCI Group, Inc., Steelbuilding.com, Inc., SMST Management Corp., Riverfront Capital Fund and CENTRIA |
10.1 | Commitment Letter, dated as of November 7, 2014, from Credit Suisse AG, Credit Suisse Securities (USA) LLC, Citigroup Global Markets Inc., UBS AG, Stamford Branch, UBS Securities LLC, Royal Bank of Canada and RBC Capital Markets |
10.2 | Amendment No. 3 to Loan and Security Agreement, dated as of November 7, 2014 |
6 |
Exhibit 2.1
EXECUTION VERSION
INTEREST Purchase Agreement
dated as of November 7, 2014
by and among
NCI GROUP, INC.,
a Nevada Corporation
and
STEELBUILDING.COM, INC.,
a Delaware Corporation
as Buyers,
and
THE GENERAL PARTNERS OF CENTRIA,
a Pennsylvania General Partnership
as Sellers,
and
CENTRIA,
the Company.
TABLE OF CONTENTS
Page | ||
Article I DEFINITIONS | 1 | |
Article II SALE AND TRANSFER OF INTERESTS; CLOSING | 14 | |
2.1 | Acquisition | 14 |
2.2 | Purchase Price | 15 |
2.3 | Closing | 17 |
2.4 | Closing Obligations | 17 |
Article III REPRESENTATIONS AND WARRANTIES OF THE COMPANY | 18 | |
3.1 | Organization and Good Standing | 18 |
3.2 | Authority; No Conflict | 19 |
3.3 | Capitalization; Equity Rights | 19 |
3.4 | Financial Statements; Internal Controls | 20 |
3.5 | Personal Property | 21 |
3.6 | Real Property Interests | 21 |
3.7 | Taxes | 22 |
3.8 | Employee Benefits | 23 |
3.9 | Compliance with Law; Governmental Consents | 25 |
3.10 | Legal Proceedings; Orders | 26 |
3.11 | Absence of Certain Changes and Events; Undisclosed Liabilities | 26 |
3.12 | Contracts | 27 |
3.13 | Insurance | 29 |
3.14 | Environmental Matters | 29 |
3.15 | Labor Relations | 31 |
3.16 | Intellectual Property | 31 |
3.17 | Books and Records | 32 |
3.18 | Condition of Assets | 32 |
3.19 | Inventory and Reserves | 33 |
3.20 | Related Parties | 33 |
3.21 | Certain Payments | 33 |
3.22 | Brokers, Finders, Etc. | 34 |
3.23 | Information Technology | 34 |
3.24 | Receivables | 34 |
3.25 | Customers and Suppliers; Product Liability | 34 |
Article IV REPRESENTATIONS AND WARRANTIES OF SELLERS | 35 | |
4.1 | Organization and Good Standing | 35 |
4.2 | Authorization of the Transaction | 35 |
4.3 | Non-Contravention | 35 |
4.4 | Acquired Interests | 36 |
4.5 | Certain Proceedings | 36 |
i |
Article V REPRESENTATIONS AND WARRANTIES OF BUYERS | 36 | |
5.1 | Organization and Good Standing | 36 |
5.2 | Authority; No Conflict | 36 |
5.3 | Certain Proceedings | 37 |
5.4 | Financing | 37 |
5.5 | Sufficient Cash | 37 |
Article VI COVENANTS OF SELLERS PRIOR TO CLOSING DATE | 38 | |
6.1 | Access and Investigations | 38 |
6.2 | Operation of the Businesses of the Acquired Companies | 38 |
6.3 | Negative Covenants | 38 |
6.4 | Required Approvals | 40 |
6.5 | No Negotiation | 40 |
6.6 | Payoff Letters and Lien Releases | 40 |
6.7 | 280G Disclosure | 41 |
6.8 | Financing Cooperation | 41 |
6.9 | Efforts to Consummate | 44 |
6.10 | Intellectual Property Assignments | 44 |
Article VII COVENANTS OF BUYERS PRIOR TO CLOSING DATE | 45 | |
7.1 | Approvals of Governmental Bodies | 45 |
7.2 | Financing | 45 |
7.3 | Efforts to Consummate | 46 |
7.4 | AK Steel Agreement | 47 |
7.4 | Certain Compensation Matters | 47 |
Article VIII CONDITIONS PRECEDENT TO BUYERS' OBLIGATION TO CLOSE | 47 | |
8.1 | Accuracy of Representations | 47 |
8.2 | Sellers' Performance | 47 |
8.3 | Consents | 48 |
8.4 | No Proceedings | 48 |
8.5 | HSR Act Approval | 48 |
8.6 | Material Adverse Changes | 48 |
8.7 | No Injunction | 48 |
8.8 | Escrow Agreement | 48 |
8.9 | Payoff Letters | 48 |
8.10 | Certificate | 48 |
8.11 | Tax Certificate | 48 |
Article IX CONDITIONS PRECEDENT TO SELLERS' OBLIGATION TO CLOSE | 49 | |
9.1 | Accuracy of Representations | 49 |
9.2 | Buyers' Performance | 49 |
9.3 | Governmental Approvals | 49 |
9.4 | No Injunction | 49 |
9.5 | HSR Act Approval | 49 |
ii |
9.6 | Certificate | 49 |
Article X TERMINATION | 49 | |
10.1 | Termination Events | 49 |
10.2 | Effect of Termination | 51 |
Article XI INDEMNIFICATION; REMEDIES | 51 | |
11.1 | Survival | 51 |
11.2 | Indemnification and Payment of Damages by Sellers | 52 |
11.3 | Indemnification and Payment of Damages by Buyers | 52 |
11.4 | Time Limitations | 53 |
11.5 | Limitations on Indemnification | 54 |
11.6 | Investigation; Waiver | 55 |
11.7 | Procedures for Indemnification | 55 |
11.8 | Third Party Claims | 56 |
11.9 | No Punitive Damages | 57 |
11.10 | Materiality Qualifiers | 57 |
11.11 | Tax Treatment of Indemnity Payment | 57 |
11.12 | Escrow Release | 57 |
Article XII TAX MATTERS | 58 | |
12.1 | Tax Returns and Payment of Taxes | 58 |
12.2 | Transfer Taxes | 59 |
12.3 | Sales and Use Tax | 60 |
12.4 | Foreign Filings | 60 |
Article XIII GENERAL PROVISIONS | 61 | |
13.1 | Public Announcements | 61 |
13.2 | Confidentiality | 61 |
13.3 | Notices | 61 |
13.4 | Jurisdiction; Service of Process | 62 |
13.5 | Further Assurances | 63 |
13.6 | Waiver | 63 |
13.7 | Entire Agreement and Modification | 63 |
13.8 | Assignments, Successors, and No Third-Party Rights | 63 |
13.9 | Severability | 64 |
13.10 | Article and Section Headings; Construction | 64 |
13.11 | Time of Essence | 64 |
13.12 | Governing Law | 64 |
13.13 | Counterparts | 64 |
13.14 | Expenses; Prevailing Party Costs | 64 |
13.15 | Specific Performance and Limitation on Liability | 65 |
13.16 | Retention of Records and Access to Information | 66 |
13.17 | Parent Guarantee | 67 |
13.18 | Waiver of Jury Trial | 67 |
iii |
EXHIBITS
2.2(c) | Accounting Procedures |
SCHEDULES
3.1 | Organization and Good Standing |
3.2(b) | Authority; No Conflict |
3.3(b) | Capitalization; Equity Rights |
3.3(c) | Capitalization; Equity Rights |
3.3(d) | Capitalization; Equity Rights |
3.4(c) | Financial Statements |
3.5 | Personal Property |
3.6(a) | Real Property Interests |
3.6(b) | Real Property Interests |
3.7(a) | Taxes |
3.8(a) | Employee Benefits |
3.8(d) | Employee Benefits |
3.9(b) | Compliance with Law; Governmental Consents |
3.9(c) | Compliance with Law; Governmental Consents |
3.10 | Legal Proceedings; Orders |
3.11 | Absence of Certain Changes and Events; Undisclosed Liabilities |
3.12 | Contracts |
3.13 | Insurance |
3.14 | Environmental Matters |
3.15(a) | Labor Matters |
3.16 | Intellectual Property |
3.20 | Related Parties |
3.22 | Brokers, Finders, Etc. |
3.25(a) | Customers and Suppliers; Product Liability |
3.25(b) | Customers and Suppliers; Product Liability |
3.25(c) | Customers and Suppliers; Product Liability |
8.3 | Required Consents |
ANNEX
1. | Subsidiaries |
iv |
EXECUTION VERSION
INTEREST PURCHASE AGREEMENT
This INTEREST PURCHASE AGREEMENT (this “Agreement”) is made as of the 7th day of November, 2014, by and among NCI Group, Inc., a Nevada corporation and Steelbuilding.com, Inc., a Delaware corporation and direct wholly owned subsidiary of NCI Group, Inc. (collectively, “Buyers”), SMST Management Corp., a Pennsylvania Corporation, and Riverfront Capital Fund, a Pennsylvania limited partnership (each a “Seller” and collectively, “Sellers”), and CENTRIA, a Pennsylvania general partnership (the “Company”).
RECITALS
Sellers desire to sell, and Buyers desire to purchase, all of the general partner interests (“Acquired Interests”) of the Company, for the consideration and on the terms set forth in this Agreement.
The parties, intending to be legally bound, agree as follows:
Article
I
DEFINITIONS
1.1 Definitions. In addition to words and terms defined elsewhere in this Agreement, for purposes of this Agreement, the following terms have the meanings specified or referred to in this Article I:
“Accountants”— as defined in Section 2.2(c).
“Accounting Procedures”— as defined in Section 2.2(c).
“Acquired Companies”— the Company and the Subsidiaries set forth on Annex 1.
“Acquired Interests”— all of the general partner interests of the Company.
“Acquisition”— as defined in Section 2.1(a).
“Actions”— means any action, cease and desist letter, demand, suit, arbitration proceeding, claims, demands, administrative or regulatory proceeding, citation, summons or subpoena of any nature, civil, criminal, regulatory or otherwise, in law or in equity..
“Adverse Consequences”— All actions, suits, proceedings, hearings, investigations, claims, demands, judgments, orders, decrees, injunctions, damages, penalties, fines, costs, amounts paid in settlement, liabilities, interest paid to third parties, losses, and all expenses and fees directly relating to any of the foregoing, including reasonable accounting, consultant and attorneys’ fees and court costs, costs of expert witnesses and other necessary or advisable expenses of litigation, in each case to the extent that any of the foregoing are uninsured.
“Affected Persons”— as defined in Section 3.8.
“Affiliate”— of any particular Person means any other Person controlling, controlled by or under common control with such particular Person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, contract or otherwise. For purposes of this Agreement, Clayton, Dubilier & Rice, LLC and portfolio companies of Clayton, Dubilier & Rice, LLC other than Parent and its Subsidiaries shall not be deemed Affiliates of Buyers.
“Agreement”— as defined in the Preamble.
“AK Steel Agreement” – as defined in Section 7.4.
“Assets”— as defined in Section 3.18.
“Assumed Liabilities”—means all liabilities or obligations of the Acquired Companies that are not Retained Liabilities, whether due or to become due, and whether arising prior to, on or after the Closing, including without limitation: (A) obligations under all contracts of the Acquired Companies, (B) all environmental liabilities related to the Properties, (C) all employment - related obligations including obligations under the Employee Benefit Plans, (D) any warranty obligations to repair or replace defective goods whether sold before or after Closing, (E) all accounts payable and other current liabilities of the Acquired Companies, and (F) all liabilities and obligations of the Acquired Companies in connection with any litigation to which the Acquired Companies are now or in the future may be a party.
“Audited Financial Statements”— as defined in Section 3.4.
“Base Amount”— as defined in Section 2.2.
“Bonds”— means the (i) the 1988 Series B Bonds due to mature August 1, 2016 and (ii) the Series 2000A Bonds due to mature August 1, 2020.
“Business Day”— any day other than a Saturday, Sunday, or public holiday under the laws of the Commonwealth of Pennsylvania.
“Buyers”— as defined in the preamble.
“Buyers’ Advisors”— as defined in Section 6.1.
“Buyer Indemnified Parties”— as defined in Section 11.2.
“Buyer Related Parties”— means Buyers and their respective Affiliates, any of Buyers or their respective Affiliates’ former or current Representatives and the Debt Financing Sources and Debt Financing Affiliates.
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“Cambridge and Ambridge Environmental Liabilities”— means all liabilities and obligations arising under Environmental Laws related to soil and groundwater conditions existing on or prior to the Closing Date at, on, under or emanating from, the Properties involved in the conduct of Company’s paint line operations in Cambridge, OH and Ambridge, PA.
“Cambridge Obligations” – as defined in Section 7.4.
“Cash”— means, as of the Reference Time (before taking into account the consummation of the transactions contemplated hereby), cash and cash equivalents of the Acquired Companies, on hand or in bank accounts, including deposits in transit, but less the amount of outstanding (uncleared) checks and drafts written against such accounts, other than such outstanding checks and drafts issued in respect of current Liabilities that are included in any determination of Net Working Capital.
“CERCLA”— as defined in Section 3.14.
“CERCLIS”— as defined in Section 3.14.
“Claim Notice”— as defined in Section 11.7(a).
“Claim Response”— as defined in Section 11.7(a).
“Closing”— as defined in Section 2.3.
“Closing Date”— the date on which the Closing actually takes place.
“Code”— the United States Internal Revenue Code of 1986, as amended.
“Commitment”— shall mean with respect to a Person (i) options, warrants, rights of first refusal or first offer, convertible securities, exchangeable securities, subscription rights, conversion rights, exchange rights, calls, puts, voting trusts, registration rights or other rights, agreements or commitments relating to the issuance, disposition or acquisition of such Person’s capital stock or securities convertible into or exchangeable or exercisable for its equity securities or other Contracts that could require a Person to issue equity securities or to sell equity securities it owns in another Person, (ii) any other securities convertible into, exchangeable or exercisable for, or representing the right to subscribe for any equity securities of a Person or owned by a Person, (iii) statutory pre-emptive rights or pre-emptive rights granted under a company’s organizational documents or any other pre-emptive rights and (iv) equity appreciation rights, phantom equity, profit participation, or other similar rights with respect to a company.
“Company”— as defined in the Preamble.
“Company Balance Sheet Date”— means December 31, 2013.
“Company knowledge” or “knowledge of Company”— means the actual knowledge, after reasonable internal inquiry, of Mark Sherwin, Joel Mazur, or Eston Owens.
“Company Securities”— as defined in Section 3.3(b).
“Consent”— any approval, consent, ratification, waiver, or other authorization.
3 |
“Contract” means any agreement, contract, lease, license, indenture, mortgage, collective bargaining agreement, purchase order, sales order, undertaking, evidence of indebtedness, binding commitment or instrument (including amendments and supplements, modifications and side letters or agreements) to which any of the Acquired Companies is a party or that is binding on any Acquired Company, whether written or oral.
“Credit Agreement”— means the Amended and Restated Credit Agreement, dated January 25, 2002, by and among CENTRIA and MetalWorks, L.P. as borrowers, and PNC Bank, National Association as agent (“Agent”) and issuing bank, as amended.
“Damages”— as defined in Section 11.2.
“Debt Commitment Letter”— means the commitment letter from Credit Suisse AG, Credit Suisse Securities (USA) LLC, Citigroup Global Markets Inc., UBS AG, Stamford Branch, UBS Securities LLC, Royal Bank of Canada and RBC Capital Markets pursuant to which such lenders have agreed, subject only to the terms and conditions set forth therein, to provide the debt financing for the transactions contemplated by this Agreement.
“Debt Fee Letter”— as defined in Section 5.4.
“Debt Financing”— means the debt financing that Credit Suisse AG, Citigroup Global Markets Inc., UBS AG, Stamford Branch and Royal Bank of Canada have agreed to provide for the transactions contemplated by this Agreement pursuant to the Debt Commitment Letter, subject only to the terms and conditions set forth herein and therein.
“Debt Financing Affiliates”— means the Affiliates and subsidiaries of the Debt Financing Sources and the officers, directors, employees, agents, representatives, former, current and future equity holders, controlling persons, members, managers, general or limited partners, successors and assigns of the Debt Financing Sources and any such Affiliates, and successors and assigns of the foregoing.
“Debt Financing Sources”— means the Persons that have committed to provide or have otherwise entered into agreements in connection with the Debt Financing or alternative debt financings in connection with the transactions contemplated hereby, including any arrangers thereunder and any joinder agreements, indentures or credit agreements entered into pursuant thereto or relating thereto.
“Deductible Basket”— as defined in Section 11.5(a).
“Dispute Letter”— as defined in Section 2.2(c).
“Employee Benefit Plans”— as defined in Section 3.8.
“Encumbrance”— any mortgage, easement, right of way, charge, claim, community property interest, condition, equitable interest, lien, option, pledge, security interest, right of first refusal, or restriction or adverse claim of any kind, including any restriction on use, voting, transfer, receipt of income, or exercise of any other attribute of ownership, or any other encumbrance or exception to title of any kind.
4 |
“End Date”— as defined in Section 10.1(e).
“Environmental Laws” — shall mean all laws, regulations, rules, policies, and/or orders pertaining to the protection of the environment, natural resources, health and welfare of persons and property and all state or federal common law or other causes of action relating to liability from uses or misuses of Regulated Materials. These include, but are not limited to, laws and regulations governing the discharging, disposal, dispersal, transporting, release or other handling of, or exposure to, waste, hazardous waste, oil and petroleum products, toxic substances, liquids, Regulated Materials, pollutants, contaminants, solid wastes, effluent, or sludges, as defined and regulated under: the Federal Resource Conservation and Recovery Act; Safe Drinking Water Act; Clean Air Act; Refuse Act of 1899; Clean Water Act; Federal Insecticide, Fungicide and Rodenticide Act; Toxic Substances Control Act; Hazardous Materials Transportation Act; Surface Mining Control and Reclamation Act; Atomic Energy Act; Uranium Mill Tailings Control Act of 1978, as amended; Low-Level Radioactive Waste Policy Act; Nuclear Waste Policy Act of 1982; National Environmental Policy Act; Federal Hazard Communication Standard (29 C.F.R. §1910.1200); Food, Drug & Cosmetic Act; Comprehensive Environmental Response, Compensation and Liability Act, as amended; Emergency Planning and Community Right-To-Know Act; Solid Waste Disposal Act; or other foreign, federal, state, or local laws, rules, regulations, policies or orders, ordinances or the like having similar purposes.
“Environmental Permits”— as defined in Section 3.14(a).
“ERISA”— the Employee Retirement Income Security Act of 1974 or any successor law, and regulations and rules issued pursuant to that Act or any successor law.
“ERISA Affiliate”— as to any Person, any other Person that is treated as a single employer with such Person under Title IV of ERISA or Section 414 or 4980B of the Code.
“ERISA Affiliate Liability”— any liability (whether contingent or accrued) arising by reason of any of the Acquired Companies having been treated as an ERISA Affiliate with any other Person (other than any of the Acquired Companies).
“Escrow Agent”— the financial institution mutually agreed to by the parties to serve as Escrow Agent pursuant to the Escrow Agreement.
“Escrow Agreement”— as defined in Section 2.1(b).
“Escrow Funds”— as defined in Section 2.1(b).
“Estimated Cash”— as defined in Section 2.2(b).
“Estimated Closing Date Purchase Price”— as defined in Section 2.2(b).
“Estimated Closing Statement”— as defined in Section 2.2(b).
“Exchange Act”— the Securities Exchange Act of 1934 or any successor law, and regulations and rules issued pursuant to that Act or any successor law.
5 |
“Final Closing Date Purchase Price”— means (i) the Base Amount, minus (ii) the amount of Indebtedness as finally determined pursuant to Section 2.2(c), plus (iii) the amount of Cash as finally determined pursuant to Section 2.2(c), plus (iv) the amount, if any, by which the Net Working Capital as finally determined pursuant to Section 2.2(c) exceeds the Target Net Working Capital Amount, minus (v) the amount, if any, by which the Net Working Capital as finally determined pursuant to Section 2.2(c) is less than the Target Net Working Capital Amount, minus (vi) the amount of the Transaction Expenses as finally determined pursuant to Section 2.2(c).
“Financial Statements”— as defined in Section 3.4.
“Fundamental Representations”— as defined in Section 11.1.
“GAAP”— generally accepted United States accounting principles, as in effect from time to time, consistently applied.
“Government Official” means any (i) officer or employee of a Governmental Body or instrumentality thereof (including any state-owned or state-controlled enterprise), or of a public international organization, (ii) holder of public office, candidate for public office, political party, official of a political party or member of a royal family or (iii) any Person acting for or on behalf of any such Governmental Body or instrumentality thereof (including any state-owned or state-controlled enterprise).
“Governmental Approvals”— any approval, consent, license, permit, waiver, or other authorization issued, granted, given, or otherwise made available by or under the authority of any Governmental Body or pursuant to any Legal Requirement.
“Governmental Body”— any:
(a) nation, state, county, city, town, village, district, or other jurisdiction of any nature;
(b) federal, state, local, municipal, foreign, or other government or political subdivision thereof;
(c) governmental or quasi-governmental authority of any nature (including any governmental agency, self-regulatory organization, branch, department, official, or entity and any court, tribunal or arbitrator); or
(d) body exercising, or entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power of any nature.
“GP Agreement”— as defined in Section 4.4.
“Guaranteed Obligations” – as defined in Section 13.17.
“HSR Act”— the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, or any successor law, and regulations and rules issued pursuant to that Act or any successor law.
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“Indebtedness”— means, as of any particular time with respect to the Acquired Companies, without duplication, (i) the unpaid principal amount of and accrued interest on all indebtedness for borrowed money (excluding all intercompany indebtedness between or among the Acquired Companies), (ii) obligations evidenced by notes, debentures, bonds or other similar instruments or other debt securities for the payment of which any of the wholly owned Acquired Companies is responsible or liable (excluding all intercompany indebtedness between or among the Acquired Companies), (iii) all obligations of the Acquired Companies under leases required in accordance with the GAAP to be capitalized on a balance sheet of the Acquired Companies, (iv) all “make-whole” or similar premium, change of control fees or premiums, breakage costs, fees, or additional interest accruing after the Closing Date payable pursuant to the terms of a debt document, (v) all outstanding obligations of the Acquired Companies under any interest rate or currency swap transaction, cap, collar or other hedging arrangements (whether interest rate or otherwise) (valued at the termination cost thereof); (vi) all outstanding obligations of the Acquired Companies for the reimbursement of any obligor on any letter of credit (to the extent such letter of credit has been actually drawn); and (vii) all management fees payable. Notwithstanding the foregoing, “Indebtedness” shall not include (a) any bank guarantees and (b) non-cancellable purchase commitments, surety bonds and performance bonds. For purposes of Article I of this Agreement, Indebtedness shall mean Indebtedness, as defined above, outstanding as of the Reference Time (before taking into account the consummation of the transactions contemplated hereby).
“Indemnified Party”— as defined in Section 11.7(a).
“Indemnitor”— as defined in Section 11.7(a).
“Infringement”— as defined in Section 3.16(b).
“Intellectual Property”— means all United States, foreign and international trademarks, trade names, service marks, trade dress and Internet domain names, together with all goodwill associated with the foregoing, copyrights, rights in Software and Internet websites, registrations and applications to register or renew the registration of any of the foregoing, patents, patent applications, utility models and industrial designs, together with all reissues, divisions, renewals, extensions, provisionals, continuations and continuations-in-part thereof, rights in Trade Secrets and similar intellectual property rights.
“Intellectual Property Assets”— as defined in Section 3.16(a).
“Interim Financial Statements”— as defined in Section 3.4(b).
“IT Systems”— means the hardware, Software, data, databases, data communication lines, network and telecommunications equipment, wide area network and other information technology infrastructure and equipment owned, leased or licensed by the Acquired Companies.
“Law” — means any law, rule, regulation, judgment, injunction, order, decree or other restriction of any Governmental Body.
“Leased Real Property Documents”— as defined in Section 3.6.
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“Legal Requirement”— any federal, state, local, municipal, foreign, international, multinational, or other administrative order, executive order, constitution, law, ordinance, principle of common law, court order, rule, consent, decree, regulation, license, permit, statute, or treaty.
“Liabilities” —means all Indebtedness, obligations and other liabilities of a Person, whether accrued or fixed, known or unknown, absolute or contingent, matured or unmatured or determined or determinable.
“Liquidated Claim Notice” –as defined in Section 11.7(a).
“Malware”— means any virus, Trojan horse, time bomb, key-lock, spyware, worm, malicious code or other Software designed to or able to, without the knowledge and authorization of the Acquired Companies, disrupt, disable, harm, interfere with the operation of or install itself within or on any Software, computer data, network memory or hardware.
“Marketing Period”— means the first period of twenty five (25) consecutive calendar days after the date hereof throughout and at the end of which (a) Buyers shall have the Required Information, and the Required Information shall be complete (provided, that if the Company shall in good faith reasonably believe it has provided the Required Information and that the Marketing Period has commenced, it may deliver to Buyers a written notice to that effect (stating when it believes it completed such delivery), in which case the Marketing Period will be deemed to have commenced on the date of such notice unless Buyers in good faith reasonably believe the Marketing Period has not commenced and within five calendar days after the delivery of such notice by the Company, delivers a written notice to the Company to that effect (setting forth with specificity why they believe the Marketing Period has not commenced)) and (b) the conditions set forth in Article VIII (Conditions Precedent to Buyers’ Obligation to Close) shall be satisfied (excluding conditions that, by their nature, are satisfied at Closing) and nothing has occurred and no condition exists that would be reasonably likely to cause any of the conditions set forth in Article VIII to fail to be satisfied assuming the Closing were to occur any time during such 25 consecutive calendar day period; provided that (i) such consecutive day period shall (x) not commence prior to January 5, 2015 and (y) not be required to be consecutive to the extent it would include May 22, 2015 through May 25, 2015 (which dates set forth in this clause (y) shall be excluded for purposes of the 25 calendar day period) and (ii) the Marketing Period shall not be deemed to have commenced if, after the date hereof and prior to the completion of the Marketing Period, (A) financial statements included in the Required Information become stale such that a registration statement including such financial statements would not be permitted to be declared effective by the SEC on the last day of such 25 consecutive calendar day period under Rule 3-12 of Regulation S-X promulgated under the Securities Act, in which case the Marketing Period shall not be deemed to commence unless and until the earliest date on which Sellers have furnished Buyers with such updated Required Information, (B) Ernst & Young shall have withdrawn its audit opinion with respect to any of the annual financial statements included in the Required Information, in which case the Marketing Period shall not be deemed to commence unless and until, at the earliest, a new unqualified audit opinion is issued with respect to such financial statements by Ernst & Young or another nationally-recognized independent public accounting firm, or (C) Sellers have determined to restate any historical financial statements of the Acquired Companies included in the Required Information, in which case the Marketing Period shall not be deemed to commence unless and until, at the earliest, such restatement has been completed or Sellers subsequently conclude that no restatement shall be required in accordance with GAAP.
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“Material Adverse Effect”— means any change, event or development that is materially adverse to the assets, rights, liabilities, business, financial condition or results of operations of the Acquired Companies taken as a whole; provided, however, that none of the following shall be deemed in themselves, either alone or in combination, to constitute, and that none of the following shall be taken into account in determining whether there has been or will be, a Material Adverse Effect: (A) any adverse change, event or development to the extent attributable to the announcement or pendency of the transactions contemplated by this Agreement, including the impact thereof on relationships, contractual or otherwise, with customers, suppliers, partners or employees; (B) any adverse change, event or development attributable to conditions affecting the industry and markets in which the Acquired Companies operate, the U.S. economy or capital or financial markets generally; (C) any adverse change, event or development arising from or relating to compliance with the terms of this Agreement, or action taken, or failure to act, to which Buyers have consented; (D) changes in Legal Requirements after the date hereof; (E) changes in GAAP after the date hereof; or (F) acts of war, sabotage or terrorism, or any escalation or material worsening of any such acts of war, sabotage or terrorism, provided, that the exceptions set forth in clauses (B), (D) and (E) shall only apply to the extent that such change, effect, event, occurrence, state of facts or development does not have or cause a disproportionate adverse effect on the Acquired Companies, taken as a whole, relative to Persons in the Acquired Companies’ market or industry.
“Material Contracts”— as defined in Section 3.12.
“Materiality Qualifiers”— means qualifications as to materiality or Material Adverse Effect (or any similar qualification) in any representation or warranty set forth herein.
“Net Working Capital”— means (i) the Acquired Companies' current assets (excluding amounts included in Cash and deferred Tax assets) as of the Reference Time less (ii) the Acquired Companies' current Liabilities (excluding deferred tax liabilities and amounts included in Indebtedness and Transaction Expenses) as of the Reference Time, each as determined in accordance with the Accounting Procedures.
“OFAC”— as defined in Section 3.9(d).
“Order”— any award, decision, injunction, judgment, order, ruling, subpoena, or verdict entered, issued, made, or rendered by any Governmental Body.
“Organizational Documents”— (a) the articles or certificate of incorporation and the bylaws of a corporation or charter; (b) the partnership agreement and any statement of partnership of a general partnership; (c) the limited partnership agreement and the certificate of limited partnership of a limited partnership; (d) the certificate of organization or formation, limited liability company agreement of a limited liability company or operating agreements; and (e) all other similar documents, instruments or certificates executed, adopted or filed in connection with the creation, formation or organization of a Person, including any amendments thereto.
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“Owned Real Property Documents”— as defined in Section 3.6.
“Outstanding Claims”— as defined in Section 11.12.
“Parent”— means NCI Building System, Inc. and any successor in interest thereto.
“Parent SEC Filing” — as defined in Section 6.8(iv).
“PATRIOT Act”— the USA Patriot Act of 2001 or any successor law, and regulations and rules issued pursuant to that Act or any successor law.
“Payoff Letters”— as defined in Section 6.6(a).
“Permitted Encumbrances”— means (a) liens for property taxes and assessments or other government charges or levies not yet in default or the validity of which is being contested in good faith by appropriate proceedings so long as adequate reserves have been made, (b) liens of mechanics, materialmen, laborers, warehousemen, carriers and other similar common law or statutory liens which are not overdue for a period of more than 60 days arising in the ordinary course of business or the basis for which is being contested and adequate provision therefor has been made in the books of the appropriate entity, and (c) liens arising out of pledges or deposits under workers' compensation, unemployment insurance, old age laws, or to secure the performance of bids, tenders or contracts or to secure statutory obligations of surety or appeal bonds, or to secure indemnity, performance or other similar bonds in the ordinary course of business and which are not overdue.
“Person”— any individual, corporation (including any non-profit corporation), general or limited partnership, limited liability company, a limited liability partnership, joint venture, estate, trust, a business trust, association, organization, labor union or other entity or governmental body.
“Pre-Closing Tax Periods”— means collectively, all taxable periods ending on or prior to the Closing Date and the portion through the end of the Closing Date for all Straddle Periods.
“Pre-Closing Taxes”— means any and all Taxes and claims for Taxes (a) that are imposed on, allocated or attributable to or incurred or payable by any Acquired Company for any Pre-Closing Tax Period, together with any interest, penalty or additions to Tax accruing after the Closing Date on Taxes described in this clause (a), (b) arising under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Law by virtue of any Acquired Company having been a member of a consolidated, combined, affiliated, unitary or other similar Tax group prior to the Closing, (c) that are imposed by reason of any Acquired Company having Liability for Taxes of another Person arising under principles of transferee or successor liability or by contract as a result of activities or transactions taking place at or prior to the Closing, or (d) arising as the result of any inclusion under Section 951 of the Code at the end of the taxable year of any Subsidiary that is a controlled foreign corporation (as defined under Section 957 of the Code) that includes the Closing Date to the extent such inclusion results from any transactions not in the ordinary course of business occurring between the beginning of the taxable year of such controlled foreign corporation that includes the Closing Date and through the Closing, in each case excluding any current Tax liabilities properly and specifically accounted for in the calculation of Net Working Capital.
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“Prime Rate”—means the prime lending rate as reported in the Eastern U.S. Edition of The Wall Street Journal from time to time as the base rate on corporate loans.
“Property” and “Properties”— as defined in Section 3.6(a).
“Purchase Price”— as defined in Section 2.2(a).
“Reference Time”— means 11:59 PM New York City time on the day prior to the Closing Date.
“Regulated Materials”— means any chemical, solid, liquid, gas, or other substance having the characteristics identified in, listed under, or designated a hazardous substance, pollutant, contaminant, solid waste, hazardous waste, industrial waste, hazardous material, toxic substance or words of similar meaning or effect pursuant to any Environmental Law, including but not limited to (i) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §§9601(14) and 9602; (ii) the Clean Water Act, 33 U.S.C.A. §1321(b)(2)(A); (iii) the Clean Water Act, 33 U.S.C.A. §1317(a) and 1362(13); (iv) the Clean Air Act, 42 U.S.C.A. §7412(a)(1); (v) the Toxic Substances Control Act, 15 U.S.C.A. §2606(f); (vi) the Resource, Conservation and Recovery Act, 42 U.S.C. §§6903(5) and 6921; and (b) any other substance identified in any present or future law as presenting an imminent and substantial danger to the public health or welfare or to the environment, or as otherwise requiring special handling, collection, storage, treatment, disposal, or transportation. “Regulated Materials” shall also include: (i) asbestos, petroleum, crude oil, waste oil, solvents, gasoline, natural gas, liquefied natural gas, synthetic fuel, or other petroleum, oil, or gas based products; (ii) nuclear, radioactive, or atomic substances, mixtures, wastes, compounds, materials, elements, products, or matters; and (iii) any other substance, mixture, waste, raw materials, ore, pollutants, contaminants, compound, material, element, product or matter that presents or may present an imminent and substantial danger to the public health or welfare or to the environment upon its release or requires or may reasonably be foreseen to require an order requiring cost of cleanup.
“Regulation FD” – means Regulation Fair Disclosure, promulgated under the Exchange Act.
“Regulation S-K” – means Regulation S-K, promulgated under the Securities Act.
“Relevant Persons”— as defined in Section 3.9(d).
“Representative”— with respect to a particular Person, any partner, director, officer, employee, agent, consultant, advisor, or other representative of such Person, including legal counsel, accountants, and financial advisors.
“Required Consents”— as defined in Section 8.3(b).
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“Required Information”— as defined in Section 6.8(a).
“Response Period”— as defined in Section 11.7(a).
“Retained Liabilities”—means only the following specified obligations of the Acquired Companies: (A) liabilities arising under Section 8325 (relating to wrongful act of partner) and Section 8326 (relating to breach of trust by partner) of the Pennsylvania Uniform Partnership Act, 15 PA. Cons. Stat. § 8301 et. seq., and (B) obligations arising under this Agreement, subject to the terms of Article XI hereof.
“Reverse Termination Fee”— as defined in Section 10.2.
“SEC” – means the U.S. Securities and Exchange Commission.
“Securities Act”— the Securities Act of 1933 or any successor law, and regulations and rules issued pursuant to that Act or any successor law.
“Seller Allocations” — means an allocation of amounts to be distributed under this Agreement and under the Escrow Agreement, which allocation shall be made 80% to Riverfront Capital Fund and 20% to SMST Management Corp.
“Seller Indemnified Parties” — as defined in Section 11.3.
“Sellers”— means SMST Management Corp., a Pennsylvania Corporation, and Riverfront Capital Fund, a Pennsylvania limited partnership.
“Seller Related Parties”— as defined in Section 13.15(a).
“Significant Customer”— as defined in Section 3.25.
“Significant Supplier”— as defined in Section 3.25.
“Software”— means computer software, including application software, system software, firmware and middleware, including all source code and object code versions of the foregoing, in any and all forms and media, and all related documentation.
“Straddle Period”— as defined in Section 12.1(a).
“Subsidiaries”—with respect to any Person (the “Owner”) that is not an individual, any other Person, other than an individual, of which securities or other interests having the power to elect a majority of that Person's board of directors or similar governing body, or otherwise having the power to direct the business and policies of that Person (other than securities or other interests having such power only upon the happening of a contingency that has not occurred) are held by the Owner or one or more of the Owner’s other Subsidiaries; when used without reference to a particular Person, “Subsidiary” means a Subsidiary of the Company.
“Target Net Working Capital”— means $15,955,000.
“Tax Accountant”—as defined in Section 12.1(b).
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“Taxes”— as defined in Section 3.7.
“Tax Return” — means any return, declaration, report, claim for refund, information return or other document (including any related or supporting schedules, statements or information) filed or required to be filed in connection with the determination, assessment or collection of any Taxes of any party or the administration of any laws, regulations or administrative requirements relating to any Taxes.
“Third Party Claim”— as defined in Section 11.8.
“Trade Secrets”— means all inventions, processes, designs, formulae, models, alogrithms, trade secrets, know-how, customer lists, ideas, research and development, data, databases and confidential information.
“Transaction Expenses”— means all fees, costs, and expenses of the Acquired Companies, whether accrued for or not, in each case in connection with the transactions contemplated hereby, incurred or payable prior to Closing and not paid prior to or simultaneous with Closing (i) payable to professionals (including investment bankers, attorneys, accountants and other consultants) and advisors retained by any Acquired Company, (ii) any change in control bonus, transaction bonus or retention or other compensatory payment to be made to any current employee, director or officer of any of the Acquired Companies at or after the Closing pursuant to any agreement to which any of the Acquired Companies is a party prior to the Closing which become payable as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby and (iii) any payroll, social security, unemployment or other Taxes or other amounts required to be paid by any Acquired Company in connection with any payments made or sale bonuses paid to current or former employees on or prior to Closing; provided, that in no event shall “Transaction Expenses” include any of the foregoing payments that are triggered by a termination of employment which occurs following the Closing.
“Unrecovered Environmental Indemnity Costs” – as defined in Section 7.4.
“Unliquidated Claim” – as defined in Section 11.7(a).
“VDA’s” – as defined in Section 12.3.
“Year-End Balance Sheet”— as defined in Section 3.4(a).
1.2 Other Interpretive Provisions.
(a) The words “hereof”, “herein”, “hereunder” and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement.
(b) The term “control” (including the terms “controlled by” and “under common control with”) shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by Contract or otherwise.
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(c) The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term.
(d) Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”.
(e) The terms “day” and “days” mean and refer to calendar day(s).
(f) The terms “year” and “years” mean and refer to calendar year(s).
(g) The word “or” is inclusive and not exclusive.
(h) Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. References to a Person are also to its permitted successors and assigns.
(i) All Article, Section, Exhibit and Schedule references herein are to Articles, Sections, Exhibits and Schedules of this Agreement, unless otherwise specified.
(j) This Agreement shall not be construed as if prepared by one particular party, but rather according to its fair meaning as a whole, as if all parties had prepared it and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
Article
II
SALE AND TRANSFER OF INTERESTS; CLOSING
2.1 Acquisition.
(a) Subject to the terms and conditions of this Agreement, Sellers will sell and transfer the Acquired Interests to Buyers and Buyers will purchase the Acquired Interests from Sellers at the Purchase Price as determined pursuant to Section 2.2 hereof, free and clear of all Encumbrances. The sale and delivery of the Acquired Interests and the other transactions contemplated hereby are collectively referred to herein as the “Acquisition.”
(b) At the Closing, Buyers shall: (i) deliver to Sellers cash by wire transfer in an amount equal to the Estimated Closing Date Purchase Price (as defined in Section 2.2(b) below) less Thirty-Five Million Dollars ($35,000,000) (“Escrow Funds”), such amount to be allocated between Sellers in accordance with the Seller Allocations; and (ii) deliver to the Escrow Agent the Escrow Funds, to be held and administered in accordance with the terms and conditions of an Escrow Agreement in such form as shall be reasonably acceptable to the parties, to be entered into on the Closing Date by Buyers, Sellers and the Escrow Agent (the “Escrow Agreement”). All fees and expenses of the Escrow Agent shall be paid by the parties in accordance with the Escrow Agreement.
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(c) At the Closing, Sellers shall transfer, sell and deliver to Buyers, and Buyers shall purchase and accept from Sellers the Acquired Interests, free and clear of all preemptive rights, liens, claims and Encumbrances.
2.2 Purchase Price.
(a) The Purchase Price will be Two Hundred Forty Five Million Dollars ($245,000,000) (the “Base Amount”), subject to the further adjustments in this Section 2.2 (the “Purchase Price”).
(b) At least five (5) Business Days prior to the Closing Date, the Company shall deliver to Buyers a statement setting forth its good faith estimate of Cash (the “Estimated Cash”), Indebtedness (the “Estimated Indebtedness”), Net Working Capital (the “Estimated Net Working Capital”) and Transaction Expenses (“Estimated Transaction Expenses”), each as of the Reference Time (the “Estimated Closing Statement”). The “Estimated Closing Date Purchase Price” shall be the Base Amount, plus (i) the amount by which the Estimated Net Working Capital exceeds the Target Net Working Capital or minus the amount by which the Estimated Net Working Capital is less than the Target Net Working Capital, as the case may be, plus (iii) the Estimated Cash, minus (iv) the Estimated Indebtedness, minus (v) the amount of the Estimated Transaction Expenses. After delivery of the Estimated Closing Statement by the Company and prior to the Closing, Buyers and their accountants and other Representatives shall be permitted to review the books and records of the Acquired Companies and any work papers related to the preparation of the Estimated Closing Statement.
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(c) Not later than sixty (60) days after the Closing Date, Buyers shall deliver to Sellers a statement showing the Cash, Indebtedness, Net Working Capital and Transaction Expenses (together with a reasonable explanation of Buyers' determination thereof) (the “Closing Statement”) prepared by Buyers. The Closing Statement shall be prepared from the books and records of the Acquired Companies in accordance with the accounting procedures set forth on Exhibit 2.2(c) hereto (the “Accounting Procedures”) and the provisions of this Agreement. Buyers' statement of Closing Date Net Working Capital shall be subject to review by Sellers. After delivery of the Closing Statement, Buyers shall provide Sellers and their Representatives with reasonable access at reasonable times to review all financial information, work papers, schedules, memoranda and other documents related to the preparation of Closing Statement. Within forty-five (45) days following the date of delivery of the Closing Statement, Sellers shall advise Buyers whether they object to Buyers' determination. Unless Sellers deliver to Buyers, not later than the forty-fifth (45th) day after the Closing Statement is delivered to Sellers, a letter specifying their objection(s) to any of the determinations set forth in the Closing Statement (together with a reasonable explanation of Sellers' basis for such objection(s)) (the “Dispute Letter”), then the Closing Statement shall be conclusive, binding on and non-appealable by the parties. In the event that Sellers timely deliver the Dispute Letter and Buyers and Sellers, after negotiating in good faith, cannot reach final resolution within fifteen (15) days after delivery of the Dispute Letter, the issues in dispute will be submitted by Buyers and Sellers to an independent certified public accounting firm of the United States, which shall be independent of both Buyers and Sellers for the two years preceding the Closing Date and mutually acceptable to Buyers and Sellers (the “Accountants”) for resolution. In the event Buyers and Sellers are unable to agree upon a mutually acceptable firm, Buyers and Sellers shall each select an independent certified public accounting firm of the United States, which shall be independent of the selecting party for the two years preceding the Closing Date, and the two firms so selected shall mutually agree upon a third independent certified public accounting firm of the United States, which shall be independent of both Buyers and Sellers for the two years preceding the Closing Date, which third firm shall serve as the Accountants. The Accountants shall consider only those items and amounts that were identified in the Dispute Letter that Sellers and Buyers have not resolved during such fifteen (15) day period. The Accountants’ determination shall be based solely on the Accounting Procedures, the definitions of Cash, Indebtedness, Net Working Capital and Transaction Expenses contained herein and the provisions of this Agreement, including this Section 2.2(c). Each party will furnish to the Accountants such paperwork and other documents and information relating to the disputed issues as the Accountants may request and are available to that party (or its independent public accountants), and will be afforded the opportunity to present to the Accountants any materials relating to the determination and to discuss the determination with the Accountants. The Accountants’ determination shall not introduce any new or different accounting methods, policies, practices, procedures, classifications, judgments or estimation methodologies from those utilized in preparing the Closing Statement. Further, the Accountants’ determination shall be based solely on the presentations by Buyers and Sellers that are in accordance with the terms and procedures set forth in this Agreement (i.e., not on the basis of an independent review). In no event shall the Accountants’ determination of the unresolved disputed items be for an amount outside the range of Buyers’ determination thereof in the Closing Statement or Sellers’ determination thereof in the Dispute Letter. The Accountants’ final determination of shall be made within thirty (30) days of their engagement, which determination shall be set forth in a written notice delivered to all parties by the Accountants and shall be conclusive, binding on and non-appealable by the parties. The cost and expenses of the Accountants' services shall be borne one half by Buyers and one half by Sellers.
(d) If the Final Closing Date Purchase Price is less than the Estimated Closing Date Purchase Price, the Escrow Agent under the Escrow Agreement shall promptly pay such difference to Buyers out of the Escrow Funds by wire transfer of immediately available funds to one (1) or more accounts designated by Buyers. If the Final Closing Date Purchase Price is greater than the Estimated Closing Date Purchase Price, Buyers shall pay the difference to Sellers by wire transfer of immediately available funds to one (1) or more accounts designated by Sellers in accordance with the Seller Allocations. Payment shall be made within 14 days after the earlier of the final determination by the parties, or the Accountants' delivery of its written report.
(e) Withholding. Notwithstanding any other provision of this Agreement, and for the avoidance of doubt, (a) each payment made pursuant to this Agreement shall be made net of any Taxes required by applicable Law to be deducted or withheld from such payment and (b) any amounts deducted or withheld from any such payment shall be remitted to the applicable taxing authority and shall be treated for all purposes of this Agreement as having been paid. If the Buyers determine that such withholding of any such Tax is required by applicable Law, the Buyers will use commercially reasonable efforts to provide notice of the expected withholding at least five (5) Business Days prior to the date of withholding to the Person with respect to which the withholding is to be made (and the notice will include the legal authority and the calculation method for the expected withholding), and the parties hereto will use commercially reasonable efforts to cooperate to minimize the amount of the withholding.
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2.3 Closing. The consummation of the Acquisition (the “Closing”) will take place at the offices of Buchanan Ingersoll & Rooney PC, One Oxford Centre, 20th Floor, 301 Grant Street, Pittsburgh, PA 15219, at 10 a.m. local time on the second Business Day following the satisfaction or due waiver of all of the closing conditions set forth in Article VIII and Article IX hereof (other than those to be satisfied at the Closing itself, but subject to the satisfaction or waiver of such conditions at the Closing) or on such other date and/or time as is mutually agreed in writing by Buyers and Sellers; provided that, if the Marketing Period has not ended at the time of the satisfaction or waiver of all of the closing conditions set forth in Article VIII and Article IX (other than those to be satisfied at the Closing itself, but subject to the satisfaction or waiver of such conditions at the Closing), the Closing shall not occur until the earlier to occur of (a) a Business Day during the Marketing Period specified by Buyers on three (3) Business Days written notice to the Company and Sellers and (b) the third (3rd) Business Day immediately following the final day of the Marketing Period (subject in each case to the satisfaction or waiver of all of the closing conditions set forth in Article VIII and Article IX as of the date determined pursuant to this proviso).
2.4 Closing Obligations. At the Closing:
(a) Sellers will deliver to Buyers:
(i) general partner interest assignments in a form reasonably acceptable to Buyers;
(ii) certificates executed by Sellers and the Company that each of their respective representations and warranties in this Agreement were accurate in all material respects as of the Closing Date as if made on the Closing Date and that each of the covenants required to be performed by Sellers and the Company as of the Closing Date has been performed in all material respects;
(iii) the Escrow Agreement, as set forth in Section 2.1(b) hereto; and
(iv) resignations of such officers and directors of the Acquired Companies to the extent required by Buyers in writing not later than five (5) Business Days prior to the Closing.
(b) Buyers will deliver:
(i) by wire transfer to the accounts specified in the Payoff Letters, all amounts necessary to discharge the then outstanding balance of all Indebtedness under the Credit Agreement and the Bonds, in each case, in the amounts specified by the holders of such Indebtedness in their respective Payoff Letters and included in the calculation of the Estimated Closing Date Purchase Price;
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(ii) by wire transfer to accounts specified by Sellers an amount equal to the Estimated Closing Date Purchase Price less the Escrow Funds;
(iii) the Escrow Funds by wire transfer to an account specified by the Escrow Agent; and
(iv) certificates executed by Buyers to the effect that each of their respective representations and warranties in this Agreement were accurate in all material respects as of the Closing Date as if made on the Closing Date and that each of the covenants required to be performed by Buyers as of the Closing Date has been performed in all material respects.
2.5 Continuation of Partnership; Assumption of Liabilities.
(a) The parties agree that the Company will continue as a Pennsylvania general partnership notwithstanding the assignment of the Acquired Interests to Buyers pursuant to the terms of this Agreement.
(b) In structuring the transaction as the acquisition of the equity interests in the Company, it is the intent of the parties to replicate, to the extent possible, the effect of a sale of the stock of a business corporation. Buyers, therefore, agree to assume at the Closing, and thereafter pay, perform, discharge and satisfy as they become due, all of the Assumed Liabilities.
Article
III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company makes the following representations and warranties to Buyers, as of the date hereof and as of the Closing Date. Such representations and warranties are subject to and qualified by any disclosure in any of the Schedules to be furnished to Buyers, provided, however, that disclosure in any section or subsection of the Schedules shall apply to any other section or subsection of the Schedules to the extent that it is reasonably apparent from the face of such disclosure that such disclosure is relevant to another section or subsection of the Schedules.
3.1 Organization and Good Standing. Schedule 3.1 contains a complete and accurate list for each Acquired Company of its name, its jurisdiction of incorporation or formation, and other jurisdictions in which it is authorized to do business. Each Acquired Company is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation or formation, with full power and authority to conduct its business as it is now being conducted and to own or use the properties and assets that it purports to own or use. Each Acquired Company is duly qualified to do business and is in good standing under the laws of each state or other jurisdiction in which either the ownership or use of the properties owned or used by it, or the nature of the activities conducted by it, requires such qualification, except where the failure to be so qualified, individually or in the aggregate, has not had, and would not reasonably be expected to have a Material Adverse Effect. Sellers have delivered to Buyers complete copies of the Organizational Documents of each Acquired Company as currently in effect, and no Acquired Company is in violation of any provision of such Acquired Company’s Organizational Documents in any material respect.
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3.2 Authority; No Conflict.
(a) The execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby have been duly and validly authorized by all requisite action, and, no action on its part is necessary to authorize the execution, delivery or performance of this Agreement. This Agreement constitutes the legal, valid, and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other similar Laws relating to the rights of creditors generally.
(b) Except for any consents and notices specified in Schedule 3.2(b), neither the execution, delivery and performance of this Agreement by the Company nor the consummation of the Acquisition (i) will (w) conflict with, result in any breach of, or constitute a default, or an event that, with or without notice or lapse of time or both, would constitute a default, under any the terms, conditions or provisions of the Organizational Documents of any Acquired Company, (x) conflict with or violate any provision of Law or Order of any court or other governmental agency to which any Acquired Company is subject or any of their respective properties or assets are subject, (y) require any consent of or other action by any Person under, constitute a default or an event that, with or without notice or lapse of time or both, would constitute a default under, or cause or permit termination, cancellation, acceleration or result in a breach or violation of any of the terms of, or other change of any right or obligation or the loss of any benefit under, any provision of any material agreement or any indenture, mortgage, loan agreement, lease or other agreement or instrument to which any Acquired Company is a party (including any Material Contract or any material Permit) or by which it is bound, or (z) result in the creation or imposition of any Encumbrances other than Permitted Encumbrances on any assets of any of the Acquired Companies; and (ii) will result in the suspension, revocation, impairment, forfeiture or non-renewal of any license or permit necessary for the operation of the Acquired Companies, except in the case of clauses (y) and (z), as would not have, individually or in the aggregate, a Material Adverse Effect.
3.3 Capitalization; Equity Rights.
(a) The Acquired Interests constitute all of the issued and outstanding partnership interests in the Company and there are no outstanding Commitments with respect to the partnership interests of the Company. The Acquired Interests are issued and outstanding and are owned by Sellers free and clear of any Encumbrances (other than restrictions under the Securities Act and state securities laws). The Acquired Interests have been duly authorized and validly issued and were not issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under the Organization Documents or any Contract to which the Company is a party.
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(b) Schedule 3.1 contains a complete and accurate list for each Acquired Company of its capitalization (including the identity of each stockholder, member, or partner and the number of shares or interests held by each and all capital stock or other equity interests issued). Except as set forth on Schedule 3.3(b), on the date hereof, (i) there are no shares or any other equity or voting security of an Acquired Company issued and outstanding, (ii) the Acquired Companies have not granted to any Person a right to acquire Commitments, (iii) neither the Company nor any of its Subsidiaries owns or holds the right to acquire any Commitments in any other Person, and (iv) there are no obligations of the Company or any of its Subsidiaries to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any shares or other equity or voting securities (including any voting debt) of the Company (the items in clauses (i), (ii), (iii) and (iv), collectively, the “Company Securities”). Neither the Company nor any of its Subsidiaries is contractually obligated to repurchase, redeem or otherwise acquire any Company Securities, and neither the Company nor any of its Subsidiaries have any outstanding bonds, debentures, notes or other obligations, the holders of which have the right to vote with the holders of the Acquired Interests on any matter.
(c) Except as set forth on Schedule 3.3(c), each outstanding share or other ownership interests of each Subsidiary of the Company is duly authorized, validly issued, fully paid, nonassessable (where applicable) and is held, directly or indirectly, by the Company or another Subsidiary of the Company, free and clear of all Encumbrances.
(d) Except as set forth on Schedule 3.3(d), the Company and its Subsidiaries have no outstanding indebtedness for borrowed money and there are no outstanding guarantees by the Company or any of its Subsidiaries of indebtedness for borrowed money of any other Person.
3.4 Financial Statements; Internal Controls
(a) The Company has delivered to Buyers true and complete copies of audited consolidated balance sheets of the Company as of December 31, 2011, 2012, and 2013 (including the notes thereto) and the related statements of income and cash flow and for the period then ended, together with the report thereon of Ernst & Young, certified public accountants (the “Audited Financial Statements”). The Company's December 31, 2013 balance sheet being hereinafter referred as, the “Year-End Balance Sheet.”
(b) The Company has delivered to Buyers copies of the unaudited consolidated balance sheet of the Company as of September 30, 2014 and related statements of income and cash flow for the nine (9) month period then ended (collectively, the “Interim Financial Statements”). The Interim Financial Statements are subject to normal recurring year-end adjustments and the absence of notes.
(c) The financial statements referred to in Section 3.4(a) and (b) are sometimes collectively referred to in this Agreement as the “Financial Statements.” The Financial Statements fairly present in all material respects the financial condition and the results of operations and cash flow of the Acquired Companies, on a consolidated basis, as of the respective dates of and for the periods referred to in such financial statements, all in conformity with GAAP, subject in the case of Interim Financial Statements, to normal recurring year-end adjustments (which would not, individually or in the aggregate, be material) and the absence of notes. The Financial Statements reflect the consistent application of such accounting principles throughout the periods involved, except as disclosed in the notes to such financial statements. Schedule 3.4(c) contains the complete and accurate Financial Statements.
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(d) Except as set forth in Schedule 3.4, the Acquired Companies have in place a system of internal accounting controls with respect to the business conducted thereby which is sufficient to provide reasonable assurance that (i) all transactions are executed in accordance with management’s general or specific authorization, (ii) transactions are recorded as necessary to permit the preparation of financial statements in conformity with GAAP and (iii) recorded accountability for items is compared with actual levels at reasonable intervals and appropriate action is taken with respect to any difference.
3.5 Personal Property. Except as set forth on Schedule 3.5, the Acquired Companies have good and valid title to all of their respective tangible personal property, owned, licensed or leased (pursuant to a valid and enforceable license or lease), subject only to Encumbrances which are reflected in the Financial Statements and except for Permitted Encumbrances.
3.6 Real Property Interests.
(a) Schedule 3.6(a) contains a true and complete list of all real property now owned, leased, subleased, licensed, controlled or operated, in whole or in part, or held under an option to purchase, an occupancy agreement or otherwise used or operated by any of the Acquired Companies as of the date hereof (individually, a “Property” and, collectively, the “Properties”) and the record title holder or landlord, the address and tenant or subtenant, if applicable. The Properties comprise all of the real property associated with and necessary for the operations of business of the Acquired Companies. The Company has furnished or made available to Buyers complete and accurate copies of all (i) deeds and title reports prepared by title insurance companies (“Owned Real Property Documents”), and (ii) leases, sub-leases, licenses and occupancy agreements (“Leased Real Property Documents”), with respect to the Properties. Except as set forth on Schedule 3.6(a), each of the Acquired Companies, respectively, has good and marketable fee simple or leasehold title, as the case may be and as specified on Schedule 3.6(a), to and are lawfully seized and in possession of each of the Properties which it owns or leases, together with all buildings, improvements, appurtenant rights, privileges and easements free and clear of all Encumbrances except Permitted Encumbrances.
(b) Except as set forth on Schedule 3.6(b), (i) each Leased Real Property Document is valid, binding and in full force and effect and none of the Acquired Companies are in material breach or default under any Leased Real Property Document and no event has occurred or circumstance exists which, with the delivery of notice, passage of time or both would constitute a breach of any Leased Real Property Document; (ii) the Company has sufficient title to such easements, rights of way and other rights appurtenant to each owned Property as is necessary to permit ingress and egress to and from the owned Property to a public way; (iii) neither the Company nor any Affiliate thereof has leased, subleased or granted to any Person any right to possess, lease or occupy any portion of the owned Property or the Company’s right, title, or interest in the leased Property, and (iv) neither the Company nor any Affiliate thereof owns, holds, has granted or is obligated under any option, right of first offer, right of first refusal or other contractual right to purchase, acquire, sell or dispose of the owned Properties or the Company’s right, title, or interest in the leased Properties or any portion thereof or interest therein or any other real property.
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(c) With respect to the Properties: (i) the Acquired Companies are in compliance in all material respects with all zoning Laws and building codes applicable to the Properties owned by the Acquired Companies, (ii) the Acquired Companies have all permits, licenses and approvals with respect to the ownership of the Properties owned by the Acquired Companies and the use and occupancy of their respective Properties, the lack of which would materially interfere with the current use of the Properties or which would have a Material Adverse Effect, (iii) the Acquired Companies have reasonable access to the Properties owned by the Acquired Companies and have not received any notice and have no actual knowledge of any condemnation, expropriation or other like proceeding in eminent domain or pending federal, state or local plans to restrict or change access from any highway or road system in the vicinity of any of the Properties owned by the Company; and (iv) neither Sellers nor the Acquired Companies have received any notice of any pending change in zoning laws and/or other land use restrictions that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the use of the Properties owned by the Acquired Companies.
3.7 Taxes.
(a) Except as set forth on Schedule 3.7(a), (i) the Acquired Companies have duly and timely filed all Tax Returns relating to all income, excise, property, sales, franchise, gross receipts, license, payroll, employment, severance, stamp, occupation, premium, windfall profits, environmental, capital stock, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative, or add on minimum or estimated tax, assessment, charge, levy, and all other taxes and similar assessments, customs duties, charges and fees of any kind whatsoever (including interest, penalties and additions to such taxes and any interest in respect of such penalties and additions) imposed by the United States or any state, local or foreign government (“Tax” or “Taxes”) required to be filed by them, which Tax Returns are true, correct and complete in all material respects, and have duly and timely paid all Taxes required to be paid by each Acquired Company, (ii) no notices respecting asserted or assessed and unresolved deficiencies or any adjustment for any Tax have been received by any Acquired Company for any Tax periods, other than such notices that have been resolved prior to the date of this Agreement, (iii) there is no investigation or claim by any Tax authority or other administrative or judicial proceeding with respect to Taxes presently pending or, to the Knowledge of the Company, threatened with respect to an Acquired Company, and no Acquired Company is a party to any action or proceeding by any governmental authority for the assessment or collection of Taxes, nor has any such event been asserted or threatened, (iv) the Acquired Companies have duly and timely made all withholdings of Taxes that are required to be withheld and such withholdings have either been paid to the respective governmental agencies or properly set aside in accounts for such purpose, (v) neither any Seller nor an Acquired Company have filed any consent of the type described under Section 341(f) of the Code, (vi) there are no Encumbrances for Taxes (other than Taxes not yet due and payable) upon any of the assets of the Acquired Companies, (vii) all accounting entries (including charges and accruals) for Taxes with respect to the Acquired Companies reflected on the Financial Statements are adequate to cover any material Tax liabilities accruing through the end of the last period covered on such Financial Statements, and since the end of the last period, none of the Acquired Companies has engaged in any transaction, or taken any other action, other than in the ordinary course of business, that would reasonably be expected to result in a materially increased Tax liability or materially reduced Tax asset, (viii) to the Knowledge of the Company, no Tax authority in a jurisdiction where an Acquired Company does not file a particular type of Tax Returns or pay a particular type of Taxes has asserted that the Acquired Company is or may be required to file such Tax Return or pay such type of Taxes in that jurisdiction, (ix) no Acquired Company has any liability for Taxes of any Person (other than the Acquired Companies) (A) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), (B) as a transferee or successor, or (C) under any Tax indemnity agreement, Tax sharing agreement, Tax allocation agreement or similar agreement, and (x) no Acquired Company has participated in a “listed transaction” within the meaning of Section 1.6011-4(c) of the Treasury Regulations. The Company has furnished or made available to Buyers true and complete copies of each income Tax Return and other material Tax Returns filed by an Acquired Company for the three most recent fiscal years.
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(b) The Acquired Companies are not currently pursuing an appeal of any tax imposed against an Acquired Company.
(c) The Company has been classified as a partnership for U.S. federal income Tax purposes since its formation. Each Subsidiary that is a limited liability company has been disregarded as an entity separate from its owner for U.S. federal income Tax purposes since its formation. None of the Acquired Companies has made any entity classification elections under Treasury Regulation Section 301.7701-3.
3.8 Employee Benefits.
(a) Set forth on Schedule 3.8(a) is a list of each Employee Benefit Plan. “Employee Benefit Plan” means any plan, agreement, program, policy or arrangement (whether or not in writing) (i) (x) that is maintained, sponsored or contributed to by the Acquired Companies or (y) under which any Acquired Company has or may have any present or future obligations or liability and (ii) that provides compensation or employee benefits of any kind to current or former employees of, or independent contractors (who are natural persons) to, any of the Acquired Companies or their dependents or beneficiaries (collectively, the “Affected Persons”). The term “Employee Benefit Plan” includes, but is not limited to, any “employee benefit plan”, as defined in Section 3(3) of ERISA, whether or not subject to ERISA; any deferred compensation, pension, profit-sharing, retirement, stock purchase or stock option, hospitalization or other medical, life or other similar insurance plan; any employment agreement or offer letter; any plan or policy that provides for the payment of severance benefits, salary continuation, benefits to executives, salary in lieu of notice or similar benefits; and any plan or agreement that provides retention, transaction or change-in-control payments or benefits.
(b) With respect to each Employee Benefit Plan, true and complete copies of the following documents have been provided or made available to Buyers or their representatives prior to the date hereof, to the extent applicable: (i) the most recent plan documents and all amendments thereto, (ii) the most recent trust instruments and insurance contracts, (iii) the most recent Form 5500 filed with the Internal Revenue Service, (iv) the most recent summary plan description, and (v) the most recent determination or opinion letter issued by the Internal Revenue Service. No Acquired Company has communicated to any current or former employee any intention or commitment to amend or modify any Employee Benefit Plan or to establish or implement any other employee benefit or compensation plan or arrangement.
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(c) The Acquired Companies have not incurred any ERISA Affiliate Liability prior to the date of this Agreement, nor will the Acquired Companies incur any ERISA Affiliate Liability following the Closing by reason of having been an ERISA Affiliate of any Person prior to the Closing.
(d) Schedule 3.8(d) lists each Employee Benefit Plan that is a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA (a “Multiemployer Plan”), and each Employee Benefit Plan that is a “single employer plan” within the meaning of Section 4001(a)(15) of ERISA.
(e) Each of the Employee Benefit Plans is in compliance in all material respects with its terms and all applicable Legal Requirements, including, without limitation, the currently applicable provisions of ERISA and the Code. Each Employee Benefit Plan which is an “employee pension benefit plan” within the meaning of section 3(2) of ERISA and which is intended to be qualified under section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service, and the Company is not aware of any circumstances reasonably likely to result in the revocation or denial of any such favorable determination letter. There is no pending or, to the Knowledge of the Company, threatened litigation or governmental audit, examination or investigation relating to the Employee Benefit Plans that would be likely to result in a material liability to any Acquired Company. All contributions required to be made to any Employee Benefit Plan by applicable Legal Requirement or by any plan document, and all premiums due or payable with respect to insurance policies funding any Employee Benefit Plan, for any period through the date hereof have been timely made or paid in full.
(f) Other than routine claims for benefits under Employee Benefit Plans, there are no pending, or to the Knowledge of the Company, threatened or anticipated claims by or on behalf of (i) any Employee Benefit Plan, by any employee or beneficiary covered under any Employee Benefit Plan, or otherwise involving any Employee Benefit Plan or (ii) any Affected Person relating to his or her employment, termination of employment, compensation or employee benefits.
(g) None of the Acquired Companies nor any of their ERISA Affiliates has incurred any withdrawal liability as a result of a complete or partial withdrawal from a Multiemployer Plan that has not been satisfied in full prior to the date of this Agreement, and no such future withdrawal liability is reasonably expected to be incurred. No Multiemployer Plan is in “endangered status” or “critical status” within the meaning of section 432 of the Code, nor is any Multiemployer Plan in “reorganization” or “insolvent”.
(h) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will not (alone or in combination with any other event) (i) entitle any Affected Person to severance pay or any other payment, (ii) result in any payment becoming due, accelerate the time of payment or vesting of benefits, or increase the amount of compensation due to any Affected Person, (iii) result in any forgiveness of indebtedness, trigger any funding obligation under any Employee Benefit Plan or impose any restrictions or limitations on the Acquired Companies’ rights to administer, amend or terminate any Employee Benefit Plan, or (iv) result in any payment (whether in cash or property or the vesting of property) to any “disqualified individual” (as such term is defined in Treasury Regulation section 1.280G-1) that could reasonably be construed, individually or in combination with any other such payment, to constitute an “excess parachute payment” (as defined in section 280G(b)(1) of the Code). No person is entitled to receive any additional payment (including any tax gross-up or other payment) from any Acquired Company as a result of the imposition of the excise taxes imposed by Section 4999 of the Code or any taxes imposed by Section 409A of the Code.
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3.9 Compliance with Law; Governmental Consents.
(a) Except for matters pertaining to employee benefits (which are provided for in Section 3.8) and environmental matters (which are provided for in Section 3.14), each of the Acquired Companies is being and, since January 1, 2011, has been conducted in accordance with all applicable Laws, regulations and other requirements of all U.S. and foreign national governmental authorities, and of all states, municipalities and other political subdivisions and agencies thereof, in each case, in all material respects. Since January 1, 2011, none of the Acquired Companies has received a notice or other communication alleging or relating to a possible material violation of any applicable Law.
(b) All approvals, filings, permits, licenses, operating certificates, franchises, variances, exemptions, orders, authorizations and consents of Governmental Bodies (collectively, “Permits”) required to conduct, and material to, the business of the Acquired Companies are in the possession of the Acquired Companies, are in full force and effect and each Acquired Company is and, since January 1, 2011, has been in compliance with the terms of such Permits and with any requirements, standards or procedures of the Governmental Bodies that issued such Permits, in each case, in all material respects. Schedule 3.9(b) lists all Permits held by the Acquired Companies as of the date hereof. Since January 1, 2011, none of the Acquired Companies has received any notice from any Governmental Body in respect of any revocation, non-renewal, adverse modification or cancellation of any such Permit, nor would any such revocation, non-renewal, adverse modification or cancellation result from the consummation of the transactions contemplated hereby. None of the Acquired Companies has received any claim or notice of any limitation or proposed limitation on any such Permit.
(c) Except for (x) the HSR Act and (y) as set forth on Schedule 3.9(c), (i) no Acquired Company is required to submit any material notice, report or other filing with any Governmental Body in connection with the execution, delivery or performance by the Company of this Agreement or the consummation of the transactions contemplated hereby and (b) no material consent, approval or authorization of any Governmental Body is required to be obtained by any Acquired Company in connection with the Company’s execution, delivery or performance of this Agreement or the consummation by the Company of any transaction contemplated hereby.
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(d) Each of the Acquired Companies respective officers, directors, employees, agents, distributors and other Persons acting for or on behalf of the Acquired Companies (the “Relevant Persons”), have not in the course of their actions for, or on behalf of, any Acquired Company or controlled Affiliate, engaged directly or indirectly in transactions connected with any of North Korea, Cuba, Iran, Syria, Myanmar or Sudan, or otherwise engaged directly or indirectly in transactions connected with any government, country or other entity or Person that is the target of U.S. economic sanctions administered by the U.S. Treasury Department Office of Foreign Assets Control (“OFAC”) or any applicable United Nations, European Union or other international sanctions regime, including specially designated nationals and blocked persons designated by the OFAC and no Relevant Person is any such person. None of the officers, directors or, to the knowledge of the Company, any of the employees, of any Acquired Company is a Government Official, and, to the knowledge of the Company, there is no existing family relationship between any such Person and any Government Official.
3.10 Legal Proceedings; Orders. Except as set forth in Schedule 3.10 hereto, as of the date hereof (i) there are no Actions pending or to the knowledge of the Company threatened at Law or in equity against the Acquired Companies or their respective properties, Assets or business in any federal, state or local court or agency that seeks, either individually or in the aggregate, (A) more than $50,000 in damages, or (B) injunctive relief and (ii) the Acquired Companies are not subject to any material settlement, stipulation, or in default under Order of any Governmental Body.
3.11 Absence of Certain Changes and Events; Undisclosed Liabilities.
(a) Except as set forth in Schedule 3.11, since the date of the balance sheet included in the Interim Financial Statements, (i) the Acquired Companies have conducted the business in the ordinary course consistent with past practices; (ii) none of the Acquired Companies have suffered any change, effect, event, occurrence, state of facts, circumstance or development that has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and (iii) there has not been:
(A) any material damage or destruction, loss or other casualty, however arising and whether or not covered by insurance;
(B) any material Indebtedness incurred by the Acquired Companies for borrowed money, except in the ordinary course of business;
(C) any material change in the accounting methods or practices of the Acquired Companies or any change in depreciation or amortization policies or rates theretofore adopted;
(D) any mortgage, pledge or other encumbering of any property, right or asset of the Acquired Companies that is material to the business they now conduct;
(E) any loans or advancements to any of its directors officers or employees;
(F) any acquisition or Contract to acquire by merging or consolidating with, or by purchasing all or a substantial portion of the stock or assets of, or by any other manner, any business or any Person or division thereof;
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(G) any sale, transfer, lease, abandonment or other disposal of any material portion of the properties, rights or assets of the Acquired Companies taken as a whole (whether real, personal or mixed, tangible or intangible);
(H) any commencement or settlement of any Action, other than any Action brought or pending against any Acquired Company that was settled for an amount equal to or less than $250,000 and does not restrict the Acquired Companies conduct of business in any manner;
(I) any grant by the Acquired Companies of any material increase in compensation payable to or to become payable to any employee, except in the ordinary course of business and consistent with past practice;
(J) any entry into, assumption, amendment or voluntary termination of any Material Contract (or any agreement that would be a Material Contract), other than Contracts (i) entered into in the ordinary course of business or (ii) providing for aggregate payments of no more than $250,000;
(K) any capital expenditures made, or any commitment to make any capital expenditures, by the Acquired Companies which exceed $250,000 in the aggregate, for any tangible or intangible capital assets or rights, additions or improvements; and
(L) any entry by the Acquired Companies into any binding agreement, whether in writing or otherwise, to take any action described in this Section 3.11.
(b) The Acquired Companies do not have any material Liability, except for Liabilities (i) accrued or reserved against, in the balance sheets contained within the Financial Statements, (ii) incurred in the ordinary course of business since the date of the Company Balance Sheet Date, or (iii) arising pursuant to the terms of any Material Contract set forth in Schedule 3.12 (other than Liabilities for default, breach or non-performance thereunder).
3.12 Contracts.
(a) Schedule 3.12 contains a complete and accurate list, and the Company has delivered to Buyers true and complete copies of (or an accurate description of oral Contracts) Contracts that are in effect on the date hereof (including all modifications and amendments thereto and waivers thereunder), described as follows:
(i) any Contract relating to Indebtedness (whether incurred, assumed, guaranteed or secured by any Assets);
(ii) any sales, distribution, agency or other similar Contract providing for the sale by any Acquired Company of materials, supplies, delivery of goods, performance of services, equipment or other assets that provides for aggregate payments to the Acquired Companies over the remaining term of the Contract of $500,000 or more;
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(iii) any Contract for the purchase of materials, supplies, goods, services, equipment or other assets that provides for aggregate payments by the Acquired Companies over the remaining term of such Contract of $250,000;
(iv) any Contract (including any “take-or-pay” or keepwell agreement) under which (A) any Person has directly or indirectly guaranteed any liabilities or obligations of any of the Acquired Companies, or (B) any Acquired Company has directly or indirectly guaranteed any liabilities or obligations of any other Person (in each case other than endorsements for the purpose of collection in the ordinary course of business)
(v) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other contract or agreement affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $50,000 per annum);
(vi) each licensing agreement or other contract or agreement granting or restricting rights to use or practice patents, trademarks, copyrights, or other Intellectual Property, including such licenses granted by any Acquired Company to any other Person and licenses granted by any Person to any Acquired Company (in each case excluding licenses of “off-the-shelf”, “click-wrap” and “shrink-wrap” Software);
(vii) each joint venture, partnership, and other contract or agreement (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired Company with any other Person (including any Contract providing for joint research, development, marketing or distribution);
(viii) each agreement pursuant to which any Person creates, develops or customizes on behalf of any of the Acquired Companies any Intellectual Property that is material to the business of any Acquired Company;
(ix) any Contract containing non-competition or other limitations restricting the conduct of the business of any Acquired Company;
(x) any Contract (A) that provides for annual payments of $250,000 and contains any “most favored nation” or similar provisions, or (B) contains exclusivity obligations binding on any of the Acquired Companies or their Affiliates;
(xi) any agreement between any Acquired Company and any of their respective Affiliates (other than another Acquired Company);
(xii) any Contract relating to any interest rate or currency swap, derivatives or other hedging transaction;
(xiii) any settlement, conciliation or similar Contract with respect to the resolution of disputes with any Person and pursuant to which any outstanding obligations must be satisfied by any of the Acquired Companies after the date hereof;
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(xiv) any collective bargaining agreement of any Acquired Company;
(xv) any Contract or series of related Contracts, including any option Contracts, relating to the acquisition or disposition of any business, capital stock, or assets of any other Person or any material real property (whether by merger, sale of stock, sale of assets or otherwise); and
(xvi) any other Contract, commitment or arrangement that is, to the Knowledge of Sellers, material to the business.
(b) Each Contract disclosed on Schedule 3.12 or required to be disclosed therein pursuant to this Section 3.12 (each, a “Material Contract”) are, valid, binding and enforceable against the Acquired Company party thereto in accordance with their terms and there is not under any of them any existing material breach, default, event of default or event which with the giving of notice of lapse of time, or both, would constitute a material default, by any of the Acquired Companies or, to the Company's knowledge, by any other party thereto, nor has any party thereto given notice of or made a claim with respect to any such breach or default. The Acquired Companies have delivered or made available to Buyers complete and accurate copies of all form customer contracts, agreements, instruments and disclosures currently used by the Acquired Companies.
3.13 Insurance. Schedule 3.13 hereto sets forth a complete and accurate list and description, including but not limited to deductibles thereunder, of all policies of fire, liability, product liability, workmen's compensation, health and other forms of insurance (including fidelity bonds and similar instruments) presently in effect with respect to the Acquired Companies or relating to the business, Assets, properties or directors, officers or employees of the Acquired Companies. The Company has made available to Buyers true and correct copies of all such policies. All of the insurance policies of the Acquired Companies are in full force and effect, and no Acquired Company is in material default or has received notice of default under or cancellation of any such policies. All premiums due thereon covering all periods up to and including the Closing Date have been timely paid. To the knowledge of the Company, since the time any such policies were last renewed or issued, there has not been any threatened termination of, premium increase with respect to or alteration of coverage under, any of such policies. There is no material claim by or with respect to any of the Acquired Companies pending under any of such policies as to which coverage has been questioned, denied or disputed by the underwriters of such policies or in respect of which such underwriters have reserved their rights.
3.14 Environmental Matters. Except as set forth in Schedule 3.14:
(a) Each Acquired Company has obtained, and has made all appropriate filings for issuance or renewal of, all material registrations, permits, licenses and other authorizations (“Environmental Permits”) which: (i) are required to be obtained by any such Seller under all Environmental Laws, or (ii) relate to the manufacture, processing, distribution, use, treatment, storage, disposal, transport, or handling of Regulated Materials.
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(b) Each Acquired Company (and each property owned, leased or operated by any of the Acquired Companies) at all times has been and is in compliance in all material respects with: (i) all terms and conditions of all permits, licenses and authorizations required under the terms of any Environmental Laws since January 1, 2009; (ii) all other, limitations, restrictions, conditions, standards, prohibitions, requirements and obligations contained in any of the Environmental Laws as applicable to such Acquired Company; and (iii) all plans, orders, decrees, judgments, injunctions, notices or demand letters applicable to such Acquired Company and issued, entered, promulgated or approved under any of the Environmental Laws.
(c) No Acquired Company has received any notice that any past or present conditions, circumstances, activities, practices, incidents or actions of any Acquired Company relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport, or handling of any Regulated Material or relating to any emission, discharge, release or threatened release into the environment of any Regulated Material: (i) may interfere with or prevent compliance or continued compliance by any Acquired Company with any of the Environmental Laws or any regulation, code, plan, order, decree, judgment, injunction, notice or demand letter issued, entered, promulgated or approved thereunder; (ii) may give rise to any common law or legal liability; or (iii) may otherwise form the basis of any claim, action, demand, suit, proceeding, hearing, study or investigation.
(d) Since January 1, 2009 there is no and has not been any civil, criminal or administrative action, suit, demand, claim, hearing, notice or demand letter, notice of violation, investigation or proceeding pending or, to the knowledge of the Company, threatened against any Acquired Company relating in any way to the release or disposal of any Regulated Material at any location or to any violation of or liability under any of the Environmental Laws or any regulation, code, plan, order, decree, judgment, injunction, notice or demand letter issued, entered, promulgated or approved thereunder.
(e) There is and has been no release of any Regulated Material at, in, on, under or from any properties currently or formerly owned, leased or operated by any Acquired Company which have resulted or would reasonably be expected to result in an investigation, remediation, corrective action or claim involving any Acquired Company. All underground and above-ground storage tanks located on any property now owned, leased or operated by each Acquired Company have been used and maintained by the Acquired Companies in material compliance with all applicable Environmental Laws.
(f) No property now or, to the knowledge of the Company, previously owned, operated or leased by any Acquired Company is listed or is proposed for listing on the National Priorities List pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, as amended (“CERCLA”), or the Comprehensive Environmental Response, Compensation and Liability Information System List (“CERCLIS”) or on any similar state or foreign list of sites requiring investigation or cleanup; and no lien has been filed against either the personal or real property of any Acquired Company under any Environmental Law.
(g) To the knowledge of the Company, Buyers have been provided with copies of all environmental reports and studies conducted by Sellers within the ten (10) years preceding the date of this Agreement and in Sellers’ possession, concerning properties and facilities currently and formerly owned or leased by the Acquired Companies.
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3.15 Labor Relations.
(a) Other than as set forth on Schedule 3.15(a), no Acquired Company has been or is a party to any collective bargaining or other labor contract. Other than as set forth in Schedule 3.15(a), since January 1, 2011, there has not been, there is not presently pending or existing and to the Company's knowledge there is not threatened (i) any strike, slowdown, picketing, work stoppage or other similar labor activity, (ii) any proceeding against or affecting any Acquired Company relating to the alleged violation of any Legal Requirement pertaining to labor relations or employment matters, including any charge or complaint filed by an employee or union with the National Labor Relations Board, the Equal Employment Opportunity Commission, or any comparable governmental body, organizational activity, or other labor or employment dispute against or affecting any of the Acquired Companies or their premises, or (iii) any application for certification of a collective bargaining unit. To the Company's knowledge, no event has occurred or circumstance exists that could provide the basis for any work stoppage or other labor dispute. There is no lock-out of any employees by either of the Acquired Companies and no such action is contemplated.
(b) Each Acquired Company has complied in all respects with all Legal Requirements relating to employment, equal employment opportunity, nondiscrimination, immigration, wages, hours, benefits, collective bargaining, immigration matters, the withholding and payment of income, social security and similar taxes, occupational safety and health and plant closing. No Acquired Company is liable for the payment of any compensation, damages, taxes, fines, penalties, or other amounts, however designated for failure to comply with the foregoing. All individuals who provide services to the Acquired Companies have at all times been accurately classified with respect to such services as an employee or an independent contractor and as exempt from overtime or as not so exempt.
(c) No Acquired Company has incurred any Liability that remains unsatisfied under the WARN Act or any state or local Laws regarding the termination or layoff of employees.
3.16 Intellectual Property.
(a) Schedule 3.16(a) contains a complete and accurate list and title or marked word (as applicable) of all Intellectual Property owned by or licensed to or purported to be owned by an Acquired Company (“Intellectual Property Assets”) that is (i) registered, issued or subject to an application for registration or issuance (other than Trade Secrets) and owned by an Acquired Company or (ii) owned by any other Person, registered issued or subject to application for registration or issuance that is used or licensed by any Acquired Company and which is material to the conduct of the business conducted by the Acquired Companies. Except as set forth on Schedule 3.16, the Intellectual Property Assets are exclusively owned by the Acquired Companies free and clear of all Encumbrances, are in good standing, subsisting and, to the knowledge of the Company, valid and enforceable.
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(b) To the knowledge of the Company, no Acquired Company unlawfully or wrongfully uses, infringes, misappropriates, dilutes or otherwise violates (collectively, “Infringement”) any Intellectual Property rights of any Person or has engaged in any such Infringement in the past three years. In the past three years, no Acquired Company has received any letter or other written communication alleging any Infringement relating to any Intellectual Property. No notice, claim, suit, action, proceeding, offer to license in lieu of further action, demand or cease and desist letter is pending, or to the knowledge of the Company, threatened against any Acquired Company for Infringement or any other claim or proceeding relating to any Intellectual Property. No Intellectual Property Assets have been or are currently subject to any Infringement or otherwise made available for use by any Person without a license or permission from the Acquired Companies.
(c) The Company owns or has secured valid licenses or other rights to use all Intellectual Property that is reasonably required for the conduct of the business of the Acquired Companies, as now conducted, other than those listed on Schedule 3.16(c). No owner, director, partner, member, officer or employee of any of the Acquired Companies owns directly or indirectly, in whole or in part, any Intellectual Property Asset. All Persons, including current and former employees and independent contractors, who create or contribute to any portion of, or otherwise would have rights in or to, any Intellectual Property Asset have executed valid and enforceable written agreements that validly and irrevocably assign to an Acquired Company all of their rights in and to such Intellectual Property Asset, or an Acquired Company owns such Intellectual Property Asset pursuant to applicable law.
(d) Each Acquired Company has taken all commercially reasonable actions to protect the Intellectual Property Assets (including making and maintaining in full force and effect all necessary filings, registrations, and issuances) and all precautions to protect the secrecy, confidentiality and value of its Trade Secrets. To the knowledge of the Company, no Acquired Company is using any Intellectual Property Asset that is material to the business of the Acquired Companies in a manner that would reasonably be expected to result in the cancellation or unenforceability of such Intellectual Property Asset. The Trade Secrets owned by the Acquired Companies are not part of the public knowledge or literature and to the Company's knowledge, have not been used, divulged or appropriated either for the benefit of any Person (other than one or more of the Acquired Companies) or to the detriment of the Acquired Companies.
3.17 Books and Records. The books of account, minute books, stock record books and other records of the Acquired Companies, all of which have been made available to Buyers, are complete and correct in all respects and have been maintained in accordance with sound business practices. The books of the Acquired Companies contain accurate and complete records in all material respects of all meetings held of, and actions taken by, the Acquired Companies. At the Closing, all of those books and records will be in the possession of the Acquired Companies.
3.18 Condition of Assets. The buildings, plants, tangible assets, structures and equipment owned by the Acquired Companies (the “Assets”) are adequate for the uses to which they are being put, and none of the Assets is in need of maintenance or repairs that materially exceed historical levels for the Acquired Companies taken as a whole. The properties and rights of the Acquired Companies (whether real, personal, common, mixed and whether tangible or intangible) and Assets constitute all of the properties, rights and the Assets used by the Acquired Companies in the Acquired Companies’ businesses as such businesses are currently being conducted.
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3.19 Inventory and Reserves. Inventories of the Company are owned free and clear of all Encumbrances other than Permitted Encumbrances or Encumbrances that will be released at Closing. All inventory of the Acquired Companies, whether or not reflected in the Year-End Balance Sheet or the Interim Financial Statements, consists of a quality and quantity usable and salable in the ordinary course of business consistent with past practice and are and will be in quantities sufficient for the ordinary course of business of the Company and its Subsidiaries consistent with past practice, except for obsolete items and items of below-standard quality, all of which have been written off or written down to net realizable value in the Year-End Balance Sheet or the Interim Financial Statements or on the accounting records of the Acquired Companies as of the Closing Date, as the case may be and in accordance with GAAP. The quantities of each item of inventory (whether raw materials, work-in process, or finished goods) are not excessive, but are reasonable in the present circumstances of the Acquired Companies.
3.20 Related Parties. Except as set forth on Schedule 3.20, no Seller or any Affiliate of any Seller of any Acquired Company (a) is a party to any Contract or transaction with any Acquired Company or has engaged in any such transaction in the last twelve (12) months, or (b) owns, directly or indirectly, any interest or has the right to obtain any interest in (i) any property (whether real, personal, or mixed and whether tangible or intangible), owned by any Acquired Company or used in the Acquired Companies' businesses, or (ii) any Person that is a material supplier, customer, competitor, debtor or creditor of any Acquired Company. All transactions with Affiliates of any of the Acquired Companies have been made or entered into on terms that are no less favorable to such Acquired Company than those that could have been obtained from an unaffiliated third party.
3.21 Certain Payments. None of the Acquired Companies or, to the knowledge of the Company, any director, partner, officer, agent, or employee of any Acquired Company or any other Person acting for or on behalf of any Acquired Company, has directly or indirectly, (a) made any contribution, gift, bribe, rebate, payoff, influence payment, kickback, or other payment to any Person, private or public, regardless of form, whether in money, property, or services (i) to obtain favorable treatment in securing business, (ii) to pay for favorable treatment for business secured, (iii) to obtain special concessions or for special concessions already obtained, for or in respect of any Acquired Company or any Affiliate of an Acquired Company, or (iv) in violation of any Legal Requirement; (b) used any of its funds for unlawful contributions, loans, donations, gifts, entertainment, or other unlawful expenses relating to political activity; (c) made or agreed to make any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns; (d) taken any action that would constitute a violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any rules or regulations promulgated thereunder, or any comparable foreign law or statue; (e) established or maintained any fund or asset that has not been recorded in the books and records of the Acquired Companies; or (f) made or agreed to make any other unlawful payment.
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3.22 Brokers, Finders, Etc.. Except as set forth on Schedule 3.22, the Company is not subject to any valid claim of any broker, investment banker, finder or other intermediary in connection with the transactions contemplated by this Agreement and following the Closing neither the Company nor Buyers shall be liable for any claim of any broker, investment banker, finder or other intermediary based on any agreement made by or on behalf of the Company prior to the Closing. The Company is solely responsible for any payment, fee or commission that may be due to any such broker, investment banker, finder, or other intermediary in connection with the transactions contemplated hereby.
3.23 Information Technology. None of the Acquired Companies distributes or licenses to any other Person any Software that is derived from open source, shareware, freeware, “copyleft” or similar Software. Each Acquired Company has implemented reasonable backup, security and disaster recovery arrangements to ensure the continued operation of its businesses in the event of a disaster or business interruption. Except as would not reasonably be expected to cause a material and adverse effect on the business of the Acquired Companies, the IT Systems of each Acquired Company are (i) in good repair and operating condition and are adequate and suitable for the purposes for which they are being used, (ii) conform with their related documentation and (iii) do not contain any Malware that would reasonably be expected to interfere with the ability of such Acquired Company to conduct its business as presently conducted.
3.24 Receivables. All accounts, notes receivable and other receivables (other than receivables collected since the Company Balance Sheet Date) reflected on the Year-End Balance Sheet are, and all accounts, notes receivable and other receivables arising from or otherwise relating to the business of the Company and its Subsidiaries as of the Closing Date will be, valid obligations, subject to normal and customary trade discounts.
3.25 Customers and Suppliers; Product Liability.
(a) Set forth in Schedule 3.25(a) are the names of the ten (10) most significant customers (by revenue) of the Acquired Companies (each, a “Significant Customer”) for the twelve-month period ended December 31, 2013 and the amount for which each such customer was invoiced during such period (treating affiliated customers as a single customer). Neither Sellers nor the Acquired Companies has received any written notice that any Significant Customer has ceased, or will cease, to purchase or use the products, equipment, goods or services of the Acquired Companies, or has substantially reduced, or will substantially reduce, the purchase of such products, equipment, goods or services in any material respect at any time following date hereof, including as a result of the transactions contemplated hereby.
(b) Set forth in Schedule 3.25(b) are the names of the ten (10) most significant suppliers (by purchases) of the Acquired Companies (each, a “Significant Supplier”) for the twelve-month period ended December 31, 2013 and the amount paid to each such supplier during such period (treating affiliated suppliers as a single supplier). Neither Sellers nor the Acquired Companies has received any written notice that any Significant Supplier has ceased, or will cease, to supply or make available the products, equipment, goods or services currently supplied to the Business, or has substantially reduced, or will substantially reduce, the supply of, or has substantially increased, or will substantially increase, the price charged to the business for, such products, equipment, goods or services in any material respect at any time following date hereof, including as a result of the transactions contemplated hereby.
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(c) Except as set forth in Schedule 3.25(c), there is no pending, and at no time during the last five (5) years has there been any, recall or similar action with respect to, any of the products sold delivered by the Acquired Companies during the last five (5) years.
Article
IV
REPRESENTATIONS AND WARRANTIES OF SELLERS
Each Seller severally and not jointly makes the following representations and warranties to Buyers, as of the date hereof and as of the Closing Date. Such representations and warranties are subject to and qualified by any disclosure in any of the Schedules to be furnished to Buyers, provided, however, that disclosure in any section or subsection of the Schedules shall apply to any other section or subsection of the Schedules to the extent that it is reasonably apparent from the face of such disclosure that such disclosure is relevant to another section or subsection of the Schedules.
4.1 Organization and Good Standing. Seller is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or formation.
4.2 Authorization of the Transaction. Seller has full power and authority to execute and deliver this Agreement and the Escrow Agreement and to perform such Seller’s obligations hereunder. This Agreement has been, and the Escrow Agreement, at the Closing, will have been, duly executed and delivered by Seller and constitute, or will constitute as applicable, the valid and legally binding obligation of Seller, enforceable in accordance with their terms and conditions, except as enforceability may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies. Seller need not give any notice to, make any filing with, or obtain any authorization, consent, or approval of any government or governmental agency in order to consummate the transactions contemplated by this Agreement, except as required by the HSR Act.
4.3 Non-Contravention. Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will (a) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge or other restriction of any government, governmental agency, or court to which Seller is subject, or any provision of its Organizational Documents, (b) violate, conflict with, result in a breach of, or constitute a default under, or an event that, with or without notice or lapse of time or both, would result in the acceleration of, create in any party the right to accelerate, terminate, modify or cancel, or require any notice under any agreement, contract, lease, license, instrument, or other arrangement to which Seller is a party or by which Seller is bound or to which any of Seller’s assets or rights is subject, or (c) result in the imposition or creation of an Encumbrance upon or with respect to the Acquired Interests.
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4.4 Acquired Interests. Each Seller owns, beneficially and of record, the Acquired Interests free and clear of any restrictions on transfer (other than restrictions under the Securities Act and state securities laws), taxes, Encumbrances, options, warrants, purchase rights, contracts, commitments, equities, claims, and demands, and other than restrictions imposed by the Company's Second Amended and Restated General Partnership Agreement dated as of January 1, 1997 (the “GP Agreement”). Each Seller is not a party to any option, warrant, purchase right, or other contract or commitment (other than this Agreement) that could require Seller to sell, transfer, or otherwise dispose of any capital stock of the Company other than restrictions imposed by the GP Agreement. Seller is not a party to any voting trust, proxy or other agreement or understanding with respect to the voting of any interests in the Company.
4.5 Certain Proceedings. There is no pending Action that has been commenced against Sellers that challenges, or may have the effect of preventing, delaying, making illegal, or otherwise interfering with, any of the transactions contemplated by this Agreement. To Sellers' knowledge, no such Action has been threatened.
Article
V
REPRESENTATIONS AND WARRANTIES OF BUYERS
Each Buyer makes the following representations and warranties to Sellers and the Company, as of the date hereof and as of the Closing Date.
5.1 Organization and Good Standing. Buyer is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or formation.
5.2 Authority; No Conflict.
(a) This Agreement and the Escrow Agreement have been duly executed and delivered by Buyers and constitute the legal, valid, and binding obligation of Buyers, enforceable against Buyers in accordance with their terms, except as enforceability may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies. Buyers have the absolute and unrestricted right, power, and authority to execute and deliver this Agreement and to perform their obligations under this Agreement.
(b) Neither the execution and delivery of this Agreement by Buyers nor the consummation or performance of any of the transactions contemplated hereby by Buyers will give any Person the right to prevent, delay, or otherwise interfere with any of the transactions contemplated by this Agreement pursuant to:
(i) any provision of Buyers' Organizational Documents;
(ii) any resolution adopted by the board of directors, managers, members, partners or stockholder of Buyers, or any resolution of the board of directors of Parent;
(iii) any Law or Order to which Buyers may be subject; or
(iv) any material contract or agreement to which Buyers are a party or by which Buyers may be bound.
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Buyers are not and will not be required to obtain any Consent from any Person in connection with the execution and delivery of this Agreement or the consummation or performance of any of the transactions contemplated hereby and under the HSR Act.
5.3 Certain Proceedings. There is no pending Action that has been commenced against Buyers that challenges, or may have the effect of preventing, delaying, making illegal, or otherwise interfering with, any of the transactions contemplated by this Agreement. To Buyers' knowledge, no such Action has been threatened.
5.4 Financing. Buyers have delivered to Sellers true, complete and correct copies of an executed Debt Commitment Letter. The Debt Commitment Letter has not been amended or modified prior to the date of this Agreement (provided that the existence or exercise of the “flex” provisions contained in the Debt Fee Letter (as defined below) shall not constitute an amendment of or modification to the Debt Commitment Letter), and, as of the date hereof, to the knowledge of Buyers, the respective commitments contained in the Debt Commitment Letter have not been withdrawn, reduced or rescinded in any respect. Except for any fee letter relating to fees and expenses with respect to the Debt Financing (the “Debt Fee Letter”), as of the date hereof, there are no side letters or other contracts or arrangements related to the funding of the Debt Financing other than as expressly set forth in the Debt Commitment Letter delivered to Sellers pursuant to the first sentence of this Section 5.4. Buyers have fully paid or caused to be fully paid any and all commitment fees or other fees or expenses that are required to be paid on or prior to the date hereof pursuant to the Debt Commitment Letter, and, as of the date hereof, the Debt Commitment Letter, as delivered to Sellers pursuant to the first sentence of this Section 5.4, is in full force and effect and is the legal, valid and binding obligation of Buyers and, to the knowledge of Buyers, each of the lender parties thereto, as the case may be, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law). Other than as expressly set forth in the Debt Commitment Letter or the Debt Fee Letter or as set forth in any such documents amended after the date hereof and not in violation of the provisions hereof, there are no conditions precedent related to the funding of the full net amount of the Debt Financing (including any “flex” provisions) under any agreement relating to the Debt Financing to which Buyers are a party that would, or would reasonably be expected to, (i) impair the validity of the Debt Commitment Letter, (ii) reduce the aggregate amount of the Debt Financing or (iii) materially delay or prevent the Closing. No event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Buyers or, to the knowledge of Buyers, any other party under the Debt Commitment Letter. Assuming the accuracy of the representations and warranties set forth in Article III and Article IV and performance by Sellers and the Company of their respective obligations hereunder, upon receipt of the proceeds contemplated by the Debt Commitment Letter, Buyers will have access at the Closing to sufficient funds to (i) pay the Purchase Price, and (ii) pay all other amounts contemplated by this Agreement to be paid by it and to perform its obligations hereunder.
5.5 Sufficient Cash. Buyers currently have, and at all times hereafter until the earlier of the Closing or the termination of this Agreement will have, sufficient cash on hand to pay the Reverse Termination Fee.
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Article
VI
COVENANTS OF SELLERS PRIOR TO CLOSING DATE
6.1 Access and Investigations. Between the date of this Agreement and the Closing Date, Sellers and the Acquired Companies will:
(a) afford Buyers and their Representatives (collectively, “Buyers’ Advisors”) access, during normal business hours and with reasonable prior notice, to each Acquired Company's properties, personnel, contracts, books and records, and other documents and data,
(b) furnish Buyers and Buyers' Advisors with copies of all such contracts, books and records, and other existing documents and data related to the business, personnel and assets of the Acquired Companies, as Buyers may reasonably request, and
(c) furnish Buyers and Buyers' Advisors with such additional financial, operating, and other data and information as Buyers may reasonably request.
6.2 Operation of the Businesses of the Acquired Companies. Between the date of this Agreement and the Closing Date, Sellers and the Company will cause each Acquired Company to:
(a) conduct its business only in the ordinary course of business consistent with past practice;
(b) use commercially reasonable efforts to preserve intact its current business organization, keep available the services of its current officers, and maintain its relations and good will with its suppliers, customers, landlords, creditors, employees, agents, and others having business relationships with it;
(c) cooperate with Buyers by taking such actions as are reasonably requested by Buyers to facilitate a smooth, efficient and successful transition of the business operations of the Acquired Companies to Buyers; and
(d) confer with Buyers concerning operational matters of a material nature.
6.3 Negative Covenants. Except as otherwise expressly permitted by this Agreement, between the date of this Agreement and the Closing Date, without the prior consent of Buyers, Sellers and the Company will not, and will not permit any Acquired Company to:
(a) take any affirmative action, or fail to take any reasonable action within their reasonable control, as a result of which any of the changes or events listed in Section 3.11(a)(iii) is likely to occur;
(b) amend any of the Organizational Documents of any Acquired Company;
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(c) except as required under the terms of any Employee Benefit Plan or applicable Legal Requirement: (i) grant or pay any severance or termination pay to (or amend any such existing arrangement with) any Affected Person, (ii) increase benefits payable under any existing severance or termination pay policies, (iii) establish, adopt or amend an employment, severance, termination, retention or change of control, deferred compensation or other similar agreement entered into with any Affected Person, (iv) establish, adopt or amend any collective bargaining or Employee Benefit Plan, (v) grant any new equity awards to any Affected Person, (vii) accelerate the vesting or payment of, or fund or in any other way secure the payment, compensation or benefits under, any Employee Benefit Plan to the extent not required by the terms of this Agreement or such Employee Benefit Plan as in effect on the date of this Agreement or (viii) otherwise increase salaries, bonuses or other compensation or benefits payable to any Affected Person;
(d) acquire, sell, lease or dispose of any assets or rights (except necessary equipment, raw materials and inventory in the ordinary course of business) which are material to the Acquired Company or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction;
(e) (i) create, incur, assume or prepay any Indebtedness (other than in the ordinary course of business as required pursuant to any Contract in effect as of the date hereof), (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, or (iii) make any loans, advances or capital contributions to, or investments in, or enter into any “keep well” arrangements or other agreement to maintain the financial condition of, any other Person;
(f) make or change any material Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, amend any material Tax Returns or file any claims for material Tax refunds, enter into any material closing agreement, settle any material Tax claim, audit or assessment or surrender any right to claim a material Tax refund, offset or other reduction in Tax liability, unless such action is not reasonably expected to cause any adverse effect on Buyers or the Acquired Companies after the Closing; or
(g) intentionally do any act which cause any representation or warranty of the Company and Sellers in this Agreement to be or become untrue, or any covenant in this Agreement to be breached.
Nothing in this Section 6.3 or elsewhere in this Agreement shall prohibit the Acquired Companies from distributing Cash to Sellers prior to or at the Closing to pay Taxes on profits allocated to Sellers in their capacities as partners of the Company, in a maximum aggregate amount of Ten Million Dollars ($10,000,000) through the Closing.
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6.4 Required Approvals. As promptly as practicable after the date of this Agreement, and in any event within 10 Business Days in the case of filings under the HSR Act, Sellers and the Company will make all filings required by Legal Requirements to be made by them in order to consummate the transactions contemplated by this Agreement, including, but not limited to, any HSR Act filings. Between the date of this Agreement and the Closing Date, Sellers and the Acquired Companies will cooperate in all reasonable respects with Buyers with respect to all filings that Buyers elect to make or are required by Legal Requirements to make in connection with the transactions contemplated by this Agreement, and cooperate (which shall include timely furnishing all information that counsel to Buyers reasonably requests and promptly providing Buyers with copies of all written communications to or from any Governmental Body relating to the transactions contemplated hereby and keeping Buyers informed of, and allowing Buyers to review and comment on, any communication given or received in connection with any proceeding regarding the transactions contemplated hereby) in all reasonable respects with Buyers in obtaining all Required Consents and Governmental Approvals that may be required in connection with the consummation of the transactions contemplated hereby.
6.5 No Negotiation. Until such time, if any, as this Agreement is terminated pursuant to Article X, Sellers and the Company will not, and will cause their Subsidiaries and Affiliates, and their respective Representatives not to. directly or indirectly, solicit, initiate, or encourage or respond to any inquiries or proposals from, discuss or negotiate with, provide any non-public information to, or consider the merits of any unsolicited inquiries or proposals from, any Person (other than Buyers) relating to any transaction involving the sale of the business or all or substantially all the assets of any Acquired Company, any of the capital stock of the Company, or any merger, consolidation, recapitalization, business combination, or similar transaction involving any Acquired Company or enter into any Contract, letter of intent or other commitment, arrangement or understanding with respect to the foregoing.
6.6 Payoff Letters and Lien Releases.
(a) Not less than three (3) Business Days prior to the Closing, the Company shall (i) deliver to Buyers customary payoff letters, prepayment notices, termination statements, Encumbrance terminations, instruments of discharge, releases and similar evidences of termination reasonably requested by and in a form reasonably acceptable to Buyers from the holders of the Indebtedness outstanding under the Credit Agreement, in connection with the repayment of such Indebtedness in accordance with Section 2.4(b) (the “Payoff Letters”), and (ii) make arrangements for the Agent under the Credit Agreement to deliver, subject to the receipt of the applicable payoff amounts, customary Encumbrance releases to Buyers as soon as practicable after the Closing.
(b) No later than the Closing Date, the Company shall deliver to Buyers invoices, marked as “final” and dated on or about the Closing Date, from each Person to whom any Transaction Expenses are payable, which invoices shall state that they reflect all fees and expenses payable to such Person for services rendered by such Person to the Company or any of its Subsidiaries through the Closing Date and that no other amounts are payable to such Person by or on behalf of the Company or any of its Subsidiaries with respect to any periods ending on or before the Closing Date.
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6.7 280G Disclosure. If required to avoid the imposition of Taxes under Section 4999 of the Code with respect to any payment or benefit in connection with the transactions contemplated by this Agreement, the Company shall, reasonably in advance of the Closing Date, cause one or more of the Acquired Companies to deliver to the direct and indirect holders of such Acquired Company’s voting equity interests a disclosure statement which satisfies the Acquired Company’s disclosure obligations under Section 280G(b)(5)(B) of the Code and the regulations thereunder, and which solicits and recommends that such holders vote in favor of the transactions disclosed therein through a vote meeting the requirements of Section 280G(b)(5)(B) of the Code and the regulations thereunder. The Company shall provide Buyers and their representatives with a copy of any such disclosure statement within a reasonable time prior to delivery to such holders and shall consider in good faith any reasonable comments made by Buyers or their representatives regarding the content of such disclosure statement.
6.8 Financing Cooperation.
(a) Prior to the Closing, Sellers shall cause the Company, and shall use their reasonable best efforts to cause their other Affiliates and each of their respective directors, officers, employees, accountants, counsel, investment bankers, consultants and other advisors to, provide to Buyers all cooperation and documents reasonably requested by Buyers in connection with (i) the Debt Financing or any high yield bonds being issued in lieu of any portion of the Debt Financing and (ii) any Parent SEC Filing (as defined below), including:
(i) furnishing Buyers and the Debt Financing Sources as promptly as practicable with information regarding the Acquired Companies of the type and form customarily included in an offering memorandum for private placements under Rule 144A (exclusive of disclosure required by Item 402 of Regulation S-K) promulgated under the Securities Act, including the Required Financial Statements (as defined below), financial data, audit reports and business and other historical financial information of the type and form that would customarily be required in connection with private placements under Rule 144A, or that would otherwise be necessary to receive from the independent accountants that audited the Required Financial Statements (and any other accountant to the extent financial statements audited or reviewed by such accountants are or would be included in such offering memorandum) customary “comfort” (including “negative assurance” comfort), together with drafts of customary comfort letters that such independent accountants are prepared to deliver upon “pricing” and closing of any high-yield bonds being issued in lieu of any portion of the Debt Financing, with respect to the financial information to be included in such offering memorandum;
(ii) reasonably assisting in the preparation of (A) any customary offering documents, high-yield road show presentations or memoranda, bridge teasers, bank information memoranda, prospectuses and similar documents, (B) all information regarding the Company and its Subsidiaries reasonably requested by Buyers in order for Buyers to prepare a pro forma consolidated balance sheet and related pro forma consolidated statement of operations of Parent and its subsidiaries the receipt of which is a condition to the obligations of the Debt Financing Sources or required to be included in any Parent SEC Filing and (C) materials for rating agency presentations;
(iii) executing and delivering (or using reasonable best efforts to obtain from its advisors) customary certificates, accounting comfort letters (including management representation letters necessary for accounts to deliver comfort letters in connection with the Debt Financing, any Parent SEC Filing or any materials otherwise required to be filed by Parent or Buyers pursuant to Exchange Act rules and regulations), legal opinions or other documents and instruments relating to guarantees and other matters ancillary to the Debt Financing or any high yield bond being issued in lieu of the Debt Financing as may be reasonably requested by Buyers;
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(iv) (x) providing authorization letters to the Debt Financing Sources authorizing the distribution of information to prospective lenders and containing a representation to the Debt Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or their respective Affiliates or securities and (y) consenting to Parent’s filing of a Form 8-K with the SEC disclosing information (including historical financial statements) relating to the Acquired Companies (A) which will be included in the offering memorandum or other Debt Financing marketing documents which Buyers, in good faith, believes Parent is required to disclose publicly in order for Parent to be in compliance with applicable securities laws, including Regulation FD or (B) for purposes of permitting such information (including historical financial statements and pro forma financial information) to be included or incorporated by reference in any other filing with the SEC which the Buyers, in good faith, determines is necessary or desirable for Parent’s ongoing conduct of its business and financing and related activities or for the fulfillment of any contractual obligation of Parent, including, without limitation, any Registration Statement on Form S-3 that Parent has filed or may file with the SEC prior to the Closing Date, or any prospectus or prospectus supplement included in any such registration statement (such filings, a “Parent SEC Filing”);
(v) providing audited consolidated balance sheets, statements of income, statements of comprehensive income, statements of Seller’s capital and statements of cash flows of the Company and its Subsidiaries covering the three completed fiscal years immediately preceding the Closing, unaudited balance sheets statements, statements of income, statements of comprehensive income, statements of Seller’s capital and statements of cash flows for any interim period or periods of the Company and its Subsidiaries ended after the date of the most recent audited financial statements and at least forty-five days prior to the Closing Date and for the trailing twelve-month period then ended (which shall have been reviewed by the independent accountants for the Company as provided in the procedures specified by the Public Company Accounting Oversight Board in AU 722), in each case prepared in accordance with GAAP subject, in the case of any interim statements, to year-end audit adjustments and setting forth in each case in comparative form the figures for the corresponding interim period of the previous fiscal year and the corresponding portion of the previous fiscal year (collectively this clause (v), the “Required Financial Statements”);
(vi) cooperating with the Debt Financing Sources’ due diligence, to the extent customary and reasonable, including by granting the Debt Financing Sources access to the Company’s properties, assets and cash management and accounting systems, to the extent not unreasonably interfering with the business of the Company;
(vii) furnishing Buyers and the Debt Financing Sources promptly with all documentation and other information which any lender providing or arranging Debt Financing has reasonably requested and that such lender has determined is required by regulatory authorities in connection with such Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the PATRIOT Act;
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(viii) assisting in preparation for and participating in a reasonable number of management and other meetings (including customary one-on-one meetings with the lead arrangers for the Debt Financing), presentations, road shows, due diligence sessions and sessions with rating agencies, prospective lenders, legal counsel and investors on reasonable advance notice and otherwise cooperating with the marketing efforts for any part of the Debt Financing or any high yield bond being issued in lieu of the Debt Financing;
(ix) assisting Buyers in obtaining corporate, credit, facilities and securities ratings in connection with the Debt Financing or any high yield bond being issued in lieu of the Debt Financing;
(x) executing and delivering any definitive financing documents, including any pledge documents, security documents and other definitive financing documents, and otherwise facilitating the pledging of, and the granting, recording and perfection of security interests in, share certificates, securities and other collateral;
(xi) taking such corporate actions as shall be reasonably requested by Buyers to permit the consummation of the Debt Financing or any high yield bond being issued in lieu of the Debt Financing and to permit the proceeds thereof to be made available at the Closing; and
(xii) delivery of notices of prepayment, termination or redemption within the time periods required by the relevant agreements governing any existing debt obligations of the Company, and obtaining customary payoff letters, prepayment notices, Encumbrance terminations and instruments of discharge to be delivered at Closing, to allow for the payoff, discharge and termination in full on the Closing Date of all existing debt obligations of the Company,
provided, however, that until the Closing occurs, none of Sellers, the Company or any of their Subsidiaries shall, except for the delivery of the authorization letter set forth in clause (iv) above, the prepayment and termination notices set forth in clause (xii) above and representation letters required by Buyer’s auditors in connection with the delivery of “comfort letters” in connection with the Debt Financing or any high yield bond being issued in lieu of the Debt Financing, or in transactions effected pursuant to a Parent SEC Filing, (A) have any liability or any obligation under any agreement or document related to the Debt Financing or (B) be required to incur any other liability in connection with the Debt Financing unless reimbursed or reasonably satisfactorily indemnified by Buyer. Without limitation to the foregoing, Seller and the Company shall provide, and shall cause their respective Subsidiaries, and shall use their respective reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting to provide, all other information and cooperation reasonably requested by the Debt Financing Sources pursuant to the terms of the Debt Commitment Letter (the information referenced in this sentence, together with the information, documents and materials referenced in clauses (i), (ii)(A), (iv) and (v) in this Section 6.8(a) and the management representation letters referenced in clause (iii) in this Section 6.8(a), the “Required Information”); and provided further, that (x) Buyers shall, promptly upon request by the Company or Seller, reimburse the Company and Sellers for all reasonable and documented out-of-pocket costs and expenses incurred by Seller, the Company or its Subsidiaries in connection with such cooperation and (y) Buyers shall indemnify and hold harmless Sellers, the Company and its Subsidiaries and their respective affiliates, accountants, consultants, legal counsel and other representatives from and against any and all liabilities or losses suffered or incurred by them in connection with the arrangement of the Debt Financing or the filing of any Parent SEC Filing and any information utilized, included or incorporated therein in connection therewith, except to the extent that any of the foregoing arise from (i) the bad faith, gross negligence or willful and intentional misconduct of, or material breach of this Agreement by, Sellers, the Company or any of its Subsidiaries, as applicable or (ii) information provided by the Company or its Subsidiaries.
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(b) The Seller shall or shall cause the Company to supplement the Required Information on a reasonably current basis to the extent that any such Required Information, to the knowledge of Sellers or the Company, contains any material misstatement of fact or omits to state any material fact necessary to make such information not materially misleading with regard to the Acquired Company only.
(c) The Company hereby consents to the reasonable use of all of its logos, names, and trademarks in connection with the Debt Financing or any high yield bond being issued in lieu of the Debt Financing, and in connection with any Parent SEC Filing; provided, that such logos, names and trademarks shall be used solely in a manner that is not intended or reasonably likely to harm or disparage the Company, or its reputation or goodwill.
6.9 Efforts to Consummate. Subject to the terms and conditions herein provided, from the date hereof until the earlier of the termination of this Agreement in accordance with its terms and the Closing Date, Sellers shall and shall cause the Company to use reasonable best efforts to take, or cause to be taken, all action and to do, or cause to be done, all things reasonably necessary, proper or advisable to consummate and make effective as promptly as practicable the transactions contemplated by this Agreement (including the satisfaction, but not a waiver, of the closing conditions set forth in Article VIII), including (i) making all necessary registrations and filings (including filings under the HSR Act and all other applicable antitrust Laws) with any Governmental Body and obtaining all necessary consents, waivers, approvals, orders and authorizations from Governmental Bodies, and (ii) using reasonable best efforts to deliver such notices, and to obtain such third-party consents, approvals or waivers, as may be required by any Leased Real Property Document or Material Contract in connection with the completion of the transactions contemplated hereby. The Company agrees to execute and deliver such additional documents, instruments and certificates, and to take such other actions as may be necessary or desirable to fully carry out the purpose of this Agreement.
6.10 Intellectual Property Assignments. As soon as practicable after the date hereof, but in any event prior to the Closing Date, the Sellers shall (and shall cause their Affiliates to), at their expense (a) execute and deliver to the Buyers such instruments and documents, including assignments and releases, in form and substance satisfactory to the Buyers, as may be reasonably required to effect and evidence the transfer of ownership of all Intellectual Property Assets (free and clear of all Encumbrances) to the Company or one of the Company’s Subsidiaries and (b) file and thereafter use best efforts to pursue until recorded in the relevant registries any instruments and documents, including assignments and releases, in form and substance reasonably satisfactory to the Buyers, as may be reasonably required to record the Company or one of the Company’s Subsidiaries as the record and beneficial owner of all Intellectual Property Assets (free and clear of all Encumbrances) that are registered, issued or subject to an application for registration or issuance.
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Article
VII
COVENANTS OF BUYERS PRIOR TO CLOSING DATE
7.1 Approvals of Governmental Bodies. As promptly as practicable after the date of this Agreement, and in any event within 10 Business Days in the case of filings under the HSR Act, Buyers will make all filings required by Legal Requirements to be made by Buyers in order to consummate the transactions contemplated by this Agreement, including but not limited to all filings under the HSR Act. Between the date of this Agreement and the Closing Date, Buyers will cooperate in all reasonable respects with Sellers with respect to all filings that Sellers are required by Legal Requirements to make in connection with the transactions contemplated by this Agreement, and cooperate in all reasonable respects with Sellers in obtaining all Required Consents and Governmental Approvals that may be required in connection with the consummation of the transactions contemplated hereby.
7.2 Financing.
(a) Subject to the terms and conditions of this Agreement, Parent and Buyers shall use their reasonable best efforts, and Parent shall cause Buyers to use their reasonable best efforts, to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Debt Financing including reasonable best efforts to (i) maintain in effect the Debt Commitment Letter and Debt Fee Letter (subject to Buyers’ right to amend, modify, supplement, restate, assign, substitute or replace the Debt Commitment Letter or Debt Fee Letter in accordance herewith), (ii) satisfy, or obtain a waiver of, on a timely basis (taking into account the anticipated timing of the Marketing Period) all conditions applicable to Buyers obtaining the Debt Financing that are within their control and comply with its obligations in the Debt Commitment Letter, (iii) negotiate and enter into definitive agreements with respect thereto on terms and conditions no less favorable to Buyers than those described in or contemplated by the Debt Commitment Letter or Debt Fee Letter (including any “flex” provisions in the Debt Fee Letter), and (iv) upon the satisfaction or waiver of the conditions set forth in such definitive agreements, consummate the Debt Financing at or prior to the Closing. Without limiting the generality of the foregoing, Buyers shall give Sellers prompt written notice of any actual or potential breach, default, expiration, termination or repudiation of any Debt Commitment Letter or any definitive document related thereto by any party thereto of which Buyers becomes aware. Buyers shall not agree to or permit any amendment, supplement or other modification of, or waive any of its rights under, the Debt Commitment Letter or the Debt Fee Letter, in each case, without Sellers’ prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed); provided that Buyers may amend, supplement, modify, restate, assign substitute or replace the Debt Commitment Letter (A) to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities or (B) otherwise amend, modify or consent to any waiver of any provision or remedy under the Debt Commitment Letter or replace the Debt Commitment Letter, so long as such amendment, modification, waiver or replacement does not cause the representation in the last sentence of Section 5.4 to be incorrect. Buyers shall promptly upon execution deliver to Seller copies of any such amendment, replacement, supplement, modification or waiver. Upon any such amendment, supplement or modification of the Debt Commitment Letter in accordance with this Section 7.2(a), the term “Debt Commitment Letter” shall mean the Debt Commitment Letter as so amended, supplemented or modified.
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(b) Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Section 7.2(b) shall require, and in no event shall the reasonable best efforts of Buyers be deemed or construed to require, Buyers to pay any fees in excess of those contemplated in the Debt Commitment Letter and the Debt Fee Letter, whether to secure waiver of any conditions contained therein or otherwise.
7.3 Efforts to Consummate
(a) Subject to the terms and conditions herein provided, from the date hereof until the earlier of the termination of this Agreement in accordance with its terms and the Closing Date, Buyers shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable to consummate and make effective as promptly as practicable the transactions contemplated by this Agreement (including the satisfaction, but not waiver, of the Closing conditions set forth in Article IX), including (i) making all necessary registrations and filings (including filings under the HSR Act and all other applicable antitrust Laws) with any Governmental Body and obtaining all necessary consents, waivers, approvals, orders and authorizations from any Governmental Body.
(b) Notwithstanding anything herein to the contrary, nothing in this Agreement shall require Buyers or any of their Affiliates to, and the Company and its Subsidiaries shall not without Buyers’ prior written consent, (i) propose, negotiate, commit to or effect or accept any condition, by consent decree, hold separate order, or otherwise, which would, or would reasonably be expected to, result in or require (A) the sale, divestiture, licensing or disposition of any assets or businesses, (B) the termination of any portion of any venture or agreement, (C) in order to obtain the consent or approval of a Governmental Body, the creation of any relationship, contractual rights or obligation or (D) the effectuation of any other change or restructuring, in each case of Buyers and their Affiliates, or of the Company or its Subsidiaries, in each case other than as contemplated herein as of the date hereof, (ii) propose, negotiate, commit to, effect or accept any condition, by way of consent decree or otherwise, which would, or would reasonably be expected to, result in a material impairment of the aggregate economic benefits that as of the date hereof Buyers and their Affiliates, taken as a whole, reasonably expect to obtain from the transactions contemplated herein, (iii) propose, negotiate, commit to, effect or accept any condition, by way of consent decree or otherwise, of a type that is not customarily imposed by state Governmental Bodies in transactions that are similar to the transactions contemplated herein, or (iv) otherwise take or commit to take any actions that limit, or would reasonably be expected to limit, the freedom of action of Buyers and their Affiliates or of the Company and its Subsidiaries with respect to, or Buyers’ or their Affiliates’ ability to retain, any of the businesses, product lines or assets of Buyers and their Affiliates or the Company and its Subsidiaries.
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7.4 AK Steel Agreement. Buyers acknowledge that the Company is a successor to that certain Asset Purchase Agreement dated January 11, 1993 among A.K. Steel, as successor in interest to ARMCO Inc., E.G. Smith Construction Products, Inc. and S and S Acquisition Corp. (the “AK Steel Agreement”). Pursuant to Section 20.3 of the AK Steel Agreement, the Company is entitled to certain protections, including indemnification, relating to environmental matters at the Company’s Cambridge facility, subject to the condition that the Company adhere to all of the Company’s obligations and restrictions as set forth therein (the “Cambridge Obligations”). Buyers agree (i) to cause the Company to adhere to and to be bound by the Cambridge Obligations from and after Closing, and (ii) that in the event Buyers and/or the Company incur any losses that are subject to indemnification under the AK Steel Agreement, Buyers will, and will cause the Company to, use commercially reasonable efforts to pursue such indemnification under the terms of the AK Steel Agreement. In the event Buyers fail to comply with the terms of this Section 7.4, any indemnification obligations of the Sellers that would otherwise apply under Article XI of this Agreement shall not apply to the extent that the Damages incurred by the Buyer Indemnified Parties would have been subject to the indemnification obligations of AK Steel under the AK Steel Agreement, had Buyers complied with their obligations hereunder, provided, that, reasonable attorneys’ fees and court costs incurred by Buyers or the Company pursuant to Section 7.4(ii) to pursue such indemnification under the terms of the AK Steel Agreement but that are not recoverable or recovered in connection with such pursuit (“Unrecovered Environmental Indemnity Costs”) shall constitute “Damages” for purposes of indemnification under Section 11.2 hereof.
7.5 Certain Compensation Matters. Notwithstanding the terms of Section 6.3, Buyers consent to the payment by the Acquired Companies prior to Closing of employee profit sharing, incentive, year-end and other bonus payments consistent with past practice. If not paid prior to the Closing, to the extent such bonus amounts are accrued and accounted for in determining Net Working Capital, then Buyers agree to cause the Acquired Companies to pay such bonuses after Closing in accordance with Sellers’ prior written instructions no later than March 15, 2015.
Article
VIII
CONDITIONS PRECEDENT TO BUYERS' OBLIGATION TO CLOSE
Buyers' obligation to consummate the Acquisition is subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived by Buyers, in whole or in part):
8.1 Accuracy of Representations. All of Sellers' and the Company's representations and warranties in this Agreement and in any certificate or other writing delivered pursuant hereto (i) that are qualified by materiality or Material Adverse Effect shall be true and correct in all respects, or (ii) that are not qualified by materiality or Material Adverse Effect shall be true and correct in all material respects, in each case at and as of the date hereof and at and as of the Closing Date as if made on the Closing Date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).
8.2 Sellers' Performance. All of the agreements, covenants and obligations that Sellers or the Company are required to perform or to comply with pursuant to this Agreement at or prior to the Closing must have been duly performed and complied with in all material respects.
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8.3 Consents. All consents, authorizations or approvals as set forth in Schedule 8.3 (the “Required Consents”) and Governmental Approvals that are required to effect the Acquisition shall have been received and no such consent, authorization or approval shall have been revoked.
8.4 No Proceedings. No Action or investigation shall have been commenced or threatened by any Governmental Body on any grounds to restrain, enjoin or hinder the Acquisition which would otherwise have a material and adverse effect on the Buyers or the Acquired Companies if adversely decided. No Action, suit or proceeding shall have been commenced by any other Person, (a) that could reasonably be expected to have the effect of preventing or materially diminishing the value to Buyers of the Acquisition, or (b) that could reasonably be expected to have the effect, if adversely decided, of materially restricting or interfering with the business or operations of the Acquired Companies after Closing or to have a Material Adverse Effect.
8.5 HSR Act Approval. The notifications of Sellers pursuant to the HSR Act, if any, shall have been made and all applicable waiting periods (and any extensions thereof) under the HSR Act shall have expired or otherwise been terminated.
8.6 Material Adverse Changes. Since the date of this Agreement, no condition, event, occurrence, fact, change, development or effect shall exist or have occurred or come to exist or been threatened that, individually or in the aggregate, has resulted in, or would reasonably be expected to result in, a Material Adverse Effect.
8.7 No Injunction. There shall not be in effect any Legal Requirement or any temporary restraining order, preliminary or permanent injunction or other Order that shall have been entered by any court of competent jurisdiction or other Governmental Body, and no other legal restraint or prohibition should be in effect, which prohibits the sale of the Acquired Interests by Sellers to Buyers or the consummation of any of the transactions contemplated hereby, declare unlawful the transactions contemplated by this Agreement or cause such transactions to be rescinded;
8.8 Escrow Agreement. Sellers and the Escrow Agent shall have executed and delivered the Escrow Agreement, and such agreement shall be in full force and effect; and
8.9 Payoff Letters. The Company shall have received and delivered to Buyers the Payoff Letters, and each of the Payoff Letters shall be in full force and effect.
8.10 Certificate. Each Seller shall have delivered to Buyers a certificate, dated as of the Closing Date, signed by a duly authorized officer of each Seller, that each of the conditions set forth in Section 8.1 and Section 8.2 have been satisfied.
8.11 Tax Certificate. Sellers shall, at the Closing, deliver to Buyers such affidavits or statements as Buyers may reasonably request in order to evidence that Buyers have no obligation to withhold Taxes under Section 1445 of the Code from the amounts paid to Sellers hereunder.
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Article
IX
CONDITIONS PRECEDENT TO SELLERS' OBLIGATION TO CLOSE
Sellers' obligation to consummate the Acquisition is subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived by Sellers, in whole or in part):
9.1 Accuracy of Representations. All of Buyers' representations and warranties in this Agreement and in any certificate or other writing delivered pursuant hereto shall be true and correct in all material respects at and as of the date hereof and shall be repeated and shall be true and correct in all material respects at and as of the Closing Date as if made on the Closing Date.
9.2 Buyers' Performance. All of the agreements, covenants and obligations that Buyers are required to perform or to comply with pursuant to this Agreement at or prior to the Closing must have been duly performed and complied with in all material respects.
9.3 Governmental Approvals. All material Governmental Approvals that are required to effect the transactions contemplated hereby shall have been received and no such consent, authorization or approval shall have been revoked.
9.4 No Injunction. There shall not be in effect any Legal Requirement or any temporary restraining order, preliminary or permanent injunction or other Order that shall have been entered by any court of competent jurisdiction or other Governmental Body, and no other legal restraint or prohibition should be in effect, which prohibits the sale of the Acquired Interests by Sellers to Buyers or the consummation of any of the transactions contemplated hereby, declare unlawful the transactions contemplated by this Agreement or cause such transactions to be rescinded;
9.5 HSR Act Approval. The notifications of Buyers pursuant to the HSR Act, if any, shall have been made and all applicable waiting periods (and any extensions thereof) under the HSR Act shall have expired or otherwise been terminated.
9.6 Certificate. Buyers shall have delivered to Sellers a certificate, dated as of the Closing Date, signed by a duly authorized officer of Buyers, that each of the conditions set forth in Section 9.1 and Section 9.2 have been satisfied.
Article
X
TERMINATION
10.1 Termination Events. This Agreement may, by notice given prior to or at the Closing, be terminated:
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(a) by Buyers, if a breach of any representation or warranty or failure to perform any covenant or agreement on the part of Sellers or the Company set forth in this Agreement shall have occurred that would cause the conditions set forth in Section 8.1 or Section 8.2 not to be satisfied, and such breach has not been (x) waived by Buyers or (y) cured by Sellers within thirty (30) days after written notice thereof from the Buyers specifying the nature of such breach and requesting that it be cured, by the End Date, provided, however, that Buyers shall not have the right to terminate this Agreement pursuant to this Section 10.1(a) if Buyers are then in material breach or violation of its representations, warranties or covenants contained in this Agreement;
(b) by Sellers, if a breach of any representation or warranty or failure to perform any covenant or agreement on the part of Buyers set forth in this Agreement shall have occurred that would cause the conditions set forth in Section 9.1 or Section 9.2 not to be satisfied, and such breach has not been (x) waived by Sellers or (y) cured by Buyers within thirty (30) days after written notice thereof from the Sellers specifying the nature of such breach and requesting that it be cured, by the End Date, provided, however, that Sellers shall not have the right to terminate this Agreement pursuant to this Section 10.1(b) if Seller is then in material breach or violation of its representations, warranties or covenants contained in this Agreement;
(c) (i) by Buyers, if satisfaction of any of the conditions in Article VIII is or becomes impossible (other than through the failure of Buyers to comply with their obligations under this Agreement) and Buyers have not waived such condition on or before the Closing Date; or (ii) by Sellers, if satisfaction of any of the conditions in Article IX is or becomes impossible (other than through the failure of Sellers to comply with their obligations under this Agreement) and Sellers have not waived such condition on or before the Closing Date;
(d) by mutual written consent of Buyers and Sellers; or
(e) by either Buyers or Sellers, if:
(i) the Closing has not occurred (other than by any party seeking to terminate this Agreement, whose breach of any provision of this Agreement results in the failure of the Closing to be consummated by such time) on or before June 7, 2015 or such later date as the parties may agree upon (such date, the “End Date”);
(ii) (A) there shall be any Law that makes consummation of the Closing illegal or otherwise prohibited, or (B) any Order of any Governmental Body having competent jurisdiction enjoining Buyers or Sellers from consummating the Closing is entered and such Order shall have become final and nonappealable; or
(f) by Sellers, if all of the conditions set forth in Article VIII have been satisfied (other than conditions which are to be satisfied by actions taken at the Closing), Sellers have given notice to Buyers in writing that they are prepared and able to consummate the Closing and Buyers fail to consummate the transactions contemplated by this Agreement on the date the Closing should have occurred pursuant to Section 2.3.
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10.2 Effect of Termination.
(a) Except as provided in Section 10.2, each party's right of termination under Section 10.1 is in addition to any other rights it may have under this Agreement or otherwise and the exercise of a right of termination will not be an election of remedies. If this Agreement is terminated pursuant to Section 10.1, this Agreement shall become void and all further obligations of the parties (or any of its directors, officers, employees, stockholders, Affiliates, agents, representatives or advisors) to the other parties hereto under this Agreement will terminate, except as provided in Section 10.2 and Article I and Article XIII hereof, which shall survive the termination of this Agreement. Except as set forth herein and subject to the terms hereof, the termination of this Agreement shall be the exclusive remedy of the parties hereto for any breach of another party of its representations and warranties, except to the extent any such breach was willful or intentional.
(b) In the event that this Agreement is terminated pursuant to Section 10.1(b) or Section 10.1(f), then Buyers shall pay or caused to be paid to Sellers a fee in the amount of Seventeen Million Eight Hundred Fifty Thousand Dollars ($17,850,000) (the “Reverse Termination Fee”) in cash by wire transfer of immediately available funds (it being understood that in no event shall Buyers be required to pay the Reverse Termination Fee on more than one occasion) to an account designated by Sellers, provided, however that notwithstanding anything to the contrary set forth herein, Buyers shall not be required to pay the Reverse Termination Fee, if the Debt Financing was not available as a result of a breach of the representations and warranties of the Company set forth in Section 3.4(c) (subject to the disclosures set forth in Schedule 3.4). The Reverse Termination Fee shall be paid no later than five Business Days after notice of termination of this Agreement as provided in this Section 10.2. Buyers acknowledge and agree that the agreements contained in this Section 10.2 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, Sellers would not enter into this Agreement. Each of the parties hereto further acknowledges that the payment by Buyers of the Reverse Termination Fee is not a penalty, but constitutes liquidated damages in a reasonable amount that will compensate Sellers in the circumstances in which such fee is payable for the efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision. Further, the payment of the Reverse Termination Fee in the circumstances specified herein is supported by due and sufficient consideration.
Article
XI
INDEMNIFICATION; REMEDIES
11.1 Survival. Subject to Section 11.4, all representations, warranties, covenants, and obligations in this Agreement (including the Schedules hereto), and any other certificate or document delivered pursuant to this Agreement and the indemnification rights set forth in Section 11.2 and Section 11.3 below, will survive the Closing until 11:59 p.m. New York, New York time on the eighteen (18) month anniversary of the Closing Date, at which time they shall terminate, and thereafter no party hereto shall be under any liability whatsoever with respect to any such representation, warranty, covenant, agreement or other obligation contained in this Agreement; provided, however, that the representations and warranties contained in Section 3.1 (Organization and Good Standing), Section 3.2 (Authority; No Conflict), Section 3.3 (Capitalization; Equity Rights), Section 4.1 (Sellers’ Organization and Good Standing), Section 4.2 (Sellers’ Authority; No Conflict), Section 4.4 (Acquired Interests), Section 5.1 (Buyers’ Organization and Good Standing), Section 5.2 (Buyers’ Authority; No Conflict) (collectively, such representations and warranties, the “Fundamental Representations”) shall survive the Closing indefinitely or until the latest date permitted by law.
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11.2 Indemnification and Payment of Damages by Sellers. Subject to the provisions of this Article XI and the limitations in Sections 11.4 and 11.5, Sellers shall jointly and severally indemnify and hold harmless Buyers, Affiliates, stockholders, controlling persons, and Representatives of such Persons (collectively, the “Buyer Indemnified Parties”) for, and will pay to or reimburse each of the foregoing, subject to any limitations set forth herein, the amount of, any loss, Liability, claim, damage, costs, fines, fees, penalties, obligations, or expense (including costs of investigation and defense and reasonable attorneys' fees), whether or not involving a third-party claim (collectively, “Damages”), arising, directly or indirectly from, or in connection with:
(a) any breach of any representation or warranty made by Sellers or the Company in this Agreement or in any certificate delivered by Sellers to Buyers pursuant to this Agreement, except that for any breach of any of the representations and warranties in Article IV that are several and not joint with respect to each Seller, only the breaching Seller shall be liable for indemnification and such responsibility for indemnification shall be several and not joint;
(b) any breach or non-fulfillment of any covenant, agreement, obligation or undertaking made by Sellers or the Company in this Agreement;
(c) any Company Indebtedness outstanding as of immediately prior to the Closing and any Transaction Expenses, in each case not taken into account in connection with the calculation and payment of the Purchase Price at Closing or after Closing pursuant to Section 2.2;
(d) any and all Pre-Closing Taxes of or with respect to the Acquired Companies;
(e) the Cambridge and Ambridge Environmental Liabilities and any Unrecovered Environmental Indemnity Costs; or
(f) the Retained Liabilities.
Any indemnification of the Buyer Indemnified Parties pursuant to this Section 11.2 shall be delivered to Buyers by wire transfer of immediately available funds to the account designated by Buyers, within three (3) Business Days after the date upon which any underlying claims are finally resolved.
11.3 Indemnification and Payment of Damages by Buyers. Subject to the provisions of this Article XI and the limitations in Sections 11.4 and 11.5, Buyers shall indemnify and hold harmless Sellers, Affiliates, stockholders, controlling persons, and Representatives of such Persons (collectively, the “Seller Indemnified Parties”) for, and will pay to Sellers the amount of any Damages arising from, directly or indirectly from, or in connection with:
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(a) any breach of any representation or warranty made by Buyers in this Agreement or in any certificate delivered by Buyers pursuant to this Agreement; or
(b) any breach by Buyers of any covenant or obligation of Buyers in this Agreement.
Any indemnification of Sellers pursuant to this Section 11.3 shall be delivered to Sellers by wire transfer of immediately available funds to the account designated by Sellers, within three (3) Business Days after the date upon which any underlying claims are finally resolved.
11.4 Time Limitations.
(a) If the Closing occurs, Sellers will not have any liability (for indemnification or otherwise) with respect to matters described in (i) Section 11.2(a) or 11.2(c) unless within eighteen (18) months of the Closing Date; (ii) Sections 11.2(b), or (d), unless within thirty-six (36) months of the Closing Date; and (iii) Section 11.2(e) unless within seventy-two (72) months of the Closing Date; Buyers notify Sellers of a claim specifying the factual basis of that claim in reasonable detail to the extent then known by Buyers; provided, however, that the representations and warranties set forth in Article IV (Representations and Warranties of Sellers) hereof, and the Sellers’ and the Company’s Fundamental Representations and Retained Liabilities shall survive and the right to bring a claim thereunder shall continue in perpetuity. If the Closing occurs, Buyers will have no liability (for indemnification or otherwise) with respect to any representation or warranty, unless within eighteen (18) months of the Closing Date, or covenant or obligation to be performed and complied with prior to the Closing Date, unless within thirty-six (36) months of the Closing Date, Sellers notify Buyers of a claim specifying the factual basis of that claim in reasonable detail to the extent then known by Sellers; provided, however, that the Buyer’s Fundamental Representations and Buyers’ indemnification obligations pursuant to Section 11.3(c) shall survive and the right to bring a claim thereunder shall continue in perpetuity. Each party hereto shall be entitled to rely on the representations and warranties of the other party set forth in this Agreement. The termination of the representations and warranties provided herein shall not affect the rights of a party with respect to any claim made by such party in writing received by the other party prior to the expiration of the applicable survival period.
(b) Any claims for indemnification hereunder for breach of any covenants and agreements of the parties contained herein that, by their terms, are to be performed on or prior to the Closing shall be made prior to the applicable survival period provided in this Section 11.4. Any covenant or agreement to be performed, in whole or in part, after the Closing, shall survive the Closing in accordance with its terms. No claim for indemnification hereunder for breach of any such covenants or agreements may be made after the expiration of such survival period, provided that the right to be indemnified with respect to any matter notice of which was provided prior to the expiration of such survival period shall survive until such matter is finally resolved.
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11.5 Limitations on Indemnification.
(a) Sellers will have no liability (for indemnification or otherwise) with respect to matters described in Section 11.2(a) (excluding claims for indemnification asserting breaches by the Company or Sellers of any Fundamental Representations) or Section11.2(e) and Buyers will have no liability (for indemnification or otherwise) with respect to matters described in Section 11.3(a), as the case may be, unless and until the aggregate amount of Damages that would be payable by Sellers hereunder exceeds on a cumulative basis an amount equal to seventy-five hundredths of one percent (0.75%) of the final Purchase Price, in the aggregate, which amount shall constitute a deductible (the “Deductible Basket”), and then Sellers and Buyers, respectively, shall only be liable for Damages that exceed the Deductible Basket.
(b) The aggregate liability of Sellers for Damages pursuant to Section 11.2 and of Buyers for Damages pursuant to Section 11.3 shall not exceed the amount of the final Purchase Price.
(c) Sellers collectively shall only be liable for Damages hereunder up to the aggregate amount of the Escrow Funds, provided, however, that Buyers’ recourse for Damages arising from fraud, Retained Liabilities and Sellers’ and the Companies’ Fundamental Representations, shall not be limited to the Escrow Funds.
(d) Except (i) in the case of actual fraud or willful misconduct, (ii) with respect to matters covered by Section 2.2(d) and (iii) in the case where a party seeks to obtain specific performance pursuant to Section 13.15, from and after the Closing, the rights of the parties pursuant to this Article XI and, in the case of Buyers, pursuant to the Escrow Agreement, shall constitute the sole and exclusive remedy of the parties with respect to claims for Damages (whether monetary or otherwise) relating to or arising from this Agreement and the transactions contemplated hereby, including in any exhibit, schedule or certificate delivered hereunder, in each case regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at Law or in equity, or otherwise.
(e) The representations, warranties and covenants of Sellers or the Company in this Agreement or in any agreement or instrument executed in connection herewith and Buyers’ right to indemnification with respect hereto and thereto shall not be affected or deemed waived by reason of any investigation made by or on behalf of Buyer (including by any of its Representatives) or by reason of the fact that Buyers or any of its Representatives knew or should have known that any such representation or warranty is, was or might be untrue or incorrect or by reason of Buyers’ waiver of any condition set forth in Section 8.1.
(f) Notwithstanding anything to the contrary contained in this Agreement, the indemnification obligations of Sellers under Article XI hereof will not apply to a claim relating to any liability or loss resulting from (i) any disclosure or request for investigation by any Buyer Indemnified Party to or of any Governmental Body, except where required by applicable Law, (ii) any investigation of environmental conditions, including soil, air or water testing or sampling, undertaken by or on behalf of Buyer, unless such investigation was required under applicable Law, or (iii) Buyer (A) remediates environmental conditions in excess of industrial standards or other applicable minimum standards, including standards based on land use restrictions and engineering controls or (B) incurs costs in excess of those reasonably necessary to bring a condition into compliance with applicable Law.
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(g) The amount of any Damages subject to indemnification under Section 11.2 or 11.3 shall be calculated net of any insurance proceeds or any indemnity, contribution or other similar payment to the extent actually recovered by the Indemnified Party from any third party with respect thereto (net of costs of collection and any increase in premiums resulting from making any claim thereunder). In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Damages for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be made promptly to such Person.
(h) Any Indemnified Party shall take all steps required by Law to mitigate any Damages incurred by such party upon and after becoming aware of any event or condition that would reasonably be expected to give rise to any indemnification rights hereunder.
11.6 Waiver. The parties acknowledge that, except for the representations and warranties contained in or made pursuant to Article III, IV and Article V hereof, or in any certificate or schedule delivered pursuant to this Agreement or in the case of actual fraud, no party, nor their respective representatives: (i) will be deemed to have made any representations, warranties or assurances of any kind, and (ii) will have any liability or obligation in respect of any oral or written statement or assurance made in connection with the transactions contemplated hereby.
11.7 Procedures for Indemnification.
(a) Subject to the limitation set forth in this Article XI, any Buyer Indemnified Party or Seller Indemnified Party that desires to seek indemnification under any part of this Article XI (an “Indemnified Party”) shall give notice (a “Claim Notice”) in writing to each party responsible or alleged to be responsible for indemnification hereunder (an “Indemnitor”) describing in reasonable detail the nature of the claim, the parties known to be involved, and the facts and circumstances with respect to the subject matter of such claim; provided, however, that the failure to provide such notice (subject to Section 11.4) shall not release the Indemnitor from any of its obligations under this Article XI except to the extent the Indemnitor is materially prejudiced by such failure. If the matter to which a claim relates shall not have been resolved as of the date of the Claim Notice, the Indemnified Party shall estimate the amount of the claim in the Claim Notice, but also specify therein that the claim has not yet been liquidated (an “Unliquidated Claim”). If an Indemnified Party gives a Claim Notice for an Unliquidated Claim, the Indemnified Party shall also give a second notice (the “Liquidated Claim Notice”) within sixty (60) days after the matter giving rise to the claim becomes finally resolved, and the Liquidated Claim Notice shall specify the amount of the claim. Each Indemnitor to which a Claim Notice is given shall respond to any Indemnified Party that has given such Claim Notice (a “Claim Response”) within thirty (30) days (the “Response Period”) after receipt of the Claim Notice. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, and any Claim Response shall specify whether or not the Indemnitor giving the Claim Response disputes the claim described in the Claim Notice. If any Indemnitor fails to give a Claim Response within the Response Period, such Indemnitor shall be deemed not to dispute the claim described in the related Claim Notice. If any Indemnitor elects not to dispute a claim described in a Claim Notice, whether by failing to give a timely Claim Response or otherwise, then the amount of such claim, as provided in the Liquidated Claim Notice shall be conclusively deemed to be an obligation of such Indemnitor.
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(b) If any Indemnitor shall be obligated to indemnify an Indemnified Party hereunder, such Indemnitor shall pay to such Indemnified Party within thirty (30) days after the last day of the Response Period the amount to which such Indemnified Party shall be entitled. If any Indemnitor fails to pay all or part of any indemnification obligation when due, then such Indemnitor shall also be obligated to pay to the applicable Indemnified Party interest on the unpaid amount for each day during which the obligation remains unpaid at an annual rate equal to the Prime Rate (in effect on the first Business Day of each calendar quarter), which shall apply to the amount of the unpaid obligation during such calendar quarter.
(c) Within five (5) days from the date on which any Buyer Indemnified Party becomes entitled to indemnification pursuant to Section 11.7(b), the parties shall provide joint written instructions to the Escrow Agent as to (i) the amount of funds to be dispersed from the Escrow Funds, and (ii) instructions as to the manner in which such funds shall be dispersed by the Escrow Agent.
11.8 Third Party Claims. In the event that an Indemnified Party desires to make a claim against any Indemnitor in connection with any action, suit, proceeding or demand at any time instituted against or made upon the Indemnified Party by any third party for which the Indemnified Party may seek indemnification under this Article XI (a “Third Party Claim”), the Indemnified Party shall promptly (but in no event later than 30 days after the event) notify Indemnitor of such Third Party Claim and of the Indemnified Party’s claim of indemnification with respect thereto. The Indemnitor shall have forty-five (45) days after receipt of such notice (or by such earlier date as may be necessary under applicable procedural rules in order to file a timely appearance and response) to notify the Indemnified Party if the Indemnitor has elected to assume the defense of such Third Party Claim. If the Indemnitor elects to assume the defense of such Third Party Claim pursuant to the terms hereof, the Indemnitor shall be entitled at its own expense to conduct and control the defense and settlement of such Third Party Claim through counsel of its own choosing; provided that (a) the Indemnitor shall conduct such defense actively and diligently, (b) the Indemnified Party may participate in the defense of such Third Party Claim with its own counsel at its own expense (provided, that the fees and expenses of such separate counsel shall not be recoverable from the Indemnitor under this Article XI), (c) the Indemnified Party will not pay, or permit to be paid, any part of the Third Party Claim, unless the Indemnifying Party consents in writing (such consent not to be unreasonably withheld or delayed) to such payment, and (d) the Indemnitor may not settle any Third Party Claim or consent to the entry of judgment with respect thereto without the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld or delayed) unless (x) the relief consists solely of money damages (all of which the Indemnitor shall pay), (y) such settlement or compromise includes a provision whereby the plaintiff or claimant in the matter releases each Indemnified Party from all Liability with respect thereto and (z) such settlement or compromise does not include any admission of fault or wrongdoing on the part of the Indemnified Party, and provided further, that in the event that the Indemnified Party withholds its consent to any such settlement of, or entry of judgment with respect to, a Third Party Claim (other than a Third Party Claim involving a claim for equitable relief involving the ongoing operations of the Company), (i) the Indemnitor’s maximum liability under this Article 11 with respect to such Third Party Claim shall be limited to the amount that would be payable by the Indemnitor under this Section 11.8 if such settlement had been entered into or such judgment had been entered. If the Indemnitor fails to notify the Indemnified Party as required above after receipt of the Indemnified Party’s notice of a Third Party Claim or fails to conduct the defense as required above, the Indemnified Party shall be entitled to assume the defense of such Third Party Claim at the expense of the Indemnitor, provided that the Indemnified Party may not settle any Third Party Claim without the consent (which consent shall not be unreasonably withheld or delayed) of the Indemnitor (provided that the Indemnitor has admitted that it is responsible for the indemnification of such claims pursuant to this Article XI). In all cases with respect to Third Party Claims, Buyers and Sellers shall provide reasonable cooperation to each other in defense of such Third Party Claims, including by making employees, information and documentation reasonably available (including for purposes of fact finding, consultation, interviews, depositions and, if required, as witnesses) and providing such information, testimony and access to their books and records, during normal business hours and upon reasonable notice, in each case as shall be reasonably necessary in connection with the contest or defense.
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11.9 No Punitive Damages. Notwithstanding anything to the contrary elsewhere in this Agreement, no Indemnitor shall, in any event, be liable to any Indemnified Party for any punitive damages of such Indemnified Party (other than punitive damages payable by an Indemnified Party pursuant to a Third Party Claim against such Indemnified Party and subject to the other limitations of this Article XI).
11.10 Materiality Qualifiers. The parties hereby acknowledge and agree that, for purposes of this Article XI, Damages shall be calculated without regard to any Materiality Qualifiers contained in any breached representation or warranty, provided that Materiality Qualifiers shall apply with respect to any determination of whether a breach of a representation or warranty has occurred.
11.11 Tax Treatment of Indemnity Payment. The parties agree to treat any indemnity payments under this Agreement as an adjustment to the Purchase Price, unless otherwise required by law.
11.12 Escrow Release. In accordance with the Escrow Agreement, Buyers and Sellers shall cause a portion equal to (a) $5,000,000 of the Escrow Funds minus any amount due to Buyers pursuant to Section 2.2(d) to be released to Sellers within 5 days following the final resolution of the Closing Statement pursuant to Section 2.2(c); (b) the greater of zero and the amount of funds remaining subject to the Escrow Agreement on the last day of the eighteenth (18th) month after the Closing Date in excess of 50% of the Escrow Funds to be released to Sellers upon the first Business Day following the eighteenth (18th) month after the Closing Date; (c) the greater of zero and the amount of funds remaining subject to the Escrow Agreement on the last day of the thirty-sixth (36th) month after the Closing Date in excess of $4,000,000 of the Escrow Funds to be released to Sellers upon the first Business Day following the thirty-sixth (36th) month after the Closing Date; and (d) the funds remaining subject to the Escrow Agreement on the last day of the seventy-second (72nd) month after the Closing Date to be released to Sellers upon the first Business Day following the seventy-second (72nd) month after the Closing Date. Notwithstanding the foregoing, to the extent that as of any release date specified in (b), (c) or (d) claims against the funds remaining pursuant to the Escrow Agreement by any Buyer Indemnified Party pursuant to this Article XI are pending, or claims by the Company against AK Steel pursuant to the terms of Section 7.4 are pending, the amount of any such claims shall not be considered to be “funds remaining subject to the Escrow Agreement” for purposes of determining the amounts to be released pursuant to (b), (c) or (d) above. All funds remaining subject to the Escrow Agreement following such dates and distributions that are subject to timely delivered Claim Notices shall be disbursed in accordance with the Escrow Agreement upon final disposition of such claims or upon resolution of the claims against AK Steel, whichever is applicable.
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Article
XII
TAX MATTERS
12.1 Tax Returns and Payment of Taxes.
(a) Sellers shall prepare or cause to be prepared and file or cause to be filed all Tax Returns for the Company relating to income Taxes for any Pre-Closing Tax Period. All such Tax Returns with respect to Pre-Closing Tax Periods shall be prepared in a manner consistent with most recent past practice except as otherwise required by applicable Law, provided that the Company shall make an election under Section 754 of the Code (and any corresponding provisions of state and local Law) to be effective for the taxable year that ends on the Closing Date and provided, further, that the basis adjustment required under Section 743 shall be prepared based on an allocation statement, initially prepared by the Buyers and provided to the Sellers for review and comment as soon as practicable, but no later than 120 days, following the Closing Date, which comments Buyers will consider in good faith for inclusion in the final allocation statement, the final version of which shall be subject to consent of Buyers and Sellers (not to be unreasonably withheld). Sellers shall permit Buyers and the Company to review and approve each such Tax Return described in the preceding sentence at least 20 days prior to filing, which approval shall not be unreasonably withheld. The Company shall be responsible for paying the reasonable fees and expenses associated with preparing such Tax Returns only to the extent such fees and expenses are paid prior to the Closing Date or accrued as a current liability in determining the Net Working Capital on the Closing Statement. Sellers shall be responsible for the payment of any Taxes imposed upon income of the Company for the period through the end of the Closing Date for which Sellers are otherwise responsible as a result of having been general partners of the Company during such period. Any income for such period shall be apportioned between Sellers and Buyers, based on the portion of such period ending on the Closing Date and the portion of such period beginning after the Closing Date, as provided below. For purposes of this paragraph (a) and determining Pre-Closing Taxes for a period commencing prior to the Closing date and ending after the Closing Date (a “Straddle Period”), the determination of the items of income, gain, deduction, loss or credit of the Acquired Company shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the end of the Closing Date and the other which began at the beginning of the day following the Closing Date, and items of income, gain, deduction, loss or credit of the Acquired Companies for the Straddle Period shall be apportioned between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the end of the Closing Date; provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as the deduction for depreciation, shall be apportioned between such two taxable years or periods on a daily basis; provided further that any real and personal property Taxes shall be apportioned between such two taxable years or periods on a daily basis.
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(b) Sellers shall prepare or cause to be prepared all Tax Returns of any Acquired Company due on or prior to the Closing. After the Closing, Buyers shall prepare or cause to be prepared and file or cause to be filed all Tax Returns of any Acquired Company other than those specifically set forth in paragraph (a) above. All Tax Returns with respect to Pre-Closing Tax Periods shall be prepared in a manner consistent with most recent past practice except as otherwise required by applicable Law. Buyers shall permit Sellers to review and approve any Tax Returns relating to Taxes for which Sellers are liable under Section 12.1 at least 20 days (in the case of income Tax Returns), or as soon as reasonably practicable (in the case of all other such Tax Returns), before the extended due date for filing any such Tax Returns, which approval shall not be unreasonably withheld. In the case of any disagreement between Buyers and Sellers regarding any Tax Return furnished for approval under this Section 12.1, such disagreement shall be resolved by an independent accounting firm mutually agreeable to Buyers and Sellers (the “Tax Accountant”), and any such determination by the Tax Accountant shall be final. The fees and expenses of the Tax Accountant shall be borne equally by Buyers, on the one hand, and Sellers, on the other hand. If the Tax Accountant does not resolve any differences between Buyers and Sellers with respect to such Tax Return at least two days prior to the due date therefor, such Tax Return shall be filed as prepared by the party having the responsibility hereunder for filing such Tax Return and amended to reflect the Tax Accountant’s resolution.
(c) The Company, Buyers and Sellers shall cooperate with each other in connection with the filing of any Tax Returns and any audit, litigation or other proceeding with respect to Taxes in such a manner as not unreasonably to interfere with the conduct of the business of the other party. The Company, Buyers and Sellers agree (i) to retain all books and records with respect to Tax matters pertinent to the Acquired Companies relating to any taxable period beginning before the Closing Date until the expiration of the statute of limitations (and, to the extent notified by the Company, Buyers or Sellers, any extensions of the statute of limitations) of the respective taxable periods, and to abide by all record retention agreements entered into with any taxing authority, and (ii) to give the other parties reasonable written notice prior to transferring, destroying or discarding any such books and records and, if any of the other parties so requests, the Company, Buyers or Sellers, as the case may be, shall allow the other party to take possession of such books and records.
12.2 Transfer Taxes. Any transfer Taxes imposed by any federal, state, local or other taxing body as a result of the consummation of the Acquisition shall be paid 50% by Buyers and 50% by Sellers, and Sellers will, at its own expense, file all necessary Tax Returns and other documentation with respect to all such transfer Taxes; provided that Buyers shall cooperate in connection with filing such Tax Returns to the extent requested by Sellers.
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12.3 Sales and Use Tax. Buyers acknowledge that Sellers intend to negotiate voluntary disclosure agreements (“VDA’s”) with various U.S. states in which the Company sells its products through distributors. Sellers shall consult with Buyers and consider in good faith Buyers’ advice in determining the states with which the Company should enter into VDA’s. Sellers shall have the right to (i) obtain such information and take all such reasonable steps as Sellers deem necessary to verify that all required sales and/or use taxes were paid in any state where the Company would be required to withhold and submit such sales and/or use taxes, and (ii) negotiate VDA’s with such states to settle any potential tax exposure associated with the possible failure by the Company to withhold and submit sales and/or use taxes and any related returns for any Pre-Closing Tax Period; provided, however, that (x) Sellers shall keep Buyers reasonably informed of the status of the negotiations, consult with Buyers regarding the resolution of any issue that could materially affect the Buyers, and otherwise permit Buyers to participate in the negotiation of the VDA’s and (y) no such VDA’s shall impose any additional liabilities or obligations on the Company after the Closing or on the Buyers; and provided further that the terms of any such VDA’s shall not impose any unreasonable restrictions on the Company or the Buyers in connection with the operation of the Company’s business after Closing, provided further, that administrative and reporting costs and obligations resulting from the Company becoming subject to compliance with a state’s Tax withholding and submission Laws as a result of a VDA shall not constitute additional liabilities or obligations or unreasonable restrictions for purposes of subsection (y). The Buyers shall cooperate with Sellers in all reasonable respects, including executing such VDA’s, and such instruments, limited powers of attorney, and other documents, and taking such actions at Sellers’ cost, on behalf of the Company, as may be required to carry out the intent of the foregoing provisions. For the avoidance of doubt, Sellers shall remain liable under the terms of this Agreement for any Pre-Closing Taxes of or with respect to the Acquired Companies as provided in Section 11.2(d).
12.4 Foreign Filings. Buyers will, and will cause the Company to, provide sufficient notice to Sellers prior to filing any tax returns in any of the foreign jurisdictions disclosed to Buyers on Schedule 12.4 in which the Acquired Companies conducted business prior to Closing, and will cooperate with Sellers as reasonably required, in each case to allow Sellers the opportunity to negotiate the equivalent of VDA’s with such jurisdictions to the extent that Sellers deem it appropriate or necessary to do so; provided that Buyers shall not be required to take any actions that would delay or hinder the timely filing of any Tax Returns that Buyers in their sole discretion determine are required to be filed. Sellers shall keep Buyers reasonably informed of the status of any negotiation with the foreign tax authorities, consult with Buyers regarding the resolution of any issue that could materially affect the Buyers, and otherwise permit Buyers to participate in the negotiation. Sellers shall not enter into any binding agreement or other arrangement with any foreign tax authority that could impose any additional liabilities or obligations on the Company after the Closing or on the Buyers, provided that, that administrative and reporting costs and obligations resulting from the Company becoming subject to compliance with such foreign jurisdiction’s Tax Laws either as a result of such a VDA or of Buyers’ determination to file tax returns in such jurisdiction shall not constitute additional liabilities or obligations or unreasonable restrictions for purposes of the immediately preceding clause. For the avoidance of doubt, Sellers shall remain liable under the terms of this Agreement for any Pre-Closing Taxes of or with respect to the Acquired Companies as provided in Section 11.2(d).
12.5 Tax Refunds. The Sellers will be entitled to any Tax refunds or Tax credits, including any interest paid therewith, in respect of Taxes paid by the Acquired Companies with respect to any Pre-Closing Tax Period, other than any Tax refund or Tax credit (i) resulting from the carryback of any Tax attribute generated after the Closing Date or (ii) accounted for in determining Net Working Capital, provided that Sellers shall have no right to any such refunds or credits that are received more than thirty-six (36) months after the Closing Date. Subject to the foregoing, the Buyers agree to cooperate, and to cause the Acquired Companies to cooperate, with the Sellers, at the Seller’s expense, in obtaining all Tax refunds with respect to Pre-Closing Tax Periods and to promptly pay or cause the Acquired Companies to pay such amounts to Seller (net of any associated costs or Taxes) after receipt of such amounts.
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12.6 Amendment of Tax Returns. Except as required by applicable Law, the Buyers shall not, and the Buyers shall cause its Affiliates (including the Acquired Companies) not to, amend, refile, revoke or otherwise modify any Tax Return or Tax election of any of the Acquired Companies with respect to a Pre-Closing Tax Period if such action would reasonably be expected to result in liability to Sellers without the prior written consent of the Sellers, which consent shall not be unreasonably withheld.
Article
XIII
GENERAL PROVISIONS
13.1 Public Announcements. Subject to Sellers’ obligation to consent to disclosures by the Buyers pursuant to Section 6.8(a)(iv)(y), any public announcement or similar publicity with respect to this Agreement or the transactions contemplated hereby will be issued, if at all, at such time and in such manner as Buyers and Sellers mutually shall determine. Unless consented to by Buyers or Sellers, as the case may be, in advance or required by Legal Requirements, prior to the Closing Sellers, the Company and Buyers shall keep this Agreement strictly confidential and may not make any disclosure of this Agreement to any third party.
13.2 Confidentiality. Buyers, the Company and Sellers shall comply with all of the terms and conditions of that certain Confidentiality Agreement dated April 10, 2014 by and among J.P. Morgan Securities LLC on behalf of the Company and NCI Group, Inc., provided, however that the Buyer, the Debt Financing Sources and Debt Financing Affiliates may disclose Evaluation Materials (as defined therein) to (x) potential lenders and investors in connection with the marketing and syndication of the Debt Financing or any high yield bonds being issued in lieu of any portion of the Debt Financing and (y) rating agencies in connection with confirming or obtaining ratings for the Buyer, the Debt Financing or any high yield bonds being issued in lieu of any portion of the Debt Financing, provided that each of the foregoing are informed by Buyers that such Evaluation Material is being disclosed on a confidential basis.
13.3 Notices. All notices, consents, waivers, and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt), (b) sent by telecopier (with written confirmation of receipt), provided that a copy is mailed by registered or certified mail, return receipt requested, or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and telecopier numbers set forth below (or to such other addresses and telecopier numbers as a party may designate by notice to the other parties):
Sellers and the Company (prior to Closing):
Mark McDonel
GW Resources
PNC Center
Suite 620
20 Stanwix Street
Pittsburgh, PA 15222
Fax: 412-261-3482
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With a copy to:
Buchanan Ingersoll & Rooney PC
One Oxford Centre, 20th Floor
301 Grant Street
Pittsburgh, PA 15219
Fax: 412-562-1041
Attention: Thomas G. Buchanan
Buyers and the Company (after Closing):
NCI Group, Inc.
10943 North Sam Houston Parkway West
Houston, Texas 77064
Attention: General Counsel
Fax: (281) 897-7305
With a copy to (which shall not constitute notice):
Debevoise & Plimpton LLP
919 Third Avenue
New York, NY 10022
Attention: Andrew L. Bab
Fax: (212) 909-6836
13.4 Jurisdiction; Service of Process. Each party irrevocably submits to the exclusive jurisdiction of any New York state court, and any Federal court located in the State of New York, for the purposes of any suit, action or other proceeding arising out of this Agreement, any ancillary agreement thereto or any transaction contemplated hereby or thereby. Each party agrees to commence any such action, suit or proceeding either in a Federal court located in the State of New York or if such suit, action or other proceeding may not be brought in such court for jurisdictional reasons, in the any New York state court. Each party further agrees that service of any process, summons, notice or document by U.S. registered mail to such party's respective address set forth above shall be effective service of process for any action, suit or proceeding in the State of New York with respect to any matters to which it has submitted to jurisdiction in this Section 13.4. Each party irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement, any ancillary agreement thereto or the transactions contemplated hereby and thereby in (i) any New York state court, or (ii) any Federal court located in the State of New York, and hereby and thereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. Notwithstanding anything to the contrary contained elsewhere herein, the parties hereby further agree that, (a) no party will bring any legal proceeding, whether in Law or equity, whether in contract or in tort or otherwise, against the Debt Financing Sources or the Debt Financing Affiliates in any way relating to this Agreement, the Debt Financing, or any of the transactions contemplated hereby or thereby, including any dispute arising out of or relating in any way to the Debt Commitment or any other letter or agreement related to the Debt Financing, Debt Commitment or the performance thereof, in any forum other than the Supreme Court of the State of New York, County of New York, or, if under applicable Law exclusive jurisdiction is vested in the Federal courts, the United States District Court for the Southern District of New York (and appellate courts thereof) and (b) to waive and hereby waive any right to trial by jury, pursuant to Section 13.18 and in respect of any legal proceeding referred to in clause (a) above.
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13.5 Further Assurances. The parties agree (a) to furnish upon request to each other such further information, (b) to execute and deliver to each other such other documents, and (c) to do such other acts and things, all as the other party may reasonably request for the purpose of carrying out the intent of this Agreement and the documents referred to in this Agreement.
13.6 Waiver. The rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by any party in exercising any right, power, or privilege under this Agreement or the documents referred to in this Agreement will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege.
13.7 Entire Agreement and Modification. This Agreement (together with all exhibits, Schedules, Contracts, documents and instruments referenced herein) and the Escrow Agreement supersede all prior agreements, understandings, negotiations and discussions, whether oral or written, between the parties with respect to its subject matter and constitute (along with the documents referred to in this Agreement) a complete and exclusive statement of the terms of the agreement between the parties with respect to its subject matter. This Agreement may not be modified except by a written agreement executed by the party to be charged with the modification. To the extent that any amendment or modification to Section 10.2, Section 13.8, Section 13.12, Section 13.4, Section 13.15, Section 13.17, Article XI and this sentence of Section 13.7 is sought which is adverse to any of the Debt Financing Sources and/or any of the Debt Financing Affiliates, the prior written consent of the Debt Financing and the Debt Financing Affiliates shall be required before such amendment or modification is rendered effective.
13.8 Assignments, Successors, and No Third-Party Rights. Neither party may assign any of its rights under this Agreement without the prior consent of the other parties; provided, however, Buyers shall have the right to designate one or more subsidiaries or affiliates of Buyers or Buyers' parent entity to take title to all or a portion of the Acquired Interests and to receive all or any portion of Buyers' rights under this Agreement. Subject to the preceding sentence, this Agreement will apply to, be binding in all respects upon, and inure to the benefit of the successors and permitted assigns of the parties. Nothing expressed or referred to in this Agreement will be construed to give any Person other than the parties to this Agreement any legal or equitable right, remedy, or claim under or with respect to this Agreement or any provision of this Agreement. This Agreement and all of its provisions and conditions are for the sole and exclusive benefit of the parties to this Agreement and their successors and permitted assigns. In addition, the Debt Financing Sources and the Debt Financing Affiliates shall be considered third party beneficiaries with respect to Section 10.2, Section 13.7, Section 13.12, Section 13.4, Section 13.15, Section 13.18, Article XI and this sentence of Section 13.8, and the Debt Financing Sources and the Debt Financing Affiliates shall have the right to enforce such Sections.
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13.9 Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
13.10 Article and Section Headings; Construction. The headings of Sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All references to “Article,” “Articles,” “Section” or “Sections” refer to the corresponding Article, Articles, Section or Sections of this Agreement. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word “including” does not limit the preceding words or terms.
13.11 Time of Essence. With regard to all dates and time periods set forth or referred to in this Agreement, time is of the essence.
13.12 Governing Law. This Agreement will be governed by the laws of the State of New York without regard to conflicts of laws principles, except to the extent the laws of the Commonwealth of Pennsylvania are mandatorily applicable to this Agreement insofar as the acquisition of the Acquired Interests are concerned. Notwithstanding anything to the contrary contained elsewhere herein, the parties hereby further agree that, the Debt Financing and the performance thereof by the Debt Financing Sources and the Debt Financing Affiliates shall be governed by and construed in accordance with the laws of the State of New York, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof.
13.13 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement.
13.14 Expenses; Prevailing Party Costs. Whether or not the Acquisition is consummated, each of the parties shall pay all costs and expenses incurred or to be incurred by it in negotiating and preparing this Agreement and in closing and carrying out the transactions contemplated by this Agreement and the exhibits hereto. All HSR Act or other antitrust filing fees shall be borne one half by Buyers and one half by Sellers. In any litigation arising under this Agreement, the losing party shall bear its own, as well as the prevailing party's, attorneys' fees and expenses, expenses of witnesses and all other reasonable expenses connected with the presentation of the case.
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13.15 Specific Performance and Limitation on Liability.
(a) Notwithstanding anything to the contrary in this Agreement, if Buyers fail to effect the Closing when required by Section 2.3 for any or no reason or otherwise prior to the Closing breaches this Agreement or fails to perform hereunder (in any case, whether willfully, intentionally, unintentionally or otherwise), then, (i) except for the right of Sellers to seek an injunction, specific performance or other equitable relief as and only to the extent expressly permitted by Section 13.15(c), Sellers’ and their Affiliates’ sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against any Buyer Related Party for any pre-Closing breach, loss or damage shall be to terminate this Agreement as provided in Section 10.1(b) or Section 10.1(f), and receive payment of the Reverse Termination Fee, to the extent provided by Section 10.2(b) and (ii) upon payment of the Reverse Termination Fee, as provided in the immediately foregoing clause (i), none of the Buyer Related Parties will have any liability to any Seller Related Party or any other Person, whether at Law or equity, in contract, in tort or otherwise arising from or in connection with pre-Closing breaches by Buyers of its representations, warranties, covenants and agreements contained in this Agreement or arising from any claim or cause of action that any Seller Related Party may have relating to pre-Closing matters under this Agreement, including for a breach of Section 2.3 hereof (and including relating to the Debt Financing, Debt Financing Sources or the Debt Commitment Letter), and no Person will have any rights or claims against any of the Buyer Related Parties relating to any such matters. Following termination of this Agreement in accordance with Section 10.1(b) or Section 10.1(f) and payment of the Reverse Termination Fee in accordance with Section 10.2(b), Sellers and the Company shall cause any Action pending in connection with this Agreement or any of the transactions contemplated hereby (including any Action related to the Debt Financing, Debt Financing Sources, the Debt Financing Affiliates or the Debt Commitment Letter) by any of them or any of their respective Affiliates, and seek to cause any such Action by any of their respective Affiliates, any of their or their respective Affiliates’ former, current or future directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners or stockholders or assignees of any of the foregoing (collectively, the “Seller Related Parties”) against Buyers or any other Buyer Related Party to be dismissed with prejudice promptly, and in any event within five (5) Business Days, after payment of the Reverse Termination Fee.
(b) In the event that Sellers shall be entitled to terminate the Agreement as provided by Section 10.1(b) or Section 10.1(f) and receive a Reverse Termination Fee pursuant to Section 10.2(b), except for the payment by Buyers of the Reverse Termination Fee when required and to the extent set forth in Section 10.2(b), (i) none of Buyers nor any other Buyer Related Party shall have any liability to Sellers or any Seller Related Party in connection with this Agreement (including in respect of any breach of any representation, warranty, covenant or agreement) or the transactions contemplated hereby, (ii) in no event shall any party hereto nor any Buyer Related Party be liable for or obligated to pay consequential, special, multiple, punitive or exemplary damages including, damages arising from loss of profits, business opportunities or goodwill in respect of any breach or failure to comply with this Agreement or in respect of any of the transactions contemplated hereby (including the Debt Financing and the Debt Commitment Letter), and (iii) in no event shall any Seller Related Party seek on behalf of any Seller Related Party any damages from, or otherwise bring any Action against, any Buyer Related Party in connection with this Agreement or any of the transactions contemplated hereunder (including any Action related to the Debt Financing, the Debt Financing Sources, the Debt Financing Affiliates or the Debt Commitment Letter), other than an Action to recover payment of the Reverse Termination Fee to the extent such fee is not paid when due pursuant to Section 10.2(b) or for specific performance, injunction or other equitable remedy in accordance with this Section 11.3. Notwithstanding anything in this agreement to the contrary, the maximum aggregate liability of the Buyer Related Parties for any breach of this agreement or failure to perform hereunder (in any case, whether willfully, intentionally, unintentionally or otherwise), shall in all cases be limited to the amount of the Reverse Termination Fee. While Sellers may pursue both a grant of specific performance, injunction or other equitable remedies under Section 13.15(c) and the payment of the Reverse Termination Fee under Section 10.2(b), under no circumstances shall the Seller Related Parties, taken as a whole, be permitted or entitled to receive both a grant of specific performance of the obligation to consummate the Closing and monetary damages in connection with this Agreement or any termination of this Agreement, including all or any portion of the Reverse Termination Fee and in no event shall Buyers be required to pay the Reverse Termination Fee on more than one occasion. In no event shall any Seller Related Party be entitled to seek the remedy of specific performance of this Agreement other than in accordance with this Section 13.15.
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(c) The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, subject to this Section 13.15, at any time prior to the termination of this Agreement, the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement, without any bond or other security being required, such requirement being hereby waived, and to enforce specifically the terms and provisions of this Agreement by a decree of specific performance without the necessity of proving the inadequacy of money damages as a remedy, this being in addition to any other remedy to which they are entitled at law or in equity, provided that Sellers shall be entitled to seek specific performance of Buyers’ obligations to consummate the Closing pursuant to the terms of this Agreement only in the event that each of the following conditions has been satisfied: (A) all of the conditions set forth in Article VIII and Article IX have been satisfied or waived (other than those conditions that by their nature cannot be satisfied other than at the Closing, each of which conditions is capable of being satisfied at the Closing), (B) the Debt Financing will be funded at the Closing, (C) Buyers fail to consummate the Closing by the time the Closing should have occurred pursuant to Section 2.3, and (D) Sellers shall have given written notice to Buyers that if specific performance is granted and the Debt Financing is funded, and Buyers otherwise comply with its obligations hereunder, then the Closing will occur.
(d) The parties hereto acknowledge that the agreements contained in this Section 13.15 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the parties hereto would not enter into this Agreement. Nothing in this Section 13.15 shall in any way expand or be deemed or construed to expand the circumstances in which Buyers or any other Buyer Related Party may be liable under this Agreement or any of the transactions contemplated hereby (including the Debt Financing).
13.16 Retention of Records and Access to Information. For the longer of (i) a period of seven (7) years after the Closing Date or (ii) the period lasting from the Closing Date through the expiration of the applicable statute of limitations with respect to any tax period which is effected by the Acquisition, Buyers shall retain and preserve all business, accounting, tax and other records of the Acquired Companies. From and after the Closing date, Buyers shall afford to Sellers reasonable access to said records, for the purpose of obtaining information necessary in conjunction with the preparation of tax returns, preparing for a tax audit or other government investigation or defending against a claim, complaint or action by Buyers or a third party against Sellers; provided, however, that any such access shall be scheduled and provided on a reasonable basis taking into account the business requirements of Buyers.
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13.17 Parent Guarantee. Parent hereby unconditionally guarantees the full and punctual performance and payment when due of all obligations and sums due and owing Sellers in connection with this Agreement (the “Guaranteed Obligations”). Parent’s obligations hereunder shall remain in full force and effect until the Guaranteed Obligations have been paid or performed in full. If at any time any payment of any Guaranteed Obligation is rescinded or must be otherwise restored or returned upon the insolvency or receivership of Buyers or otherwise, Parent's obligations hereunder with respect thereto shall be reinstated as though such payment had been due but not made at such time. This is a continuing guarantee of Parent and shall be binding upon Parent and its successors and assigns.
13.18 Waiver of Jury Trial.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR THE DEBT FINANCING COMMITMENTS IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING, ACTION OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE DEBT FINANCING COMMITMENTS, THE ESCROW AGREEMENT OR THE CONFIDENTIALITY AGREEMENT OR BY THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH OF THE PARTIES CERTIFIES AND ACKNOWLEDGES THAT (a) 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, (b) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (c) EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND (d) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 13.18.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date first written above.
BUYERS: | ||
NCI GROUP, INC. | ||
By: | /s/ Todd R. Moore | |
Name: Todd R. Moore | ||
Title: Executive Vice President & General Counsel | ||
STEELBUILDING.COM, INC. | ||
By: | /s/ Todd R. Moore | |
Name: Todd R. Moore | ||
Title: Executive Vice President & General Counsel | ||
NCI BUILDING SYSTEMS, INC. | ||
(for purposes of Sections 7.2 and 13.17 hereof) | ||
By: | /s/ Todd R. Moore | |
Name: Todd R. Moore | ||
Title: Executive Vice President & General Counsel |
[Signature Page to Interest Purchase Agreement]
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COMPANY: | ||
CENTRIA | ||
By: its general partners | ||
SMST CORP. | ||
By: | /s/ Mark M. Sherwin | |
Name: Mark M. Sherwin | ||
Title: President | ||
RIVERFRONT CAPITAL FUND | ||
By: Riverfront Investments Inc., its general partner | ||
By: | /s/ Mark E. McDonel | |
Name: Mark E. McDonel | ||
Title: Treasurer | ||
SELLERS: | ||
SMST CORP. | ||
By: | /s/ Mark E. McDonel | |
Name: Mark E. McDonel | ||
Title: Treasurer | ||
RIVERFRONT CAPITAL FUND | ||
By: Riverfront Investments Inc., its general partner | ||
By: | /s/ Mark E. McDonel | |
Name: Mark E. McDonel | ||
Title: Treasurer |
[Signature Page to Interest Purchase Agreement]
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CENTRIA
Exhibit 2.2(c)
Accounting procedures:
CASH - represents account #s 1100 through 1199 for both CENTRIA and CENTRIA, Inc. plus adjustment of account #1153 reclass back to accounts payable for value of outstanding (uncleared) Accounts Paybable checks plus any debit balance in account # 2400 (revolver) plus cash as reported by China entities in accounts #s 1000 through 1009
NET WORKING CAPITAL - represents CENTRIA and CENTRIA, Inc. account#s 1200 through #1329 and #1331 - 1499 (Current assets) minus account#s 2100 through 2222 and account#s 2500 through 2740 (Current liabilities), plus China entities current assets in account#s 1131 through 1300 minus current liabilities in accounts #s 2111 through 2181
Illustrative Example of June 2014 Net Working Capital Calculation:
June 2014 Balance | ||||
CENTRIA and CENTRIA, Inc. account#s 1200 through #1329 and #1331 - 1499 (Current assets) | 70,170,319 | |||
Less: CENTRIA and CENTRIA, Inc. account#s 2100 through 2222 and account#s 2500 through 2740 (Current liabilities) | (39,376,877 | ) | ||
Less: Adjustment of account #1153 reclass back to accounts payable for value of outstanding (uncleared) | (782,708 | ) | ||
China account#s 1131 through 1300 (Current Assets) | 2,400,509 | |||
Less: China account#s 2111 through 2181 (Current Liabilities) | (3,462,160 | ) | ||
June Net Working Capital | 28,949,083 |
List of Omitted Schedules
The following schedules to the Interest Purchase Agreement, dated as of November 7, 2014, by and among NCI Group, Inc., Steelbuilding.com, Inc., SMST Management Corp., and Riverfront Capital Fund and CENTRIA have not been provided herein:
Schedules
3.1 | Organization and Good Standing |
3.2(b) | Authority; No Conflict |
3.3(b) | Capitalization; Equity Rights |
3.3(c) | Capitalization; Equity Rights |
3.3(d) | Capitalization; Equity Rights |
3.4(c) | Financial Statements |
3.5 | Personal Property |
3.6(a) | Real Property Interests |
3.6(b) | Real Property Interests |
3.7(a) | Taxes |
3.8(a) | Employee Benefits |
3.8(d) | Employee Benefits |
3.9(b) | Compliance with Law; Governmental Consents |
3.9(c) | Compliance with Law; Governmental Consents |
3.10 | Legal Proceedings; Orders |
3.11 | Absence of Certain Changes and Events; Undisclosed Liabilities |
3.12 | Contracts |
3.13 | Insurance |
3.14 | Environmental Matters |
3.15(a) | Labor Matters |
3.16 | Intellectual Property |
3.20 | Related Parties |
3.22 | Brokers, Finders, Etc. |
3.25(a) | Customers and Suppliers; Product Liability |
3.25(b) | Customers and Suppliers; Product Liability |
3.25(c) | Customers and Suppliers; Product Liability |
8.3 | Required Consents |
The Registrant hereby undertakes to furnish supplementally a copy of any omitted schedule to the Securities and Exchange Commission upon request.
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ANNEX I
Acquired Companies
CENTRIA
CENTRIA, Inc.
CENTRIA International LLC
CENTRIA Services Group LLC
RoofWorks, Ltd.
MetalWorks, L.P. (f/k/a “Roofworks, L.P.”)
CENTRIA Building Material Manufacturing (Shanghai) Co., Ltd Wofe
Centria International (Cayman) Limited
CENTRIA International Trade (Shanghai) Co., Ltd Wofe
CAD2Spec, LLC
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Exhibit 10.1
Execution Version
CREDIT SUISSE SECURITIES (USA) LLC CREDIT SUISSE AG
|
CITIGROUP GLOBAL MARKETS INC. 390 Greenwich Street New York, New York 10013 |
ROYAL BANK OF CANADA 200 Vesey Street New York, New York 10281 |
UBS SECURITIES LLC 1285 Avenue of the Americas
UBS AG, STAMFORD BRANCH 677 Washington Boulevard Stamford, Connecticut 06901 |
CONFIDENTIAL
November 7, 2014
NCI Building Systems, Inc.
10943 North Sam Houston Parkway West
Houston, Texas 77064
Attention: Mark E. Johnson, Chief Financial Officer
Project Metallica
Commitment Letter
Ladies and Gentlemen:
You have advised us that NCI Building Systems, Inc., a Delaware corporation (the “Company” or “you”), intends to acquire (the “Acquisition”), directly or indirectly, all of the equity interests of the entity previously identified by you to us as “Metallica” (the “Acquired Business”) pursuant to the Acquisition Agreement (as defined in Exhibit A hereto). You have further advised each of Credit Suisse AG (“CS”), Credit Suisse Securities (USA) LLC (“CS Securities” and, together with CS, “Credit Suisse”), Citigroup Global Markets Inc. (“CGMI”) on behalf of Citi (as defined below), Royal Bank of Canada (“Royal Bank”), RBC Capital Markets* (“RBCCM”), UBS AG, Stamford Branch (“UBS”) and UBS Securities LLC (“UBSS” and, collectively with Credit Suisse, CGMI, Royal Bank, RBCCM, UBS and any Additional Committing Lenders, the “Committed Lenders”, “we” or “us”) that, in connection with the foregoing, you intend to consummate the other Transactions described in the Transaction Description attached hereto as Exhibit A (the “Transaction Description”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the Transaction Description and in the Summary of Principal Terms and Conditions attached hereto as Exhibit B (the “Bridge Term Sheet”) and the Summary of Additional Conditions attached hereto as Exhibit C (the “Summary of Additional Conditions”; together with this commitment letter, the Transaction Description and the Bridge Term Sheet, collectively, the “Commitment Letter”).
* | RBC Capital Markets is a brand name for the capital markets activities of Royal Bank of Canada and its affiliates. |
For purposes of this Commitment Letter, “Citi” shall mean CGMI, Citibank, N.A., Citigroup USA, Inc., Citigroup North America, Inc. and/or any of their affiliates as any of them shall determine to be appropriate to provide the services contemplated herein (subject to the confidentiality, assignment and other provisions hereof). It is understood and agreed that CGMI is entering into this letter for and on behalf of Citi.
You have further advised each of the Committed Lenders that, in connection therewith, it is intended that the financing for the Transactions will include either (i) up to (x) $250 million in aggregate principal amount of senior unsecured notes, subject to increase to fund any original issue discount in the issue price of such notes (the “Notes”) in a Rule 144A private placement, (ii) if all or any portion of the Notes are not issued on or prior to the date on which the Acquisition closes, up to $250 million, less cash proceeds received from the issuance of Notes, subject to increase as provided in the Bridge Term Sheet, of senior unsecured increasing rate loans (the “Bridge Loans”) under the senior unsecured credit facility (the “Bridge Facility”) described in the Bridge Term Sheet or (iii) a combination of Notes and Bridge Loans. As used herein, the term “Closing Date” means the date on which the Acquisition closes with the proceeds of the Bridge Loans and/or Notes issued in a Rule 144A private placement arranged by the Investment Banks (as defined in the Summary of Additional Conditions).
In connection with the foregoing, each of CS, Citi, Royal Bank and UBS is pleased to advise you of its several, but not joint, commitment to provide 28%, 24%, 24% and 24%, respectively, of the Bridge Facility (including without limitation, any Bridge Loan OID Increase), subject only to the conditions set forth in the Funding Conditions Provision (as defined below), the Summary of Additional Conditions and under the heading “Conditions Precedent to Initial Extension of Credit” in the Bridge Term Sheet.
It is agreed that each of CS Securities, Citi, RBCCM and UBSS will act as a joint lead arranger and a joint bookrunner for the Bridge Facility (in such capacity, each a “Lead Arranger” and, collectively with any other arrangers and bookrunners appointed pursuant to the following paragraph, the “Lead Arrangers”); provided that Credit Suisse shall have “left” placement in any and all marketing materials or other documentation used in connection with the Bridge Facility and shall hold the leading role, rights and responsibilities conventionally associated with such “left” placement, including maintaining sole “physical books” in respect of the Bridge Facility.
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You may, on or prior to the date that is 20 days after the date of this Commitment Letter, appoint additional agents, co-agents, lead arrangers, bookrunners, managers or arrangers (any such agent, co-agent, lead arranger, bookrunner, manager or arranger, an “Additional Committing Lender”) or confer other titles in respect of the Bridge Facility in a manner and with economics determined by you in consultation with the Lead Arrangers (it being understood that, to the extent you appoint Additional Committing Lenders or confer other titles in respect of the Bridge Facility, (x) each such Additional Committing Lender will assume a portion of the commitments of the Bridge Facility on a pro rata basis (and the commitments of the Committed Lenders with respect to such portion will be reduced ratably) and (y) the economics allocated to the Committed Lenders in respect of the Bridge Facility will be reduced ratably by the amount of the economics allocated to such appointed entities upon the execution by such financial institution of customary joinder documentation and, thereafter, each such financial institution shall constitute a “Committed Lender” hereunder and under the Fee Letter (as defined below)); provided that (i) fees will be allocated to each such appointed entity on a pro rata basis in respect of the commitments it is assuming or on such other basis as you and the Lead Arrangers may agree and (ii) in no event shall the Lead Arrangers party to this Commitment Letter as of the date hereof be entitled to less than 100% of the economics of the Bridge Facility, in the aggregate, as a result of the appointments of Additional Committing Lenders pursuant to this sentence. No compensation (other than that expressly contemplated by this Commitment Letter and the Fee Letter and other than in connection with any additional appointment referred to above) will be paid to any Lender in connection with the Bridge Facility unless you and we so agree.
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The Committed Lenders reserve the right, prior to or after the execution of definitive documentation for the Bridge Facility (which we agree will be initially drafted by your counsel), to syndicate all or a portion of the Committed Lenders’ commitments hereunder to a group of financial institutions (together with the Committed Lenders, the “Lenders”) identified by the Committed Lenders in consultation with you and reasonably acceptable to them and you with respect to the identity of such Lender (in each case, such consent not to be unreasonably withheld), it being understood that we will not syndicate to those persons identified by you in writing to the Committed Lenders (or to their affiliates so designated in writing) prior to the date hereof or to any competitors of the Company or the Acquired Business or to any affiliates of such competitors (such persons collectively, the “Disqualified Institutions”); provided that, notwithstanding each Committed Lender’s right to syndicate the Bridge Facility and receive commitments with respect thereto, it is agreed that any syndication, assignment, or receipt of commitments in respect of all or any portion of a Committed Lender’s commitments hereunder prior to the initial funding under the Bridge Facility shall not be a condition to such Committed Lender’s commitments nor reduce such Committed Lender’s commitments hereunder with respect to the Bridge Facility (provided, however, that, notwithstanding the foregoing, assignments of a Committed Lender’s commitments, which are effective simultaneously with the funding of such commitments by the assignee, shall be permitted) and, unless you otherwise agree in writing, each Committed Lender shall retain exclusive control over all rights and obligations with respect to its commitments, including all rights with respect to consents, modifications, waivers and amendments, until the Closing Date has occurred. Without limiting your obligations to assist with syndication efforts as set forth below, it is understood that the Committed Lenders’ commitments hereunder are not subject to or conditioned on the syndication of the Bridge Facility. The Committed Lenders intend to commence syndication efforts promptly upon the execution of this Commitment Letter and as part of their syndication efforts, it is their intent to have Lenders commit to the Bridge Facility prior to the Closing Date (subject to the limitations set forth in the second preceding sentence). You agree actively to assist the Committed Lenders (and to use your commercially reasonable efforts to cause Clayton Dubilier & Rice LLC and its affiliates (collectively, the “Sponsor”) and the Acquired Business to actively assist the Committed Lenders) in completing a timely syndication that is reasonably satisfactory to them and you. Such assistance shall include, without limitation, until the Closing Date, (a) your using commercially reasonable efforts to ensure that any syndication efforts benefit materially from the existing lending and investment banking relationships of you, the Sponsor and, to the extent practical and appropriate, the Acquired Business, (b) direct contact between senior management, representatives and advisors of you and the Sponsor, on the one hand, and the proposed Lenders, on the other hand (and your using commercially reasonable efforts to ensure contact between senior management, representatives and advisors of the Acquired Business, on the one hand, and the proposed Lenders, on the other hand), in all such cases at times mutually agreed upon, (c) your and the Sponsor’s assistance, and your using commercially reasonable efforts to cause the Acquired Business to assist, in the preparation of a customary bridge teaser for the Bridge Facility and other customary bridge marketing materials to be used in connection with the syndication (the “Bridge Teaser”) and your using commercially reasonable efforts to provide such Bridge Teaser (other than the portions thereof customarily provided by financing arrangers, and limited, in the case of information relating to the Acquired Business and its subsidiaries, to Required Information (as defined in the Acquisition Agreement)) to us no less than 20 consecutive calendar days prior to the Closing Date (or such shorter period ending upon the issuance of the Notes) (provided that such consecutive day period shall (i) not be required to be consecutive to the extent it would include November 26, 2014 through November 30, 2014 (which dates set forth in this clause (i) shall be excluded for purposes of the 20 calendar day period), (ii) either expire prior to December 20, 2014 or commence after January 4, 2015, and (iii) not be required to be consecutive to the extent it would include May 22, 2015 through May 25, 2015 (which dates set forth in this clause (iii) shall be excluded for purposes of the 20 calendar day period)), (d) prior to the launch of syndication, using your commercially reasonable efforts to procure or confirm a corporate credit rating and a corporate family rating in respect of the Borrower from Standard & Poor’s Ratings Services (“S&P”) and Moody’s Investors Service, Inc. (“Moody’s”), respectively, and ratings for each of the Bridge Facility and the Notes from each of S&P and Moody’s, (e) the hosting, with the Committed Lenders, of no more than one lender call to be mutually agreed upon with prospective Lenders at a time to be mutually agreed upon and (f) your ensuring that there shall be no competing issues of debt securities or commercial bank or other credit facilities of the Company, the Acquired Business or any of their respective subsidiaries being offered, placed or arranged (other than the Notes, a Permitted Financing (as defined in the Fee Letter), replacements, extensions and renewals of existing indebtedness that matures prior to the date that is 60 days following the Expiration Date, and any other indebtedness of the Acquired Business and its subsidiaries permitted to be incurred pursuant to the Acquisition Agreement) if the offering, placement or arrangement of such debt securities or commercial bank or other credit facilities would have, in the reasonable judgment of the Lead Arrangers, a detrimental effect upon the primary syndication of the Bridge Facility. Notwithstanding anything to the contrary contained in this Commitment Letter or the Fee Letter, but without limiting your obligations to assist with syndication efforts as set forth herein, it is understood that neither the commencement nor completion of the syndication of the Bridge Facility shall constitute a condition to the availability of the Bridge Facility on the Closing Date or at any time thereafter.
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The Lead Arrangers will, in consultation with you, manage all aspects of any syndication of the Bridge Facility, including decisions as to the selection of institutions to be approached and when they will be approached, when their commitments will be accepted, which institutions will participate (which institutions shall be reasonably acceptable to you), the allocation of the commitments among the Lenders and the amount and distribution of fees among the Lenders. To assist the Lead Arrangers in their syndication efforts, you agree promptly to prepare and provide (and to use commercially reasonable efforts to cause the Sponsor and the Acquired Business to provide) to the Committed Lenders all customary information with respect to you, the Sponsor, the Acquired Business and each of your and their respective subsidiaries and the Transactions, including all financial information and projections (including financial estimates, budgets, forecasts and other forward-looking information, the “Projections”), as the Committed Lenders may reasonably request in connection with the structuring, arrangement and syndication of the Bridge Facility. You hereby represent and warrant that (with respect to information relating to the Acquired Business and its subsidiaries to your knowledge), (a) all written information and written data other than the Projections and information of a general economic or general industry nature (the “Information”) that has been or will be made available to the Committed Lenders by or on behalf of you or any of your representatives, taken as a whole, is or will be, when furnished, correct in all material respects and does not or will not, when furnished, contain any untrue statement of a material fact 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 are made (after giving effect to all supplements thereto) and (b) the Projections that have been or will be made available to the Committed Lenders by or on behalf of you or any of your representatives have been or will be prepared in good faith based upon assumptions that you believe to be reasonable at the time made and at the time the related Projections are made available to the Committed Lenders; it being understood that the Projections are as to future events and are not to be viewed as facts, and that actual results during the period or periods covered by any such Projections may differ significantly from the projected results and such differences may be material. You agree that if, at any time prior to the Closing Date, you become aware that any of the representations in the preceding sentence would be incorrect (to your knowledge with respect to information relating to the Acquired Business and its subsidiaries) in any material respect if the Information and Projections were being furnished, and such representations were being made, at such time, then you will use commercially reasonable efforts to promptly supplement the Information and the Projections so that such representations will be correct (to your knowledge with respect to information relating to the Acquired Business and its subsidiaries) in all material respects under those circumstances. In arranging and syndicating the Bridge Facility, the Committed Lenders will be entitled to use and rely primarily on the Information and the Projections without responsibility for independent verification thereof.
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Notwithstanding anything herein to the contrary, the only financial statements that shall be required to be provided to the Committed Lenders or the Lead Arrangers in connection with the syndication of the Bridge Facility shall be those required to be delivered pursuant to the Summary of Additional Conditions.
You hereby acknowledge that (a) the Committed Lenders will make available Information and Projections to the proposed syndicate of Lenders by posting such Information and Projections on IntraLinks, SyndTrak Online or similar electronic means and (b) certain of the Lenders (each, a “Public Lender”) may wish to receive only information that (i) is publicly available, (ii) is not material with respect to you, the Acquired Business or your or its respective securities for purposes of United States federal and state securities laws or (iii) constitutes information of a type that would be publicly available if the Acquired Business were a public reporting company (as reasonably determined by you) (collectively, the “Public Side Information”). If reasonably requested by the Committed Lenders, you will use commercially reasonable efforts to assist us in preparing a customary additional version of the Bridge Teaser to be used by Public Lenders. The information to be included in the additional version of the Bridge Teaser will contain only Public Side Information. It is understood that in connection with your assistance described above, an authorization letter, in form substantially similar to authorization letters delivered by companies sponsored by the Sponsor, will be included in any Bridge Teaser, which letter authorizes the distribution of the Bridge Teaser to prospective Lenders, containing a representation to the Lead Arrangers that the public-side version contains only Public Side Information (and, in each case, a “10b-5” representation to the Lead Arrangers customary for companies sponsored by the Sponsor), which Bridge Teaser shall exculpate you, the Sponsor, the Acquired Business, and your and their respective affiliates and us and our affiliates with respect to any liability related to the use of the Bridge Teaser or any related marketing material by the recipients thereof. You agree to use commercially reasonable efforts to identify that portion of the Information that may be distributed to the Public Lenders as “PUBLIC”, which, at the minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof. You agree that by your marking such materials “PUBLIC”, you shall be deemed to have authorized the Lead Arrangers (subject to the confidentiality and other provisions of this Commitment Letter) to treat such materials as information that is Public Side Information (it being understood that you shall not be under any obligation to mark any particular portion of the Information as “PUBLIC”). You agree that, subject to the confidentiality and other provisions of this Commitment Letter, the Lead Arrangers on your behalf may distribute the following documents to all prospective lenders in the form provided to you and to your counsel a reasonable time prior to their distribution, unless you or your counsel advise the Lead Arrangers in writing (including by email) within a reasonable time prior to their intended distribution that such material should only be distributed to prospective lenders that are not Public Lenders (each, a “Private Lender”): (a) the Bridge Term Sheet; (b) drafts and final definitive documentation with respect to the Bridge Facility; (c) administrative materials prepared by the Committed Lenders for prospective Lenders (such as a lender meeting invitation, allocations and funding and closing memoranda); and (d) notification of changes in the terms of the Bridge Facility. If you advise us that any of the foregoing items should be distributed only to Private Lenders, then none of the Lead Arrangers and the Committed Lenders will distribute such materials to Public Lenders without your consent.
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As consideration for the commitments of the Committed Lenders hereunder and their agreement to perform the services described herein, you agree to pay (or cause to be paid) the fees set forth in the Bridge Term Sheet and in the Fee Letter dated the date hereof and delivered herewith with respect to the Bridge Facility (the “Fee Letter”). Once paid, such fees shall not be refundable under any circumstances.
The commitments of the Committed Lenders hereunder and their agreement to perform the services described herein are subject solely to the conditions set forth in the next sentence of this paragraph, in the Summary of Additional Conditions and under the heading “Conditions Precedent to Initial Extension of Credit” in the Bridge Term Sheet. In addition, the commitments of the Committed Lenders hereunder are subject to the execution (as applicable) and delivery by the Borrower, the Guarantors and the officers and advisors thereof, as the case may be, of definitive documentation, closing certificates (including evidences of authority, charter documents, and officers’ incumbency certificates) and customary legal opinions with respect to the Bridge Facility (the “Bridge Facility Documentation”), in each case consistent with this Commitment Letter and the Fee Letter; provided that, notwithstanding anything in this Commitment Letter, the Fee Letter, the Bridge Facility Documentation or any other letter agreement or other undertaking concerning the financing of the Transactions to the contrary, (i) the only representations and warranties the making of which shall be a condition to the availability of the Bridge Facility on the Closing Date shall be (A) the Specified Representations (as defined below) and (B) the representations and warranties relating to the Acquired Business and its subsidiaries made by the Seller (as defined in the Transaction Description) in the Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that the Buyers (as defined in the Transaction Description) have the right to terminate their obligations (or otherwise decline to consummate the Acquisition without liability) under the Acquisition Agreement as a result of a breach of such representations and warranties in such agreement (the “Acquired Business Representations”) and (ii) the terms of the Bridge Facility Documentation shall be in a form such that (x) they do not impair availability of the Bridge Facility on the Closing Date if the conditions set forth in this paragraph, in the Summary of Additional Conditions and under the heading “Conditions Precedent to Initial Extension of Credit” in the Bridge Term Sheet are satisfied and (y) they do not conflict with, violate or result in a breach of or default under the ABL Facility (as defined in the Summary of Additional Conditions) or the Term Loan Facility (as defined in Exhibit B). For purposes hereof, “Specified Representations” means the representations and warranties made by the Borrower in the Bridge Facility Documentation and set forth in the Bridge Term Sheet relating to corporate or other organizational existence, power and authority related to entry into and performance of the Bridge Facility Documentation, the execution, delivery and enforceability of the Bridge Facility Documentation, the incurrence of the loans and the provision of guarantees contemplated herein not violating constitutional documents of the Borrower and the Guarantors, solvency of the Borrower and its subsidiaries on a consolidated basis on the Closing Date after giving effect to the Transactions (solvency to be defined in a manner consistent with the solvency definition set forth in Annex I to Exhibit C), U.S. Federal Reserve margin regulations, the PATRIOT Act, the U.S. Investment Company Act and the use of loan proceeds not violating OFAC. There shall be no conditions (implied or otherwise) to the commitments hereunder, including compliance with the terms of this Commitment Letter, the Fee Letter or the Bridge Facility Documentation, other than those expressly stated in the second sentence of this paragraph, in the Summary of Additional Conditions and in the section under the heading “Conditions Precedent to Initial Extension of Credit” in the Bridge Term Sheet to the initial funding under the Bridge Facility on the Closing Date. Without limiting the conditions precedent provided herein to funding the consummation of the Acquisition with the proceeds of the Bridge Facility, the Lead Arrangers will cooperate with you as reasonably requested in coordinating the timing and procedures for the funding of the Bridge Facility in a manner consistent with the Acquisition Agreement. This paragraph is referred to as the “Funding Conditions Provision”.
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You agree (a) to indemnify and hold harmless the Bridge Administrative Agent, the Lead Arrangers, each of the Committed Lenders and their respective affiliates and controlling persons and the respective officers, directors, employees, agents, members and successors of each of the foregoing, but excluding any of the foregoing in its capacity, if applicable, as financial advisor to the Acquired Business or any of its direct or indirect equity holders or affiliates in connection with the Acquisition (each, a “Sell-Side Advisor”) and any Related Person (as defined below) of such Sell-Side Advisor in such capacity (each, other than such excluded parties, an “Indemnified Person”) from and against any and all losses, claims, damages, liabilities and expenses, joint or several, of any kind or nature whatsoever to which such Indemnified Person may become subject arising out of or in connection with this Commitment Letter, the Fee Letter, the Transactions, the Bridge Facility or any related transaction or any claim, litigation, investigation or proceeding, actual or threatened, relating to any of the foregoing (any of the foregoing, a “Proceeding”), regardless of whether such Indemnified Person is a party thereto and whether or not such Proceedings are brought by you, your equity holders, affiliates, creditors or any other person, and to reimburse such Indemnified Person upon demand for any reasonable and documented out-of-pocket legal expenses of one firm of counsel for all Indemnified Persons and, if necessary, one firm of local counsel in each appropriate jurisdiction, in each case for all Indemnified Persons (and, in the case of an actual or perceived conflict of interest where the Indemnified Person affected by such conflict informs you of such conflict and thereafter, after receipt of your consent (which shall not be unreasonably withheld), retains its own counsel, of another firm of counsel for such affected Indemnified Person) and other reasonable and documented out-of-pocket expenses incurred in connection with investigating or defending any of the foregoing; provided that the foregoing indemnity will not, as to any Indemnified Person, apply to losses, claims, damages, liabilities or expenses (i) to the extent they have resulted from the willful misconduct, bad faith or gross negligence of such Indemnified Person or any Related Person of such Indemnified Person (as determined by a court of competent jurisdiction in a final and non-appealable decision), (ii) to the extent arising from a material breach of the obligations of such Indemnified Person or any Related Person of such Indemnified Person under this Commitment Letter or the Bridge Facility Documentation (as determined by a court of competent jurisdiction in a final non-appealable decision) or (iii) arising out of, or in connection with, any Proceeding that does not involve an act or omission by you or any of your affiliates and that is brought by an Indemnified Person against any other Indemnified Person other than any Proceeding against the relevant Indemnified Person in its capacity or in fulfilling its role as an agent, arranger or similar role under the Bridge Facility, and (b) to reimburse the Committed Lenders from time to time, upon presentation of a summary statement, for all reasonable and documented out-of-pocket expenses (including, but not limited to, expenses of the Committed Lenders’ due diligence investigation (and with respect to third party diligence expenses, to the extent any such expenses have been previously approved by you, such approval not to be unreasonably withheld), syndication expenses, travel expenses and reasonable fees, disbursements and other charges of counsel to the Bridge Administrative Agent identified in the Bridge Term Sheet (and, for the avoidance of doubt, not of counsel to any Committed Lender or Lead Arranger individually) and of a single local counsel to the Bridge Administrative Agents in each relevant jurisdiction, except allocated costs of in-house counsel), in each case incurred by the Committed Lenders in connection with the Bridge Facility and the preparation of this Commitment Letter, the Fee Letter and the Bridge Facility Documentation (collectively, the “Expenses”); provided that you shall not be required to reimburse any of the Expenses in the event the Closing Date does not occur. Notwithstanding any other provision of this Commitment Letter, (i) no Indemnified Person shall be liable for any damages arising from the use by others of information or other materials obtained through electronic, telecommunications or other information transmission systems (including IntraLinks or SyndTrak Online), except to the extent such damages have resulted from the willful misconduct, bad faith or gross negligence of such Indemnified Person or any Related Person of such Indemnified Person (as determined by a court of competent jurisdiction in a final and non-appealable decision), and (ii) none of you, the Sponsor, the Acquired Business or any Indemnified Person shall be liable for any indirect, special, punitive or consequential damages in connection with your or their activities related to the Bridge Facility or this Commitment Letter; provided that nothing contained in this clause (ii) shall limit your indemnity or reimbursement obligations to the extent such indirect, special, punitive or consequential damages are included in any third party claim in connection with which such Indemnified Person is entitled to indemnification hereunder. For purposes hereof, a “Related Person” of an Indemnified Person (or any Sell-Side Advisor) means, if such Indemnified Person (or Sell-Side Advisor) is the Bridge Administrative Agent, a Lead Arranger or a Committed Lender or any of its affiliates and controlling persons, or any of its or their respective officers, directors, employees, agents, members and successors, any of the Bridge Administrative Agent, Lead Arranger or Committed Lender and its affiliates and controlling persons, or any of its or their respective officers, directors, employees, agents, members and successors.
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Your indemnity and reimbursement obligations hereunder will be in addition to any liability which you may otherwise have and will be binding upon and inure to the benefit of any of your successors and assigns and the Indemnified Persons.
You acknowledge that the Committed Lenders and their affiliates may be providing debt financing, equity capital or other services (including financial advisory services) to other persons in respect of which you may have conflicting interests regarding the transactions described herein and otherwise. Neither the Committed Lenders nor any of their affiliates will use confidential information obtained from or on behalf of you by virtue of the transactions contemplated by this Commitment Letter or their other relationships with you in connection with the performance by them of services for other persons, and neither the Committed Lenders nor any of their affiliates will furnish any such information to other persons. You also acknowledge that neither the Committed Lenders nor any of their affiliates have any obligation to use in connection with the transactions contemplated by this Commitment Letter, or to furnish to you, confidential information obtained by them from other persons.
As you know, each Committed Lender, together with its affiliates, is a full service securities firm engaged, either directly or through its affiliates, in various activities, including securities trading, commodities trading, investment management, research, financing and brokerage activities and financial planning and benefits counseling for both companies and individuals. In the ordinary course of these activities, the Committed Lenders and their respective affiliates may actively engage in commodities trading or trade the debt and equity securities (or related derivative securities) and financial instruments (including bank loans and other obligations) of you, the Sponsor, the Acquired Business and other companies that may be the subject of the arrangements contemplated by this Commitment Letter for their own account and for the accounts of their customers and may at any time hold long and short positions in such securities. Each Committed Lender and its affiliates may also co-invest with, make direct investments in, and invest or co-invest client monies in or with funds or other investment vehicles managed by other parties, and such funds or other investment vehicles may trade or make investments in securities of you, the Sponsor, the Acquired Business or other companies that may be the subject of the arrangements contemplated by this Commitment Letter or engage in commodities trading with any thereof.
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The Committed Lenders and their respective affiliates may have economic interests that conflict with those of the Acquired Business and you. You agree that the Committed Lenders will act under this Commitment Letter as independent contractors and that nothing in this Commitment Letter or the Fee Letter or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between the Committed Lenders or any of their respective affiliates and you, the Acquired Business, your and their respective stockholders or your and their respective affiliates with respect to the transactions contemplated by this Commitment Letter and the Fee Letter. You acknowledge and agree that (i) the transactions contemplated by this Commitment Letter and the Fee Letter are arm’s-length commercial transactions between the Committed Lenders and their respective affiliates, on the one hand, and you, on the other, (ii) in connection therewith and with the process leading to such transactions, each Committed Lender and its applicable affiliates (as the case may be) is acting solely as a principal and not as agents or fiduciaries of you, the Acquired Business, your and their respective management, stockholders, creditors or any other person, (iii) the Committed Lenders and their applicable affiliates (as the case may be) have not assumed an advisory or fiduciary responsibility or any other obligation in favor of you with respect to the transactions contemplated hereby or the process leading thereto (irrespective of whether the Committed Lenders or any of their respective affiliates have advised or are currently advising you or the Acquired Business on other matters), except the obligations expressly set forth in this Commitment Letter and the Fee Letter and (iv) you have consulted your own legal and financial advisors to the extent you deemed appropriate. You further acknowledge and agree that you are responsible for making your own independent judgment with respect to such transactions and the process leading thereto. Please note that the Committed Lenders and their affiliates do not provide tax, accounting or legal advice. You hereby waive and release any claims that you may have against the Committed Lenders (in their capacity as such) and their applicable affiliates (as the case may be) with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transactions contemplated by this Commitment Letter. It is understood that this paragraph shall not apply to or modify or otherwise affect any arrangement with any Sell-Side Advisor, or any financial advisor separately retained by you, the Sponsor, the Acquired Business or any of your or its affiliates in connection with the Acquisition, in its capacity as such.
This Commitment Letter and the commitments hereunder shall not be assignable by you without the prior written consent of the Committed Lenders, not to be unreasonably withheld (and any attempted assignment without such consent shall be null and void), is intended to be solely for the benefit of the parties hereto (and the Indemnified Persons), is not intended to confer any benefits upon, or create any rights in favor of, any person other than the parties hereto (and the Indemnified Persons) and is not intended to create a fiduciary relationship among the parties hereto. Any and all obligations of, and services to be provided by, the Committed Lenders hereunder (including, without limitation, their commitments) may be performed and any and all rights of the Committed Lenders hereunder may be exercised by or through any of their affiliates or branches; provided that with respect to the commitments, any assignments thereof to an affiliate will not relieve the Committed Lenders from any of their obligations hereunder, unless and until such affiliate shall have funded the portion of the commitment so assigned. This Commitment Letter may not be amended or any provision hereof waived or modified except by an instrument in writing signed by each of the Committed Lenders and you. This Commitment Letter may be executed in any number of counterparts, each of which shall be an original and all of which, when taken together, shall constitute one agreement. Delivery of an executed counterpart of a signature page of this Commitment Letter by facsimile transmission or other electronic transmission (e.g., a “pdf” or “tiff”) shall be effective as delivery of a manually executed counterpart hereof. This Commitment Letter and the Fee Letter (i) are the only agreements that have been entered into among the parties hereto with respect to the Bridge Facility and (ii) supersede all prior understandings, whether written or oral, among us with respect to the Bridge Facility and set forth the entire understanding of the parties hereto with respect thereto.
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Each of the parties hereto agrees that (i) this Commitment Letter is a binding and enforceable agreement (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization and other similar laws relating to or affecting creditors’ rights generally and general principles of equity (whether considered in a proceeding in equity or law)) with respect to the subject matter contained herein, including an agreement to negotiate in good faith the Bridge Facility Documentation by the parties hereto in a manner consistent with this Commitment Letter, it being acknowledged and agreed that the funding of the Bridge Facility is subject to conditions precedent provided herein, subject to the Funding Conditions Provision and (ii) the Fee Letter is a binding and enforceable agreement (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization and other similar laws relating to or affecting creditors’ rights generally and general principles of equity (whether considered in a proceeding in equity or law)) of the parties thereto with respect to the subject matter set forth therein.
THIS COMMITMENT LETTER AND THE RIGHTS AND DUTIES OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ITS PRINCIPLES OR RULES OF CONFLICT OF LAWS, TO THE EXTENT SUCH PRINCIPLES OR RULES ARE NOT MANDATORILY APPLICABLE BY STATUTE AND WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION, PROVIDED THAT, NOTWITHSTANDING THE FOREGOING TO THE CONTRARY, IT IS UNDERSTOOD AND AGREED THAT ANY DETERMINATIONS AS TO (I) WHETHER ANY REPRESENTATIONS AND WARRANTIES MADE BY OR ON BEHALF OF, OR WITH RESPECT TO, THE acquired business IN THE ACQUISITION AGREEMENT HAVE BEEN BREACHED, (II) WHETHER THE BUYERS CAN TERMINATE THEIR OBLIGATIONS UNDER THE ACQUISITION AGREEMENT (or otherwise DECLINE TO CONSUMMATE THE ACQUISITION without liability), (III) WHETHER A MATERIAL ADVERSE EFFECT (AS DEFINED IN THE acquisition agreement) HAS OCCURRED AND (IV) WHETHER THE ACQUISITION HAS BEEN CONSUMMATED IN ACCORDANCE WITH THE TERMS OF THE ACQUISITION AGREEMENT, SHALL, IN EACH CASE BE GOVERNED BY, SOLELY TO THE EXTENT THE LAWS OF THE commonwealth of pennsylvania ARE mandatorily APPLICABLE TO ANY SUCH DETERMINATION UNDER THE ACQUISITION AGREEMENT, THE LAWS OF THE commonwealth of pennsylvania.
EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY OR ON BEHALF OF ANY PARTY RELATED TO OR ARISING OUT OF THIS COMMITMENT LETTER OR THE PERFORMANCE OF SERVICES HEREUNDER.
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Each of the parties hereto hereby irrevocably and unconditionally (a) submits, for itself and its property, to the exclusive jurisdiction of any New York State court or Federal court of the United States of America sitting in New York County, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Commitment Letter and the Fee Letter, or the transactions contemplated hereby, and agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State court or, to the extent permitted by law, in such Federal court, (b) waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Commitment Letter, the Fee Letter, or the transactions contemplated hereby, in any such New York State court or in any such Federal court, (c) 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 and (d) agrees that a final judgment in any such suit, 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. Each of the parties hereto agrees to commence any such action, suit, proceeding or claim either in the United States District Court for the Southern District of New York or in the Supreme Court of the State of New York, New York County, located in the Borough of Manhattan.
This Commitment Letter is delivered to you on the understanding that none of the Fee Letter and its terms or substance, or this Commitment Letter and its terms or substance, shall be disclosed, directly or indirectly, to any other person or entity (including other lenders, underwriters, placement agents, advisors or any similar persons) except (a) to the Sponsor and to your and their respective officers, directors, employees, attorneys, accountants and advisors on a confidential and need-to-know basis, (b) if the Committed Lenders consent to such proposed disclosure (such consent not to be unreasonably withheld), (c) pursuant to the order of any court or administrative agency in any pending legal or administrative proceeding, or otherwise as required by applicable law or compulsory legal process or, to the extent requested or required by governmental and/or regulatory authorities, in each case based on the reasonable advice of your legal counsel (in which case, you agree, to the extent practicable and not prohibited by law, to notify us of the proposed disclosure in advance of such disclosure and if you are unable to notify us in advance of such disclosure, such notice shall be delivered to us promptly thereafter to the extent permitted by law) or (d) to the extent necessary in connection with the exercise of any remedy or enforcement of any rights hereunder; provided that (i) you may disclose this Commitment Letter and the contents hereof to the Acquired Business and the Seller and their respective officers, directors, equity holders, employees, attorneys, accountants and advisors on a confidential and need-to-know basis, (ii) you may disclose this Commitment Letter and the contents hereof in any proxy or other public filing relating to the Acquisition, in the Bridge Teaser and in any prospectus or other offering memorandum relating to the Notes, (iii) you may disclose this Commitment Letter, and the contents hereof, to potential Lenders (including any prospective Additional Committing Lender), potential equity investors and potential arrangers of a Permitted Financing and their respective officers, directors, employees, attorneys, accountants, advisors and other representatives on a confidential and need-to-know basis and to rating agencies in connection with obtaining ratings for the Borrower and the Bridge Facility or the Notes, (iv) you may disclose the fees contained in the Fee Letter as part of a generic disclosure of aggregate sources and uses related to fee amounts to the extent customary or required in marketing materials, any proxy or other public filing, in the Bridge Teaser or any prospectus or other offering memorandum relating to the Notes, (v) to the extent portions thereof have been redacted in a customary manner (including, without limitation, redaction of fee amounts), you may disclose the Fee Letter and the contents thereof to the Acquired Business and the Seller and their respective officers, directors, equity holders, employees, attorneys, accountants and advisors on a confidential and need-to-know basis, (vi) you may disclose the Fee Letter and the contents thereof to any prospective Additional Committing Lender or prospective equity investor and their respective officers, directors, employees, attorneys, accountants, advisors and other representatives on a confidential and need-to-know basis and (vii) you may disclose this Commitment Letter and the contents hereof to the lenders and agent under the ABL Facility and their respective officers, directors, employees, attorneys, accountants and advisors, on a confidential and need to know basis. The obligations under this paragraph with respect to the Commitment Letter shall terminate automatically after the Bridge Facility Documentation shall have been executed and delivered by the parties thereto. To the extent not earlier terminated, the provisions of this paragraph with respect to the Commitment Letter shall automatically terminate on the second anniversary hereof.
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You agree that you will permit us to review and approve (such approval not to be unreasonably withheld) any reference to us or any of our affiliates in connection with the Bridge Facility or the transactions contemplated hereby contained in any press release or similar written public disclosure prior to public release.
The Committed Lenders and their affiliates will use all confidential information provided to them or such affiliates by or on behalf of you hereunder or in connection herewith solely for the purpose of providing the services that are the subject of this Commitment Letter and shall treat confidentially all such information; provided that nothing herein shall prevent any Committed Lender from disclosing any such information (a) pursuant to the order of any court or administrative agency or in any pending legal or administrative proceeding, or otherwise as required by applicable law or compulsory legal process (in which case such Committed Lender, to the extent not prohibited by applicable law, agrees (except with respect to any routine or ordinary course audit or examination conducted by bank examiners or any governmental bank regulatory authority exercising examination or regulatory authority) to inform you promptly thereof), (b) upon the request or demand of any regulatory authority having jurisdiction over such Committed Lender or any of its affiliates (in which case such Committed Lender, to the extent practicable and not prohibited by law, agrees (except with respect to any routine or ordinary course audit or examination conducted by bank examiners or any governmental bank regulatory authority exercising examination or regulatory authority) to inform you promptly thereof and if such Committed Lender is unable to notify you in advance of such disclosure, such notice shall be delivered to you promptly thereafter to the extent permitted by law), (c) to the extent that such information becomes publicly available other than by reason of improper disclosure by any of the Committed Lenders or any of their affiliates or any of the Committed Lenders’ and such affiliates’ respective officers, directors, employees, attorneys, accountants, advisors and other representatives in violation of any confidentiality obligations owing to you, the Sponsor, the Acquired Business or any of your or their respective subsidiaries (including those set forth in this paragraph), (d) to the extent that such information is received by such Committed Lender or its affiliates from a third party that is not, to such Committed Lender’s or its affiliates’ knowledge, subject to confidentiality obligations owing to you, the Sponsor, the Acquired Business or any of your or their respective subsidiaries, (e) to the extent that such information was already in such Committed Lender’s or its affiliates’ possession or is independently developed by such Committed Lender or its affiliates, (f) to such Committed Lender’s affiliates and such Committed Lender’s and such affiliates’ respective trustees, officers, directors, employees, attorneys, accountants, service providers, advisors and other representatives who need to know such information in connection with the Transactions and are informed of the confidential nature of such information and who agree to be bound by the terms of this paragraph (or language substantially similar to this paragraph), (g) to potential or prospective Lenders, participants or assignees and any direct or indirect contractual counterparties to any swap or derivative transaction relating to the Borrower and its obligations under the Bridge Facility (in each case, other than a Disqualified Institution), in each case who agree to be bound by the terms of this paragraph (or language substantially similar to this paragraph), (h) subject to your prior approval of the information to be disclosed (such approval not to be unreasonably withheld, conditioned or delayed), to rating agencies in connection with obtaining or confirming ratings for the Company, the Bridge Facility and the Notes, (i) for purposes of establishing a “due diligence defense”, (j) to the extent necessary in connection with the exercise of any remedy or enforcement of any rights hereunder, (k) to any other party hereto or (l) to the extent you consent to such proposed disclosure. The Committed Lenders’ obligations under this paragraph shall automatically terminate and be superseded by the confidentiality provisions in the definitive documentation relating to the Bridge Facility upon the initial funding thereunder, if and to the extent the Committed Lenders are party thereto, and shall in any event terminate upon the second anniversary of the date hereof.
13 |
The syndication, reimbursement and compensation provisions (if applicable in accordance with the terms hereof and the Fee Letter), indemnification, waiver of indirect, special, punitive or consequential damages, confidentiality (except to the extent set forth herein), jurisdiction, governing law, venue, absence of fiduciary relationship and waiver of jury trial provisions contained herein and in the Fee Letter shall remain in full force and effect regardless of whether Bridge Facility Documentation shall be executed and delivered and notwithstanding the termination of this Commitment Letter or the Committed Lenders’ commitments hereunder; provided that your obligations under this Commitment Letter, other than those relating to the confidentiality of the Fee Letter and provision of information, shall automatically terminate and be superseded by the Bridge Facility Documentation upon the initial funding thereunder and the payment of all amounts owing at such time hereunder and under the Fee Letter, and you shall be automatically released from all liability in connection therewith at such time.
We hereby notify you that, pursuant to the requirements of the U.S. PATRIOT Improvement and Reauthorization Act, Title III of Pub. L.107-56 (signed into law October 26, 2001, as amended from time to time, the “PATRIOT Act”), each of the Committed Lenders and each other Lender is required to obtain, verify and record information that identifies the Borrower and each Guarantor, which information includes the name, address, tax identification number and other information regarding the Borrower and each Guarantor that will allow any of the Committed Lenders or such Lender to identify the Borrower and such Guarantor in accordance with the PATRIOT Act. This notice is given in accordance with the requirements of the PATRIOT Act and is effective as to the Committed Lenders and each Lender.
If the foregoing correctly sets forth our agreement, please indicate your acceptance of the terms of this Commitment Letter and of the Fee Letter by returning to the Bridge Administrative Agent, on behalf of the Committed Lenders, executed counterparts hereof and of the Fee Letter not later than 11:59 p.m., New York City time, on November 9, 2014. The Committed Lenders’ commitments hereunder and agreements contained herein will expire at such time in the event that the Bridge Administrative Agent has not received such executed counterparts in accordance with the immediately preceding sentence. This Commitment Letter and the commitments and undertakings of each of the Committed Lenders hereunder shall automatically terminate upon the first to occur of (i) the termination of the Acquisition Agreement, (ii) June 7, 2015 (the “Expiration Date”), unless each of the Committed Lenders shall, in their discretion, agree to an extension and (iii) the consummation of the Transactions with or without the funding of the Bridge Facility. You shall have the right to terminate this Commitment Letter and the commitments of the Committed Lenders hereunder with respect to the Bridge Facility in its entirety (or a portion thereof not in excess of $50 million pro rata among the Committed Lenders) at any time upon written notice to the Committed Lenders from you, subject to your surviving obligations as set forth in the third to last paragraph of this Commitment Letter and in the Fee Letter.
[Remainder of this page intentionally left blank]
14 |
The Committed Lenders are pleased to have been given the opportunity to assist you in connection with the financing for the Acquisition.
Very truly yours, | |
[signature pages follow] |
CREDIT SUISSE SECURITIES (USA) LLC | |||
By: | /s/ Megan D. Glen | ||
Name: | Megan D. Glen | ||
Title: | Director | ||
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH | |||
By: | /s/ Robert Hetu | ||
Name: | Robert Hetu | ||
Title: | Authorized Signatory | ||
By: | /s/ Lingzi Huang | ||
Name: | Lingzi Huang | ||
Title: | Authorized Signatory |
[Signature Page to Metallica Commitment Letter]
CITIGROUP GLOBAL MARKETS INC. | |||
By: | /s/ Justin Tichauer | ||
Name: | Justin Tichauer | ||
Title: | Director |
[Signature Page to Metallica Commitment Letter]
ROYAL BANK OF CANADA | |||
By: | /s/ James S. Wolfe | ||
Name: | James S. Wolfe | ||
Title: | Managing Director, Head of Global Leveraged Finance |
[Signature Page to Metallica Commitment Letter]
UBS SECURITIES LLC | |||
By | /s/ Kevin T. Pluff | ||
Name: | Kevin T. Pluff | ||
Title: | Managing Director, Leveraged Capital Markets | ||
By | /s/ John Stroll | ||
Name: | John Stroll | ||
Title: | Director | ||
UBS AG, STAMFORD BRANCH | |||
By | /s/ Kevin T. Pluff | ||
Name: | Kevin T. Pluff | ||
Title: | Managing Director, Leveraged Capital Markets | ||
By | /s/ John Stroll | ||
Name: | John Stroll | ||
Title: | Director |
[Signature Page to Metallica Commitment Letter]
Accepted and agreed to as of
the date first above written:
NCI BUILDING SYSTEMS, inc. | |||
By: | /s/ Mark E. Johnson | ||
Name: | Mark E. Johnson | ||
Title: | Executive Vice President, Chief Financial Officer and Treasurer |
[Signature Page to Metallica Commitment Letter]
EXHIBIT A
Project Metallica
Transaction Description
Capitalized terms used but not defined in this Exhibit A shall have the meanings set forth in the Commitment Letter to which this Exhibit A is attached (the “Commitment Letter”) or in the other Exhibits to the Commitment Letter.
NCI Building Systems, Inc., a Delaware corporation (the “Company” or “you”), intends to acquire (the “Acquisition”), directly or indirectly, all of the equity interests of the entity previously identified by you to us as “Metallica” (the “Acquired Business”).
In connection with the foregoing, it is intended that:
a) Pursuant to the Interest Purchase Agreement (together with the Acquired Business’s disclosure schedules delivered in connection therewith, collectively, the “Acquisition Agreement”) among the NCI Group, Inc., Steelbuilding.com, Inc. (collectively, “Buyers”), the general partners of CENTRIA, a Pennsylvania General Partnership (the “Seller”), and the Acquired Business, the Company will, directly or indirectly, acquire (the “Acquisition”) the Acquired Business. Pursuant to the Acquisition, the Seller shall have the right to receive the amount required to consummate the Acquisition (the “Acquisition Consideration”) in accordance with the terms of the Acquisition Agreement.
b) The Company will issue up to $250 million in aggregate principal amount of the Notes (subject to increase to fund any original issue discount in the issue price of the Notes) and/or borrow up to $250 million (less the amount of cash proceeds received from the issuance of Notes) in aggregate principal amount of Bridge Loans plus any increase as provided in the Bridge Term Sheet, in each case, on (or, in the case of the Notes, at your election, prior to) the closing date of the Acquisition, which amount shall be used, together with (at your election) borrowings under the Company’s Loan and Security Agreement, dated as of October 20, 2009, among the Company, certain of its subsidiaries, the lenders party thereto and Wells Fargo Capital Finance, LLC, as administrative agent and co-collateral agent and Bank of America, N.A., as co-collateral agent (as amended by Amendment No. 1 to the Loan and Security Agreement, dated as of December 3, 2010, Amendment No. 2 to the Loan and Security Agreement dated as of May 2, 2012, Amendment No. 3 to the Loan and Security Agreement, dated as of the date hereof, and as may be further amended, waived, supplemented or otherwise modified from time to time, the “ABL Facility”) and/or cash on hand, inter alia to consummate the Acquisition, to redeem or repay the Repaid Indebtedness (the “Refinancing”) and to pay fees, premiums and expenses incurred in connection with the Transactions.
A-1 |
c) All third-party indebtedness for borrowed money of the Acquired Business and its subsidiaries (other than indebtedness incurred or issued pursuant to the Transactions, and subject to the following sentence) that is outstanding on the Closing Date will be repaid, redeemed, defeased or otherwise discharged (or irrevocable notice for the redemption thereof will be given) (collectively, the “Repaid Indebtedness”). Any existing third party indebtedness for borrowed money of the Acquired Business and its subsidiaries (“Existing Indebtedness”) that the Company has requested be permitted to remain outstanding with the approval of the Lead Arrangers (not to be unreasonably withheld), and, at the option of the Company, any Existing Indebtedness listed in Annex I to this Exhibit A and any capital leases existing on the date of the Commitment Letter or permitted to be incurred under the Acquisition Agreement, shall remain outstanding after the Closing Date.
The transactions described above, any prepayment of the Term Loan Facility with the proceeds of Notes and/or Bridge Loans as contemplated by paragraph 1 of the Summary of Additional Conditions and the payment of related fees, premiums and expenses are collectively referred to herein as the “Transactions”.
A-2 |
Annex I to
Exhibit A
Existing Indebtedness
· | Industrial Revenue Bonds issued by the City of Sheridan, Arkansas and secured by letters of credit from PNC Bank: |
o | $1,000,000 1988 Series B Bonds maturing on August 1, 2016, and |
o | $2,700,000 Series 2000A Bonds Maturing on August 1, 2020. |
A-I-1 |
EXHIBIT B
Project Metallica
Senior Unsecured Increasing Rate Bridge Loans
Summary of Principal Terms and Conditions
All capitalized terms used but not defined herein shall have the meanings given to them in the Commitment Letter to which this term sheet is attached, including the other Exhibits thereto.
Borrower: | NCI Building Systems, Inc. (the “Borrower”). | |
Transactions: | As set forth in Exhibit A to the Commitment Letter. | |
Agents: | CS will act as sole and exclusive administrative agent (in such capacity, the “Bridge Administrative Agent”) in respect of the Bridge Facility for a syndicate of financial institutions reasonably acceptable to the Borrower (together with the Committed Lenders, the “Lenders”), and will perform the duties customarily associated with such role. | |
Joint Bookrunner and Lead Arranger: | Each of CS Securities, Citi, RBCCM and UBSS will act as joint lead arrangers for the Bridge Facility (each a “Lead Arranger” and collectively with any other arrangers appointed pursuant to the fifth paragraph of the Commitment Letter, the “Lead Arrangers”) and each will perform the duties customarily associated with such roles. | |
Bridge Loans: | (A) The Lenders will make senior unsecured increasing rate loans (the “Bridge Loans”) to the Borrower on the Closing Date in an aggregate principal amount of up to $250 million plus, at the Borrower’s option, an amount sufficient to fund original issue discount in the issue price of the Notes (such increased amount, the “Bridge Loan OID Increase”), pursuant to a senior unsecured increasing rate bridge facility (the “Bridge Facility”), and minus the aggregate amount of Notes issued on or prior to the Closing Date. | |
Availability: | The Lenders will make the Bridge Loans on the Closing Date substantially simultaneously with the consummation of the Acquisition. |
B-1 |
Uses of Proceeds: | The proceeds of the Bridge Loans will be used by the Borrower on the Closing Date, together with the proceeds of borrowings under the ABL Facility, the proceeds from the issuance of the Notes (if any) and cash on hand, to finance the Transactions. | |
Ranking: | The Bridge Loans will rank pari passu in right of payment with the ABL Facility, obligations under the Company’s Term Loan Credit Agreement, dated as of June 22, 2012, among the Company, Credit Suisse AG, Cayman Islands Branch, as administrative agent and collateral agent and the lenders party thereto (as amended by Amendment No. 1, dated as of the June 24, 2013, the “Term Loan Facility”, and together with the ABL Facility, the “Senior Secured Facilities”) and other senior indebtedness of the Borrower, and will not be secured. | |
Guarantees: | The Bridge Loans will be jointly and severally guaranteed by each domestic subsidiary of the Borrower that guarantees or is an obligor in respect of the Senior Secured Facilities, on a senior basis (such guarantees, the “Guarantees”). The Guarantees will automatically be released upon the release of the corresponding guarantees of the Senior Secured Facilities. The Guarantees will rank pari passu in right of payment with the guarantees of the Senior Secured Facilities, and will not be secured. | |
Maturity: | All Bridge Loans will have an initial maturity date that is the one-year anniversary of the Closing Date (the “Maturity Date”). If any Bridge Loan has not been previously repaid in full on or prior to the Maturity Date, such Bridge Loan will be automatically converted into a senior unsecured term loan (each, a “Senior Unsecured Term Loan”) due on the date that is eight years after the Closing Date (the “Extended Maturity Date”). The date on which Bridge Loans are converted into Senior Unsecured Term Loans is referred to as the “Conversion Date”. At any time on or after the Conversion Date, at the option of the applicable Lender, the Senior Unsecured Term Loans may be exchanged in whole or in part for senior unsecured exchange notes (the “Senior Unsecured Exchange Notes”) having an equal principal amount and having the terms set forth in Annex II hereto; provided that the Borrower may defer the first issuance of Senior Unsecured Exchange Notes until such time as the Borrower shall have received requests to issue an aggregate of at least $75.0 million of the aggregate principal amount of the Senior Unsecured Term Loans in Senior Unsecured Exchange Notes; provided further that the Borrower may defer each subsequent issuance of Senior Unsecured Exchange Notes until such time as the Borrower shall have received requests to issue an aggregate of at least $50.0 million (or, if less, the aggregate amount of remaining Senior Unsecured Term Loans) in Senior Unsecured Exchange Notes. |
B-2 |
The Senior Unsecured Term Loans will be governed by the provisions of the Bridge Loan Documentation (as defined below) and will have the same terms as the Bridge Loans, except as set forth in Annex I hereto. The Senior Unsecured Exchange Notes will be issued pursuant to an indenture that will have the terms set forth in Annex II hereto. | ||
The Senior Unsecured Term Loans and the Senior Unsecured Exchange Notes shall be pari passu with one another for all purposes. | ||
Interest Rates: | Interest for the first three-month period commencing on the Closing Date shall be payable at LIBOR (as defined below) for U.S. dollars (for interest periods of 1, 2, 3 or 6 months, as selected by the Borrower) plus 600 basis points (the “Initial Margin”). Thereafter, subject to the Total Cap (as defined in the Fee Letter), interest shall be payable at prevailing LIBOR for the interest period selected by the Borrower plus the Applicable Margin (as defined below) and shall increase by an additional 50 basis points at the beginning of each three-month period subsequent to the initial three-month period for so long as the Bridge Loans are outstanding (except on the Conversion Date) (the Initial Margin plus each 50 basis point increase therein described above, the “Applicable Margin”). “LIBOR” means the London interbank offered rate for dollars (or any successor thereto), adjusted for statutory reserve requirements; provided that LIBOR shall not be less than 1.00% per annum. |
B-3 |
Notwithstanding anything to the contrary set forth above, at no time, other than as provided under the heading “Default Rate” below, shall the per annum yield on the Bridge Loans exceed the amount specified in the Fee Letter in respect of the Bridge Facility as the “Total Cap”. | ||
Following the Maturity Date, all outstanding Senior Unsecured Term Loans will accrue interest at the rate provided for in Annex I hereto, subject to the Total Cap. | ||
Interest Payments: | Interest on the Bridge Loans will be payable in cash, quarterly in arrears. Calculation of interest shall be on the basis of actual days elapsed in a year of 360 days. | |
Default Rate: | At the request of the Bridge Administrative Agent, overdue principal, interest, fees and other amounts shall bear interest at the applicable interest rate plus 2.00% per annum. | |
Notwithstanding anything to the contrary set forth herein, in no event shall any cap or limit on the yield or interest rate payable with respect to the Bridge Loans, Senior Unsecured Term Loans or Senior Unsecured Exchange Notes affect the payment of any default rate of interest in respect of any Bridge Loans or Senior Unsecured Term Loans. |
B-4 |
Mandatory Prepayment: | The Borrower will be required to prepay the Bridge Loans at 100% of the outstanding principal amount thereof plus accrued and unpaid interest with (i) the net cash proceeds from the issuance of the Notes; (ii) the net proceeds from the issuance of any Refinancing Debt (to be defined in a manner such that any such prepayment would not violate the terms of the Senior Secured Facilities) by the Borrower or any of its restricted subsidiaries; (iii) the net proceeds of any public equity issuances subject to exceptions to be agreed, including an exception for any issuances to the Sponsor or its affiliates; and (iv) the net cash proceeds from any non-ordinary course asset sales by the Borrower or any of its restricted subsidiaries in excess of amounts either reinvested or required to be paid to the lenders under the Senior Secured Facilities; in each case with exceptions and baskets consistent with the standard set forth under “Documentation” below, including, but not limited to, exceptions and baskets no more restrictive than those applicable to the Term Loan Facility; provided that in the case of an issuance of Securities (as defined in the Fee Letter) (with such proceeds being applied to repay the Bridge Loans prior to the repayment of loans outstanding under the Senior Secured Facilities) to any Lender (or any of its affiliates) or any person to whom a Lender participated an interest in the Bridge Loans (or any of such participant’s affiliates) (such Lenders, participants and affiliates, “Specified Bridge Parties”), the net cash proceeds received by the Borrower and its subsidiaries in respect of such Securities acquired by such Specified Bridge Parties may, at the option of such Specified Bridge Party, be applied first to prepay the Bridge Loans of such Specified Bridge Party prior to being applied to prepay the Bridge Loans held by other Lenders on a pro rata basis. The Borrower will also be required to offer to prepay the Bridge Loans following the occurrence of a Change of Control (to be defined in a manner consistent with the standard set forth under “Documentation” below) at 100% of the outstanding principal amount thereof, plus accrued and unpaid interest to the date of repayment. | |
Optional Prepayment: | The Bridge Loans may be prepaid, in whole or in part, at par plus accrued and unpaid interest upon not less than three days’ prior written notice, at the option of the Borrower at any time. |
B-5 |
Documentation: | The definitive documentation for the Bridge Facility will be negotiated in good faith and will be consistent with this Term Sheet and, subject to the foregoing, consistent with and substantially similar to, with respect to covenants and defaults, the Indenture, dated as of November 26, 2013, among Bullseye MergerSub, Inc., the guarantors party thereto and Wilmington Trust, National Association, as trustee, taking account of and being modified fully as appropriate to reflect the terms set forth in the Commitment Letter and Fee Letter, including the “flex” provisions, and the operational and strategic requirements of the Company and the Acquired Business and its and their respective subsidiaries (including as to operational and strategic requirements of the Company and the Acquired Business and its and their respective subsidiaries, in light of their size, industries, business, business practices and business plans) (it being understood that basket sizes and incurrence tests will be set taking into account the relative EBITDA and total assets of the Company and the Acquired Business and its and their respective subsidiaries on a consolidated basis); and with respect to those provisions reflecting credit agreement format (including representations and warranties), consistent with the Term Loan Facility with changes to reflect the technical aspects of the Bridge Facility and operational and administrative changes reasonably requested by the Bridge Administrative Agent; and, in any event, will contain only those conditions to borrowing, representations and warranties, covenants and events of default expressly set forth in this Term Sheet (such documentation, the “Bridge Loan Documentation”). Notwithstanding the foregoing, the only conditions to the availability of the Bridge Facility on the Closing Date shall be the applicable conditions set forth in the Funding Conditions Provision and in Exhibit C to the Commitment Letter. | |
Conditions Precedent to Initial Extension of Credit: | Borrowing under the Bridge Facility will be subject solely to the applicable conditions set forth in the Funding Conditions Provision and in Exhibit C to the Commitment Letter, including the condition that the Specified Representations and, to the extent required by the Funding Conditions Provision, the Acquired Business Representations shall be true and correct in all material respects on and as of the Closing Date (although any Specified Representation or Acquired Business Representation, which expressly relates to a given date or period shall be required only to be true and correct in all material respects as of the respective date or for the respective period, as the case may be). |
B-6 |
Representations and Warranties: | The Bridge Loan Documentation will contain representations and warranties as are substantially consistent with and similar to (and, in any event, no less favorable to the Company than) those for the Term Loan Facility, including as to exceptions and qualifications, and limited to the following: organizational status, authority and enforceability of the Bridge Loan Documentation, no violation of law, charter documents or agreements, litigation, margin regulations, governmental approvals, U.S. Investment Company Act, Patriot Act, OFAC, accuracy of disclosure as of the Closing Date, financial statements, no default under other contractual obligations, no undisclosed liabilities, taxes, ERISA, labor matters, intellectual property, subsidiaries, insurance, compliance with laws, environmental matters, properties, use of proceeds and consolidated Closing Date solvency. The failure of any representation or warranty (other than the Specified Representations or the Acquired Business Representations, subject to the Funding Condition Provisions) to be true and correct on the Closing Date shall not constitute the failure of a condition precedent to funding or a default under the Bridge Loan Documentation. |
B-7 |
Covenants: |
The Bridge Loan Documentation will contain such affirmative and negative covenants with respect to the Borrower and its restricted subsidiaries as are usual and customary for bridge loan financings of this type consistent with the standard set forth under “Documentation” above, it being understood and agreed that the covenants of the Bridge Loans (and the Senior Unsecured Term Loans) will be incurrence-based covenants consistent with the standard set forth under “Documentation” above and shall in no event be more restrictive than the corresponding covenants in the Term Loan Facility and shall be limited to the following: (a) furnishing of financial information (such covenant to be no less favorable to the Borrower than the corresponding covenant in the Term Loan Facility), (b) requirements as to future subsidiary guarantors, (c) restrictions on liens, (d) restrictions on indebtedness, (e) restrictions on restricted payments, including dividends, investments and certain payments on contractually subordinated indebtedness, (f) restrictions on sales of assets and subsidiary stock, (g) restrictions on limitations on distributions from subsidiaries, (h) restrictions on mergers, consolidations and sales of all or substantially all of the assets of the Borrower, (i) restrictions on transactions with affiliates, and (j) repurchase of Bridge Loans upon a Change of Control (to be defined consistent with the standard set forth under “Documentation” above). Prior to the Maturity Date, the restricted payments covenant and ratio debt and the general baskets under the indebtedness covenant of the Bridge Loans will be more restrictive than those of the Senior Unsecured Term Loans and the Senior Unsecured Exchange Notes, as reasonably agreed by the Lead Arranger and the Borrower; provided that such baskets (other than the CNI builder basket) shall not be any more restrictive than those of the Term Loan Facility. The definition of “Permitted Liens” in the Bridge Loan Documentation shall include an exception for Liens securing “Credit Facility Indebtedness” incurred in compliance with clause (b) of the indebtedness covenant. Clause (b)(i) of the indebtedness covenant in the Bridge Loan Documentation shall provide (i) dollar baskets no smaller than the dollar baskets in Subsection 8.1(b)(i) of the Term Loan Facility, (ii) a “Borrowing Base” grower no less favorable than the “Borrowing Base” grower in Subsection 8.1(b)(i)(I)(B) of the Term Loan Facility and (iii) a Consolidated Secured Leverage Ratio (to be defined consistent with the standard set forth under the heading “Documentation” above, the “CSLR”) incurrence ratio allowing for the incurrence of secured debt so long as on a pro forma basis the CSLR is less than or equal to 4.75:1.00. Any Indebtedness outstanding under the Senior Secured Facilities on the Closing Date shall be deemed incurred under clause (b) of the indebtedness covenant.
In the case of the incurrence of any indebtedness or liens or the making of any investments, restricted payments, asset sales or fundamental changes or the designation of any restricted subsidiaries or unrestricted subsidiaries in connection with a Limited Condition Acquisition (as defined below), at the Borrower’s option, the relevant ratios and baskets shall be determined as of the date a definitive acquisition agreement for such Limited Condition Acquisition is entered into and calculated as if the acquisition and other pro forma events in connection therewith were consummated on such date; provided that if the Borrower has made such an election, in connection with the calculation of any ratio or basket with respect to the incurrence of any other debt or liens, or the making of any other investments, restricted payments, asset sales, fundamental changes or the designation of a restricted subsidiary or unrestricted subsidiary on or following such date and prior to the earlier of the date on which such acquisition is consummated or the definitive agreement for such acquisition is terminated, any such ratio shall be calculated on a pro forma basis assuming such acquisition and other pro forma events in connection therewith (including any incurrence of indebtedness) have been consummated. |
B-8 |
As used herein, “Limited Condition Acquisition” means any acquisition by the Borrower or one or more of its restricted subsidiaries permitted pursuant to the Bridge Loan Documentation whose consummation is not conditioned on the availability of, or on obtaining, third party financing. | ||
Financial Maintenance Covenants: | None. | |
Events of Default: | The Bridge Loan Documentation will contain such events of default (including grace periods and threshold amounts) consistent with the standard set forth under “Documentation” above (and in any event no more restrictive than the corresponding default provisions of the Term Loan Facility), consisting of and limited to: nonpayment of principal, interest or other amounts; violation of covenants; incorrectness of representations and warranties in any material respect; cross acceleration to material indebtedness; bankruptcy or insolvency of the Borrower or its significant subsidiaries; material monetary judgments; ERISA events; and actual or asserted invalidity of guarantees. | |
Cost and Yield Protection: | The Bridge Loan Documentation will contain cost and yield protection provisions consistent with the Term Loan Facility, including as to exceptions and qualifications. | |
Assignment and Participation: | The Lenders will have the right to assign Bridge Loans after the Closing Date to financial institutions or institutional investors in accordance with applicable law, without the consent of the Borrower (other than to any Disqualified Institution); provided, however, that prior to the date that is one year after the Closing Date and so long as a Demand Failure Event (as defined in the Fee Letter) has not occurred and no payment or bankruptcy event of default shall have occurred and is continuing, the consent of the Borrower shall be required with respect to any assignment (such consent not to be unreasonably withheld) if, subsequent thereto, the Committed Lenders would hold, in the aggregate, less than 51% of the outstanding Bridge Loans. |
B-9 |
The Lenders will have the right to participate their Bridge Loans to financial institutions or institutional investors in accordance with applicable law (other than to any Disqualified Institution), without restriction other than customary voting limitations. Participants will have the same benefits as the selling Lenders would have (and will be limited to the amount of such benefits) with regard to yield protection and increased costs, subject to customary limitations and restrictions. | ||
Notwithstanding the foregoing, in no event shall the Bridge Administrative Agent be obligated to ascertain, monitor or inquire as to whether any person is a Disqualified Institution. | ||
Voting: | Amendments and waivers of the Bridge Loan Documentation will require the approval of Lenders holding more than 50% of the outstanding Bridge Loans, except that (a) the consent of each Lender directly and adversely affected thereby will be required for (i) reductions of principal, interest rates or the Applicable Margin, (ii) extensions of the Maturity Date (except as provided under “Maturity” above) or the Extended Maturity Date, (iii) additional restrictions on the right to exchange Senior Unsecured Term Loans for Senior Unsecured Exchange Notes or any amendment of the rate of such exchange, (iv) any amendment to the Senior Unsecured Exchange Notes that requires (or would, if any Senior Unsecured Exchange Notes were outstanding, require) the approval of all holders of Senior Unsecured Exchange Notes and (v) subject to certain exceptions consistent with the standard set forth under “Documentation” above, releases of all or substantially all of the value of the Guarantees (other than in connection with any release or sale of the relevant Guarantor permitted by the Bridge Loan Documentation) and (b) the consent of 100% of the Lenders will be required with respect to modifications to any of the voting percentages. |
B-10 |
Indemnification: | The Bridge Loan Documentation will contain indemnification provisions consistent with the Term Loan Facility, including as to exceptions and qualifications. | |
Governing Law: | New York. | |
Counsel to the Bridge Administrative Agent: | Davis Polk & Wardell LLP. |
B-11 |
ANNEX I to
EXHIBIT B
Senior Unsecured Term Loans
Maturity: | The Senior Unsecured Term Loans will mature on the date that is eight years after the Closing Date. | |
Interest Rate: | The Senior Unsecured Term Loans will bear interest at an interest rate per annum equal to the Total Cap (the “Senior Unsecured Term Loan Interest Rate”). Interest shall be payable on the last day of each fiscal quarter of the Borrower and on the maturity date of the Senior Unsecured Term Loans, in each case payable in arrears and computed on the basis of a 360-day year. | |
Default Rate: | Overdue principal, interest, fees and other amounts shall bear interest at the applicable interest rate plus 2.00% per annum. | |
Ranking: | Same as Bridge Loans. | |
Guarantees: | Same as Bridge Loans. | |
Covenants, Defaults and Mandatory Prepayments: | Upon and after the Conversion Date, the covenants, mandatory prepayments and defaults which would be applicable to the Senior Unsecured Exchange Notes, if issued, will also be applicable to the Senior Unsecured Term Loans in lieu of the corresponding provisions of the Bridge Loan Documentation. | |
Optional Prepayment: |
The Senior Unsecured Term Loans may be prepaid, in whole or in part, at par, plus accrued and unpaid interest upon not less than three days’ prior written notice, at the option of the Borrower at any time.
In addition, at the option of the Borrower, an “AHYDO Saver” provision will be included. | |
Governing Law: | New York. |
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ANNEX II to
EXHIBIT B
Senior Unsecured Exchange Notes
Issuer: | The Borrower will issue the Senior Unsecured Exchange Notes under an indenture capable of being qualified under the Trust Indenture Act of 1939, as amended. The Borrower, in its capacity as the issuer of the Senior Unsecured Exchange Notes, is referred to as the “Issuer”. | |
Principal Amount: | The Senior Unsecured Exchange Notes will be available only in exchange for the Senior Unsecured Term Loans on or after the Conversion Date. The principal amount of any Senior Unsecured Exchange Note will equal 100% of the aggregate principal amount of the Senior Unsecured Term Loan for which it is exchanged. In the case of any partial exchange, the initial minimum amount of Senior Unsecured Term Loans to be exchanged for Senior Unsecured Exchange Notes will equal $75.0 million of the aggregate principal amount of the Senior Unsecured Term Loans, and thereafter, a minimum amount of $50.0 million (or, if less, the aggregate amount of remaining Senior Unsecured Term Loans) for any further exchanges. | |
Maturity: | The Senior Unsecured Exchange Notes will mature on the date that is eight years after the Initial Closing Date. | |
Interest Rate: | The Senior Unsecured Exchange Notes will bear interest payable semi-annually, in arrears, at a rate equal to the Total Cap. | |
Ranking: | Same as Bridge Loans and Senior Unsecured Term Loans. | |
Guarantees: | Same as Bridge Loans and Senior Unsecured Term Loans. |
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Documentation: | The definitive documentation for the Senior Unsecured Exchange Notes will be negotiated in good faith and will be consistent with this Term Sheet and, subject to the foregoing, will be consistent with and substantially similar to that certain Indenture, dated as of November 26, 2013, among Bullseye MergerSub, Inc., the guarantors party thereto and Wilmington Trust, National Association, as trustee, taking account of and being modified to fully reflect the terms set forth in the Commitment Letter and the Fee Letter and the operational and strategic requirements of the Company and the Acquired Business and its and their respective subsidiaries (including as to operational and strategic requirements of the Company and the Acquired Business and its and their respective subsidiaries in light of their size, industries, business, and business practices and business plans) (it being understood that basket sizes and incurrence tests will be set taking into account the relative EBITDA and total assets of the Company and the Acquired Business and its and their respective subsidiaries on a consolidated basis); and in any event will contain only those covenants and events of default expressly set forth in this Term Sheet (such documentation, the “Senior Unsecured Exchange Note Documentation”). | |
Offer to Purchase from Asset Sale Proceeds: | The Issuer will be required to make an offer to repurchase the Senior Unsecured Exchange Notes (and, if outstanding, prepay the Senior Unsecured Term Loans) on a pro rata basis, which offer shall be at 100% of the principal amount thereof plus accrued and unpaid interest to the date of repurchase with a portion of the net cash proceeds of all non-ordinary course asset sales by the Issuer and its restricted subsidiaries in excess of amounts either reinvested or required to be paid to the lenders under the Senior Secured Facilities, with such proceeds being applied to the Senior Unsecured Term Loans, the Senior Unsecured Exchange Notes and the Notes in a manner to be agreed, subject to other exceptions and baskets consistent with the Senior Unsecured Exchange Note Documentation, including, but not limited to, exceptions and baskets less restrictive than those applicable to the Term Loan Facility. | |
Offer to Purchase upon Change of Control: | After making any payments required to be made to repay the Senior Secured Facilities, the Issuer will be required to make an offer to repurchase the Senior Unsecured Exchange Notes following the occurrence of a Change of Control (to be defined consistent with the Senior Unsecured Exchange Note Documentation) at a price in cash equal to 101% of the outstanding principal amount thereof, plus accrued and unpaid interest to the date of repurchase, unless the Issuer shall redeem such Senior Unsecured Exchange Notes pursuant to the “Optional Redemption” section below. |
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Optional Redemption: | Except as set forth in the next two succeeding paragraphs, the Senior Unsecured Exchange Notes will be non-callable prior to the third anniversary of the Closing Date. Thereafter, each such Senior Unsecured Exchange Note may be redeemed, in whole or in part, at the option of the Issuer at a price equal to 100% of the aggregate principal amount redeemed plus accrued and unpaid interest, if any, plus a premium equal to three-fourths of the coupon on such Senior Unsecured Exchange Notes, with such premium declining ratably to zero on the date that is two years prior to the maturity date of such Senior Unsecured Exchange Notes. | |
Prior to the third anniversary of the Closing Date, the Issuer may redeem such Senior Unsecured Exchange Notes at a make-whole price based on the yield on U.S. Treasury notes with a maturity closest to the third anniversary of the Closing Date plus 50 basis points. | ||
Prior to the third anniversary of the Closing Date, the Issuer may redeem up to 40% of such Senior Unsecured Exchange Notes with an amount equal to proceeds from any equity offering at a price equal to par plus the coupon on such Senior Unsecured Exchange Notes; provided, however, that Senior Unsecured Exchange Notes in a principal amount equal to at least 50% of the aggregate principal amount of such Senior Unsecured Exchange Notes originally issued remain outstanding after such redemption. | ||
In addition, at the option of the Issuer, an “AHYDO Saver” provision will be included. | ||
The optional redemption provisions will be otherwise consistent with the standard set forth under “Documentation” above. |
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Defeasance and Discharge Provisions: | Consistent with the standard set forth under “Documentation” above. | |
Modification: | Consistent with the standard set forth under “Documentation” above. | |
Registration Rights: | None. The Senior Unsecured Exchange Notes will be “Rule 144A for life”. | |
Right to Transfer Exchange Notes: | The holders of the Senior Unsecured Exchange Notes shall have the absolute and unconditional right to transfer such notes in compliance with applicable law to any third parties. | |
Covenants: | Consistent with the standard set forth under “Documentation” above, and in no event more restrictive than the corresponding covenants in the Term Loan Facility or (if applicable) the Bridge Loan Documentation. The definition of “Permitted Liens” in the Senior Unsecured Exchange Note Documentation shall include an exception for Liens securing “Credit Facility Indebtedness” incurred in compliance with clause (b) of the indebtedness covenant. Clause (b)(i) of the indebtedness covenant in the Senior Unsecured Exchange Note Documentation shall provide (i) dollar baskets no smaller than the dollar baskets in Subsection 8.1(b)(i) of the Term Loan Facility, (ii) a “Borrowing Base” grower no less favorable than the “Borrowing Base” grower in Subsection 8.1(b)(i)(I)(B) of the Term Loan Facility and (iii) a Consolidated Secured Leverage Ratio (to be defined consistent with the standard set forth under the heading “Documentation” above, the “CSLR”) incurrence ratio allowing for the incurrence of secured debt so long as on a pro forma basis the CSLR is less than or equal to 4.75:1.00. | |
Events of Default: | Consistent with the standard set forth under “Documentation” above, and in no event more restrictive than the corresponding default provisions of the Term Loan Facility or (if applicable) the Bridge Loan Documentation. | |
Governing Law: | New York. |
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EXHIBIT C
Project Metallica
Summary of Additional Conditions
All capitalized terms used but not defined herein shall have the meaning given to them in the Commitment Letter to which this Summary of Additional Conditions is attached, including the other Exhibits thereto.
Except as otherwise set forth below, the initial borrowing under the Bridge Facility shall be subject to the satisfaction or waiver of the following additional conditions:
1. The Acquisition shall have been or, substantially concurrently with the initial borrowing under the Bridge Facility shall be, consummated in all material respects in accordance with the terms of the Acquisition Agreement, without giving effect to any modifications, amendments, express waivers or express consents thereunder by the Buyers that are materially adverse to the Lenders without the consent of the Lead Arrangers (such consent not to be unreasonably withheld, conditioned or delayed), it being understood and agreed that (i) any change in the purchase price shall not be deemed to be materially adverse to the Lenders but (x) any resulting reduction in purchase price to the extent resulting in lower cash funding by the Buyers shall be allocated to a reduction in the Bridge Facility (which reduction shall not result in a Bridge Facility of less than $200 million), with any excess net cash proceeds of the Bridge Facility not applied to such purchase price reduction to be applied to make a prepayment of the Term Loan Facility (subject to any requirement that such a prepayment be in a minimum amount or integral multiples of a stated amount) or to pay fees, premiums and expenses related to the Transactions and (y) any increase in purchase price (excluding, for the avoidance of doubt, purchase price adjustments in respect of working capital pursuant to the Acquisition Agreement) may be funded with the Company’s cash, borrowings under the ABL Facility or the proceeds of a common or other “qualified” equity issuance, or a common equity contribution received by the Company and (ii) any modification, amendment, consent or waiver to the definition of “Material Adverse Effect” in the Acquisition Agreement shall be deemed to be materially adverse to the interests of the Lenders.
2. The Refinancing (if any) shall have been, or substantially concurrently with the initial borrowing under the Bridge Facility shall be, consummated.
3. Since the date of the Acquisition Agreement, no condition, event, occurrence, fact, change, development or effect shall exist or have occurred or come to exist or been threatened that, individually or in the aggregate, has resulted in, or would reasonably be expected to result in, a Material Adverse Effect (as defined in the Acquisition Agreement).
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4. All fees related to the Transactions payable to the Lead Arrangers, the Bridge Administrative Agent or the Lenders shall have been paid to the extent due.
5. The Lead Arrangers shall have received (a) audited consolidated balance sheets and related statements of operations, comprehensive income (loss), equity (deficit) and cash flows of the Company for the three most recently completed fiscal years of the Company ended at least 90 days before the Closing Date, (b) unaudited consolidated balance sheets and related statements of operations, comprehensive income (loss), equity and cash flows of the Company for any subsequent fiscal quarter of the Company ended at least 45 days before the Closing Date and for the comparable quarter of the prior fiscal year, (c) audited consolidated balance sheets and related statements of income, comprehensive income, cash flows and partner’s capital of the Acquired Business for the three most recently completed fiscal years of the Acquired Business ended at least 90 days before the Closing Date and (d) unaudited consolidated balance sheets and related statements of operations, comprehensive loss and cash flows of the Acquired Business for any subsequent fiscal quarter of the Acquired Business ended at least 45 days prior to the Closing Date, and in each case, for the comparable period of the prior fiscal year. The Lead Arrangers hereby acknowledge receipt of the financial statements (I) in the foregoing clauses (a) and (c), (II) in the foregoing clause (b) for the fiscal quarters ended February 2, 2014, May 4, 2014 and August 3, 2014, and (III) in the foregoing clause (d) for the fiscal quarters ended March 31, 2014 and June 30, 2014.
6. The Lead Arrangers shall have received an unaudited pro forma consolidated balance sheet and a related unaudited pro forma consolidated statement of operations of the Company and its subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period of the Company ended at least 45 days before the Closing Date (or if the end of the most recently completed four fiscal quarter period of the Company is the end of a fiscal year of the Company, ended at least 90 days before the Closing Date), prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of operations).
7. The Lead Arrangers shall have received a certificate of the chief financial officer or treasurer (or other comparable officer) of the Company substantially in the form of Annex I attached hereto certifying the solvency, after giving effect to the Transactions, of the Company and its subsidiaries on a consolidated basis.
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8. (a) One or more investment banks reasonably satisfactory to the Lead Arrangers (collectively, the “Investment Banks”) shall have been engaged to publicly sell or privately place the Notes and (b) the Lead Arrangers and the Investment Banks each shall have received as promptly as practicable but, in any event, no later than 20 consecutive calendar days prior to the Closing Date (provided that such consecutive day period shall (i) not be required to be consecutive to the extent it would include November 26, 2014 through November 30, 2014 (which dates set forth in this clause (i) shall be excluded for purposes of the 20 calendar day period), (ii) either expire prior to December 20, 2014 or commence after January 4, 2015 and (iii) not be required to be consecutive to the extent it would include May 22, 2015 through May 25, 2015 (which dates set forth in this clause (iii) shall be excluded for purposes of the 20 calendar day period)) (such period, the “Marketing Period”), an offering memorandum which shall be in customary complete form (except for portions thereof and information that would customarily be provided by the Investment Banks) or which, with respect to the description of notes and any other parts thereof for which the Investment Banks’ or its advisors’ cooperation or approval is required for them to be complete, the Company shall have used its commercially reasonable efforts to cause them to be complete, and in either case, which offering memorandum shall contain information regarding the Company and the Acquired Business of the type and form customarily included in private placements under Rule 144A of the Securities Act and financial statements, pro forma financial statements, business and other financial data of the Company and the Acquired Business of the type required in a registered offering by Regulation S-X and Regulation S-K under the Securities Act (other than Rules 3-10 and 3-16 of Regulation S-X and subject to exceptions customary for private placements pursuant to Rule 144A promulgated under the Securities Act) or that would be necessary for the Investment Banks to receive customary (for high-yield debt securities) “comfort” (including “negative assurance” comfort) from independent accountants in connection with the offering of the Notes, and, in the case of the annual financial statements, the auditors’ reports thereon. Notwithstanding anything in this paragraph 8 to the contrary, the only financial statements that shall be required to be included in the offering memorandum shall be (I) those required to be delivered pursuant to paragraph 5 of this Summary of Additional Conditions and (II) pro forma financial statements relating to (i) the most recently completed fiscal year of the Company ended at least 90 days before the Closing Date and (ii) any subsequent interim fiscal period of the Company ended at least 45 days before the Closing Date for which accompanying financial statements are required to be delivered pursuant to paragraph 5 of this Summary of Additional Conditions.
9. The Lead Arrangers shall have received at least three calendar days prior to the Closing Date all documentation and information as is reasonably requested in writing by the Bridge Administrative Agent, at least 10 calendar days prior to the Closing Date, about the Borrower and the Guarantors mutually agreed to be required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act.
10. Subject in all respects to the Funding Conditions Provision, the Guarantees of the Bridge Facility shall have been executed by the Guarantors and be in full force and effect or substantially simultaneously with the initial borrowing under the Bridge Facility, shall be executed and become in full force and effect.
C-3 |
Annex I to Exhibit C
Form of Solvency Certificate
Date: _____, 201[ ]
To the Administrative Agent and each of the Lenders party to the Credit Agreement referred to below:
I, the undersigned, the Chief Financial Officer of _____, a _____ _____ (the “Borrower”), in that capacity only and not in my individual capacity (and without personal liability), do hereby certify as of the date hereof, and based upon (i) facts and circumstances as they exist as of the date hereof (and disclaiming any responsibility for changes in such fact and circumstances after the date hereof) and (ii) such materials and information as I have deemed relevant to the determination of the matters set forth in this certificate, that:
1. This certificate is furnished to the Administrative Agent and the Lenders pursuant to Section __ of the Credit Agreement, dated as of _________ ____, 201[ ], among _________ (the “Credit Agreement”). Unless otherwise defined herein, capitalized terms used in this certificate shall have the meanings set forth in the Credit Agreement.
2. For purposes of this certificate, the terms below shall have the following definitions:
(a) “Fair Value”
The amount at which the assets (both tangible and intangible), in their entirety, of the Borrower and its Subsidiaries taken as a whole would change hands between a willing buyer and a willing seller, within a commercially reasonable period of time, each having reasonable knowledge of the relevant facts, with neither being under any compulsion to act.
(b) “Present Fair Salable Value”
The amount that could be obtained by an independent willing seller from an independent willing buyer if the assets of the Borrower and its Subsidiaries taken as a whole are sold with reasonable promptness in an arm’s-length transaction under present conditions for the sale of comparable business enterprises insofar as such conditions can be reasonably evaluated.
(c) “Stated Liabilities”
The recorded liabilities (including contingent liabilities that would be recorded in accordance with GAAP) of the Borrower and its Subsidiaries taken as a whole, as of the date hereof after giving effect to the consummation of the Transactions, determined in accordance with GAAP consistently applied.
(d) “Identified Contingent Liabilities”
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The maximum estimated amount of liabilities reasonably likely to result from pending litigation, asserted claims and assessments, guaranties, uninsured risks and other contingent liabilities of the Borrower and its Subsidiaries taken as a whole after giving effect to the Transactions (including all fees and expenses related thereto but exclusive of such contingent liabilities to the extent reflected in Stated Liabilities and excluding any such contingent liabilities of the Acquired Business), as and to the extent identified and explained in terms of their nature and estimated magnitude by responsible officers of the Borrower.
(e) “Will be able to pay their Stated Liabilities and Identified Contingent Liabilities as they mature”
For the period from the date hereof through the Maturity Date, the Borrower and its Subsidiaries taken as a whole will have sufficient assets and cash flow to pay their respective Stated Liabilities and Identified Contingent Liabilities as those liabilities mature or (in the case of contingent liabilities) otherwise become payable.
(f) “Do not have Unreasonably Small Capital”
For the period from the date hereof through the Maturity Date, the Borrower and its Subsidiaries taken as a whole after consummation of the Transactions is a going concern and has sufficient capital to ensure that it will continue to be a going concern for such period.
3. For purposes of this certificate, I, or officers of the Borrower under my direction and supervision, have performed the following procedures as of and for the periods set forth below.
(a) I have reviewed the financial statements (including the pro forma financial statements) referred to in Section [__] of the Credit Agreement.
(b) I have knowledge of and have reviewed to my satisfaction the Credit Agreement.
(c) As chief financial officer of the Borrower, I am familiar with the financial condition of the Borrower and its Subsidiaries.
4. Based on and subject to the foregoing, I hereby certify on behalf of the Borrower that after giving effect to the consummation of the Transactions, it is my opinion that (i) the Fair Value and Present Fair Salable Value of the assets of the Borrower and its Subsidiaries taken as a whole exceed their Stated Liabilities and Identified Contingent Liabilities; (ii) the Borrower and its Subsidiaries taken as a whole do not have Unreasonably Small Capital; and (iii) the Borrower and its Subsidiaries taken as a whole will be able to pay their Stated Liabilities and Identified Contingent Liabilities as they mature.
* * *
C-I-2 |
IN WITNESS WHEREOF, the Borrower has caused this certificate to be executed on its behalf by its Chief Financial Officer as of the date first written above.
[Borrower] | |
By:________________________________ | |
Name: | |
Title: Chief Financial Officer |
C-I-3 |
Exhibit 10.2
EXECUTION VERSION
AMENDMENT NO. 3 TO LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 3 TO LOAN AND SECURITY Agreement, dated November 7, 2014 (this “Amendment No. 3”), is by and among Wells Fargo Capital Finance, LLC (formerly known as Wells Fargo Foothill, LLC) a Delaware limited liability company, in its capacity as administrative agent and co-collateral agent pursuant to the Loan Agreement (as hereinafter defined) acting for and on behalf of the parties thereto as lenders (in such capacity, “Agent”), the parties to the Loan Agreement as lenders (individually, each a “Lender” and collectively, “Lenders”), Bank of America, N.A., a national banking association, in its capacity as co-collateral agent (“BofA” and together with Agent, each individually a “Co-Collateral Agent” and collectively, “Co-Collateral Agents”) and syndication agent, NCI Group, Inc., a Nevada corporation (“NCI”), Robertson-Ceco II Corporation, a Delaware corporation (“Robertson-Ceco”, and together with NCI, each individually, a “Borrower” and collectively, “Borrowers”), NCI Building Systems, Inc., a Delaware corporation (“NCI Building Systems” or “Parent”) and Steelbuilding.com, Inc., a Delaware corporation (“Steelbuilding” and together with Parent, each individually a “Guarantor” and collectively, “Guarantors”).
WITNESSETH:
WHEREAS, Agent, Co-Collateral Agents, Lenders, Borrowers and Guarantors have entered into financing arrangements pursuant to which Lenders (or Agent on behalf of Lenders) have made and may make loans and advances and provide other financial accommodations to Borrowers as set forth in the Loan and Security Agreement, dated October 20, 2009, by and among Agent, Co-Collateral Agents, Lenders, Borrowers and Guarantors (as amended by Amendment No. 1 to the Loan and Security Agreement, dated December 3, 2010 (“Amendment No. 1”) and Amendment No. 2 to the Loan and Security Agreement, dated May 2, 2012 (“Amendment No. 2”), and as the same is amended and supplemented pursuant hereto and may hereafter be further amended, modified, supplemented, extended, renewed, restated or replaced, the “Loan Agreement”) and the other Financing Agreements;
WHEREAS, NCI Building Systems intends to acquire, directly or indirectly, all of the general partner interests of CENTRIA, a Pennsylvania general partnership (as more fully defined on Annex A, the “Centria Acquisition”);
WHEREAS, in connection with the Centria Acquisition, NCI Building Systems intends to issue up to $250.0 million in aggregate principal amount of senior unsecured notes, subject to increase to fund any original issue discount in the issue price of such notes (the “Notes”) in a Rule 144A private placement, or if all or any portion of the Notes are not issued on or prior to the closing date of the Centria Acquisition, up to $250.0 million, less cash proceeds received from the issuance of Notes, subject to increase, of senior unsecured increasing rate loans (the “Bridge Loans”) under a senior unsecured credit facility, or a combination of Notes and Bridge Loans (collectively, the “Financing”);
WHEREAS, Borrowers and Guarantors desire to amend certain provisions of the Loan Agreement as set forth herein, and Agent and Lenders are willing to agree to such amendments on the terms and subject to the conditions set forth herein; and
WHEREAS, by this Amendment No. 3, Agent, Lenders, Borrowers and Guarantors desire and intend to evidence such amendments;
NOW THEREFORE, in consideration of the foregoing and the mutual agreements and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Amendment to Loan Agreement.
(a) The
Loan Agreement (1) is hereby restated to reflect and incorporate the amendments thereto effected by Amendment No. 1 and Amendment
No. 2 and (2) as so restated, is further amended to delete the stricken text (indicated textually in the same manner as the following
example: stricken text) and to add the bold and double-underlined text (indicated
textually in the same manner as the following example: double
underlined text) as set forth on the pages of the Loan Agreement attached as Annex A hereto; provided that
changes to the section numbering in Section 1 of the Loan Agreement have been automatically updated to reflect proper numerical
order and certain formatting changes have been made and, in each case, are not shown in the manner described above but do constitute
amendments to the Loan Agreement to the extent reflected in Annex A.
(b) Exhibit C to the Loan Agreement is hereby deleted in its entirety and replaced with a new Exhibit C attached as Annex B hereto.
2. Interpretation. For purposes of this Amendment No. 3, all terms used herein which are not otherwise defined herein, including but not limited to those terms used in the recitals hereto, shall have the respective meanings assigned thereto in the Loan Agreement as amended by this Amendment No. 3.
3. Representations and Warranties. Borrowers and Guarantors, jointly and severally, represent and warrant with and to Agent and Lenders as follows, which representations and warranties shall survive the execution and delivery hereof:
(a) no Default or Event of Default has occurred and is continuing as of the date of this Amendment No. 3;
(b) each Borrower and Guarantor has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of this Amendment No. 3, and this Amendment No. 3 has been duly executed and delivered by each Borrower and Guarantor, and constitutes a legal, valid and binding obligation of each Borrower and Guarantor, enforceable against such Borrower or Guarantor in accordance with its terms, except as enforceability may be limited by applicable domestic or foreign bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law);
(c) the execution, delivery and performance of this Amendment No. 3 by any Borrower or Guarantor will not violate any Requirement of Law or Contractual Obligation of such Borrower or Guarantor in any respect that has or could reasonably be expected to have a Material Adverse Effect; and
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(d) all of the representations and warranties set forth in the Loan Agreement and the other Financing Agreements, each as amended hereby, are true and correct in all material respects on and as of the date hereof, as if made on the date hereof, except to the extent any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct in all material respects as of such date.
4. Amendment Fee. In consideration of the amendments set forth herein, Borrowers shall on the date that the conditions set forth in Section 5 hereof are satisfied and this Amendment No. 3 is effective, pay to Agent, for the account of Lenders (which Borrowers may pay, at their option, by directing Agent to charge the loan account of Borrowers maintained by Agent), an amendment fee in the amount of $150,000, which fee is fully earned and payable as of such date and shall constitute part of the Obligations.
5. Conditions Precedent. The amendments contained herein shall only be effective on the date on which each of the following conditions precedent are satisfied in a manner reasonably satisfactory to Agent (the “Amendment No. 3 Effective Date”):
(a) Agent shall have received counterparts of this Amendment No. 3, duly authorized, executed and delivered by Borrowers and Guarantors;
(b) Agent shall have received the consent or authorization from such Lenders as are required for the amendments provided for herein to execute this Amendment No. 3 on behalf of the Lenders;
(c) Agent shall have received the amendment fee referred to in Section 4 hereof;
(d) Agent shall have received a true, correct and complete copy of the commitment letter and term sheet related to the Financing;
(e) Agent shall have received a true, correct and complete copy of the Interest Purchase Agreement related to the CENTRIA Acquisition; and
(f) No Default or Event of Default shall exist or have occurred and be continuing (after giving effect to the provisions of this Amendment No. 3).
Agent will promptly confirm the occurrence of the Amendment No. 3 Effective Date in writing to Parent.
6. Assets Acquired in the Centria Acquisition. Notwithstanding anything to contrary in the Loan Agreement, it is understood and agreed that with respect to assets acquired pursuant to the Centria Acquisition of the type constituting Term Loan Priority Collateral, to the extent any such assets or any security interest therein (other than the pledge and perfection of security interests in the pledged certificated stock of U.S.-organized entities (including the delivery of such share certificates) (to the extent required under the Loan Agreement) and other assets pursuant to which a lien may be perfected by the filing of a financing statement under the Uniform Commercial Code) is not provided on the closing date of the Centria Acquisition after the Borrowers’ use of commercially reasonable efforts to do so, the delivery of such assets (and perfection of security interests therein) shall not be required on the closing date of the Centria Acquisition but shall be required to be delivered and perfected after the closing date of the Centria Acquisition (and in any event, within 90 days after the closing date of the Centria Acquisition).
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7. Effect of this Amendment. Except as expressly set forth herein, no other amendments, changes or modifications to the Financing Agreements are intended or implied, and in all other respects the Financing Agreements are hereby specifically ratified, reaffirmed and confirmed by all parties hereto as of the effective date hereof and Borrowers and Guarantors shall not be entitled to any other or further amendment by virtue of the provisions of this Amendment No. 3 or with respect to the subject matter of this Amendment No. 3. To the extent of conflict between the terms of this Amendment No. 3 and the other Financing Agreements, the terms of this Amendment No. 3 shall control. The Loan Agreement, as previously amended, and this Amendment No. 3 shall be read and construed as one agreement. On and after the date that all conditions set forth in Section 5, above, shall have been satisfied and this Amendment No. 3 has become effective, each reference in the Loan Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import, and each reference in the other Financing Agreements to the Loan Agreement, shall mean and be a reference to the Loan Agreement as amended hereby.
8. New Financing. Promptly upon the initial funding of the Financing, Parent shall furnish to Agent true, correct and complete copies of the principal agreements governing the indebtedness incurred pursuant to the Financing entered into in connection therewith on the date of such initial funding (it being agreed that if any of the foregoing shall not then be available, Parent shall deliver it promptly upon its becoming available).
9. Governing Law. The validity, interpretation and enforcement of this Amendment No. 3 and any dispute arising out of the relationship between the parties hereto whether in contract, tort, equity or otherwise, shall be governed by the internal laws of the State of New York but excluding any principles of conflicts of law or other rule of law that would cause the application of the law of any jurisdiction other than the laws of the State of New York.
10. Binding Effect. This Amendment No. 3 shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors and assigns.
11. Further Assurances. Borrowers and Guarantors shall execute and deliver such additional documents and take such additional action as may be reasonably requested by Agent to effectuate the provisions and purposes of this Amendment No. 3.
12. Entire Agreement. This Amendment No. 3 represents the entire agreement and understanding concerning the subject matter hereof among the parties hereto, and supersedes all other prior agreements, understandings, negotiations and discussions, representations, warranties, commitments, proposals, offers and contracts concerning the subject matter hereof, whether oral or written.
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13. Headings. The headings listed herein are for convenience only and do not constitute matters to be construed in interpreting this Amendment No. 3.
14. Counterparts. This Amendment No. 3 may be executed in any number of counterparts, each of which shall be an original, but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Amendment No. 3 by telefacsimile or other electronic method of transmission shall have the same force and effect as delivery of an original executed counterpart of this Amendment No. 3. Any party delivering an executed counterpart of this Amendment No. 3 by telefacsimile or other electronic method of transmission shall also deliver an original executed counterpart of this Amendment No. 3, but the failure to do so shall not affect the validity, enforceability, and binding effect of this Amendment No. 3.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 3 to be duly executed and delivered by their authorized officers as of the day and year first above written.
WELLS FARGO CAPITAL FINANCE, LLC, as Administrative and Co-Collateral Agent and a Lender | ||
By: | /s/ Matt Mouledous | |
Name: | Matt Mouledous | |
Title: | Vice President | |
BANK OF AMERICA, N.A., as Co-Collateral Agent and a Lender | ||
By: | /s/ John Olsen | |
Name: | John Olsen | |
Title: | Senior Vice President | |
ROYAL BANK OF CANADA, as a Lender | ||
By: | /s/ Raja Khanna | |
Name: | Raja Khanna | |
Title: | Authorized Signatory | |
UBS AG, STAMFORD BRANCH, as a Lender | ||
By: | /s/ Lana Gifas | |
Name: | Lana Gifas | |
Title: | Director, Banking Products Services US | |
By: | /s/ Jennifer Anderson | |
Name: | Jennifer Anderson | |
Title: | Associate Director, Banking Products Services US |
[SIGNATURES CONTINUED ON NEXT PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
BORROWERS: | ||
NCI GROUP, INC | ||
By: | /s/ Mark E. Johnson | |
Name: | Mark E. Johnson | |
Title: | Executive Vice President, Chief | |
Financial Officer and Treasurer | ||
ROBERTSON-CECO II CORPORATION | ||
By: | /s/ Mark E. Johnson | |
Name: | Mark E. Johnson | |
Title: | Executive Vice President, Chief | |
Financial Officer and Treasurer | ||
GUARANTORS: | ||
NCI BUILDING SYSTEMS, INC. | ||
By: | /s/ Mark E. Johnson | |
Name: | Mark E. Johnson | |
Title: | Executive Vice President, Chief | |
Financial Officer and Treasurer | ||
STEELBUILDING.COM INC. | ||
By: | /s/ Mark E. Johnson | |
Name: | Mark E. Johnson | |
Title: | Executive Vice President, Chief | |
Financial Officer and Treasurer |
Annex A
[Loan and Security Agreement as amended by Amendment No. 3]
ANNEX A
LOAN AND SECURITY AGREEMENT
by and among
NCI GROUP, INC.
ROBERTSON-CECO II CORPORATION
as Borrowers
and
NCI BUILDING SYSTEMS, INC.
STEELBUILDING.COM, INC.
as Guarantors
THE LENDERS AND ISSUING BANK FROM TIME TO TIME PARTY HERETO
WELLS FARGO FOOTHILLCAPITAL
FINANCE, LLC,
as Administrative Agent and Co-Collateral Agent
BANK OF AMERICA, N.A.,
as Co-Collateral Agent and Syndication Agent
WELLS FARGO FOOTHILLCAPITAL
FINANCE, LLC
BANK OF AMERICA, N.A.
as Joint Lead Arrangers
and
WELLS FARGO FOOTHILLCAPITAL
FINANCE, LLC
BANK OF AMERICA, N.A.
as Joint Lead Bookrunners
Dated: October 20, 2009
TABLE OF CONTENTS
Page | |
SECTION 1. DEFINITIONS | 1 |
SECTION 2. CREDIT FACILITIES | |
2.1 Revolving Loans | |
2.2 Swing Line Loans | |
2.3 Letters of Credit | |
2.4 Requests for Borrowings | |
2.5 Mandatory Prepayments | |
2.6 Optional Prepayments | |
2.7 Increase in Maximum Credit | |
2.8 Decrease in Maximum Credit | |
2.9 Joint and Several Liability of Borrowers | |
2.10 Commitments | |
SECTION 3. INTEREST AND FEES | |
3.1 Interest | |
3.2 Fees | |
3.3 Inability to Determine Applicable Interest Rate | |
3.4 Illegality | |
3.5 Increased Costs | |
3.6 Capital Requirements | |
3.7 Delay in Requests | |
3.8 Mitigation; Replacement of Lenders | |
3.9 Funding Losses | |
3.10 Maximum Interest | |
3.11 No Requirement of Match Funding | |
SECTION 4. CONDITIONS PRECEDENT | |
4.1 Conditions Precedent to Initial Loans and Letters of Credit | |
4.2 Conditions Precedent to All Loans and Letters of Credit | |
SECTION 5. GRANT AND PERFECTION OF SECURITY INTEREST | |
5.1 Grant of Security Interest | |
5.2 Perfection of Security Interests | |
5.3 Special Provisions Relating to Collateral | |
5.4 Intercreditor Relations | |
SECTION 6. COLLECTION AND ADMINISTRATION | |
6.1 Borrowers’ Loan Accounts | |
6.2 Statements | |
6.3 Lenders’ Evidence of Debt | |
6.4 Register | |
6.5 Notes | |
6.6 Cash Management; Collection of Proceeds of Collateral | |
6.7 Payments | |
6.8 Taxes | |
6.9 Use of Proceeds |
i |
6.10 Appointment of Administrative Borrower as Agent for Requesting Loans and Receipts of Loans and Statements | |
6.11 Pro Rata Treatment | |
6.12 Sharing of Payments, Etc | |
6.13 Settlement Procedures | |
6.14 Obligations Several; Independent Nature of Lenders’ Rights | |
6.15 Bank Products | |
SECTION 7. COLLATERAL REPORTING AND COVENANTS | |
7.1 Collateral Reporting | |
7.2 Accounts Covenants | |
7.3 Inventory Covenants | |
7.4 Equipment and Real Property Covenants | |
7.5 Power of Attorney | |
7.6 Right to Cure | |
7.7 Access to Premises | |
7.8 Bills of Lading and Other Documents of Title | |
SECTION 8. REPRESENTATIONS AND WARRANTIES | |
8.1 Financial Condition | |
8.2 No Change; Solvent | |
8.3 Corporate Existence; Compliance with Law | |
8.4 Corporate Power; Authorization; Enforceable Obligations | |
8.5 No Legal Bar | |
8.6 No Material Litigation | |
8.7 No Default | |
8.8 Ownership of Property; Liens | |
8.9 Intellectual Property | |
8.10 No Burdensome Restrictions | |
8.11 Taxes | |
8.12 Federal Regulations | |
8.13 Employee Benefits | |
8.14 Collateral | |
8.15 Investment Company Act; Other Regulations | |
8.16 Subsidiaries | |
8.17 Purpose of Loans | |
8.18 Environmental Compliance | |
8.19 Name; State of Organization; Chief Executive Office; Collateral Locations | |
8.20 Labor Disputes | |
8.21 Bank Accounts | |
8.22 Insurance | |
8.23 Eligible Accounts | |
8.24 Eligible Inventory | |
8.25 Interrelated Businesses | |
8.26 OFAC | |
8.27 True and Correct Disclosure | |
8.28 Delivery of Investment Documents | |
SECTION 9. AFFIRMATIVE COVENANTS | |
9.1 Financial Statements | |
9.2 Certificates; Other Information |
ii |
9.3 Payment of Obligations | |
9.4 Conduct of Business and Maintenance of Existence | |
9.5 Maintenance of Property; Insurance | |
9.6 Notices | |
9.7 Environmental Laws | |
9.8 |
118 |
9.9 Compliance with ERISA | |
9.10 End of Fiscal Years | |
9.11 Additional Guaranties and Collateral Security; Further Assurances | |
9.12 Costs and Expenses | |
SECTION 10. NEGATIVE COVENANTS | |
10.1 Limitation on Fundamental Changes | |
10.2 Encumbrances | |
10.3 Indebtedness | |
10.4 Investments | |
10.5 Restricted Payments | |
10.6 Transactions with Affiliates | |
10.7 Change in Business | |
10.8 Limitation of Restrictions Affecting Subsidiaries | |
10.9 Certain Payments of Indebtedness, Etc | |
10.10 Modifications of Indebtedness, Organizational Documents and Certain Other Agreements | |
10.11 Sale and Leaseback Transactions | |
10.12 Designation of Designated Senior Debt | |
SECTION 11. FINANCIAL COVENANTS | |
11.1 Consolidated Fixed Charge Coverage Ratio | |
11.2 Excess Availability | |
SECTION 12. EVENTS OF DEFAULT AND REMEDIES | |
12.1 Events of Default | |
12.2 Remedies | |
SECTION 13. JURY TRIAL WAIVER; OTHER WAIVERS, CONSENTS; GOVERNING LAW | |
13.1 Governing Law; Choice of Forum; Service of Process; Jury Trial Waiver | |
13.2 Waiver of Notices | |
13.3 Amendments and Waivers | |
13.4 Indemnification | |
SECTION 14. THE AGENT AND CO-COLLATERAL AGENTS | |
14.1 Appointment, Powers and Immunities | |
14.2 Reliance by Agent | |
14.3 Events of Default | |
14.4 Wells Fargo in its Individual Capacity; Co-Agents in their Individual Capacity | |
14.5 Indemnification | |
14.6 Non-Reliance on Agent and Other Lenders | |
14.7 Failure to Act | |
14.8 Additional Loans | |
14.9 Concerning the Collateral and the Related Financing Agreements |
iii |
14.10 Field Audit, Examination Reports and other Information; Disclaimer by Lenders | |
14.11 Collateral Matters | |
14.12 Agency for Perfection | |
14.13 Agent May File Proofs of Claim | |
14.14 Successor Agent | |
14.15 Other Agent Designations | |
14.16 Co-Collateral Agent Determinations | |
14.17 Intercreditor Arrangements | |
SECTION 15. TERM OF AGREEMENT; MISCELLANEOUS | |
15.1 Term | |
15.2 Interpretative Provisions | |
15.3 Notices | |
15.4 Partial Invalidity | |
15.5 Confidentiality | |
15.6 Successors | |
15.7 Assignments; Participations | |
15.8 Entire Agreement | |
15.9 USA Patriot Act | |
15.10 Counterparts, Etc |
iv |
INDEX
TO
EXHIBITS AND SCHEDULES
Exhibit A | Form of Assignment and Acceptance Agreement |
Exhibit B | Form of Borrowing Base Certificate |
Exhibit C | Commitments |
Exhibit D | Form of Guaranty Agreement |
Exhibit E | Form of Pledge Agreement |
Exhibit F | Form of Tax Sharing Agreement |
Exhibit G | Form of Lender Promissory Note |
Exhibit H | Form of U.S. Tax Compliance Certificate |
Exhibit I | Form of Compliance Certificate |
Schedule 1.42 | Consolidated Fixed Charges |
Schedule 1.57 | EBITDA |
Schedule 1.73 | Excluded Property |
Schedule 1.76 | Existing Letters of Credit |
Schedule 1.85 | Freight Forwarders |
Schedule 1.119 | Mortgaged Fee Properties; Mortgages |
Schedule 1.120 | Mortgages |
Schedule 1.139 | Permitted Dispositions |
Schedule 1.165 | Revolving Loan Priority Collateral |
Schedule 1.193 | Term Loan Priority Collateral |
Schedule 5.1 | Commercial Tort Claims; Chattel Paper; Investment Property; Investments Accounts; Letter of Credit Rights; Inventory and Documents of Title in Possession of Third Parties |
Schedule 8.2 | Material Adverse Effect |
Schedule 8.4 | Consents; Authorizations |
Schedule 8.6 | Pending Litigation |
Schedule 8.9 | Intellectual Property |
Schedule 8.14 | UCC Filing Officers |
Schedule 8.16 | Subsidiaries |
Schedule 8.18 | Environmental Compliance |
Schedule 8.19 | Name; State of Organization; Chief Executive Office; Locations of Inventory and Records |
Schedule 8.20 | Labor Matters |
Schedule 8.21 | Deposit Accounts; Investment Accounts |
Schedule 8.22 | Insurance |
Schedule 10.2 | Permitted Liens |
Schedule 10.3 | Existing Indebtedness |
Schedule 10.4 | Existing Guaranty Obligations; Existing Investments; Existing Loans and Advances |
Schedule 10.6 | Affiliate Agreements |
Schedule 12.1 | Financing Agreement Sections Events of Default |
Schedule 15.5(c) | Disclosure to Gold Sheets |
v |
LOAN AND SECURITY AGREEMENT
This Loan and Security Agreement (this “Agreement”)
dated October 20, 2009 is entered into by and among NCI Group, Inc., a Nevada corporation (“NCI”), Robertson-Ceco II
Corporation, a Delaware corporation (“Robertson-Ceco”, and together with NCI, individually each, a “Borrower”
and collectively, “Borrowers”, as hereinafter further defined), NCI Building Systems, Inc., a Delaware corporation
(“NCI Building Systems” or “Parent”), Steelbuilding.com, Inc., a Delaware corporation, the parties hereto
from time to time as lenders, whether by execution of this Agreement or an Assignment and Acceptance (each individually, a “Lender”
and collectively, “Lenders” as hereinafter further defined), Wells Fargo Capital
Finance, LLC (formerly known as Wells Fargo Foothill, LLC),
a Delaware limited liability company, in its capacity as administrative and collateral agent for Issuing Bank and Lenders (in such
capacity, “Agent” as hereinafter further defined), and
Bank of America, N.A, a national banking association (“B of A”) and General Electric
Capital Corporation, a Delaware corporation (“GECC”).
WITNESSETH:
WHEREAS, Borrowers and Guarantor have requested that Agent, Issuing Bank and Lenders enter into financing arrangements with Borrowers pursuant to which Lenders may make loans and provide other financial accommodations to Borrowers; and
WHEREAS, Issuing Bank and each Lender are willing to agree (severally and not jointly) to make such loans and provide such financial accommodations to Borrowers (in the case of each Lender, on a pro rata basis according to its Commitment (as defined below)) on the terms and conditions set forth herein and Agent is willing to act as agent for Issuing Bank and Lenders on the terms and conditions set forth herein and the other Financing Agreements;
NOW, THEREFORE, in consideration of the mutual conditions and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
For purposes of this Agreement, the following terms shall have the respective meanings given to them below:
1.1 “2012 Transactions” shall mean (i) the Metl-Span Acquisition, (ii) the entry by Parent into a new Term Loan Agreement evidencing the New Term Loan Facility and the incurrence of debt thereunder, (iii) the repayment of all outstanding Indebtedness for borrowed money under the Initial Term Loan Agreement and (iv) all other transactions relating to the foregoing (including the payment of fees and expenses related to any of the foregoing).
1.2 “Acceleration” shall have the meaning set forth in Section 12.1(h) hereof.
1.3 “Accounts” shall mean, as to each Borrower and Guarantor, all present and future rights of such Borrower or Guarantor to payment of a monetary obligation, whether or not earned by performance, which is not evidenced by chattel paper or an instrument, (a) for property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of, (b) for services rendered or to be rendered, (c) for a secondary obligation incurred or to be incurred, or (d) arising out of the use of a credit or charge card or information contained on or for use with the card.
1.4 “Acquired Business” shall have the meaning given such term in the definition of the term “Permitted Acquisitions” contained herein.
1.5 “Additional Agent” shall have the meaning set forth in the Intercreditor Agreement.
1.6 “Adjusted Consolidated Net Income” shall mean for any period, the Consolidated Net Income of Parent and its Subsidiaries before any reduction thereof in respect of preferred stock dividends; provided, that, there shall not be included in such Adjusted Consolidated Net Income:
(a) any net income (loss) of any Subsidiary that is not a Borrower or Guarantor if such Subsidiary is subject to restrictions, directly or indirectly, on the payment of dividends or the making of similar distributions by such Subsidiary, directly or indirectly, to a Borrower by operation of the terms of such Subsidiary’s charter or any agreement, instrument, judgment, decree, order, statute or governmental rule or regulation applicable to such Subsidiary or its stockholders (other than restrictions that have been waived or otherwise released); except, that, (A) subject to the limitations contained in clause (b) below, the Borrowers’ equity in the net income of any such Subsidiary for such period shall be included in such Adjusted Consolidated Net Income up to the aggregate amount of any dividend or distribution that was or could have been made by such Subsidiary during such period to a Borrower or another Subsidiary (subject, in the case of a dividend that could have been made to another Subsidiary, to the limitation contained in this clause) and (B) the net loss of such Subsidiary shall be included to the extent of the aggregate Investment of the Parent or any of its other Subsidiaries in such Subsidiary;
(b) any gain or loss realized upon the sale or other Disposition of any asset of Parent or any Subsidiary (including pursuant to any Sale and Leaseback Transaction) that is not sold or otherwise disposed of in the ordinary course of business (as determined in good faith by the board of directors of the Parent);
(c) any item classified as an extraordinary, unusual or nonrecurring gain, loss or charge (including fees, expenses and charges associated with the Transactions and any related transactions, and any acquisition, merger or consolidation after the Closing Date);
(d) the cumulative effect of a change in accounting principles;
(e) all deferred financing costs written off and premiums paid in connection with any early extinguishment of Indebtedness;
(f) any unrealized gains or losses in respect of any foreign exchange contract, currency swap agreement or other similar agreement or arrangements (including derivative agreements or arrangements);
(g) any unrealized foreign currency transaction gains or losses in respect of Indebtedness of any Person denominated in a currency other than the functional currency of such Person;
(h) any non-cash compensation charge arising from any grant of stock, stock options or other equity based awards;
(i) to the extent otherwise included in such Adjusted Consolidated Net Income, any unrealized foreign currency translation or transaction gains or losses in respect of Indebtedness or other obligations of Parent or any Subsidiary owing to Parent or any Subsidiary; and
2 |
(j) any non-cash charge, expense or other impact attributable to application of the purchase method of accounting (including the total amount of depreciation and amortization, cost of sales or other non-cash expense resulting from the write-up of assets to the extent resulting from such purchase accounting adjustments).
In the case of any unusual or nonrecurring gain, loss or charge not included in such Adjusted Consolidated Net Income pursuant to clause (c) above in any determination thereof, Parent will deliver an officer’s certificate to Agent promptly after the date on which such Adjusted Consolidated Net Income is so determined, setting forth the nature and amount of such unusual or nonrecurring gain, loss or charge.
1.7 “Adjusted Eurodollar Rate” shall mean, with respect to (a) each one (1) or two (2) month Interest Period for any Eurodollar Rate Loan comprising part of the same borrowing (including conversions, extensions and renewals), the (i) the rate per annum determined by dividing (A) the highest of the London Interbank Offered Rates for any of the one (1), two (2) or three (3) month Interest Period by (B) a percentage equal to: (x) one (1) minus (y) the Reserve Percentage and (b) with respect to each other Interest Period for any Eurodollar Rate Loan comprising part of the same borrowing (including conversions, extensions and renewals), the rate per annum determined by dividing (i) the London Interbank Offered Rate for such Interest Period by (ii) a percentage equal to: (A) one (1) minus (B) the Reserve Percentage. For purposes hereof, “Reserve Percentage” shall mean for any day, that percentage (expressed as a decimal) which is in effect from time to time under Regulation D of the Board of Governors of the Federal Reserve System (or any successor), as such regulation may be amended from time to time or any successor regulation, as the maximum reserve requirement (including, without limitation, any basic, supplemental, emergency, special, or marginal reserves) applicable with respect to Eurocurrency liabilities as that term is defined in Regulation D (or against any other category of liabilities that includes deposits by reference to which the interest rate of Eurodollar Rate Loans is determined), whether or not any Lender has any Eurocurrency liabilities subject to such reserve requirement at that time. Eurodollar Loans shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefits of credits for proration, exceptions or offsets that may be available from time to time to a Lender. The Adjusted Eurodollar Rate shall be adjusted automatically on and as of the effective date of any change in the Reserve Percentage.
1.8 “Administrative Borrower” shall mean NCI Group, Inc., a Nevada corporation, in its capacity as Administrative Borrower on behalf of itself and the other Borrowers and Guarantors pursuant to Section 6.10 hereof and its successors and assigns in such capacity.
1.9 “Affiliate” shall mean, as to any Person, any other Person (other than a Subsidiary) which, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” (including with correlative meanings, the terms “controlled by” and “under common control with”), of a Person means the power, directly or indirectly, either to (a) vote twenty (20%) percent or more of the securities having ordinary voting power for the election of the Board of Directors of such Person or (b) direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.
1.10 “Agent” shall mean Wells Fargo Capital Finance, LLC (formerly known as Wells Fargo Foothill, LLC) in its capacity as administrative agent on behalf of Lenders pursuant to the terms hereof and any replacement or successor agent hereunder.
1.11 “Agent Payment Account” shall mean account no. 4121624316 of Agent at Wells Fargo, or such other account of Agent as Agent may from time to time designate in writing to Administrative Borrower as the Agent Payment Account for purposes of this Agreement and the other Financing Agreements.
3 |
1.12
“Amendment No.1” shall mean Amendment No. 1 to Loan and Security Agreement, dated December 3, 2010, by and among Agent,
Co-Collateral Agents, Lenders, Borrowers and Guarantors, as the same now exists or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced, and the Loan Agreement and the other Financing Agreements
shall be deemed and are hereby amended to include, in addition and not in limitation, such definition.
1.13
“Amendment No. 2” shall mean Amendment No. 2 to Loan and Security Agreement, dated as of May 2, 2012, by and among
Borrowers, Guarantors, Agent, Co-Collateral Agents and Lenders, which amends this Agreement.
1.14 “Amendment No. 3” shall mean Amendment No. 3 to Loan and Security Agreement, dated as of November 7, 2014, by and among Borrowers, Guarantors, Agent, Co-Collateral Agents and Lenders.
1.15 “Amendment No. 2 Effective Date” shall mean May 2, 2012.
1.16 “Amendment No. 3 Effective Date” shall mean November 7, 2014.
1.17 “Applicable Commitment Fee Rate” shall mean the applicable percentage (on a per annum basis) set forth below based on the Average Daily Used Amount for the immediately preceding month.
Tier | Average Daily Used Amount | Commitment Fee Rate |
1 | Greater than $75,000,000 | 0.25% |
2 | Less than or equal to $75,000,000 | 0.375% |
provided, that, (A) the Applicable Commitment Fee Rate shall be calculated and established once each month and shall remain in effect until adjusted for the next month and (B) each adjustment of the Applicable Commitment Fee Rate shall be effective as of the first day of a calendar month based on the Average Daily Used Amount for the immediately preceding month.
1.18 “Applicable Margin” shall mean, with respect to Base Rate Loans and Eurodollar Rate Loans, the applicable percentage (on a per annum basis) set forth below based on the Quarterly Average Excess Availability for the immediately preceding three (3) month period.
Tier | Quarterly Average Excess Availability |
Applicable Eurodollar Rate Margin |
Applicable Base Rate Margin |
1 | Equal to or greater than $60,000,000 | ||
2 | Greater than or equal to $30,000,000 but less than $60,000,000 | ||
3 | Less than $30,000,000 |
4 |
provided, that, (A) the
Applicable Margin shall be calculated and established once each three (3) month period and shall remain in effect until adjusted
for the next three (3) month period and (B) each adjustment of the Applicable Margin shall be effective as of the first day of
a calendar month based on the Quarterly Average Excess Availability for the immediately preceding three (3) month period; provided,
that, in the event that a Borrowing Base Certificate is not delivered when required under the terms hereof, for the period
from the date upon which such Borrowing Base Certificate was required to be delivered until the date upon which it actually is
delivered, the Applicable Margin shall be twoone
and a quarter (2.001.25%)
percent per annum, in the case of Base Rate Loans and three (3.00two
and a quarter (2.25%) percent per annum, in the case of Eurodollar Rate Loans (it being understood that the foregoing
shall not limit the rights of Agent and Lenders set forth in Section 12). In addition, at all times that an Event of Default exists
or has occurred and is continuing, the Applicable Margin shall not decrease from that previously in effect as a result of the delivery
of a Borrowing Base Certificate. In the event that at any time within six (6) months after the end of a three (3) month period
the Quarterly Average Excess Availability for such three (3) month period used for the determination of the Applicable Margin was
more or less than the actual amount of the Quarterly Average Excess Availability for such three (3) month period as a result of
the inaccuracy of information provided by or on behalf of Borrowers to Agent for the calculation of Excess Availability, the Applicable
Margin for such prior three (3) month period shall be adjusted to the applicable percentage based on such actual Quarterly Average
Excess Availability and any additional interest for the applicable period as a result of such recalculation shall be promptly paid
to Agent or any reduction in interest for the applicable periods as a result of such recalculation shall be given as a credit to
Borrowers to reduce the then outstanding Loans, as the case may be. The foregoing shall not be construed to limit the rights of
Agent and Lenders with respect to the amount of interest payable after a Default or Event of Default whether based on such recalculated
percentage or otherwise.
1.19 “Approved Fund” shall mean any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course 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.
1.20 “Arrangers” shall mean, collectively, Wells Fargo Securities, LLC, a Delaware limited liability company, and Bank of America, N.A., a national banking association, each in its capacity as joint lead arranger, and their respective successors and assigns hereunder.
1.21 “Assignment and Acceptance” shall mean an Assignment and Acceptance substantially in the form of Exhibit A attached hereto (with blanks appropriately completed) delivered to Agent in connection with an assignment of a Lender’s interest hereunder in accordance with the provisions of Section 15.7 hereof.
1.22 “Average Daily Used Amount” shall mean, for any month, an amount equal to the quotient of (a) the sum of (x) the sum of the daily balance of all Loans (other than Swing Line Loans) for each day during such month plus (y) the sum of the daily amount of the undrawn amount of all Letters of Credit for each day during such month over (b) the number of days in such month.
1.23 “Bank Product Provider” shall mean any Lender or Affiliate of any Lender that provides any Bank Products to Borrowers or Guarantors.
1.24 “Bank Products” shall mean any one or more of the following types or services or facilities provided to a Borrower or Guarantor by Agent or a Bank Product Provider: (a) credit cards or stored value cards or the processing of payments and other administrative services with respect to credit cards or stored value cards or (b) treasury, cash management or related services, including (i) the automated clearinghouse transfer of funds for the account of a Borrower or Guarantor pursuant to agreement or overdraft for any accounts of a Borrower or Guarantor, and (ii) controlled disbursement services, (iii) returned items, netting, overdrafts and interstate depository network services, and (iv) Hedge Agreements if and to the extent permitted hereunder.
1.25 “Base Rate” shall mean, on any date, the greater of (a) the prime lending rate as announced from time to time by Wells Fargo Bank, N.A., or its successors or (b) the Federal Funds Rate in effect on such day plus one half (1/2%) percent.
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1.26 “Base Rate Loans” shall mean any Loans or portion thereof on which interest is payable based on the Base Rate in accordance with the terms thereof. All Swing Line Loans shall be Base Rate Loans.
1.27 “Board of Directors” shall mean, for any Person, the board of directors or other governing body of such Person or, if such Person does not have such a board of directors or other governing body and is owned or managed by a single entity, the Board of Directors of such entity, or, in either case, any committee thereof duly authorized to act on behalf of such Board of Directors.
1.28 “Borrowers” shall have the meaning set forth in the preamble hereto and include any other Person that at any time after the date hereof becomes a Borrower; each sometimes being referred to herein individually as a “Borrower”
1.29 “Borrowing Base” shall mean, at any time, the amount equal to:
(a) the lesser of (i) ninety-five
(95%) percent of Qualified Cash and (ii) the amount equal to one-third (1/3) multiplied by the sum of (A) the amount determined
pursuant to clause 1.211.29(a)(i)
above plus (B) the amount determined pursuant to clause 1.211.29(b)
below plus (C) the amount determined pursuant to clause 1.211.29(c)
below, plus
(b) the amount equal to eighty-five (85%) percent multiplied by the amount of Eligible Accounts; plus
(c) the amount equal to the lesser of (i) sixty-five (65%) percent multiplied by the Value of Eligible Inventory or (ii) eighty-five (85%) percent of the Net Recovery Percentage multiplied by the Value of Eligible Inventory or (iii) one hundred thirty (130%) percent of the amount determined based on clause (b) above; minus
(d) Reserves.
1.30 “Borrowing Base Certificate” shall mean a certificate substantially in the form of Exhibit B hereto, as such form may from time to time be modified by Agent in accordance with the terms hereof, which is duly completed (including all schedules thereto) and executed by the chief executive officer, chief financial officer or other appropriate financial officer of Administrative Borrower reasonably acceptable to Agent and delivered to Agent.
1.31 “Business Day” shall mean any day other than a Saturday, Sunday, or other day on which commercial banks located in New York, New York or Atlanta, Georgia are authorized or required by law to close, except that if a determination of a Business Day shall relate to any Eurodollar Rate Loans, the term Business Day shall also exclude any day on which banks are closed for dealings in dollar deposits in the London interbank market.
1.32 “Capital Expenditures” shall mean with respect to any Person for any period, the aggregate of all expenditures by such Person and its consolidated Subsidiaries during such period (exclusive of expenditures made (a) for Permitted Investments and (b) for Permitted Acquisitions, including the portion of the consideration therefor allocated to property, plant and equipment so acquired), which, in accordance with GAAP, are or should be included in “capital expenditures”; except, that, Capital Expenditures shall not include: (i) any such expenditures to the extent financed with proceeds of any Equity Interests issued, or capital contributions received by Parent, or of any Indebtedness permitted hereunder (excluding Loans under this Agreement), (ii) an amount of such expenditures equal to all or part of the proceeds of any casualty insurance, condemnation or eminent domain, or any sale or other Disposition of assets (other than Revolving Loan Priority Collateral), to the extent applied within one (1) year of the date of the receipt of such proceeds, except as to proceeds of any Sale and Leaseback Transaction, to the extent applied within three (3) months of the date of the receipt of such proceeds, and (iii) any such expenditures made in any period that are contractually required to be reimbursed to any Borrower or Guarantor in cash by a Person other than Parent and its Subsidiaries or Affiliates (including landlords) and are so reimbursed in cash during such period.
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1.33 “Capital Leases” shall mean, as applied to any Person, any lease by such Person of property, real or personal, for which the obligations of the lessee are required in accordance with GAAP to be capitalized on the balance sheet of such lessee; provided, that, if at any time an operating lease of such lessee is required to be recharacterized as a Capital Lease after the date hereof as a result of a change in GAAP, then for purposes hereof such lease shall not be deemed a Capital Lease. The stated maturity of any Indebtedness under a Capital Lease shall be the scheduled date under the terms thereof of the last payment of rent or any other amount due under such Capital Lease.
1.34 “Cash Equivalents” shall mean (a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America or any agency or instrumentality thereof and backed by the full faith and credit of the United States of America, in each case maturing within one (1) year from the date of acquisition thereof; (b) direct obligations of any state, commonwealth or territory of the United States of America or any political subdivision, agency or instrumentality of any such state, commonwealth or territory maturing within one (1) year from the date of acquisition thereof and, at the time of acquisition, having an investment grade rating from either S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, then an equivalent rating from another nationally recognized rating service); (c) commercial paper or other indebtedness maturing no more than one (1) year from the date of creation thereof and, at the time of acquisition, having a rating of at least A-2 from S&P or at least P-2 from Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, then an equivalent rating from another nationally recognized rating service); (d) certificates of deposit, time deposits and Eurodollar time deposits or bankers’ acceptances maturing within one (1) year from the date of acquisition thereof and overnight bank deposits issued by any bank organized under the laws of the United States of America or any state thereof or the District of Columbia or any U.S. branch of a foreign bank having at the date of acquisition thereof combined capital and surplus of not less than $250,000,000 in the case of domestic banks and $100,000,000 (or the dollar equivalent thereof) in the case of foreign banks; (e) repurchase obligations for underlying obligations of the types described in clauses (a), (b) and (d) above entered into with any bank meeting the qualifications specified in clause (d) above or with securities dealers of recognized national standing; and (f) investments in money market funds or shares of investment companies that are registered under the Investment Company Act of 1940 that invest substantially all their property or assets in obligations of the types described in clauses (a) through (e) above or are subject to the risk limiting conditions of Rule 2a-7 or any successor rule of the Securities and Exchange Commission.
1.35 “Cash Management Accounts” shall have the meaning set forth in Section 6.6 hereof.
1.36 “Centria Acquisition” shall mean the acquisition by Parent, directly or indirectly, of all of the general partnership interests of Centria, a Pennsylvania general partnership (“Centria”), in accordance in all material respects with the terms of the Interest Purchase Agreement, dated as of November 7, 2014 (the “Centria Acquisition Agreement”), among NCI, Steelbuilding.com, Inc., a Delaware corporation, SMST Management Corp., a Pennsylvania Corporation, Riverfront Capital Fund, a Pennsylvania limited partnership and Centria, without giving effect to any modifications, amendments, express waivers or express consents thereto that are materially adverse to the Lenders without the consent of the Required Lenders (such consent not to be unreasonably withheld, conditioned or delayed) (it being understood and agreed that any change in the purchase price shall not be deemed to be materially adverse to the Lenders but any increase in purchase price (excluding, for the avoidance of doubt, purchase price adjustments in respect of working capital pursuant to the Centria Acquisition Agreement) shall be funded with cash of Parent and its Subsidiaries, borrowings hereunder or the proceeds of a common or other “qualified” equity issuance, or common equity contribution received by Parent; provided further that (x) the CENTRIA Acquisition shall be consummated no later than June 7, 2015 and (y) immediately following the consummation of the Centria Acquisition, Excess Availability shall be no less than $20,000,000.
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1.37 “Centria Financing” shall mean Indebtedness, which may include any bridge loan financing, of Parent or any of its Subsidiaries incurred to finance (x) the Centria Acquisition and, if applicable, (y) an Optional Payment of the Term Loan Debt in connection with or in contemplation of the Centria Acquisition.
1.38 “Centria Refinancing Indebtedness” shall have the meaning assigned to such term in Section 10.3(z).
1.39 “Centria Transactions” shall mean (i) the Centria Acquisition, (ii) the incurrence by Parent of the Centria Financing, (iii) any Optional Payment of Term Loan Debt with proceeds of the Centria Financing, and (iv) all other transactions relating to the foregoing (including the payment of fees and expenses related to the foregoing).
1.40 “CD&R” shall mean Clayton, Dubilier & Rice, Inc. and any successor in interest thereto or successor to CD&R’s investment management business.
1.41 “CD&R Investors” shall mean, collectively, (a) Clayton, Dubilier & Rice Fund VIII, L.P., a Cayman Islands exempted limited partnership, or any successor thereto, (b) CD&R Friends and Family Fund VIII, L.P., a Cayman Islands exempted limited partnership, or any successor thereto, and (c) any Affiliate of any CD&R Investor.
1.42 “Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority.
1.43 “Change in Tax Law” shall have the meaning set forth in Section 6.8.
1.44
“Change of Control” shall mean the occurrence of any of the following events: (a)
the failure of one or more of the Permitted Holders to be the “beneficial owner” (within the meaning of such term under
Rule 13d-3 under the Exchange Act), directly or indirectly, of less
than twenty-five (25%) percent of the voting power of the total outstanding Voting Stock of the Relevant Parent Company, (b)
the Continuing Directors shall cease to constitute a majority of the members of the Board of Directors of the Relevant Parent Company;
(c) there shall not be any designee of one or more Permitted Holders serving as a member of the
Board of Directors of the Relevant Parent Company; (db)
the voting power of the total outstanding Voting Stock of the Relevant Parent Company “beneficially owned” by any Person
that is not a Permitted Holder is both (i) more than thirty-five (35%) percent of such voting power and (ii) more than the voting
power of the total outstanding Voting Stock of the Relevant Parent Company then “beneficially owned” by Permitted Holders;
(ec) Parent
at any time ceases to own, directly or indirectly, one hundred (100%) percent of the Equity Interests of any Borrower (other than
in a transaction permitted under Section 10.1); or (fd)
at any time a “change of control” occurs as such term is defined in the Term Loan Agreement. As used herein, the term
“Relevant Parent Company” means (i) NCI Building Systems so long as NCI Building Systems is not a Subsidiary of a Parent
Entity, and (ii) any Parent Entity so long as NCI Building Systems is a Subsidiary thereof and such Parent Entity is not a Subsidiary
of any other Parent Entity. Notwithstanding anything to the contrary in the foregoing, neither
the Transactions nor the Centria Acquisition shall not
constitute or give rise to a Change of Control.
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1.45 “Closing Date” shall mean the date on which all the conditions precedent set forth in Section 4.1 shall be satisfied or waived in writing.
1.46 “Co-Collateral Agents” shall mean, collectively, Agent and Bank of America, N.A., each in its capacity as co-collateral agent, and any replacement or successor collateral agents hereunder.
1.47 “Code” shall mean the Internal Revenue Code of 1986, as the same now exists or may from time to time hereafter be amended, modified, recodified or supplemented, together with all rules, regulations and interpretations thereunder or related thereto.
1.48 “Collateral” shall have the meaning set forth in Section 5 hereof.
1.49 “Collateral Access Agreement” shall mean an agreement in writing, in form and substance reasonably satisfactory to Agent, from any lessor of premises to any Borrower or Guarantor (only to the extent any Collateral is at such premises), or any other person to whom any Collateral is consigned or who has custody, control or possession of any such Collateral or is otherwise the owner or operator of any premises on which any of such Collateral is located (including any third party processors used by a Borrower), in favor of Agent with respect to the Collateral at such premises or otherwise in the custody, control or possession of such lessor, consignee or other person.
1.50 “Commercial Tort Claims” any action (other than claims primarily seeking declaratory or injunctive relief) commenced by a Borrower or Guarantor in the United States of America, any state, territory or political subdivision thereof, in which such Borrower or Guarantor seeks damages arising out of torts committed against it that would reasonably be expected to result in a damage award to it exceeding $500,000 in any one case or $2,500,000 in the aggregate; provided, that, such thresholds and qualifications do not apply for purposes of the grant of security interest set forth in Section 5.1(l) as of the date hereof and Schedule 5.1.
1.51 “Commitment” shall mean at any time, as to each Lender, the principal amount set forth next to such Lender’s name on Exhibit C hereto or on Schedule 1 to the Assignment and Acceptance Agreement pursuant to which such Lender became a Lender hereunder in accordance with the provisions of Section 15.7 hereof, as the same may be adjusted from time to time in accordance with the terms hereof; sometimes being collectively referred to herein as “Commitments”.
1.52 “Concentration Accounts” shall mean the deposit account of NCI Group, Inc. maintained at Bank of America, N.A. bearing account number 3751036304 and such other accounts as may be established after the date hereof in accordance with the terms hereof used to receive funds from the Cash Management Accounts.
1.53 “Consolidated Fixed Charge Coverage Ratio” shall mean, with respect to any date of determination, the ratio of (a) the amount, determined on a consolidated basis, equal to (i) the EBITDA of Parent and its Subsidiaries on a consolidated basis, as of the end of a fiscal month for the immediately preceding twelve (12) consecutive fiscal months for which Agent has received financial statements pursuant to Section 9.1 hereof, less (ii) the amount of Capital Expenditures of Parent and its Subsidiaries for such period, less (iii) all federal, foreign state, local and foreign income taxes payable by Parent and its Subsidiaries in cash for such period (net of tax refunds received in cash during such period up to the amount of such taxes payable for such period), less (iv) all Restricted Payments paid in cash after the Closing Date during such period permitted under Sections 10.5(d), 10.5(e), 10.5(j), 10.5(k) and 10.5(l), except to the extent that any of such payments or the expenses to which such payments relate are otherwise included as expenses or charges for purposes of the calculation of EBITDA of Parent and its Subsidiaries to (b) Consolidated Fixed Charges of Parent and its Subsidiaries, on a consolidated basis, for such period.
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1.54 “Consolidated Fixed Charges” shall mean, as to Parent and its Subsidiaries, on a consolidated basis, with respect to the immediately preceding twelve (12) consecutive fiscal months for which Agent has received financial statements pursuant to Section 9.1 hereof, the sum of, without duplication, (a) all Consolidated Interest Expense payable in cash for such period, plus (b) scheduled mandatory principal payments made or required to be made (after giving effect to any prepayments paid in cash that reduce the amount of such required payments) on account of Indebtedness of Parent and its Subsidiaries under clause (a), (b) or (c) of the definition of the term “Indebtedness” (excluding the obligations hereunder, any mandatory payments in respect of the Term Loan Debt based on excess cash flow under the Term Loan Agreement, and any payments on Indebtedness required to be made on the final maturity date thereof, but including any obligations in respect of Capital Leases and any mandatory payments in respect of the Term Loan Debt for any 2009 tax refund received), for such period, plus (c) scheduled mandatory payments on account of Disqualified Equity Interests of Parent and its Subsidiaries (whether in the nature of dividends, redemption, repurchase or otherwise) required to be made during such period, plus (d) the amount of fees in excess of $2,000,000 payable for such period to any of the CD&R Investors and their Affiliates for the rendering of management consulting or financial advisory or other services, in each case determined on a consolidated basis in accordance with GAAP; provided, that, notwithstanding anything to the contrary set forth in this definition, for purposes of determining the compliance of Borrowers and Guarantors with Section 11.1 hereof prior to the last day of the fiscal month after the first anniversary of the date of this Agreement, the Consolidated Fixed Charges of Parent and its Subsidiaries on a consolidated basis for the applicable periods set forth on Schedule 1.42 hereto shall be used in the calculation of such Consolidated Fixed Charges.
1.55 “Consolidated Interest Expense” shall mean, for any period, as to Parent and its Subsidiaries, as determined in accordance with GAAP, the amount equal to total interest expense of Parent and its Subsidiaries on a consolidated basis for such period, whether paid or accrued (including the interest expense component attributed to any Capital Lease for such period) in accordance with GAAP.
1.56 “Consolidated Net Income” shall mean, with respect to Parent and its Subsidiaries for any period, the aggregate of the net income (loss) of Parent and its Subsidiaries for such period determined on a consolidated basis in accordance with GAAP.
1.57 “Consolidated Secured Indebtedness” shall mean, as of any date of determination, an amount equal to (i) the aggregate principal amount of outstanding Indebtedness of Parent and its Restricted Subsidiaries as of such date consisting of (without duplication) Indebtedness for borrowed money (including Purchase Money Obligations and unreimbursed outstanding drawn amounts under funded letters of credit); Capitalized Lease Obligations; debt obligations evidenced by bonds, debentures, notes or similar instruments; Disqualified Stock; and (in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor) Preferred Stock, determined on a Consolidated basis in accordance with GAAP (excluding items eliminated in Consolidation, and for the avoidance of doubt, excluding Hedging Obligations) that in each case is then secured by Liens on property or assets of Parent and its Restricted Subsidiaries (other than property or assets held in a defeasance or similar trust or arrangement for the benefit of the Indebtedness secured thereby) minus (ii) the sum of (A) the amount of such Indebtedness consisting of Indebtedness of a type referred to in, or Incurred pursuant to, Subsection 8.1(b)(ix) of the New Term Loan Facility as in effect on the date of the initial funding thereunder and (B) cash, Cash Equivalents and Temporary Cash Investments held by Parent and its Restricted Subsidiaries as of the end of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of Parent are available.
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For purposes of this definition, the following definitions are used as defined in the New Term Loan Facility as in effect on the date of the initial funding thereunder: “Indebtedness,” “Purchase Money Obligations,” “Capitalized Lease Obligations,” “Disqualified Stock,” “Preferred Stock,” “Consolidated,” “GAAP,” “Consolidation,” “Hedging Obligations,” “Incurred,” “Cash Equivalents,” “Temporary Cash Investments,” “Restricted Subsidiary,” and “Subsidiary Guarantor”.
1.58 “Consolidated Secured Leverage Ratio” shall mean, as of any date of determination, the ratio of (i) Consolidated Secured Indebtedness as at such date (after giving effect to any Incurrence or Discharge of Indebtedness on such date) to (ii) the aggregate amount of Consolidated EBITDA for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of Parent are available, provided that:
(1) if, since the beginning of such period, Parent or any Restricted Subsidiary shall have made a Sale, the Consolidated EBITDA for such period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period;
(2) if, since the beginning of such period, Parent or any Restricted Subsidiary (by merger, consolidation or otherwise) shall have made a Purchase, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Purchase occurred on the first day of such period; and
(3) if, since the beginning of such period, any Person became a Restricted Subsidiary or was merged or consolidated with or into Parent or any Restricted Subsidiary, and since the beginning of such period such Person shall have made any Sale or Purchase that would have required an adjustment pursuant to clause (1) or (2) above if made by Parent or a Restricted Subsidiary since the beginning of such period, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Sale or Purchase occurred on the first day of such period.
For purposes of this definition, whenever pro forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings relating thereto, the pro forma calculations in respect thereof (including, without limitation, in respect of anticipated cost savings or synergies relating to any such Sale, Purchase or other transaction) shall be as determined in good faith by the Chief Financial Officer or another Responsible Officer of Parent; provided that with respect to cost savings or synergies relating to any Sale, Purchase or other transaction, the related actions are expected by Parent to be taken no later than 18 months after the date of determination.
For purposes of this definition, the following definitions are used as defined in the New Term Loan Facility as in effect on the date of the initial funding thereunder: “Incurrence,” “Discharge,” “Indebtedness,” “Consolidated EBITDA,” “Sale,” “Purchase,” “Restricted Subsidiary,” and “Responsible Officer”.
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1.59 “Consolidated Total Indebtedness” shall mean, as of any date of determination, an amount equal to (i) the aggregate principal amount of outstanding Indebtedness of Parent and its Restricted Subsidiaries as of such date consisting of (without duplication) Indebtedness for borrowed money (including Purchase Money Obligations and unreimbursed outstanding drawn amounts under funded letters of credit); Capitalized Lease Obligations; debt obligations evidenced by bonds, debentures, notes or similar instruments; Disqualified Stock; and (in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor) Preferred Stock, determined on a Consolidated basis in accordance with GAAP (excluding items eliminated in Consolidation, and for the avoidance of doubt, excluding Hedging Obligations) minus (ii) the sum of (A) the amount of such Indebtedness consisting of Indebtedness of a type referred to in, or Incurred pursuant to, Subsection 8.1(b)(ix) of the New Term Loan Facility as in effect on the date of the initial funding thereunder and (B) cash, Cash Equivalents and Temporary Cash Investments held by Parent and its Restricted Subsidiaries as of the end of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of Parent are available.
1.60 “Consolidated Total Leverage Ratio” shall mean as of any date of determination, the ratio of (a) Consolidated Total Indebtedness as at such date (after giving effect to any Incurrence or Discharge of Indebtedness on such date) to (b) the aggregate amount of Consolidated EBITDA for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of Parent are available, provided that:
(1) if, since the beginning of such period, Parent or any Restricted Subsidiary shall have made a Sale, the Consolidated EBITDA for such period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period;
(2) if, since the beginning of such period, Parent or any Restricted Subsidiary (by merger, consolidation or otherwise) shall have made a Purchase, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Purchase occurred on the first day of such period; and
(3) if, since the beginning of such period, any Person became a Restricted Subsidiary or was merged or consolidated with or into Parent or any Restricted Subsidiary, and since the beginning of such period such Person shall have made any Sale or Purchase that would have required an adjustment pursuant to clause (1) or (2) above if made by Parent or a Restricted Subsidiary since the beginning of such period, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Sale or Purchase occurred on the first day of such period.
For purposes of this definition, whenever pro forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings relating thereto, the pro forma calculations in respect thereof (including, without limitation, in respect of anticipated cost savings or synergies relating to any such Sale, Purchase or other transaction) shall be as determined in good faith by the Chief Financial Officer or another Responsible Officer of Parent; provided that with respect to cost savings or synergies relating to any Sale, Purchase or other transaction, the related actions are expected by Parent to be taken no later than 18 months after the date of determination.
For purposes of this definition, the following definitions are used as defined in the New Term Loan Facility as in effect on the date of the initial funding thereunder: “Incurrence,” “Discharge,” “Indebtedness,” “Consolidated EBITDA,” “Sale,” “Purchase,” “Restricted Subsidiary,” and “Responsible Officer”.
1.61 “Continuing Directors” shall mean the directors of Parent on the Closing Date, after giving effect to the execution and delivery of this Agreement and the other transactions contemplated thereby to occur on such date, and each other director if, in each case, such other director’s nomination for election to the Board of Directors of Parent is recommended by at least a majority of the then Continuing Directors or the election of such other director is approved by one or more Permitted Holders.
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1.62 “Contractual Obligation” shall mean, as to any Person, any provision of any material security issued by such Person or of any material agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
1.63 “Convertible Note Account” shall mean account number 4426940669 at Bank of America, N.A. in the name of NCI Building Systems, Inc., funded with the proceeds of the Investment received by Parent on or about the date hereof pursuant to the Investment Agreement, which funds shall only be used for the payment of amounts due in connection with the Transactions and the payment of Indebtedness evidenced by or pursuant to the Convertible Notes; provided, that, upon payment in full of the Convertible Notes, such funds may be transferred to the Concentration Account and applied as otherwise permitted hereby.
1.64 “Convertible Notes” shall mean, collectively, the 2.125% Convertible Senior Subordinated Notes due November 2024 in the original principal amount of $180,000,000, as the same now exist or may hereafter be amended, modified or supplemented.
1.65 “Credit Facility” shall mean the Loans and Letters of Credit provided to or for the benefit of any Borrower pursuant to Section 2 hereof.
1.66 “Default” shall mean any of the events specified in Section 12.1, whether or not any requirement for the giving of notice (other than, in the case of Section 12.1(h), a Default Notice), the lapse of time, or both, or any other condition specified in Section 12.1, has been satisfied.
1.67 “Default Notice” shall have the meaning set forth in Section 12.1(h) hereof.
1.68 “Defaulting Lender” shall have the meaning set forth in Section 6.13(f) hereof.
1.69 “Deposit Account Control Agreement” shall mean an agreement in writing, in form and substance reasonably satisfactory to Agent, by and among Agent, the Borrower or Guarantor that is the customer of the bank with respect to a deposit account at such bank and such bank, which, if required hereunder, is sufficient to perfect the security interests of Agent therein and provides such other rights with respect thereto as Agent reasonably requires.
1.70 “Disposition” shall mean any sale, issuance, assignment conveyance, transfer, exchange, lease, license or other disposition (including through a Sale and Leaseback Transaction).
1.71 “Disqualified Equity Interest” means, with respect to any Person, any Equity Interest in such Person that, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable, either mandatorily or at the option of the holder thereof) or upon the happening of any event or condition:
(a) matures or is mandatorily redeemable (other than solely for Equity Interests in such Person that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests), whether pursuant to a sinking fund obligation or otherwise;
(b) is convertible or exchangeable at the option of the holder thereof for Indebtedness of, or Equity Interests in, such Person (other than solely for Equity Interests in such Person that do not constitute Disqualified Equity Interest and cash in lieu of fractional shares of such Equity Interests); or
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(c) is redeemable (other than solely for Equity Interests in such Person that do not constitute Disqualified Equity Interest and cash in lieu of fractional shares of such Equity Interests) or is required to be repurchased by such Person or any of its controlled Affiliates, in whole or in part, at the option of the holder thereof;
in each case, on or prior to the date that is ninety-one (91) days after the Maturity Date; provided, that, an Equity Interest that would not constitute a Disqualified Equity Interest but for terms thereof giving holders thereof the right to require such Person to redeem or purchase such Equity Interest upon the occurrence of an “asset sale” or a “change of control” shall not constitute a Disqualified Equity Interest if any such requirement becomes operative upon the Payment in Full of all Obligations.
1.72
“Dominion Event” shall mean a period either (a) commencing on the date that an Event of Default shall exist or have
occurred and be continuing and Agent shall have given written notice thereof to the Administrative Borrower stating that a Dominion
Event has occurred, and ending on the date that such Event of Default ceases to exist or be continuing or (b) commencing on the
date that Excess Availability has been less than, at any time, the amount equal to the greater of (i) eighteen (18%) percent of
the leastlesser
of (A) the Maximum Credit or (B) the Borrowing Base or (C) the Revolving Loan Limit or
(ii) $20,000,000 hereunder for more than three (3) consecutive Business Days or (c) commencing on the day after any date on which,
as of the close of business, Excess Availability shall have been less than $15,000,000, and Agent shall have given written notice
thereof to the Administrative Borrower stating that a Dominion Event has occurred, and ending on the date that Excess Availability
has been greater than such amount for any thirty (30) consecutive day period thereafter; provided, that, a Dominion
Event shall not be terminated less than ninety (90) days following the date which such Dominion Event would otherwise terminate
in the case of the second (2nd) or any subsequent Dominion Event in any twelve (12) consecutive calendar month period.
1.73 “EBITDA” shall mean, as to Parent and its Subsidiaries, with respect to any period, an amount equal to (a) the Consolidated Net Income of Parent and its Subsidiaries for such period determined in accordance with GAAP, plus (b) each of the following (without duplication), in each case to the extent deducted in the calculation of such Consolidated Net Income for such period: (i) depreciation and amortization (including, but not limited to, imputed interest and deferred compensation) of Parent and its Subsidiaries for such period, all in accordance with GAAP, plus (ii) the Consolidated Interest Expense of Parent and its Subsidiaries for such period, plus (iii) Provision for Taxes for such period, plus (iv) non-cash charges (excluding non-cash charges that are accruals or reserves for cash charges in a future period), plus (v) cash restructuring charges for the two (2) fiscal year period ending October 31, 2010 up to the aggregate amount of $11,000,000, plus (vi) cash charges, fees and expenses related to the Transactions as contemplated by the Credit Facility paid on or before the Closing Date, or within nine (9) months after the Closing Date, and any items paid or accrued during such period relating to deferred compensation owed to management accrued prior to the Closing Date, plus (vii) fees and expenses paid to any Sponsor or any Affiliate of any Sponsor for the rendering of management consulting, financial advisory or other services, not to exceed $2,000,000 in the aggregate in the case of such fees for any (12) consecutive month period, plus (viii) any 2009 Tax Refunds (as defined in the Initial Term Loan Agreement), plus (ix) any extraordinary, unusual or non-recurring losses or charges to the extent that such losses or charges exceed any extraordinary, unusual or non-recurring gains or credits, up to $5,000,000 in the aggregate for any (12) consecutive month period (or in the event that such gains or credits exceed such losses, then minus the amount of such excess), plus (x) at Parent’s election, to the extent not otherwise added back pursuant to another provision of this clause (b) in calculating EBITDA for such period, any non-cash charges that are accruals or reserves for cash charges in a future period, plus (xi) cash charges, fees and expenses related to the 2012 Transactions and the Centria Transactions, minus (c) any cash charge incurred during such period to the extent a non-cash charge that was an accrual or reserve for such cash charge was added back pursuant to the preceding subclause (b)(x) in calculating EBITDA for any prior period, minus (d) if there is no Provision for Taxes for such period, any net tax benefit for Taxes imposed on or measured by net income included in the calculation of Consolidated Net Income for such period (excluding any 2009 Tax Refunds (as defined in the Initial Term Loan Agreement) which was specifically addressed in (viii) above; provided, that, notwithstanding anything to the contrary set forth in this definition, for purposes of determining the compliance of Borrowers and Guarantors with Section 11.1 hereof prior to the last day of the first fiscal month or quarter (as the case may be) ending after the first anniversary of the date of this Agreement, the EBITDA of Parent and its Subsidiaries on a consolidated basis for the applicable periods set forth on the EBITDA Schedule 1.57 hereto shall be used in the calculation of such EBITDA.
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1.74 “Eligible Accounts” shall mean those Accounts created by any of the Borrowers in the ordinary course of its business, arising out of its sale of goods or rendition of services, that comply in all material respects with each of the representations and warranties respecting Eligible Accounts made herein, and that satisfy the criteria set forth below. Accounts shall be Eligible Accounts if:
(a) such Accounts are not unpaid more than ninety (90) days after the date of the original invoice for them;
(b) such Accounts are not owed by an account debtor who has Accounts unpaid more than ninety (90) days after the date of the original invoice for them which constitute more than twenty-five (25%) percent of the total Accounts of such account debtor;
(c) neither the account debtor nor any officer or employee of the account debtor with respect to such Accounts is an officer, employee, agent or other Affiliate of any Borrower or Guarantor; provided, that, in the event that any account debtor is an Affiliate of CD&R or any CD&R Investor, to the extent that such Account otherwise satisfies the criteria for an Eligible Account such Account shall be deemed an Eligible Account, so long as (i) it arises from a transaction in the ordinary course of business of the Borrower to whom such Account is owed and such Affiliate, (ii) it is on terms no less favorable to such Borrower than it would obtain in a comparable arm’s length transaction with a Person that is not an Affiliate, (iii) it is otherwise at all times handled in all respects in the same or similar manner as an Account owing from a Person that is not an Affiliate in accordance with the practices and policies of such Borrower, (iv) such Affiliate does not have any power, directly or indirectly, to direct or cause the direction of the management or policies of any Borrower or Guarantor, (v) Agent shall have received notice of such Accounts at the time of any field examination to the extent that any Responsible Officer of Parent or any of its Subsidiaries has knowledge of such Accounts, and (vi) in the event that at any time, any such Accounts for which the account debtor is an Affiliate of CD&R or any CD&R Investor do not satisfy such criteria, then Co-Collateral Agents may, at their option, determine in their Permitted Discretion that all Accounts due from such Affiliate are not Eligible Accounts;
(d) such Accounts do not arise from sales on consignment, guaranteed sale, sale and return, sale on approval, or other terms under which payment by the account debtor may be conditional or contingent;
(e) Accounts that are not payable in U.S. Dollars;
(f) such Accounts are owing by an account
debtor with a chief executive office or principal place of business located other than in the United States of America or Canada,
then if the account debtor has delivered to such Borrower an irrevocable letter of credit issued or confirmed by a bank reasonably
satisfactory to Agent in its Permitted Discretion and payable only in the United States of America and in U.S. dollarsDollars,
sufficient to cover such Account, in form and substance reasonably satisfactory to Agent and if required by Agent, the original
of such letter of credit has been delivered to Agent or Agent’s agent and the issuer thereof, and such Borrower has complied
with the terms of Section 5.2(f) hereof with respect to the assignment of the proceeds of such letter of credit to Agent or naming
Agent as transferee beneficiary thereunder;
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(g) such Accounts are owing by an account debtor with a chief executive office or principal place of business in Canada, unless at any time promptly upon Agent’s request, such Borrower shall execute and deliver, or cause to be executed and delivered, such other agreements, documents and instruments as may be reasonably required by Agent to perfect the security interests of Agent in those Accounts of an account debtor with its chief executive office or principal place of business in Canada in accordance with the applicable laws of the Province of Canada in which such chief executive office or principal place of business is located and take or cause to be taken such other and further actions as Agent may reasonably request to enable Agent as secured party with respect thereto to collect such Accounts under the applicable Federal or Provincial laws of Canada;
(h) such Accounts are not owing by any foreign government or the federal government of the United States of America or any department, agency or instrumentality of the United States or any State, or any political subdivision, department, agency or instrumentality thereof (exclusive, however, of (i) Accounts owing by the federal government of the United States of America with respect to which the applicable Borrower has complied, to the reasonable satisfaction of Agent, with the Assignment of Claims Act of 1940 (31 USC Section 3727) or any similar applicable law and (ii) Accounts owing by any State, or any political subdivision, department, agency or instrumentality thereof, with respect to which the applicable Borrower has complied, to the reasonable satisfaction of Agent, with all applicable laws so as to give Agent the same rights and remedies with respect thereto as it has with Accounts owing by an account debtor other than such State or entity);
(i) the account debtor with respect to such Accounts has not asserted a counterclaim, defense or dispute and is not owed or does not claim to be owed any amounts that may give rise to any right of setoff or recoupment against such Accounts (but the portion of the Accounts of such account debtor in excess of the amount at any time and from time to time owed by such Borrower to such account debtor or claimed owed by such account debtor that otherwise satisfy the criteria for Eligible Accounts shall be deemed Eligible Accounts);
(j) the account debtor with respect to such Account has not failed to pay the full invoiced face amount thereof (short pays);
(k) the account debtor with respect to such Accounts has not paid to Borrower a deposit in respect of unfilled orders for goods to the extent that such Accounts exceed amounts received from such account debtor as a deposit; provided, that, such Accounts which otherwise constitute Eligible Accounts will be included as Eligible Accounts in the event that the applicable contract with such customer included terms and conditions with respect to the identification of the applicable goods to such contract and the passage of title thereto, in each case satisfactory to Co-Collateral Agents;
(l) such Accounts do not arise from service charges, interest or fees, or warranty or similar charges, provided, that, for purposes of the calculation of the Borrowing Base, Agent shall establish an estimated amount of such interest, fees and charges that shall not be deemed Eligible Accounts based on information provided by Borrowers to Agent, which amount shall be adjusted periodically based on field examinations and other information that Agent may receive from time to time, and any portion of any Accounts attributable to such interest, fees and charges shall not be otherwise separately deducted from such Accounts;
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(m) the aggregate amount of such Accounts (i) owing by a single account debtor that is Investment Grade do not constitute more than ten (10%) percent of the aggregate amount of all otherwise Eligible Accounts of all Borrowers or (ii) owing by a single account debtor that is not Investment Grade (or not rated) do not constitute more than five (5%) percent of the aggregate amount of all otherwise Eligible Accounts of all Borrowers (provided, that, the portion of the Accounts not in excess of such applicable percentage that otherwise satisfy the criteria for Eligible Accounts shall be deemed Eligible Accounts and for purposes hereof “Investment Grade” shall mean that the account debtor has received a credit rating of BBB- or higher from S&P or a rating of Baa3 or higher from Moody’s or, if neither S&P nor Moody’s shall then be rating such account debtor, then an equivalent rating from another nationally recognized rating service); provided, that, in each case, the amount of Eligible Accounts that are excluded because they exceed the foregoing percentages shall be determined by Agent based on all of the otherwise Eligible Accounts prior to giving effect to any eliminations based upon the foregoing concentration limit;
(n) there are no proceedings or actions which are threatened (of which any Borrower has or reasonably should have notice or of which Agent has any notice) or pending against the account debtor with respect to such Accounts which could be reasonably expected to result in any material adverse change in such account debtor’s financial condition (including, without limitation, any bankruptcy, dissolution, liquidation, reorganization or similar proceeding);
(o) any Account the payment of which Co-Collateral Agents determine in their Permitted Discretion and after notice to Administrative Borrower is doubtful by reason of the account debtor’s financial condition or inability to pay;
(p) such Accounts are subject to the first priority, valid and perfected security interest of Agent (except as to priority, subject to the Liens permitted under clauses (b) and (k) of the definition of Permitted Liens hereof) and any goods giving rise thereto were not at the time of the sale thereof, subject to any Liens except those permitted in this Agreement;
(q) such Accounts are not subject to any Lien other than (i) the Lien of Agent, (ii) those permitted in clauses (b), (c), (d), (k) and (p) of the definition of the term Permitted Liens (but as to Liens referred to in clause (d), to the extent such Liens have been waived pursuant to Collateral Access Agreements or with respect to which Co-Collateral Agents shall have established a Reserve or notified the Administrative Borrower that no Reserve will be established and as to Liens referred to in clause (k), subject to the right of Co-Collateral Agents to establish a Reserve as provided therein), (iii) Liens permitted in clause (z) of the definition of the term Permitted Liens, subject to any applicable Deemed Reserve, or with respect to which the Agent shall have established a Reserve or notified the Administrative Borrower that no Reserve will be established and (iv) any other Liens permitted under this Agreement that are subject to the Intercreditor Agreement or to another intercreditor agreement in form and substance reasonably satisfactory to Agent between the holder of such Lien and Agent;
(r) such Accounts are Accounts with respect to which (i) the goods giving rise to such Account have been shipped and billed to the account debtor, and (ii) the services giving rise to such Account have been performed and billed to the Account Debtor, or
(s) (i) such Accounts do not consist of retainage invoices or progress billings (such that the obligation of the account debtors with respect to such Accounts is conditioned upon such Borrower’s satisfactory completion of any further performance under the agreement giving rise thereto), and (ii) such Accounts do not consist of bill and hold invoices;
(t) such Accounts comply in all material respects with the covenants contained in Section 7.2(b) of this Agreement and with respect to the representations and warranties contained in Section 7.2(b) to the extent such terms and conditions consist of representations and warranties that are qualified as to materiality or Material Adverse Effect then the same shall be true and correct as to such Accounts and to the extent that such terms and conditions consist of representations and warranties that are not so qualified, the same shall be true and correct as to such Accounts in all material respects;
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(u) the account debtor is not located in a state requiring the filing of a Notice of Business Activities Report or similar report in order to permit such Borrower to seek judicial enforcement in such State of payment of such Account, unless such Borrower has qualified to do business in such state or has filed a Notice of Business Activities Report or equivalent report for the then current year or such failure to qualify or file and inability to seek judicial enforcement is capable of being remedied without any material delay or material cost;
(v) the sale of goods or the rendition of services giving rise to such Account is not supported by a performance, bid or surety bond unless the issuer of such bond shall have waived in writing any rights or interest in and to all Revolving Loan Priority Collateral, which waiver is in form and substance reasonably satisfactory to Agent; and
(w) none of the transactions giving rise to such Accounts violate any applicable law or regulation in any material respect, and all documentation relating to such Accounts is legally sufficient under such laws and regulations.
Without limitation upon the right of Co-Collateral Agents to establish Reserves hereunder, Eligible Accounts will be reduced, without duplication, by amounts constituting Reserves for discounts, rebates, rebate accruals, warranty reserves, accrued advertising, unapplied cash, scrap allowances, back charges, and any credits and allowances of any nature that are not paid in respect of such Accounts; and reduced by the variance between the aging of such Accounts and the general ledger.
Notwithstanding the foregoing, Co-Collateral Agents may, from time to time in their Permitted Discretion, upon three (3) Business Days prior notice to Administrative Borrower change the criteria for Eligible Accounts set forth above or add any new criteria for Eligible Accounts based on either: (i) an event, condition or other circumstance arising after the date hereof, or (ii) an event, condition or other circumstance existing on the date hereof to the extent Agent has no knowledge thereof or of its affect on the Accounts prior to the date hereof, in either case under clause (i) or (ii) which adversely affects or could reasonably be expected to adversely affect the Accounts in any material respect as determined by Co-Collateral Agents in their exercise of its Permitted Discretion; provided, that, during such three (3) Business Day period, the Borrowing Base shall, solely for the purposes of any new Loans or Letters of Credit requested by any Borrower during such three (3) Business Day period, exclude any Accounts not constituting Eligible Accounts solely by reason of such proposed changes or additions to the criteria for Eligible Accounts set forth in such notice. Any such change in criteria shall have a reasonable relationship to the event, condition or other circumstance that is the basis for such change. Upon delivery of such notice, Agent will be available from time to time during business hours to consult with Administrative Borrower in connection with the basis for such new criteria or changes to the criteria. Borrowers may take such action as may be required so that the event, condition or matter that is the basis for such change no longer exists, in a manner and to the extent satisfactory to Co-Collateral Agents in their exercise of its Permitted Discretion. In no event shall such notice or opportunity limit the right of Agent to make such change, unless Co-Collateral Agents shall have determined in their Permitted Discretion that the event, condition or other circumstance that is the basis for such new criteria or changes to the criteria no longer exists (except if there is a reasonable prospect that such event, condition or other circumstance will occur again within a reasonable period of time thereafter) or unless Co-Collateral Agents shall have determined in their Permitted Discretion that it has otherwise been adequately addressed by the applicable Borrower. Any Accounts that are not Eligible Accounts shall nevertheless be part of the Collateral. In addition to the foregoing, the determination of Eligible Accounts acquired in any Permitted Acquisition shall be subject to the terms of the last paragraph of the definition of the term Permitted Acquisition herein.
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1.75 “Eligible In-Transit Inventory” shall mean Inventory that would otherwise be Eligible Inventory (other than for its location):
(a) that has been shipped from a location of any Borrower or from the manufacturer or wholesale distributor thereof within the United States of America for receipt at a location of any Borrower within the United States of America and permitted hereunder or from any location of a Borrower to another location of a Borrower, within thirty (30) days of shipment, but in either case, which has not yet been delivered to such Borrower,
(i) for which the purchase order is in the name of a Borrower,
(ii) title has passed to such Borrower (and Agent has received such evidence thereof as it has reasonably requested),
(iii) except as otherwise reasonably agreed by Agent, for which a Borrower is designated as “shipper” and/or consignor and the document of title or waybill reflects a Borrower as consignee with respect thereto,
(iv) as to which Agent has control over the documents of title, to the extent applicable, to such Inventory and
(v) which is insured in accordance with the terms of this Agreement;
provided, that, Agent may, upon notice to Administrative
Borrower, exclude any particular Inventory from Eligible In-Transit Inventory, in the event that Co-Collateral Agents reasonably
determine that such Inventory is subject to any Person’s right or claim that is (or is capable of being) senior to, or pari
passu with, the security interest and lien of Agent therein (such as, without limitation a right of stoppage in transit), as applicable
or that may otherwise adversely impact the ability of Agent to realize upon such Inventory, andor
(b) that is located outside of the United States of America and which is in transit to either the premises of a Freight Forwarder in the United States of America or the premises of any Borrower in the United States of America which are either owned and controlled by such Borrower or leased by such Borrower (but only if Agent has received a Collateral Access Agreement duly authorized, executed and delivered by such Freight Forwarder and the owner and lessor of such leased premises, as the case may be); provided, that,
(i) Agent has a first priority perfected security interest in and lien upon such Inventory and all documents of title with respect thereto (subject to such Liens as are permitted under clause (c) of the definition of the term Permitted Liens),
(ii) such Inventory either (A) is the subject of a negotiable bill of lading (1) in which Agent is named as the consignee (either directly or by means of endorsements), (2) that was issued by the carrier respecting such Inventory that is subject to such bill of lading, and (3) that is in the possession of Agent or the Freight Forwarder handling the importing, shipping and delivery of such Inventory, in all cases, acting on Agent’s behalf subject to a Collateral Access Agreement duly authorized, executed and delivered by such Freight Forwarder, or (B) is the subject of a negotiable forwarder’s cargo receipt and such cargo receipt on its face indicates the name of the freight forwarder as a carrier or multi-modal transport operator and has been signed or otherwise authenticated by it in such capacity or as a named agent for or on behalf of the carrier or multi-modal transport operator, in any case respecting such Inventory and either (1) names Agent as the consignee (either directly or by means of endorsements), or (2) is in the possession of Agent or the Freight Forwarder handling the importing, shipping and delivery of such Inventory, in all cases, acting on Agent’s behalf subject to a Collateral Access Agreement duly authorized, executed and delivered by such Freight Forwarder,
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(iii) such Borrower has title to such Inventory, and Agent shall have received such evidence thereof as it may from time to time reasonably require,
(iv) Agent shall have received a Collateral Access Agreement, duly authorized, executed and delivered by the Freight Forwarder located in the United States of America handling the importing, shipping and delivery of such Inventory,
(v) such Inventory is insured against types of loss, damage, hazards, and risks, and in amounts, satisfactory to Agent in its Permitted Discretion, and Agent shall have received a copy of the certificate of marine cargo insurance in connection therewith in which it has been named as an additional insured and loss payee in a manner reasonably acceptable to Agent,
(vi) Agent shall have received (A) a certificate duly executed and delivered by an officer of such Borrower certifying to Agent that, to the best of the knowledge of such Borrower, such Inventory complies in all material respects with all of such Borrower’s covenants contained herein concerning Eligible In-Transit Inventory and with respect to the representations and warranties contained herein concerning Eligible In-Transit Inventory to the extent such terms and conditions consist of representations and warranties that are qualified as to materiality or Material Adverse Effect then the same shall be true and correct as to such Inventory and to the extent that such terms and conditions consist of representations and warranties that are not so qualified, the same shall be true and correct as to such Inventory in all material respects and that the shipment as evidenced by the documents conforms to the related order documents, and (B) upon Agent’s request, a copy of the invoice, packing slip and manifest with respect thereto,
(vii) such Inventory is not subject to a Letter of Credit, and
(viii) such Inventory shall not have been in transit for more than sixty (60) days.
The aggregate amount of Inventory constituting Eligible In-Transit Inventory under clauses (a) and (b) above for purposes of the calculation of the Borrowing Base at any time will not exceed $3,000,000.
1.76 “Eligible Inventory” shall mean the Inventory of Borrowers that comply in all material respects with each of the representations and warranties respecting Eligible Inventory made herein, and that satisfy the criteria set forth below. Eligible Inventory shall be calculated on the basis of the Inventory set forth in Borrowers’ perpetual inventory reports adjusted for the purchase price variance and the lower of cost or market adjustments and shall not include:
(a) Inventory that does not consist of finished goods and raw materials and certain work-in-process for such finished goods;
(b) obsolete or slow moving Inventory (with inventory that has not been sold after a period of more than three hundred sixty (360) days being deemed to be obsolete or slow moving for this purpose), or Inventory that is damaged or unfit for sale;
(c) Inventory that is not of a type held for sale by any Borrower in the ordinary course of business;
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(d) Inventory that is not owned by any Borrower;
(e) Inventory that is located on premises leased by any Borrower, or stored with a bailee, warehouseman, processor or similar Person, unless (i) Agent has given its prior consent thereto, (ii) a Collateral Access Agreement, in form and substance reasonably satisfactory to Agent has been delivered to Agent, or (iii) Reserves for rent or other amounts payable with respect to such premises, processing or storage reasonably satisfactory to Co-Collateral Agents in their Permitted Discretion, but in no event to exceed the limits for such rent or other amounts with respect to such locations as provided herein, have been established with respect thereto; provided, that, (A) in no event shall Inventory at third party processors having a value of greater than $10,000,000 (or such higher amount as Co-Collateral Agents may hereafter agree) constitute Eligible Inventory and (B) in no event shall Inventory at locations where the value of such Inventory is less than $125,000 constitute Eligible Inventory;
(f) Inventory that is placed on consignment or is in transit with a common carrier from vendors or suppliers, except for Eligible In-Transit Inventory described in subsection (a) of the definition of Eligible In-Transit Inventory;
(g) Inventory that consists of display items, samples, manufacturing supplies or replacement or spare parts not considered for sale in the ordinary course of business or is paint;
(h) Inventory that consists of goods which have been returned by the buyer, other than goods that are undamaged or that are resalable in the normal course of business;
(i) Inventory that does not comply in all material respects with each of the representations and warranties respecting Eligible Inventory made herein;
(j) Inventory that consists of Hazardous Materials that can be transported or sold only with licenses that are not readily available;
(k) Inventory that is covered by a negotiable document of title, unless such document has been delivered to Agent;
(l) packaging, packing and shipping materials;
(m) supplies used or consumed in such Borrower’s business;
(n) bill and hold Inventory;
(o) Inventory located outside the United States of America except for Eligible In-Transit Inventory described in subsection (b) of the definition of Eligible In-Transit Inventory;
(p) such Inventory that is not subject to a first-priority, valid and perfected security interest of Agent and is subject to any Lien other than (i) the Lien of Agent, (ii) as to priority those permitted in clause (b), (c), (d), (k), (o) and (p) of the definition of the term Permitted Liens (but as to Liens referred to in clause (d), to the extent such Liens have been waived pursuant to Collateral Access Agreements or with respect to which Co-Collateral Agents shall have established a Reserve or notified the Administrative Borrower that no Reserve will be established and as to Liens referred to in clauses (k) and (o), subject to the right of Co-Collateral Agents to establish a Reserve as provided therein), (iii) Liens permitted in clause (z) of the definition of the term Permitted Liens, subject to any applicable Deemed Reserve, or with respect to which the Agent shall have established a Reserve or notified the Administrative Borrower that no Reserve will be established and (iv) and any other Liens permitted under this Agreement that are subject to the Intercreditor Agreement or to another intercreditor agreement in form and substance reasonably satisfactory to Agent between the holder of such Lien and Agent;
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(q) “tolling” Inventory having a value in excess of $3,000,000; provided, that, only fifty (50%) percent of the value of such Inventory shall be included in the calculation of the Borrowing Base;
(r) Inventory that is not produced, used, stored and maintained in accordance with applicable insurance standards or in conformity with applicable laws in all material respects
(s) Inventory that is a discontinued product or component thereof and is not immediately usable in a continuing product;
(t) Inventory that contains or bears any intellectual property rights licensed to such Person unless Agent is satisfied in its Permitted Discretion that it may sell or otherwise dispose of such Inventory without (i) infringing the rights of such licensor, (ii) violating any contract with such licensor, or (iii) incurring any liability with respect to payment of royalties other than royalties incurred pursuant to sale of such Inventory under the current licensing agreement;
(u) Inventory that is not reflected in a current perpetual inventory report of such Person;
(v) Inventory for which reclamation rights have been asserted by the seller; and
(w) otherwise Eligible Inventory to the extent of intercompany profit thereon.
Eligible Inventory shall be adjusted by Agent to account for the amount of any variance between perpetual inventory reports and the general ledger of Borrowers or the results of test counts of Inventory conducted by Agent with respect thereto based on the results of each field examination or other information with respect thereto received by Agent.
Notwithstanding the foregoing, Co-Collateral Agents may, from time to time, in their Permitted Discretion, upon three (3) Business Days’ prior notice to Administrative Borrower, change the criteria for Eligible Inventory set forth above or add any new criteria for Eligible Inventory based on either: (i) an event, condition or other circumstance arising after the date hereof, or (ii) an event, condition or other circumstance existing on the date hereof to the extent Agent has no knowledge thereof or of its affect on the Inventory prior to the date hereof, in either case under clause (i) or (ii) which adversely affects or could reasonably be expected to adversely affect the Inventory in any material respect as determined by Co-Collateral Agents in the exercise of their Permitted Discretion; provided, that, during such three (3) Business Day period, the Borrowing Base shall, solely for the purposes of any new Loans or Letters of Credit requested by any Borrower during such three (3) Business Day Period, exclude any Inventory not constituting Eligible Inventory solely by reason of such proposed changes or additions to the criteria for Eligible Inventory set forth in such notice. Any such change in criteria shall have a reasonable relationship to the event, condition or other circumstance that is the basis for such change. Upon delivery of such notice, Agent will be available from time to time during business hours to consult with Administrative Borrower in connection with the basis for such changes to the criteria. Borrowers may take such action as may be required so that the event, condition or matter that is the basis for such change no longer exists, in a manner and to the extent satisfactory to Co-Collateral Agents in the exercise of their Permitted Discretion. In no event shall such notice or opportunity limit the right of Agent to make such change, unless Co-Collateral Agents shall have determined in their Permitted Discretion that the event, condition or other circumstance that is the basis for such new criteria or changes to the criteria no longer exists (except if there is a reasonable prospect that such event, condition or other circumstance will occur again within a reasonable period of time thereafter) or unless Co-Collateral Agents shall have determined in their Permitted Discretion that it has otherwise been adequately addressed by the applicable Borrower. Any Inventory that is not Eligible Inventory shall nevertheless be part of the Collateral. In addition to the foregoing, the determination of Eligible Inventory acquired in any Permitted Acquisition shall be subject to the terms of the last paragraph of the definition of the term Permitted Acquisition herein.
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1.77 “Eligible Transferee” shall mean (a) any Lender; (b) the parent company of any Lender and/or any Affiliate of such Lender which is at least fifty (50%) percent owned by such Lender or its parent company; (c) an Approved Fund approved by Agent; and (d) any other commercial bank, financial institution or “accredited investor” (as defined in Regulation D under the Securities Act of 1933) approved by Agent, such approval not to be unreasonably withheld, conditioned or delayed; provided, that, neither any Borrower nor any Guarantor nor any Affiliate of any Borrower or Guarantor shall qualify as an Eligible Transferee, except a Sponsor Affiliated Lender.
1.78 “Environmental Laws” shall mean any and all U.S., Canadian or foreign federal, state, provincial, territorial, foreign, local or municipal laws, rules, orders, enforceable guidelines and orders-in-council, regulations, statutes, ordinances, codes, decrees, and such requirements of any Governmental Authority properly promulgated and having the force and effect of law or other requirements of law (including common law) regulating, relating to or imposing liability or standards of conduct concerning protection of human health (as it relates to exposure to Hazardous Materials) or the environment, as have been, or now or at any relevant time hereafter are, in effect.
1.79 “Environmental Permits” shall mean any and all permits, licenses, registrations, and any other authorization required under any Environmental Law.
1.80 “Equipment” shall mean, as to any Person, all of such Person’s now owned and hereafter acquired equipment, wherever located, including machinery, data processing and computer equipment (whether owned or licensed and including embedded software), vehicles, rolling stock, tools, furniture, fixtures, all attachments, accessions and property now or hereafter affixed thereto or used in connection therewith, and substitutions and replacements thereof, wherever located.
1.81 “Equity Interests” shall mean, with respect to any Person, all of the shares, interests, participations or other equivalents (however designated) of such Person’s capital stock or partnership, limited liability company or other equity or ownership interests at any time outstanding, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other equity interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other equity interests in) such Person and all warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other equity interests), but excluding (a) any debt security that is convertible into or exchangeable for any such shares (or such other equity interests and (b) any stock appreciation rights, interests in phantom equity plans or similar rights or interests.
1.82 “ERISA” shall mean the Employee Retirement Income Security Act of 1974, together with all rules, regulations and interpretations thereunder or related thereto.
1.83 “ERISA Affiliate” shall mean any person required to be aggregated with any Borrower, any Guarantor or any of its or their respective Subsidiaries under Sections 414(b), 414(c), 414(m) or 414(o) of the Code.
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1.84 “ERISA Event” shall mean, individually or in the aggregate, any of the following events or conditions that either individually or in the aggregate, have or could reasonably be expected to have a Material Adverse Effect: (a) any “reportable event”, as defined in Section 4043(c) of ERISA or the regulations issued thereunder, with respect to a Pension Plan, other than events as to which the requirement of notice has been waived in regulations by the Pension Benefit Guaranty Corporation; (b) the adoption of any amendment to a Pension Plan that would require the provision of security pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA; (c) a complete or partial withdrawal by any Borrower, Guarantor or any ERISA Affiliate from a Multiemployer Plan or a cessation of operations which is treated as such a withdrawal or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the Pension Benefit Guaranty Corporation to terminate a Pension Plan; (e) an event or condition which might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (f) the imposition of any liability under Title IV of ERISA, other than the Pension Benefit Guaranty Corporation premiums due but not delinquent under Section 4007 of ERISA, upon any Borrower, Guarantor or any ERISA Affiliate.
1.85 “Eurodollar Rate Loans” shall mean any Loans or portion thereof on which interest is payable based on the Adjusted Eurodollar Rate in accordance with the terms hereof.
1.86 “Event of Default” shall have the meaning specified in Section 12.1 hereof.
1.87
“Excess Availability” shall mean, as to Borrowers, the amount calculated at any date, equal to: (a) the leastlesser
of: (i) the Borrowing Base, and
(ii) the Maximum Credit and (iii) the Revolving Loan Limit, minus, without
duplication, (b) the sum of: (i) the principal amount of all then outstanding and unpaid Loans and Special Agent Advances,
plus (ii) the Letter of Credit Obligations, plus (c) only for purposes of calculating Excess Availability in connection
with (i) the definition of “Dominion Event”
and in connection with,” (ii) the definition of
“Payment Conditions”, (iii) Section 11.1 hereof
and (iv) Section 10 hereof, Specified Suppressed Availability.
1.88 “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to time.
1.89 “Excluded Property” shall mean:
(a) property or assets of any Foreign Subsidiary,
(b) all Real Property other than the Mortgaged Fee Properties and intellectual property as registered in, or created under the laws of, a jurisdiction outside of the United States of America (except to the extent constituting collateral for the Term Loan Debt),
(c) motor vehicles and other property and assets subject to certificates of title (except to the extent constituting collateral for the Term Loan Debt),
(d) any contract, chattel paper, general intangibles, Intellectual Property, lease, permit, license, charter or other agreement or instrument, and any right, title or interest in respect thereof, covering real or personal property, as such, if under the terms of such contract, lease, permit, license, charter or other agreement or instrument, or applicable law with respect thereto, the valid grant of a security interest or lien therein to Agent is prohibited or would result in a breach, default or termination thereof; provided, that, the foregoing exclusion shall in no way be construed to apply to the extent that any such prohibition, breach, default or termination under any such contract, lease, permit, license, charter or other agreement or instrument is unenforceable under Sections 9-406, 9-407 or 9-408 of the UCC or other applicable law such that a security interest therein may be granted to Agent without resulting in a breach, default or termination thereunder to such extent;
(e) as to any series of Equity Interests of any Foreign Subsidiary, the Equity Interests of such series in excess of sixty five (65%) percent of all of the issued and outstanding Equity Interests of such series or (ii) de minimis shares of a Foreign Subsidiary held as a nominee or in a similar capacity;
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(f) any Equity Interests of a Subsidiary of a Foreign Subsidiary;
(g) any property that would otherwise be included in the Collateral (and such property shall not be deemed to constitute a part of the Collateral) if such property has been sold or otherwise transferred in connection with a Sale and Leaseback Transaction to the extent permitted by and subject to the terms of Section 10.11 of this Agreement;
(h) any Equipment or other property that would otherwise be included in the Collateral (and such property shall not be deemed to constitute a part of the Collateral) if such Equipment or other property is subject to a Lien described in clause (f), (l), (p)(ii) or (s) of the definition of “Permitted Liens”;
(i) assets that are not of a type that would constitute Revolving Loan Priority Collateral, to the extent that Liens therein would result in adverse tax or accounting consequences as reasonably determined by Administrative Borrower;
(j) assets over which the granting of Liens in such assets would be prohibited by contract permitted under this Agreement and set forth on Schedule 1.73 hereto, applicable law or regulation or, in the case of any non-wholly owned Subsidiary, the organizational documents thereof (including Permitted Liens, leases or licenses) prohibit the valid grant of a security interest or lien therein to Agent; provided, that, the foregoing exclusions shall in no way be construed to apply to the extent that any such prohibition, is unenforceable under Sections 9-406, 9-407 or 9-408 of the UCC or other applicable law such that a security interest therein may be granted to Agent;
(k) property or assets (other than Intellectual Property) and Mortgaged Fee Properties, which are not of the type in which a security interest can be created under the UCC;
(l) any assets not constituting Revolving Loan Priority Collateral that are excluded from the Term Loan Priority Collateral pursuant to the Term Loan Documents;
(m) Foreign Intellectual Property;
(n) trademark or service mark applications that have been filed with the U.S. Patent and Trademark Office on the basis of an “intent-to-use” with respect to such marks, unless and until a statement of use or amendment to allege use is filed and accepted by the U.S. Patent and Trademark Office at which time such marks shall automatically and without further action by the parties be subject to the security interests and liens granted by Borrowers or Guarantors to Agent hereunder;
(o) any account containing collateral securing the obligations of Borrowers and Guarantors with respect to the Existing Letters of credit and any cash, Cash Equivalents or investment property in such accounts;
(p) those items of Term Loan Priority Collateral as to which the applicable Borrower or Guarantor, on the one hand, and the Co-Collateral Agents, on the other hand, shall mutually and reasonably determine that the costs of obtaining such a security interest are excessive in relation to the value of the security interest to be afforded thereby; and
(q) any money, cash, Cash Equivalents, checks, other negotiable instrument, funds and other evidence of payment held in any deposit account of the Borrowers or any of their Subsidiaries in the nature of security deposit with respect to obligations for the benefit of the Borrowers or any of their Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or Contractual Obligations entered into in the ordinary course of business.
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1.90 “Excluded Real Properties” shall mean, collectively, the fee or leasehold interest in Real Property owned by Parent or any of its Subsidiaries other than Mortgaged Fee Properties.
0 “Existing Foreign Subsidiaries”
shall mean Building Systems de Mexico S.A. de C.V., a corporation organized under the laws of Mexico and Robertson Building Systems,
Limited, a corporation organized the laws of the Province of Ontario, Canada, and their respective successors and assigns.
1.91 “Existing Letters of Credit” shall mean, collectively, the letters of credit issued or to be issued for the account of a Borrower or Guarantor or for which such Borrower or Guarantor is otherwise liable listed on Schedule 1.76 hereto.
1.92 “Factoring Transaction” shall mean any transaction or series of transactions entered into by any Person pursuant to which such Person sells, conveys or otherwise transfers (or purports to sell, convey or otherwise transfer) any accounts receivable and/or related rights or assets of such Person to a factor or other similar Person that is not an Affiliate.
1.93 “Federal Funds Rate” shall mean, for any period, a fluctuating interest rate per annum equal, for each day during such period, to the weighted average of the rates on overnight Federal Funds transactions with members of the Federal Reserve System arranged by Federal Funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day on such transactions received by the Agent from three Federal Funds brokers of recognized standing selected by it.
1.94 “Fee Letter” shall mean the fee letter, dated of even date herewith, by and among Parent, for itself and its Subsidiaries (and by which Borrowers and Guarantors hereby confirm their agreement to be bound), Wells Fargo and certain other Persons, setting forth certain fees payable by Borrowers in connection with the Credit Facility.
1.95 “Financing Agreements” shall mean, collectively, this Agreement, any notes issued pursuant hereto, any Guarantees, any Security Agreements, any Deposit Account Control Agreements, any Investment Property Control Agreements, the Intercreditor Agreement, and the other agreements, documents, instruments and certificates from time to time executed and/or delivered in connection with any of the foregoing, in each case, together with all schedules and exhibits thereto in form and substance reasonably satisfactory to Agent, as the same now exist or may hereafter exist or be amended, modified, supplemented, extended, renewed, restated or replaced; provided, that, the Financing Agreements shall not include Hedge Agreements.
1.96 “Foreign Intellectual Property” shall mean, as to each Borrower and Guarantor, such Borrower’s and Guarantor’s now owned or hereafter acquired non-US patents, patent applications, trademarks, trademark applications, trade names, copyrights, technology, know-how and processes.
1.97 “Foreign Lender” shall mean any Lender that is organized under the laws of a jurisdiction other than that in which a Borrower is resident for tax purposes. For purposes of this definition, the United States of America, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
1.98 “Foreign Subsidiary” shall mean (a) any Subsidiary of Parent that is not organized or incorporated under the laws of the United States of America, or any state thereof or the District of Columbia and any Subsidiary of such Foreign Subsidiary and (b) any Foreign Subsidiary Holdco.
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1.99 “Foreign Subsidiary Holdco” shall mean any Subsidiary of Parent that has no material assets other than securities or Indebtedness of one or more Foreign Subsidiaries (or Subsidiaries thereof), and intellectual property relating to such Foreign Subsidiaries (or Subsidiaries thereof) and other assets incidental to an ownership interests in any such securities, Indebtedness, intellectual property or Subsidiaries (provided, that, in no event for purposes of this definition shall assets consisting of accounts receivable (other than accounts receivable from such securities, Indebtedness or intellectual property), inventory, equipment or real property be deemed to be “incidental to” any of such assets).
1.100 “Freight Forwarders” shall mean the persons listed on Schedule 1.85 hereto or such other person or persons as may be selected by Borrowers after the date of this Agreement, and after written notice by Borrowers to Agent, who are reasonably acceptable to Agent to clear Inventory through the Bureau of Customs and Border Protection (formerly the Customs Service) or other domestic or foreign export control authorities or otherwise perform port of entry services to process Inventory imported by Borrowers from outside the United States of America (such persons sometimes being referred to herein individually as a “Freight Forwarder”); provided, that, as to each such person, (a) Agent shall have received a Collateral Access Agreement by such person in favor of Agent duly authorized, executed and delivered by such person, (b) such agreement shall be in full force and effect and (c) such person shall be in compliance in all material respects with the terms thereof.
1.101 “GAAP” shall mean generally accepted accounting principles in the United States of America as in effect from time to time as set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and the statements and pronouncements of the Financial Accounting Standards Board which are applicable to the circumstances as of the date of determination consistently applied; provided, that, in the event of any change in GAAP after the date hereof that affects the covenant in Section 11.1 hereof (including the calculation of the Consolidated Fixed Charge Coverage Ratio or Consolidated Net Income and any definitions related thereto), Administrative Borrower may by notice to Agent, or Agent may, and at the request of Required Lenders shall, by notice to Administrative Borrower require that compliance with such covenant be determined and such calculations be made in accordance with GAAP as in effect, and as applied by Parent and its Subsidiaries, immediately before the applicable change in GAAP became effective, until either the notice from the applicable party is withdrawn or such covenant is amended in a manner satisfactory to Administrative Borrower, Agent and the Required Lenders. Administrative Borrower will notify Agent of any such changes to GAAP and provide materials to Agent to show the effect on the financial statements of such changes when and to the extent included in the annual and quarterly reports filed by Parent with the Securities and Exchange Commission.
1.102 “Governmental Authority” shall mean any nation or government, any state, province, or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
1.103 “Guarantee” shall mean the Guaranty Agreement delivered to Agent as of the date hereof substantially in the form of Exhibit D hereto, as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
1.104 “Guarantors” shall mean each Person that shall be or become party to the Guarantee and thereby guarantee the Obligations of the Borrower as provided therein; collectively, the “Guarantors”. As of the date hereof, Parent and Steelbuilding.com, Inc. are the only Guarantors.
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1.105 “Guaranty Obligation” shall mean, with respect to any Person, without duplication, any obligation of such Person (other than endorsements in the ordinary course of business of instruments for deposit or collection) guaranteeing or intended to guarantee any Indebtedness of any other Person in any manner, whether direct or indirect, and including, without limitation, any such obligation, whether or not contingent, (a) to purchase any such Indebtedness or any property constituting security therefor, (b) to advance or provide funds or other support for the payment or purchase of such Indebtedness or to maintain working capital, solvency or other balance sheet condition of such other Person for the benefit of any holder of such Indebtedness of such other Person, (c) to lease or purchase property, securities or services primarily for the purpose of assuring the holder of such Indebtedness of such other Person of the ability of such other Person to make payment thereon, or (d) to otherwise assure or hold harmless the holder of such Indebtedness against loss in respect thereof. The amount of any Guaranty Obligation hereunder at any time shall (subject to any limitations set forth in any agreement or instrument governing such Guaranty Obligation) be deemed to be an amount equal to the then outstanding principal amount (or maximum principal amount, if larger) of the Indebtedness in respect of which such Guaranty Obligation is made (or if less, the amount giving effect to such limitations).
1.106 “Hazardous Materials” shall mean any hazardous or toxic substances or materials or wastes defined, listed, or regulated as such in or under, or which may give rise to liability under, any applicable Environmental Law, including gasoline, petroleum (including crude oil or any fraction thereof), petroleum products or by-products, asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
1.107
“Hedge Agreement” shall mean an agreement that is a rate swap agreement, basis swap, forward rate agreement, commodity
swap, interest rate option, forward foreign exchange agreement, spot foreign exchange agreement, rate cap agreement rate, floor
agreement, rate collar agreement, currency swap agreement, cross-currency rate swap agreement, currency option,
or any other similar agreement (including any option to enter
into any of the foregoing or a master agreement for any of
the foregoing together with all supplements thereto) for the purpose of protecting against or managing exposure to fluctuations
in interest or exchange rates, currency valuations or commodity prices; sometimes being collectively referred to herein as “Hedge
Agreements”.
1.108 “Indebtedness” shall mean, with respect to any Person, without duplication, (a) any liability for payments in respect of borrowed money (whether or not the recourse of the lender is to the whole of the assets of such Person or only to a portion thereof) or evidenced by bonds, notes, debentures or similar instruments (including, without limitation, industrial revenue bonds or similar arrangements of the type contemplated by Sections 10.3(s) and 10.3(t) hereof); (b) any liability representing the balance deferred and unpaid of the purchase price of any property or services (other than trade liabilities incurred in the ordinary course of business); (c) all obligations as lessee under Capital Leases; (d) all reimbursement obligations and other liabilities for payment of such Person with respect to surety bonds (whether bid, performance or otherwise), letters of credit, banker’s acceptances, drafts or similar documents or instruments issued for such Person’s account; (e) indebtedness of a Person secured by any Lien on any asset of such Person, whether or not such indebtedness is assumed by or is a personal liability of such Person, all as of such time; provided, that, if the recourse of the Person to whom such Indebtedness is owed is limited to the asset subject to such Lien so that the Person obligated on such indebtedness has no personal liability, then the amount of such Indebtedness of such Person shall, at any time, be the lesser of the fair market value of the asset determined as such time in a manner reasonably satisfactory to Agent or the amount of such Indebtedness; (f) all obligations, liabilities and indebtedness of such Person (marked to market) arising under Hedge Agreements; (g) indebtedness of any partnership or joint venture in which such Person is a general partner or a joint venturer to the extent such Person is liable therefor as a result of such Person’s ownership interest in such entity, except to the extent that the terms of such indebtedness expressly provide that such Person is not liable therefor or such Person has no liability therefor as a matter of law; (h) all Guaranty Obligations of such Person with respect to Indebtedness of another Person, (i) all Disqualified Equity Interests of such Person, and (j) the principal and interest portions of all remaining rental obligations of such Person under any synthetic lease or similar off-balance sheet financing where such transaction is considered to be borrowed money for U.S. federal income tax purposes but is classified as an operating lease in accordance with GAAP.
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1.109 “Indemnification Agreement” shall mean the Indemnification Agreement, dated as of the date hereof, by and between Parent and the CD&R Investors, as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
1.110 “Initial Term Loan Agreement” shall have the meaning set forth in the definition of “Term Loan Agreement”.
1.111 “Intellectual Property” shall mean, as to each Borrower and Guarantor, such Borrower’s and Guarantor’s now owned or hereafter acquired United States patents, patent applications, trademarks, trademark applications, trade names, copyrights, technology, know-how and processes.
1.112 “Intercreditor Agreement” shall mean the Intercreditor Agreement, dated as of the date hereof, by and among Agent and Term Loan Agent, as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
1.113 “Interest Payment Date” shall mean (a) with respect to any Base Rate Loan (including Swing Line Loans), the last Business Day of each month to occur during any period in which such Loan is outstanding, (b) with respect to any Eurodollar Rate Loan, the last day of the Interest Period applicable to such Loan and, in the case of a Eurodollar Rate Loan with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period and (c) with respect to any Loan, the Maturity Date or such earlier date on which the Commitments are terminated or the Loans become due and payable.
1.114 “Interest Period” shall mean for any Eurodollar Rate Loan, a period of approximately one (1), two (2), or three (3) months duration (and, if acceptable to all Lenders, six (6), nine (9) or twelve (12) months duration) as any Borrower (or Administrative Borrower on behalf of such Borrower) may elect, the exact duration to be determined in accordance with the customary practice in the applicable Eurodollar Rate market; provided, that, such Borrower (or Administrative Borrower on behalf of such Borrower) may not elect an Interest Period which will end after the last day of the then current term of this Agreement.
1.115 “Interest Rate” shall mean,
(a) Subject to clause (b) of this definition below:
(i) as to Base Rate Loans, a rate equal to the then Applicable Margin for Base Rate Loans on a per annum basis plus the Base Rate, and
(ii) as to Eurodollar Rate Loans, a rate equal to the then Applicable Margin for Eurodollar Rate Loans on a per annum basis plus the Adjusted Eurodollar Rate.
(b) Notwithstanding anything to the contrary contained herein, if an Event of Default has occurred and is continuing, Agent may and Agent shall, at the direction of the Required Lenders, upon notice to Administrative Borrower, increase the Applicable Margin otherwise used to calculate the Interest Rate for Base Rate Loans and Eurodollar Rate Loans by two (2%) percent per annum, for the period from and after the date of such notice but only for so long as such Event of Default is continuing.
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1.116 “Inventory” shall mean, as to each Borrower and Guarantor, all of such Borrower’s and Guarantor’s now owned and hereafter existing or acquired goods, wherever located, which (a) are leased by such Borrower or Guarantor as lessor; (b) are held by such Borrower or Guarantor for sale or lease or to be furnished under a contract of service; (c) are furnished by such Borrower or Guarantor under a contract of service; or (d) consist of raw materials, work in process, finished goods or materials used or consumed in its business.
1.117 “Investment” shall have the meaning set forth in Section 10.4 hereof.
1.118 “Investment Agreement” shall mean the Investment Agreement, dated as of August 14, 2009, by and between Parent and Clayton, Dubilier & Rice Fund VIII, L.P., as amended on each of August 28, 2009, August 31, 2009, October 8, 2009 and October 16, 2009, as the same now exists or may hereafter be further amended, modified, supplemented, extended, renewed, restated or replaced.
1.119 “Investment Documents” shall mean, collectively, the following (as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced): (a) the Investment Agreement; (b) the Stockholders Agreement; (c) the Registration Rights Agreement; (d) the Indemnification Agreement and (e) the Series B Preferred Stock CoD.
1.120 “Investment Property Control Agreement” shall mean an agreement in writing, in form and substance reasonably satisfactory to Agent, by and among Agent, the Borrower or Guarantor that is an account holder or customer (as the case may be) and any securities intermediary, commodity intermediary or other person who has custody, control or possession of any investment property of such account holder or customer, that is sufficient to perfect the security interests of Agent therein and provides such other rights with respect thereto as Agent reasonably requires.
1.121 “Issuing Bank” shall mean Wells Fargo Bank, N.A., in its capacity as the issuer of Letters of Credit hereunder and its successors and assigns.
1.122 “Lenders” shall mean the financial institutions who are signatories hereto as Lenders (including Swing Line Lender) and other persons made a party to this Agreement as a Lender in accordance with Section 15.7 hereof, and their respective successors and assigns; each sometimes being referred to herein individually as a “Lender”.
1.123 “Letter of Credit Documents” shall mean, with respect to any Letter of Credit, such Letter of Credit, any amendments thereto, any documents delivered or issued in connection therewith, and any application therefor.
1.124 “Letter of Credit Limit” shall mean $30,000,000.
1.125 “Letter of Credit Obligations” shall mean, at any time, the sum of (a) the aggregate undrawn amount of all Letters of Credit outstanding at such time, plus, without duplication and (b) the aggregate amount of all drawings under Letters of Credit for which Issuing Bank has not at such time been reimbursed, and the aggregate amount of all payments made by each Lender to Issuing Bank with respect to such Lender’s participation in Letters of Credit as provided in Section 2.3 for which Borrowers have not at such time reimbursed the Lenders, whether by way of a Revolving Loan or otherwise.
1.126 “Letters of Credit” shall mean all letters of credit issued by an Issuing Bank for the account of any Borrower pursuant to this Agreement, and all amendments, renewals, extensions or replacements thereof.
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1.127 “Lien” or “lien” shall mean any mortgage, pledge, hypothecation, security deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement and any Capital Lease having substantially the same economic effect as any of the foregoing).
1.128 “Loans” shall mean, collectively, the Revolving Loans and the Swing Line Loans.
1.129 “London Interbank Offered Rate” shall mean, with respect to any Eurodollar Rate Loan for the Interest Period applicable thereto, the rate appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute page of such service, or any successor to or substitute for such service, providing rate quotations comparable to those currently provided on such page of such service, as determined by Agent from time to time for purposes of providing quotations of interest rates applicable to eurodollar deposits in dollars in the London interbank market) at approximately 11:00 A.M. (London time) two (2) Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period; provided, that, if more than one rate is specified on such Page for such comparable period, the applicable rate shall be the arithmetic mean of all such rates (rounded to the nearest 1/100th of 1%). In the event that such rate is not available at such time for any reason, then the term “London Interbank Offered Rate” shall mean, with respect to any Eurodollar Rate Loan for the Interest Period applicable thereto, the rate of interest per annum at which dollar deposits of $5,000,000 and for a term comparable to such Interest Period are offered by the principal London office of Wells Fargo Bank, N.A. or Wachovia Bank, National Association, as specified by Agent (or, in the event there is a successor Agent at the time, any other commercial bank approved by the Administrative Borrower, Required Lenders and such successor Agent), in immediately available funds in the London interbank market at approximately 11:00 a.m. London time two (2) Business Days prior to the commencement of such Interest Period.
1.130 “Material Adverse Effect” shall mean a material adverse effect on (a) the business, assets, operations or financial condition of Borrowers and Guarantors taken as a whole, (b) the ability of Borrowers and Guarantors (taken as a whole) to perform their obligations under the Financing Agreements or (c) the rights of or remedies available to Agent, the Issuing Banks or Lenders under the Financing Agreements.
1.131
“Maturity Date” shall mean the earlier of (a) the date that is five
(5) years from the Amendment No. 23
Effective Date or (b) the maturity date of the;
provided that in the event that more than $30 million principal amount of Term Loan Debt.
with a maturity date earlier than the date that is five (5) years from
the Amendment No. 3 Effective Date remains outstanding on the date (the “Springing Maturity Date”) that is 90 days
prior to such earlier maturity date for such Term Loan Debt, the “Maturity Date” shall mean the Springing Maturity
Date.
1.132 “Maximum Credit” shall mean the amount of $150,000,000 (subject to adjustment as provided in Section 2.7 hereof).
1.133 “Maximum Interest Rate” shall mean the maximum non-usurious rate of interest under applicable Federal or State law as in effect from time to time that may be contracted for, taken, reserved, charged or received in respect of the indebtedness of a Borrower to Agent or a Lender, or to the extent that at any time such applicable law may thereafter permit a higher maximum non-usurious rate of interest, then such higher rate.
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1.134 “Metl-Span Acquisition” shall mean the acquisition by Parent, directly or indirectly, of all of the equity interests of Metl-Span LLC, in accordance with the terms of the Equity Purchase Agreement, dated as of May 2, 2012, among NCI, VSMA, Inc., BlueScope Steel North America Corporation and Metl-Span LLC, without giving effect to any modifications, amendments, express waivers or express consents thereto that are materially adverse to the Lenders without the reasonable consent of the Required Lenders (it being understood and agreed that any reduction in the purchase price shall not be deemed to be materially adverse to the Lenders but any resulting reduction in cash uses shall be allocated 100% to a reduction in Indebtedness under the New Term Loan Facility); provided that (x) the Metl-Span Acquisition shall be consummated no later than November 7, 2012 and (y) immediately following the consummation of the Metl-Span Acquisition, Excess Availability shall be no less than $20,000,000.
1.135 “Moody’s” shall mean Moody’s Investors Service, Inc., and its successors and assigns.
1.136 “Mortgaged Fee Properties” shall mean, collectively, the Real Property owned in fee by a Borrower or Guarantor described on Part I of Schedule 1.119, including all buildings, improvements, structures and fixtures now or subsequently located thereon and owned by any such Borrower or Guarantor.
1.137 “Mortgages” shall mean the documents, agreements and instruments set forth on Schedule 1.120 (as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced).
1.138 “Multiemployer Plan” shall mean a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA which is or was at any time during the current year or the immediately preceding six (6) years contributed to by any Borrower, Guarantor or any ERISA Affiliate or with respect to which any Borrower, Guarantor or any ERISA Affiliate may incur any liability.
1.139 “NCI Building Systems” shall have the meaning given to such term in the preamble hereto.
1.140 “Net Cash Proceeds” shall mean the aggregate cash proceeds received by Parent or any of its Subsidiaries (other than Foreign Subsidiaries) in respect of any Disposition of any assets or properties, or any interest in any assets and properties or as proceeds of any loans, letters of credit or similar instruments or the issuance or sale of debt securities or as proceeds from the issuance and/or sale of any Equity Interests, or settlement or payment in respect of any insurance claim or condemnation proceeds to the extent not constituting reimbursement or compensation for amounts previously paid by Parent or any of its Subsidiaries, in each case net of (a) the reasonable fees, costs and expenses relating to such Disposition or loans, letters of credit or similar instruments or the issuance or sale of debt securities or Equity Interests, or settlement or payment (including, without limitation, legal, accounting, brokerage, consultant, underwriting, investment banking and other fees and commissions), (b) taxes paid or payable as a result thereof (including reasonable estimates thereof for which Agent has received reasonably satisfactory evidence of the basis for such estimate), (c) in the case of a Disposition of any assets or properties, or interest in assets and properties, amounts applied to the repayment of Indebtedness secured by a security interest, lien or other encumbrance (other than a lien created under the Financing Agreements or the Term Loan Documents) on the assets or properties that are the subject of such transaction required to be repaid in connection therewith, including payments in respect of principal, interest, premiums and penalties and (d) appropriate reserves to be provided by Parent or its Subsidiaries in accordance with GAAP with respect to any liabilities associated with such Disposition of any assets or properties, or interest in assets and properties, or such transaction, or the events giving rise thereto, and other appropriate amounts to be used by Parent or any of its Subsidiaries to discharge or pay on a current basis any other liabilities associated with such Disposition or events giving rise thereto.
1.141 “Net Recovery Percentage” shall mean the fraction, expressed as a percentage, (a) the numerator of which is the amount equal to the recovery on the aggregate amount of the Inventory at such time on an orderly liquidation value basis, net of expenses and charges in connection with such, liquidation, as set forth in the most recent appraisal of Inventory received by Agent in accordance with Section 7.3, and (b) the denominator of which is the applicable original cost of the aggregate amount of the Inventory subject to such appraisal.
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1.142 “New Parent” shall have the meaning set forth in the definition of the term Permitted Dispositions.
1.143 “New Term Loan Facility” shall have the meaning set forth in the definition of “Term Loan Agreement”.
1.144 “Non-Excluded Taxes” shall have the meaning set forth in Section 6.8.
1.145 “Obligations” shall mean (a) any and all Revolving Loans, Swing Line Loans, Letter of Credit Obligations, Special Agent Advances and all other obligations, liabilities and indebtedness of every kind, nature and description owing by any or all of Borrowers to Agent, any Co-Collateral Agent or any Lender, including principal, interest, charges, fees, costs and expenses, however evidenced, whether as principal, surety, endorser, guarantor or otherwise, arising under any of the Financing Agreements, whether now existing or hereafter arising, whether arising before, during or after the initial or any renewal term of this Agreement or after the commencement of any case with respect to such Borrower under the United States Bankruptcy Code or any similar statute (including the payment of interest and other amounts which would accrue and become due but for the commencement of such case, whether or not such amounts are allowed or allowable in whole or in part in such case), whether direct or indirect, absolute or contingent, joint or several, due or not due, primary or secondary, liquidated or unliquidated, or secured or unsecured and (b) for purposes only of Section 5.1 hereof and any Security Agreement and the Guaranty and subject to the priority in right of payment set forth in Section 6.7 hereof, all obligations, liabilities and indebtedness of every kind, nature and description owing by any or all of Borrowers or Guarantors to any Bank Product Provider arising under or pursuant to any Bank Products, whether now existing or hereafter arising; provided, that, (i) as to any such obligations, liabilities and indebtedness arising under or pursuant to a Hedge Agreement, the same shall only be included within the Obligations if (A) Administrative Borrower shall have notified Agent in writing at the time of the execution and delivery of such Hedge Agreement that such obligations, liabilities and indebtedness are to be deemed to constitute Obligations and (B) upon Agent’s request, Agent shall have entered into an agreement, in form and substance reasonably satisfactory to Agent, with the Bank Product Provider that is a counterparty to such Hedge Agreement, as acknowledged and agreed to by Borrowers and Guarantors (or the Administrative Borrower acting on their behalf), providing for the delivery to Agent by such counterparty of information with respect to the amount of such obligations and providing for the other rights of Agent and such Bank Product Provider in connection with such arrangements, (ii) any Bank Product Provider shall have delivered written notice to Agent and Administrative Borrower that (A) such Bank Product Provider has entered into a transaction to provide Bank Products to a Borrower or Guarantor and (B) the obligations arising pursuant to such Bank Products provided to Borrowers or Guarantors constitute Obligations entitled to the benefits of the security interest of Agent granted hereunder, and Agent and Administrative Borrower shall have accepted such notice in writing and (iii) in no event shall any Bank Product Provider to whom such obligations, liabilities or indebtedness are owing be deemed a Lender for purposes hereof to the extent of and as to such obligations, liabilities or indebtedness other than for purposes of Section 5.1 hereof and other than for purposes of Sections 14.1, 14.2, 14.3(b), 14.6, 14.7, 14.9, 14.12 and 15.6 hereof and in no event shall the approval of any such Person be required in connection with the release or termination of any security interest or lien of Agent.
1.146 “Optional Payment” shall have the meaning given to such term in Section 10.9 hereof.
1.147 “Parent” shall have the meaning set forth in the preamble hereto.
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1.148 “Parent Entity” shall mean any Person of which Parent becomes a Subsidiary after the Closing Date that is designated in writing by Parent to Agent as a “Parent Entity” as of or promptly following the date that Parent becomes a Subsidiary of such Person, provided that (i) immediately prior to becoming a Parent Entity, such Person was a Subsidiary of Parent and became a Parent Entity pursuant to a merger of another Subsidiary with Parent in which the Voting Stock of Parent was exchanged for or converted into Voting Stock of such Person (or the right to receive such Voting Stock), or (ii) immediately after Parent first becomes a Subsidiary of such Person, more than 90% of the Voting Stock of such Person shall be held by one or more Persons that held more than 90% of the Voting Stock of Parent immediately prior to Parent first becoming such Subsidiary of such Person, or (iii) immediately after Parent first becomes a Subsidiary of such Person, Permitted Holders shall own the requisite percentage of the Voting Stock of such Person as is necessary to ensure that a Change of Control has not taken place.
1.149 “Parent Entity Expenses” shall mean expenses, Taxes and other amounts incurred or payable by any Parent Entity in respect of which Parent is permitted to make a Restricted Payment pursuant to Section 10.5.
1.150 “Participant” shall mean any financial institution that acquires and holds a participation in the interest of any Lender in any of the Loans and Letters of Credit in conformity with the provisions of Section 15.7 of this Agreement governing participations.
1.151
“Payment Conditions” shall mean, as of the date of the applicable payment or other transaction, and after giving effect
thereto, (a) no Default or Event of Default shall exist or have occurred and be continuing, (b) the daily average Excess Availability
for the period of sixty (60) consecutive days immediately preceding the date of such payment or other transaction shall not be
less than the greater of (i) $30,000,000 or (ii) twenty-four (24%) percent of the leastlesser
of (A) the Maximum Credit or (B) the Borrowing Base or (C) the Revolving Loan Limit,
in each case after giving effect to the making of any such payment or other transaction, on a pro forma basis using the Excess
Availability as of the date of the most recent calculation of the Borrowing Base immediately prior to any such payment or other
transaction, and as of the date of any such payment or other transaction and after giving effect thereto, using the most recent
calculation of the Borrowing Base prior to the date of any such payment, on a pro forma basis, Excess Availability shall be not
less than such amount, (c) on a pro forma basis, after giving effect to the applicable payment or other transaction, the Consolidated
Fixed Charge Coverage Ratio for Parent and its Subsidiaries for the immediately preceding twelve (12) consecutive month period
ending on the last day of the fiscal month prior to the date of any payment (or other transaction, as applicable) for which Agent
has received financial statements shall be equal to or greater than 1.00 to 1.00 and (d) receipt by Agent of projections for the
immediately succeeding twelve (12) consecutive month period beginning after the date of payment (or other transaction, as applicable)
(including in each case, balance sheets and statements of income and loss, statements of cash flow, and the projected Borrowing
Base and Excess Availability) for Parent and its Subsidiaries on such basis (whether monthly, quarterly, or annually) as Agent
may reasonably specify, all in reasonable detail and in a format consistent with the projections delivered by Parent to Agent prior
to the date hereof, together with such supporting information as Agent may reasonably request, which projections show, on a pro
forma basis after giving effect to the payment (or other transaction, as applicable), minimum Excess Availability at all times
during such period of not less than the amount set forth above and that the Consolidated Fixed Charge Coverage Ratio is at all
times equal to or greater than 1.00 to 1.00 during such period.
1.152 “Payment in Full of all Obligations” shall have the meaning given to such term in Section 15.1(a).
1.153 “Pension Plan” shall mean a pension plan (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA which any Borrower or Guarantor sponsors, maintains, or to which any Borrower, Guarantor or ERISA Affiliate makes, is making, or is obligated to make contributions, other than a Multiemployer Plan.
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1.154 “Permits” shall mean all material permits, licenses, approvals, consents, certificates, orders or authorizations of any Governmental Authority required for the lawful conduct of the business of Borrowers and Guarantors.
1.155 “Permitted Acquisitions” shall mean the acquisition by a Borrower or Guarantor after the date hereof of all or a substantial part of the property or assets of any Person, or a business, division or operating unit of any Person (including pursuant to a merger with such Person by Parent or a Subsidiary of Parent, including a wholly owned Subsidiary formed solely for such purpose that is merged with such Person) or of all or a majority of the Equity Interests of any Person (such property, assets, business, division or operating unit or Person being referred to herein as the “Acquired Business”), in each case in one transaction or a series of transactions that satisfies each of the following conditions:
(a) (i) subject to clauses (iv) and (v) below, in the case of any such Permitted Acquisition where the aggregate amount of the consideration payable in connection with such Permitted Acquisition that consists of cash, property, or Indebtedness incurred or assumed in connection therewith (and excluding any Equity Interests of Parent or any Parent Entity, and any cash from the Net Cash Proceeds of the issuance or sale of any such Equity Interests) is in an amount less than or equal to $5,000,000, as of the date of the acquisition and after giving effect to the acquisition, no Event of Default shall exist or have occurred and be continuing;
(ii) subject to clauses (iv) and (v) below, in the case of any such Permitted Acquisition where the aggregate amount of the consideration payable in connection with such Permitted Acquisition that consists of cash, property, or Indebtedness incurred or assumed in connection therewith (and excluding any Equity Interests of Parent or any Parent Entity, and any cash from the Net Cash Proceeds of the issuance or sale of any such Equity Interests) is in excess of $5,000,000 but less than or equal to $15,000,000:
(A) as of the date of the acquisition and after giving effect to the acquisition, no Event of Default shall exist or have occurred and be continuing;
(B) the daily average Excess Availability
for the period of sixty (60) consecutive days immediately preceding the date of such acquisition shall be not less than the greater
of (1) $30,000,000 or (2) twenty-four (24%) percent of the leastlesser
of (x) the Maximum Credit or (y) the Borrowing Base or (z) the Revolving Loan Limit,
in each case after giving effect to the making of any such acquisition, on a pro forma basis using the Excess Availability as of
the date of the most recent calculation of the Borrowing Base immediately prior to any such acquisition and as of the date of any
such acquisition and after giving effect thereto, using the most recent calculation of the Borrowing Base prior to the date of
any such acquisition, on a pro forma basis, Excess Availability shall be not less than such amount; and
(C) Agent shall have received not less than five (5) Business Days’ prior written notice of the proposed acquisition and such information with respect thereto as Agent may reasonably request, in each case with such information to include (1) parties to such acquisition, (2) the proposed date and amount of the acquisition, (3) description of the assets or shares to be acquired, (4) the total purchase price for the assets to be purchased (and the terms of payment of such purchase price);
(iii) subject to clauses (iv) and (v) below, in the case of any such Permitted Acquisition where the aggregate amount of the consideration payable in connection with such Permitted Acquisition that consists of cash, property, or Indebtedness incurred or assumed in connection therewith (and excluding any Equity Interests of Parent or any Parent Entity, and any cash from the Net Cash Proceeds of the issuance or sale of any such Equity Interests) is in excess of $15,000,000:
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(A) the Payment Conditions shall be satisfied; and
(B) Agent shall have received not less than ten (10) Business Days’ prior written notice of the proposed acquisition and such information with respect thereto as Agent may reasonably request, in each case with such information to include (1) parties to such acquisition, (2) the proposed date and amount of the acquisition, (3) description of the assets or shares to be acquired and (4) the total purchase price for the assets to be purchased (and the terms of payment of such purchase price);
(iv) in the case of any Permitted Acquisition where all of the consideration for any Permitted Acquisition consists of Equity Interests of Parent or any Parent Entity or cash from the Net Cash Proceeds of the issuance of Equity Interests of Parent or any Parent Entity, regardless of the amount of such consideration, the only conditions under this clause (a) applicable in such case are that:
(A) as of the date of the acquisition and after giving effect to the acquisition, no Event of Default shall exist or have occurred and be continuing; and
(B) either (1) Excess Availability shall
be not less than the greater of $20,000,000 or eighteen (18%) percent of the leastlesser
of the Maximum Credit, or
the Borrowing Base, or the Revolving Loan Limit, on a pro forma basis giving effect
to such acquisition, for each of the immediately succeeding twelve (12) consecutive months beginning after the date of such acquisition
based on updated projections received by Agent (including in each case, forecasted balance sheets and statements of income and
loss, statements of cash flow, and the projected Borrowing Base and Excess Availability) for Parent and its Subsidiaries (whether
monthly, quarterly, or annually as Agent may specify), all in reasonable detail and in a format consistent with the projections
delivered by Parent to Agent prior to the date hereof, together with such supporting information as Agent may reasonably request
or (2) Agent shall have received updated projections (including in each case, forecasted balance sheets and statements of income
and loss, statements of cash flow, and the projected Borrowing Base and Excess Availability) for Parent and its Subsidiaries (whether
monthly, quarterly, or annually as Agent may specify), all in reasonable detail and in a format consistent with the projections
delivered by Parent to Agent prior to the date hereof, together with such supporting information as Agent may reasonably request,
showing, on a pro forma basis after giving effect to the acquisition, that the Consolidated Fixed Charge Coverage Ratio is at all
times equal to or greater than 1.00 to 1.00 during such period;
(v) notwithstanding anything to the contrary set forth above, in the case where as of the date of such acquisition and after giving effect thereto, there are no Loans or Letters of Credit then outstanding, regardless of the amount of the consideration for such acquisition, as of the date of the acquisition and after giving effect to the acquisition, the only condition applicable under this clause (a) in such case is that no Event of Default shall exist or have occurred and be continuing;
(b) promptly upon Agent’s reasonable request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments relating to such acquisition, if then available (it being agreed that if any of the foregoing shall not then be available, Administrative Borrower shall deliver it as soon as available, but the delivery thereof shall not be a condition to the effectiveness of such Permitted Acquisition);
(c) the business of the Acquired Business shall be substantially similar to, or ancillary, complementary or related to, or used or useful in, the businesses that Borrowers are engaged in on the date hereof, or the assets so acquired shall be used or useful in, or otherwise relate to, any such business
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(d) in the case of the acquisition of the Equity Interests of another Person, such Person (and the board of directors or other governing body of such Person) shall not have announced that it will oppose such acquisition and shall not have commenced any action which alleges that such acquisition will violate applicable law; and
(e) Agent shall have received a certificate of a Responsible Officer of Parent certifying on behalf of Parent to Agent and Lenders that such transaction complies with this definition.
Notwithstanding anything to the contrary contained herein, if
Administrative Borrower requests that any assets acquired pursuant to any acquisition be included in the Borrowing Base, Agent
shall initiate, within thirty (30) days of such request, a field examination with respect to the business and assets of the Acquired
Business in accordance with Agent’s customary procedures and practices and as otherwise required by the nature and circumstances
of the business of the Acquired Business, the scope and results of which shall be reasonably satisfactory to Co-Collateral Agents,
and which shall have been completed, before such assets may be included. Any Accounts or Inventory of the Acquired Business shall
only be Eligible Accounts or Eligible Inventory to the extent that Agent has so completed such field examination with respect thereto
and the criteria for Eligible Accounts or Eligible Inventory set forth herein are satisfied with respect thereto in accordance
with this Agreement (or such other or additional criteria as Co-Collateral Agents may, at their option, establish with respect
thereto in accordance with the definitions of Eligible Accounts or Eligible Inventory, as applicable, and subject to such Reserves
as Co-Collateral Agents may establish in connection with the Acquired Business in accordance with the definition of such term,
and, if requested by Agent in its Permitted Discretion, in the case of Eligible Inventory acquired pursuant to a Permitted Acquisition
to the extent that it has been subject to an appraisal that satisfies the requirements of Section 7.3 hereof. The
Each of the Metl-Span Acquisition and the Centria Acquisition shall be deemed to constitute a Permitted Acquisition.
1.156 “Permitted Discretion” shall mean a determination made in good faith in the exercise of reasonable business judgment from the perspective of an asset based lender.
1.157 “Permitted Dispositions” shall mean each of the following:
(a) the sale or other Disposition of obsolete, worn out or surplus property or assets or property that is no longer used or useful in the conduct of the business of Parent and its Subsidiaries, whether now owned or hereafter acquired, in the ordinary course of business;
(b) the sale or other Disposition of (i) any Inventory in the ordinary course of business and (ii) any other assets or property (other than Revolving Loan Priority Collateral), Cash Equivalents and investment property (as to Cash Equivalents and investment property, subject to the terms of applicable Investment Property Control Agreements and similar arrangements as required hereunder) in the ordinary course of business;
(c) the sale or discount without recourse of accounts receivable or notes receivable arising in the ordinary course of business, or the conversion or exchange of accounts receivable into or for notes receivable, in each case in connection with the compromise or collection thereof; provided, that, in the case of any Foreign Subsidiary of Parent, any such sale or discount may be with recourse if such sale or discount is consistent with customary practice in such Foreign Subsidiary’s country of business;
(d) the sale or other Disposition of accounts receivable and/or related rights or assets of a Foreign Subsidiary pursuant to any Factoring Transaction of such Foreign Subsidiary;
(e) a Disposition permitted under Section 10.1(b);
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(f) subject to any applicable limitations set forth in Section 10.1(b), Dispositions of any assets or property among Borrowers and Guarantors; provided, that, after giving effect thereto, Agent shall continue to have a security interest in and lien upon such property or assets to the extent that the same were Collateral with the priority and rights provided for under the Financing Agreements;
(g) the abandonment or other Disposition of patents, trademarks or other Intellectual Property or Foreign Intellectual Property that are, in the reasonable judgment of Parent or any of its Subsidiaries, no longer economically practicable to maintain or useful in the conduct of the business of Parent and its Subsidiaries taken as a whole;
(h) licenses of Intellectual Property and Foreign Intellectual Property in the ordinary course of business by Parent and its Subsidiaries after the date hereof; provided, that, no such license shall impair in any material respect the ability of Agent to exercise its rights or remedies with respect to Revolving Loan Priority Collateral;
(i) the issuance, sale or other Disposition by Parent of Equity Interests of Parent and its Subsidiaries after the date hereof; provided, that, after giving effect thereto, no Change of Control shall occur, and the issuance, sale or other Disposition of Equity Interests of any Subsidiary to Parent or any other Subsidiary;
(j) the issuance, sale or other Disposition of Equity Interests of Parent pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Parent for the benefit of its employees, directors and consultants;
(k) the Disposition of any property or assets pursuant to a winding up, liquidation or dissolution of a Borrower, a Guarantor or a Subsidiary permitted under Section 10.1(c) hereof;
(l) the Disposition of any property or
assets in connection with a merger or consolidation that is a Permitted Acquisition;
(m) the Disposition of any property or assets (other than Revolving Loan Priority Collateral) in connection with a Sale and Leaseback Transaction permitted under Section 10.11 hereof;
(n) any Disposition of property or assets by Parent or any of its Subsidiaries; provided, that, (i) the Net Cash Proceeds of each such Disposition do not exceed $1,000,000, (ii) the aggregate Net Cash Proceeds of all Dispositions in any fiscal year of Parent made pursuant to this clause (n) does not exceed $2,500,000, and (iii) at any time a Dominion Event exists, subject to the Intercreditor Agreement, the Net Cash Proceeds from any such sale or other Disposition shall be applied to the Obligations in accordance with Section 2.5;
(o) any other Disposition of property or assets by Parent or any of its Subsidiaries; provided, that (i) Agent shall have received prior written notice of such Disposition, together with an updated Borrowing Base Certificate giving effect to such Disposition on a pro forma basis; (ii) not less than eighty (80%) percent of the consideration to be received by Borrowers and Guarantors shall be paid or payable in cash and shall be paid contemporaneously with the consummation of the transaction; (iii) the consideration paid or payable shall be in an amount not less than the fair market value of the property disposed of; (iv) at any time a Dominion Event exists, subject to the Intercreditor Agreement, the Net Cash Proceeds from any such sale or other Disposition shall be applied to the Obligations in accordance with Section 2.5 hereof; and (v) as of the date of any such Disposition, and after giving effect thereto, no Event of Default shall exist or have occurred and be continuing;
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(p) any involuntary Disposition due to casualty, condemnation or eminent domain or foreclosure;
(q) any Disposition of Equity Interests of a Subsidiary that becomes a Parent Entity (“New Parent”), including as a result of a merger of Parent with a Subsidiary in which (x) previously outstanding Capital Stock of Parent is converted into or becomes a right to receive Equity Interests of a New Parent and (y) Equity Interests of Parent as the continuing or surviving Person in such merger consist of Equity Interests directly or indirectly held by a New Parent; provided that after giving effect thereto, no Change of Control shall occur; and;
(r) any Disposition set forth on Schedule 1.139.
1.158 “Permitted Guarantees” shall mean, with respect to any Borrower, Guarantor or Subsidiary:
(a) Guaranty
Obligationsobligations in respect of indemnification
and contribution agreements expressly permitted by Section 10.6(c) or 10.6(e) or similar agreements;
(b) Guaranty
Obligationsobligations in respect of loans
and advances by Parent or any of its Subsidiaries to officers, directors or employees of Parent or any of its Subsidiaries (i)
existing on the Closing Date and set forth on Schedule 10.4, (ii) in respect of the indemnification or reimbursement of
any officers, directors or employees for liabilities relating to their serving in such capacity based on the indemnification arrangements
permitted under Section 10.6 hereof, (iii) in the ordinary course of business for reasonably and necessary work-related travel,
entertainment or other ordinary business expenses and for relocation expenses (including home mortgage financing for relocated
employees), and (iv) for other purposes; provided, that, the aggregate amount of the loans and advances under clauses
(iii) and (iv) of this clause (d), together with the Investments permitted under sub-clauses (iii) and (iv) of clause (h) of the
definition of “Permitted Investments, shall not exceed $1,000,000 at any time outstanding;
(c) obligations to insurers required in connection with worker’s compensation and other insurance coverage incurred in the ordinary course of business;
(d) obligations of the BorrowerParent
and its Subsidiaries under any Hedge Agreements;
(e) guarantees made by the BorrowerParent
or any of its Subsidiaries of obligations of the BorrowerParent
or any of its Subsidiaries (other than Indebtedness), which obligations are otherwise permitted under this Agreement;
(f) Guaranty
Obligationsobligations in connection with
sales or other Dispositions permitted under Section 10.1 hereof, including indemnification obligations with respect to leases,
and guarantees of collectibility in respect of accounts receivable or notes receivable for up to face value;
(g) accommodation guarantees for the benefit
of trade creditors of the BorrowerParent
or any of its Subsidiaries in the ordinary course of business; and
(h) Guaranty
Obligationsobligations in respect of Permitted
Investments.
1.159 “Permitted Holders” shall mean (a) any of the CD&R Investors; (b) any of CD&R and its Affiliates; (c) any investment fund or vehicle managed, sponsored or advised by CD&R or any Affiliate thereof, and any Affiliate of or successor to any such investment fund or vehicle; (d) any limited or general partners of, or other investors in, any CD&R Investor or any Affiliate thereof, or any such investment fund or vehicle; (e) any Person acting in the capacity of an underwriter in connection with a public or private offering of Equity Interests of Parent or any of its Subsidiaries or of any Parent Entity; provided, that, any such underwriter shall cease to be a Permitted Holder on the date that is one hundred eighty (180) days after the effective date of such public or private offering, and (f) any Parent Entity.
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1.160 “Permitted Investments” shall mean each of the following:
(a) Investments consisting of accounts receivable owing to any Borrower, Guarantor or Subsidiary if created or acquired in the ordinary course of business;
(b) the endorsement of instruments for collection or deposit in the ordinary course of business;
(c) Investments in cash or Cash Equivalents; provided, that, (i) at any time on and after a Dominion Event and for so long as the same is continuing, no Loans are then outstanding; except that the limitation in this clause (i) shall not apply to (A) Qualified Cash, (B) funds held in deposit accounts that are not required to be transferred to Agent after a Cash Dominion Event as provided in Section 6.6 hereof and (C) deposits of cash or other immediately available funds in operating demand deposit accounts used for disbursements to the extent required to provide funds for amounts drawn or anticipated to be drawn shortly on such accounts and which may be held in Cash Equivalents consisting of overnight investments until so drawn (so long as such funds and Cash Equivalents are not held more than three (3) Business Days from the date of the initial deposit thereof) and (ii) the terms and conditions of Section 5.2 hereof shall have been satisfied with respect to the deposit account, investment account or other account in which such cash or Cash Equivalents are held;
(d) pledges or deposits of cash for leases, utilities and similar matters in the ordinary course of business;
(e) obligations and other Investments in respect of Hedge Agreements permitted under Section 10.3(d);
(f) the existing Investments of Parent and its Subsidiaries as of the date hereof in their respective Subsidiaries;
(g) the Investments set forth on Schedule 10.4 hereto;
(h) loans and advances by Parent or any
of its Subsidiaries to officers, directors or employees of Parent or any of its Subsidiaries (i) existing on the Closing Date and
set forth on Schedule 10.4, (ii) in respect of the indemnification or reimbursement of any officers, directors or employees
for liabilities relating to their serving in such capacity based on the indemnification arrangements permitted under Section 10.6
hereof, (iii) in the ordinary course of business for reasonablyreasonable
and necessary work-related travel, entertainment or other ordinary business expenses and for relocation expenses (including home
mortgage financing for relocated employees), and (iv) for other purposes; provided, that, the aggregate amount of
the loans and advances under clause (iii) and (iv) of this subsection (h) shall not exceed $1,000,0002,500,000
at any time outstanding;
(i) loans and advances to officers, directors or employees the proceeds of which are used to make a substantially contemporaneous purchase of Equity Interests in Parent or any Parent Entity; provided, that, (i) Parent or such Parent Entity applies the Net Cash Proceeds of such purchases upon the receipt thereof, directly or indirectly, to make a capital contribution to, or purchase Equity Interests of, Parent and (ii) such loans and advances shall not exceed $5,000,000 at any time outstanding;
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(j) Equity Interests, Indebtedness or other
Investments received by Parent and its Subsidiaries in respect of Indebtedness or other liabilities of suchany
Person owing to Parent and its Subsidiaries in connection with the insolvency, bankruptcy, receivership or reorganization of such
Person or a composition or readjustment of the debts of such Person;
(k) obligations of account debtors to Parent and its Subsidiaries arising from Accounts or other obligations which are past due, including any evidenced by a promissory note made by such account debtor payable to Parent or one of its Subsidiaries;
(l) Investments (i) by a Borrower or Guarantor
in a Borrower or Guarantor or (ii) in the ordinary course of business by a Borrower or Guarantor in an
Existingany Foreign Subsidiary; provided,
that, to the extent that any such Investment is used directly or indirectly for Capital Expenditures, the amount of such
Investment so used shall be treated as a Capital Expenditure for purposes of the calculation of the Consolidated
Fixed Charge Coverage Ratio pursuant to Section 11 hereof (to the extent the expenditure is or should be accounted for by the Parent
as a Capital Expenditure in accordance with GAAP), or (iii) by a Subsidiary that is not a Borrower or Guarantor in any Borrower,
Guarantor or Subsidiary;
(m) any Investment by Parent or any Subsidiary arising after the date hereof in industrial development or revenue bonds or similar obligations issued by any State, county or municipal industrial development authority or similar Governmental Authority secured by Real Property or Equipment or other fixed or capital assets leased to and operated by Parent or any of its Subsidiaries, so long as (i) Parent or any such Subsidiary may obtain title to such assets free and clear of any Lien related to such industrial development or revenue bonds or similar obligations at any time by optionally canceling such bonds or obligations, paying a nominal fee and terminating such transaction and (ii) the proceeds received from the issuance of such bonds or similar obligations are used, directly or indirectly, to acquire, construct, improve or maintain such property or assets;
(n) Investments made by Parent and its Subsidiaries as a result of consideration received in connection with any Disposition made in compliance with Section 10.1(b) hereof;
(o) Investments consisting of loans and advances by Parent or any of its Subsidiaries to Parent or any Parent Entity to the same extent that Parent or any such Subsidiary would be permitted to make a Restricted Payment to Parent or any Parent Entity under Sections 10.5(c), (d), (e), (f), (i), (j), (k) and (l) and in amounts and for purposes for which Restricted Payments by Parent or any Subsidiary are permitted under such clauses in Section 10.5; provided, that, the aggregate outstanding amount of such loans and advances, together with such Restricted Payments, shall not exceed any limitations with respect to such Restricted Payments provided for under such clauses in Section 10.5 and such loans and advances shall be used for such purposes;
(p) Investments after the date hereof by Parent and its Subsidiaries in or to any Person (including, without limitation, a joint venture, partnership or other similar arrangement, whether in corporate, partnership or other legal form); provided, that, as to any such Investment, each of the following conditions is satisfied:
(i) subject to clauses (iv) and (v) below, in the case of any such Investment that is in an amount (excluding any portion of such Investment made with any Equity Interests of Parent or any Parent Entity, or Net Cash Proceeds of the issuance or sale of any such Equity Interests) that is in an amount less than or equal to $5,000,000, as of the date of the Investment and after giving effect to the Investment, no Event of Default shall exist or have occurred and be continuing;
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(ii) subject to clauses (iv) and (v) below, in the case of any such Investment that is in an amount (excluding any portion of such Investment made with any Equity Interests of Parent or any Parent Entity, or Net Cash Proceeds of the issuance or sale of any such Equity Interests) in excess of $5,000,000 but less than or equal to $10,000,000:
(A) as of the date of the Investment and after giving effect to the Investment, no Event of Default shall exist or have occurred and be continuing;
(B) as of the date of the Investment and
after giving effect to the Investment, the daily average Excess Availability for the period of sixty (60) consecutive days immediately
preceding the date of such Investment shall be not less than the greater of (1) $30,000,000 or (2) twenty-four (24%) percent of
the leaselesser
of the Maximum Credit, or
the Borrowing Base or the Revolving Loan Limit, on a pro forma basis using the
Excess Availability as of the date of the most recent calculation of the Borrowing Base immediately prior to any such Investment,
and as of the date of any such Investment and after giving effect thereto, using the most recent calculation of the Borrowing Base
prior to the date of any such Investment, on a pro forma basis, Excess Availability shall be not less than such amount; and
(C) Agent shall have received not less than five (5) Business Days’ prior written notice of the proposed Investment and such information with respect thereto as Agent may reasonably request, in each case with such information to include (1) parties to such Investment, (2) the proposed date and amount of the Investment, and (3) the total amount of the Investment;
(iii) subject to clauses (iv) and (v) below, in the case of any such Investment that is in an amount (excluding any portion of such Investment made with any Equity Interests of Parent or any Parent Entity, or Net Cash Proceeds of the issuance or sale of any such Equity Interests) in excess of $10,000,000:
(A) the Payment Conditions shall be satisfied; and
(B) Agent shall have received not less than ten (10) Business Days’ prior written notice of the proposed Investment and such information with respect thereto as Agent may reasonably request, in each case with such information to include (1) parties to such Investment, (2) the proposed date and amount of the Investment, and (3) the total amount of the Investment;
(iv) notwithstanding anything to the contrary set forth above, in the case of any such Investment where all of the Investment is made with any Equity Interests of Parent or any Parent Entity and/or Net Cash Proceeds of the issuance or sale of any such Equity Interests, regardless of the amount of such Investment, the only conditions applicable in this clause (p) in such case are that:
(A) as of the date of the Investment and after giving effect to the Investment, no Event of Default shall exist or have occurred and be continuing;
(B) either (1) Excess Availability shall
be not less than the greater of $20,000,000 or eighteen (18%) percent of the leastlesser
of the Maximum Credit, or
the Borrowing Base or the Revolving Loan Limit, on a pro forma basis giving effect
to such Investment, for each of the twelve (12) consecutive months after the date of such Investment based on updated projections
received by Agent (including in each case, forecasted balance sheets and statements of income and loss, statements of cash flow,
and the projected Borrowing Base and Excess Availability) for Parent and its Subsidiaries (whether monthly, quarterly, or annually
as Agent may specify), all in reasonable detail and in a format consistent with the projections delivered by Parent to Agent prior
to the date hereof, together with such supporting information as Agent may reasonably request or (2) Agent shall have received
updated projections (including in each case, forecasted balance sheets and statements of income and loss, statements of cash flow,
and the projected Borrowing Base and Excess Availability) for Parent and its Subsidiaries (whether monthly, quarterly, or annually
as Agent may specify), all in reasonable detail and in a format consistent with the projections delivered by Parent to Agent prior
to the date hereof, together with such supporting information as Agent may reasonably request, showing, on a pro forma basis after
giving effect to the Investment or payment, that the Consolidated Fixed Charge Coverage Ratio is at all times equal to or greater
than 1.00 to 1.00 during such period; and
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(C) Agent shall have received not less than ten (10) Business Days’ prior written notice of the proposed Investment and such information with respect thereto as Agent may reasonably request, in each case with such information to include (1) parties to such Investment, (2) the proposed date and amount of the Investment, and (3) the total amount of the Investment;
(v) notwithstanding anything to the contrary set forth above, in the case where as of the date of such Investment and after giving effect thereto, there are no Loans or Letters of Credit then outstanding, regardless of the amount of such Investment, the only conditions applicable in this clause (p) in such case are that:
(A) as of the date of the Investment and after giving effect to the Investment, no Event of Default shall exist or have occurred and be continuing; and
(B) Agent shall have received not less than ten (10) Business Days’ prior written notice of the proposed Investment and such information with respect thereto as Agent may reasonably request, in each case with such information to include (1) parties to such Investment, (2) the proposed date and amount of the Investment, and (3) the total amount of the Investment;
(vi) Agent shall have received a certificate
of a Responsible Officer of Parent certifying on behalf of Parent to Agent and Lenders that such transaction complies with this
definition, including identifying the specific subsection of this clause (p) is applicable thereto;
and
(vii) promptly upon Agent’s reasonable
request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments relating
to such Investment (it being agreed that if any of the foregoing shall not then be available, Administrative Borrower shall deliver
it as soon as available, but the delivery thereof shall not be a condition to the effectiveness of such Permitted Investment).;
and
(q) any Investment made or acquired (or held by any Person acquired) or any Investment made pursuant to a legally binding commitment acquired (or held by any Person acquired), in each case, pursuant to or in connection with a Permitted Acquisition, including any Investment in the form of capital contributions or intercompany Indebtedness among Parent and its Subsidiaries for the purpose of consummating a Permitted Acquisition.
1.161 “Permitted Liens” shall mean, with respect to any Borrower, Guarantor or Subsidiary:
(a) the Liens of Agent for itself and the benefit of the Secured Parties and the rights of setoff of Secured Parties provided for herein or under applicable law;
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(b) Liens securing the payment of Taxes, assessments or other governmental charges or levies either not yet overdue or the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to such Borrower, Guarantor or Subsidiary, as the case may be, which proceedings (or orders entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the property subject to any such Lien (to the extent such property constitutes Revolving Loan Priority Collateral or, if not constituting Revolving Loan Priority Collateral, other property as to which the exercise of rights or remedies by the holder of such Lien thereon could reasonably be expected to materially impair the exercise of rights or remedies of Agent or Lenders with respect to Revolving Loan Priority Collateral) and with respect to which adequate reserves have been set aside on the books of Parent or any of its Subsidiaries in accordance with GAAP;
(c) statutory Liens (other than Liens arising under ERISA or securing the payment of taxes) arising in the ordinary course of such Borrower’s, Guarantor’s or Subsidiary’s business that do not secure Indebtedness for borrowed money, such as carriers’, warehousemen’s, materialmen’s, landlords’, landlords’ mortgagees’, workmen’s suppliers’, repairmen’s and mechanics’ liens, to the extent such Liens relate to obligations that are not overdue or are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or are being contested in good faith by appropriate proceedings diligently pursued and available to such Borrower, Guarantor or such Subsidiary, (i) which proceedings (or orders entered in connection with such proceeding) have the effect of preventing the forfeiture or sale of the property subject to any such Lien (to the extent such property constitutes Revolving Loan Priority Collateral or, if not constituting Revolving Loan Priority Collateral, other property as to which the exercise of rights or remedies by the holder of such Lien thereon could reasonably be expected to materially impair the exercise of the rights or remedies of Agent or Lenders with respect to Revolving Loan Priority Collateral) and (ii) with respect to which adequate reserves have been set aside on its books in accordance with GAAP;
(d) Liens of landlords, or of mortgagees of landlords, arising pursuant to the terms of real property leases; provided, that, the rental payments and any other obligations secured thereby are not yet due and payable;
(e) zoning restrictions, easements, rights-of-way, restrictions on the use of property, other similar encumbrances as to Real Property incurred in the ordinary course of business and minor irregularities of title as to Real Property which in each case do not interfere in any material respect with the use of such Real Property or ordinary conduct of the business of such Borrower, Guarantor or Subsidiary as presently conducted thereon;
(f) Liens securing Indebtedness of Parent and its Subsidiaries permitted by Section 10.3(b)(i) incurred to finance or refinance the acquisition, leasing, construction or improvement of Real Property, Equipment or other fixed or capital assets subject to such Liens; provided, that, such Liens do not at any time encumber any property other than the property financed or refinanced by such Indebtedness;
(g) Liens on property or assets (other than any Revolving Loan Priority Collateral) or on cash, Cash Equivalents or investment property arising in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security benefits or other insurance related obligations (including pledges or deposits of cash or Cash Equivalents securing liability to insurance carriers under insurance or self-insurance arrangements);
(h) Liens on assets (other than any Revolving Loan Priority Collateral) or on cash or Cash Equivalents or investment property to secure the performance of tenders, bids, leases, trade contracts (other than for the repayment of borrowed money Indebtedness), statutory obligations, obligations for utilities, leases, statutory obligations, surety and appeal bonds, performance bonds, material and supply bonds, tax bonds, judgment and like bonds, replevin bonds, and other similar bonds and other obligations in each case in the ordinary course of business of such Borrower, Guarantor or Subsidiary;
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(i) Liens arising from (i) operating leases and (ii) equipment or other materials which are not owned by any Borrower, Guarantor or Subsidiary located on the premises of such Borrower, Guarantor or Subsidiary (but not in connection with, or as part of, the financing thereof) from time to time in the ordinary course of business of such Borrower, Guarantor or Subsidiary (it being understood that any precautionary UCC financing statement filings in respect of any such lease or equipment or other materials shall not be deemed a Lien);
(j) statutory or common law Liens or rights of setoff of depository banks or securities intermediaries with respect to deposit accounts, securities accounts or other funds of any Borrower, Guarantor or Subsidiary at such banks or securities intermediaries to secure fees and charges in connection with returned items or the standard fees and charges of such banks or securities intermediaries in connection with the deposit accounts, securities accounts or other funds maintained by such Borrower, Guarantor or Subsidiary at such banks or intermediaries (but not any Indebtedness owing by such Borrower, Guarantor or Subsidiary to such banks or intermediaries) and Liens with respect to Indebtedness permitted by Section 10.3(n);
(k) Liens arising in connection with any judgment, decree or order of any court or other Governmental Authority that do not constitute an Event of Default under Section 12.1(e); provided, that, (i) adequate reserves or other appropriate provision, if any, as are required by GAAP have been made therefor, (ii) a stay of enforcement of any such Liens is in effect (in the case of any Lien on property constituting Revolving Loan Priority Collateral or, if not constituting Revolving Loan Priority Collateral, other property as to which the exercise of rights or remedies by the holder of such Lien could reasonably be expected to materially impair the exercise of the rights or remedies of Agent or Lenders with respect to Revolving Loan Priority Collateral) and (iii) Co-Collateral Agents may establish a Reserve with respect thereto (in accordance with and subject to the definition of such term);
(l) security interests, mortgages and other Liens on (i) Equipment, Real Property and other fixed or capital assets arising after the date hereof to secure Indebtedness (including pursuant to Capital Leases) permitted under Section 10.3(b) or (ii) property and assets described in Sections 10.3(s) and 10.3(t);
(m) leases or subleases of Real Property granted by any Borrower, Guarantor or Subsidiary in the ordinary course of business of such Borrower, Guarantor or Subsidiary to any Person so long as any such leases or subleases do not interfere in any material respect with the ordinary conduct of the business of such Borrower, Guarantor or Subsidiary;
(n) licenses of third party intellectual
property to any Borrower, Guarantor or Subsidiary and licenses toof
Intellectual Property or Foreign Intellectual Property permitted under clause (h) of the definition of Permitted Dispositions;
(o) Liens on goods in favor of customs and revenue authorities arising as a matter of law to secure custom duties in connection with the importation of such goods;
(p) security interests and other Liens on the Collateral (i) securing Indebtedness permitted under Section 10.3(e) hereof (and Refinancing Indebtedness with respect thereto permitted under Section 10.3(w) hereof), (ii) securing any Bank Products to the extent secured by the same security interests and other Liens that secure Indebtedness permitted under Section 10.3(e) or such Refinancing Indebtedness or (iii) securing any notes or other debt securities incurred pursuant to Section 10.3(j), subject to the terms of the Intercreditor Agreement or an intercreditor agreement in form and substance satisfactory to Agent;
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(q) Liens to secure Indebtedness of any Borrower, Guarantor or Subsidiary permitted under Section 10.3(g) hereof to finance insurance premiums on the insurance policies maintained by any Borrower, Guarantor or Subsidiary; provided, that, such Liens shall not in any manner affect the ability of Agent to obtain or receive payment of proceeds of insurance with respect to any of the Collateral;
(r) Liens on property or assets other than the Collateral to secure Indebtedness of Borrowers and Guarantors permitted under Section 10.3(j);
(s) security interests and other Liens in property or assets of a Person existing at the time such Person is acquired pursuant to a Permitted Acquisition after the date hereof in respect of Indebtedness permitted under Section 10.3(i) hereof (and Liens in respect of Refinancing Indebtedness with respect thereto permitted under Section 10.3(w) hereof); provided, that, each of the following conditions is satisfied: (i) such security interests and other Liens were not granted and did not arise in connection with, or in anticipation or contemplation of, such Permitted Acquisition, and (ii) the property or assets subject to such security interests and other Liens do not include any assets or properties of any Person other than assets or properties of the Person so acquired;
(t) Liens on
assets orexisting on property or
assets of a Person at the time of acquisition thereof (or a Person owning the same)
by Parent or any of its Subsidiaries which
do not materially interfere with the use, occupancy, operation and maintenance of structures existing on the property subject thereto
or extend to or cover any assets or properties of Parent or such Subsidiary other than the assets or property being acquired (including
by way of acquiring one or more Persons owning the same); providedsuch
Person becomes a Subsidiary of Parent (or at the time Parent or a Subsidiary acquires such property or assets, including any acquisition
by means of a merger or consolidation with or into Parent or any Subsidiary); provided however that such Liens are not created
in connection with, or in contemplation of, such other Person becoming such a Subsidiary (or such acquisition of such property
or assets), and that such Liens are limited to all or part of the same property or assets (plus improvements, accessions, proceeds
or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which such Liens arose,
could secure) the obligations to which such Liens relate; provided further, that, to the extent that any such
assets so acquired consist of Accounts and Inventory, such Accounts and Inventory shall not in any case constitute Eligible Accounts
or Eligible Inventory unless and until (i) the Agent shall have established a Reserve with respect to any such Lien thereon or
notified the Administrative Borrower that no such Reserve will be established and (ii) the provisions of the last two sentences
of the definition of “Permitted Acquisitions” shall have been complied with;
(u) any encumbrance or restriction (including put and call agreements) with respect to the Equity Interests of any joint venture or similar arrangement pursuant to the joint venture or similar agreement with respect to such joint venture or similar arrangement; provided, that, no such encumbrance or restriction affects in any way the ability of Parent or any of its Subsidiaries to comply with Section 9.11(a) or (b);
(v) Liens on property or assets subject to Sale and Leaseback Transactions permitted under Section 10.11;
(w) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by Parent or its Subsidiaries in the ordinary course of business;
(x) Liens on property or assets of any Foreign Subsidiary (other than a Borrower or Guarantor) to secure Indebtedness of such Subsidiary permitted under Section 10.3(r) hereof;
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(y) Liens securing any Guaranty Obligation of any Borrower, Guarantor or Subsidiary to the extent the Indebtedness to which such Guaranty Obligation relates would be permitted hereunder to be so secured;
(z) Liens incurred in the ordinary course
of business of Parent and its Subsidiaries securing liabilities or obligations that do not exceed $500,0001,500,000
in the aggregate; provided, that, to the extent any such Lien encumbers Accounts or Inventory, such Lien shall be
reported to Agent by Administrative Borrower promptly upon discovery by a Responsible Officer of any Borrower and an amount of
the Accounts and Inventory so encumbered equal to the amount of the liabilities or obligations so secured by such Lien shall thereafter
not constitute Eligible Accounts or Eligible Inventory (such amount, the “Deemed Reserve”) unless and until the Agent
shall have established a Reserve with respect to such Lien or Co-Collateral Agents shall have determined and instructed Agent to
notify the Administrative Borrower that no such Reserve will be established;
(aa) the Liens set forth on Schedule 10.2 hereto which are not otherwise permitted under the other clauses of this definition and any Liens to secure Refinancing Indebtedness of the Indebtedness secured by such Liens to the extent permitted under Section 10.3(w) hereof;
(bb) Liens in cash collateral to secure the obligations of Borrowers and Guarantors to the extent permitted under Section 10.3(u) hereof;
(cc) Liens with respect to Indebtedness
permitted under Sections 10.3(o) and (p), in each case to the extent any bonds, debentures, notes or similar instruments permitted
thereby have been issued in respect of secured Indebtedness; and
(dd) any other Lien on property or assets
of Parent or any of its Subsidiaries (other than Working Capital Priority Collateral (as defined in the Intercreditor Agreement))
existing on the Closing Date.;
and
(ee) Liens on Collateral with respect to Indebtedness permitted under Section 10.3(z); provided that any Liens on Working Capital Priority Collateral (as defined in the Intercreditor Agreement) securing such Indebtedness are expressly junior to the Liens on such Collateral securing the Obligations pursuant to the terms of the Intercreditor Agreement.
1.162 “Person” or “person” shall mean any individual, sole proprietorship, partnership, corporation (including any corporation which elects subchapter S status under the Code), limited liability company, limited liability partnership, business trust, unincorporated association, joint stock corporation, trust, joint venture or other entity or any government or any agency or instrumentality or political subdivision thereof.
1.163 “Plan” shall mean an employee benefit plan (as defined in Section 3(3) of ERISA) which any Borrower or Guarantor sponsors, maintains, or to which it makes, is making, or is obligated to make contributions, or in the case of a Multiemployer Plan has made contributions at any time during the immediately preceding six (6) plan years or with respect to which any Borrower or Guarantor may incur liability.
1.164 “Pledge Agreement” shall mean the Pledge Agreement delivered to Agent as of the date hereof substantially in the form of Exhibit E hereto, as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
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1.165 “Pro Rata Share” shall mean, as to any Lender, the fraction (expressed as a percentage) the numerator of which is such Lender’s Commitment and the denominator of which is the aggregate amount of all of the Commitments of the Lenders, as adjusted from time to time in accordance with the provisions hereof; provided, that, if the Commitments have been terminated, the numerator shall be the unpaid amount of such Lender’s Loans and its interest in the Swing Line Loans, Special Agent Advances and Letter of Credit Obligations and the denominator shall be the aggregate amount of all unpaid Loans, Swing Line Loans, Special Agent Advances and Letter of Credit Obligations.
1.166 “Provision for Taxes” shall mean an amount equal to all taxes imposed on or measured by net income, whether Federal, State, Provincial, county or local, and whether foreign or domestic, that are paid or payable by any Person in respect of any period in accordance with GAAP.
1.167 “Qualified Cash” shall mean cash or subject to the terms below, Cash Equivalents owned by a Borrower, which are (a) free and clear of any pledge, security interest, lien, claim or other encumbrance (other than (i) in favor of Agent, (ii) in favor of the depository bank or securities intermediary where the deposit account or investment account is maintained to the extent permitted under clause (j) of the definition of the term “Permitted Liens”, but only to secure its customary fees and charges and (iii) any other liens permitted under this Agreement that are subject to the Intercreditor Agreement or an intercreditor agreement in form and substance reasonably satisfactory to Agent between the holder of such security interest or Lien and Agent), (b) subject to the first priority perfected security interest of Agent (subject to the liens of the depository bank or securities intermediary where the deposit account or investment account is maintained for its customary fees and charges), (c) in a deposit account or an investment account at a Lender or an Affiliate of a Lender and which account is subject to a Deposit Account Control Agreement or an Investment Property Control Agreement, and which cash or Cash Equivalents, to the extent included in the Borrowing Base, are not permitted to be withdrawn from such account without the prior written consent of Agent and for which Agent shall have received evidence, in form and substance reasonably satisfactory to Agent, of the amount of such cash or Cash Equivalents held in such deposit account or investment account as of the applicable date of the calculation of the Borrowing Base; provided, that, to the extent such amounts represent payments in respect of Accounts or other Collateral included in the Borrowing Base as of such date, such amounts shall not constitute Qualified Cash (and Administrative Borrower shall provide such evidence thereof as Agent may reasonably request). For purposes of this definition, “Qualified Cash” shall only include Cash Equivalents maturing within ninety (90) days from the date of the acquisition thereof and in the case of obligations or indebtedness described in clauses (b) and (c) of the definition of the term Cash Equivalents, obligations or indebtedness having a rating of at least A-1 from S&P or at least P-1 from Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, then an equivalent rating from another nationally recognized rating service).
1.168 “Quarterly Average Excess Availability” shall mean, for any three (3) month period, the daily average of the aggregate amount of the Excess Availability for such three (3) month period.
1.169 “Real Property” shall mean, as to any Person, all now owned and hereafter acquired real property of such Person, including leasehold interests, together with all buildings, structures, and other improvements located thereon and all licenses, easements and appurtenances relating thereto, wherever located, including, in the case of any Borrower or Guarantor, the Real Property and related assets of such Borrower or Guarantor more particularly described in the Mortgages.
1.170 “Receivables” shall mean all of the following now owned or hereafter arising or acquired property of each Borrower and Guarantor: (a) all Accounts; (b) all interest, fees, late charges, penalties, collection fees and other amounts due or to become due or otherwise payable in connection with any Account; (c) letters of credit, indemnities, guarantees, security or other deposits and proceeds thereof issued payable to any Borrower or Guarantor or otherwise in favor of or delivered to any Borrower or Guarantor in connection with any Account; or (d) all other accounts, contract rights, chattel paper, instruments, notes, general intangibles and other forms of obligations owing to any Borrower or Guarantor, whether from the sale and lease of goods or other property, licensing of any property (including Intellectual Property or other general intangibles), rendition of services or otherwise.
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1.171 “Records” shall mean, as to each Borrower and Guarantor, all of such Borrower’s and Guarantor’s present and future books and records of every kind or nature relating to the Collateral, including without limitation, all purchase and sale agreements, invoices, ledger cards, bills of lading and other shipping evidence, statements, correspondence, memoranda, credit files and other data relating to the Collateral or any account debtor, together with the tapes, disks, diskettes and other data and software storage media (including any rights of any Borrower or Guarantor with respect to the foregoing maintained with or by any other person).
1.172 “Refinancing Indebtedness” shall have the meaning set forth in Section 10.3(w) hereof.
1.173 “Register” shall have the meaning set forth in Section 6.4 hereof.
1.174 “Registration Rights Agreement” shall mean the Registration Rights Agreement, dated as of the date hereof, by and between Parent and the CD&R Investors, as the same now exists or may hereafter be further amended, modified, supplemented, extended, renewed, restated or replaced.
1.175 “Related Taxes” shall mean:
(a) any Taxes, charges or assessments, including but not limited to sales, use, transfer, rental, ad valorem, value-added, stamp, property, consumption, franchise, license, capital, net worth, gross receipts, excise, occupancy, intangibles or similar taxes, charges or assessments (other than Federal, State or local taxes measured by income and Federal, State or local withholding imposed by any government or other taxing authority on payments made by Parent or any Parent Entity, other than payments to Parent or any Parent Entity), required to be paid by Parent or any Parent Entity by virtue of its being incorporated or having Equity Interests outstanding (but not by virtue of owning stock or other Equity Interests of any corporation or other entity other than any of its Subsidiaries, Parent or any Parent Entity), or being a holding company parent of Parent, any of its Subsidiaries, or any Parent Entity or receiving dividends from or other distributions in respect of the Equity Interests of Parent, any of its Subsidiaries, or any Parent Entity or having guaranteed any obligations of Parent or any Subsidiary thereof, or having made any payment in respect of any of the items for which Parent or any of its Subsidiaries is permitted to make payments to Parent or any Parent Entity pursuant to Section 10.5, or acquiring, developing, maintaining, owning, prosecuting, protecting or defending its intellectual property and associated rights (including but not limited to receiving or paying royalties for the use thereof) relating to the business or businesses of Parent or any Subsidiary thereof, or
(b) any Taxes attributable to any taxable period (or portion thereof) ending on or prior to the Closing Date, or attributable to the consummation of, or any Parent Entity’s receipt of (or entitlement to) any payment in connection with, any of the Transactions, including any payment received after the Closing Date pursuant to any agreement relating to the Transactions, or
(c) any other Federal, State, foreign or local taxes measured by income for which any Parent Entity is liable up to an amount not to exceed, with respect to Federal Taxes, the aggregate amount of any such Taxes that Parent and its Subsidiaries would have been required to pay on a separate company basis, or on a consolidated basis as if Parent had filed a consolidated return on behalf of an affiliated group (as defined in Section 1504 of the Code or an analogous provision of state, local or foreign law) of which Parent were the common parent, or with respect to state and local taxes, the aggregate amount of any such taxes that Parent and its Subsidiaries would have been required to pay on a separate company basis, or on a combined basis as if Parent had filed a combined return on behalf of an affiliated group consisting only of Parent and its Subsidiaries.
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1.176 “Register” shall have the meaning set forth in Section 6.4 hereof.
1.177 “Required Lenders” shall mean, at any time, subject to Section 6.13(g), those Lenders whose Pro Rata Shares aggregate more than fifty (50%) percent of the aggregate of the Commitments of all Lenders, or if the Commitments shall have been terminated, Lenders to whom more than fifty (50%) percent of the then outstanding Loans and Letter of Credit Obligations are owing; provided, that, at any time that there are two (2) or more Lenders, “Required Lenders” must include at least two (2) Lenders.
1.178
“Requirement of Law” shall mean, as to any Person, the certificate of incorporation and by-laws or other organizational
or governing documents of such Person, and any law, statute, ordinance, code, decree, treaty, rule or regulation or determination
of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its
material property or to which such Person or any of its material property is subject, including laws, ordinances and regulations
pertaining to zoning, occupancy and subdivision of real properties; provided, that, the foregoing shall not apply
to any non-binding recommendation of any Governmental Authority. Without limiting the foregoing,
it is understood that, in the case of any Borrower or Guarantor, Requirements of Law shall include the following (collectively,
the “Anti-Terrorism Laws”): the “Trading With the Enemy Act” (50 U.S.C. §1 et seq., as amended) or
any of the foreign assets control regulations of the United States Treasury Department (31 C.F.R., Subtitle B, Chapter V, as amended)
or any enabling legislation or executive order relating thereto (including, but not limited to Executive Order 13224 of September
21, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed.
Reg. 49079 (2001)) and the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (Public Law 107-56), in each case to the extent applicable to or binding upon such Borrower or Guarantor.
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1.179 “Reserves” shall mean as of any date of determination, such amounts as Co-Collateral Agents may from time to time establish and revise in their Permitted Discretion reducing the amount of Loans and Letters of Credit which would otherwise be available to any Borrower under the lending formula(s) provided for herein: (a) to reflect events, conditions, contingencies or risks which, as determined by Co-Collateral Agents in their Permitted Discretion, adversely affect, or would have a reasonable likelihood of adversely affecting, either (i) the Revolving Loan Priority Collateral, its value or the amount that might be received by Agent from the sale or other disposition or realization upon such Collateral or (ii) the security interests and other rights of Agent or any Lender in the Revolving Loan Priority Collateral (including the enforceability, perfection and priority thereof), (b) to reflect other factors arising after the Closing Date that change in any material respect the credit risk of lending to Borrowers on the security of the Revolving Loan Priority Collateral, or (c) to reflect Agent’s good faith belief that any collateral report or financial information furnished by or on behalf of any Borrower or Guarantor to Agent is or may have been incomplete, inaccurate or misleading in any material respect. Without limiting the generality of the foregoing, Reserves may be established to reflect any of the following: (i) reserves for cost variances not otherwise reflected in value of Inventory, (ii) dilution with respect to Accounts (based on the ratio of the aggregate amount of non-cash reductions in Accounts for any period to the aggregate dollar amount of the sales of such Borrower for such period) as calculated by Agent for any period is or is reasonably anticipated to be greater than five (5%) percent, (iii) the sales, excise or similar taxes included in the amount of any Accounts reported to Agent and amounts due or to become due in respect of sales, use and/or withholding taxes that are subject to collection in trust or similar arrangements or otherwise give rise to a Lien that may have priority over the Lien of Agent, (iv) any rental payments, service charges or other amounts due or to become due to owners or lessors of real property to the extent Inventory or Records are located in or on such property or in the possession or control of such parties or such Records are needed to monitor or otherwise deal with the Revolving Loan Priority Collateral (other than for locations where Agent has received a Collateral Access Agreement executed and delivered by the owner and lessor of such real property that Agent has acknowledged in writing is in form and substance satisfactory to Agent in its Permitted Discretion); provided, that, the Reserves established pursuant to this clause (v) as to leased locations shall not exceed at any time the aggregate of amounts payable for the next five (5) months to the lessors of such locations (or in the event that any appraisals with respect to the Inventory after the date hereof conducted in accordance with Section 7.3 reflect a shorter period of time for realization on the Inventory in a manner that maximizes the recovery from it, then such Reserves will be adjusted to reflect such shorter period), (v) to reflect average payables to outside processors based on the immediately preceding three (3) consecutive month period, (vi) an increase in the number of days of the turnover of Inventory (unless as a result of seasonal variation) or a change in the mix of the Inventory that results in an overall decrease in the value thereof or a deterioration in its nature or quality (but only to the extent not addressed by the lending formulas in a manner satisfactory to Co-Collateral Agents in their Permitted Discretion), (vii) reserves for in-transit inventory, including freight, taxes, duty and other amounts which Agent estimates must be paid in connection with such Inventory upon arrival and for delivery to one of such Borrower’s locations for Eligible Inventory within the United States of America, (viii) obligations, liabilities or indebtedness (contingent or otherwise) of Borrowers or Guarantors to any Bank Product Provider arising under or in connection with any Bank Products of any Borrower or Guarantor with a Bank Product Provider or as such Bank Product Provider may otherwise require and Agent may agree in connection therewith to the extent that such obligation, liabilities or indebtedness constitute Obligations as such term is defined herein or otherwise receive the benefit of the security interest of Agent in any Collateral. To the extent that an event, condition or matter as to any Eligible Accounts or Eligible Inventory is addressed pursuant to the treatment thereof within the applicable definition of such terms, Co-Collateral Agents shall not also establish a Reserve to address the same event, condition or matter. The amount of any Reserve established by Co-Collateral Agents shall have a reasonable relationship to the event, condition or other matter which is the basis for such Reserve. In the event that the event, condition or other matter giving rise to the establishment of any Reserve shall cease to exist (unless there is a reasonable prospect that such event, condition or other matter will occur again within a reasonable period of time thereafter), the Reserve established pursuant to such event, condition or other matter, shall be discontinued. To the extent that an event, condition or matter as to any Eligible Accounts or Eligible Inventory is addressed pursuant to the treatment thereof within the applicable definition of such terms, or in the computation of net book value of Eligible Inventory or the Net Recovery Percentage of Eligible Inventory in a manner satisfactory to Agent in the exercise of its Permitted Discretion, Co-Collateral Agents shall not also establish a Reserve to address the same event, condition or matter. Agent will provide three (3) Business Days’ prior notice to Administrative Borrower of any new categories of Reserves that may be established, or any changes in the methodology of determination (but not amount) of any Reserves, or any changes by Co-Collateral Agents of the amount of a Reserve specified in any Borrowing Base Certificate received by Agent, after the date of this Agreement, and Agent will be available from time to time during business hours to consult with Administrative Borrower in connection with the basis for such new categories of or changes to Reserves; provided, that, during such three (3) Business Day period, the Borrowing Base shall, solely for the purposes of any new Loans or Letters of Credit requested by any Borrower during such three (3) Business Day Period, be reduced by the amount of any such proposed changes to, or new categories of, Reserves set forth in such notice. Borrowers may take such action as may be required so that the event, condition or matter that is the basis for such Reserve or increase no longer exists, in a manner and to the extent satisfactory to the Co- Collateral Agents in the exercise of their Permitted Discretion. In no event shall such notice or opportunity limit the right of Co-Collateral Agents to establish such Reserve, unless Co-Collateral Agents shall have determined in their Permitted Discretion that the event, condition or other matter that is the basis for such new category of Reserve no longer exists or has otherwise been adequately addressed by the applicable Borrower.
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1.180 “Responsible Officer” shall mean, as to any Person, any of the following officers of such Person: (a) the chief executive officer or the president of such Person and, with respect to financial matters, the chief financial officer, the treasurer or the controller of such Person, (b) any vice president of such Person or, with respect to financial matters, any assistant treasurer or assistant controller of such Person, who has been designated in writing to Agent as a Responsible Officer by such chief executive officer or president of such Person or, with respect to financial matters, such chief financial officer of such Person, and (c) with respect to ERISA matters, the senior vice president-human resources (or substantial equivalent) of such Person.
1.181 “Restricted Payment” shall mean any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests of Parent or any of its Subsidiaries, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests or on account of any return of capital to Parent or such Subsidiary’s stockholders, partners or members (or the equivalent Person thereof), or payment made to redeem, purchase, repurchase or retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire any Equity Interests of Parent or any of its Subsidiaries, or any setting apart of funds or property for any of the foregoing; provided, that, for the avoidance of doubt, Restricted Payments shall not include any distributions of Equity Interests in exchange for or upon conversion of debt securities.
0 “Revolving Loan Limit” shall
mean, so long as any Indebtedness for borrowed money is outstanding under the Initial Term Loan Agreement, the amount from time
to time specified in Section 7.2(d)(ii) of the Initial Term Loan Agreement. From and after the date on which no Indebtedness for
borrowed money is outstanding under the Initial Term Loan Agreement, the Revolving Loan Limit shall no longer apply for any purpose
under this Agreement.
1.182 “Revolving Loan Priority Collateral” shall mean the Collateral described on Schedule 1.165 hereto.
1.183 “Revolving Loans” shall mean loans now or hereafter made by or on behalf of any Lender or by Agent for the account of any Lender on a revolving basis pursuant to the Credit Facility (involving advances, repayments and readvances) as set forth in Section 2 hereof.
1.184 “Sale and Leaseback Transaction” shall mean, with respect to a Borrower or Guarantor, or any Subsidiary, any arrangement with any Person providing for the leasing by such Borrower or Guarantor or such Subsidiary of real or personal property that has been or is to be sold or transferred by such Borrower, Guarantor or any such Subsidiary to such Person and thereafter such real or personal property is leased by such Person back to such Borrower, Guarantor or Subsidiary.
1.185 “Sanctioned Entity” shall mean (a) an agency of the government of, (b) an organization directly or indirectly controlled by, or (c) a person resident in, a country that is subject to a sanctions program identified on the list maintained and published by OFAC and available at http://www.treas.gov/offices/enforcement/ofac/programs, or as otherwise published from time to time as such program may be applicable to such agency, organization or person.
1.186 “Sanctioned Person” shall mean a person named on the list of Specially Designated Nationals or Blocked Persons maintained by OFAC available at http://www.treas.gov/offices/enforcement/ofac/sdn/index.html, or as otherwise published from time to time.
1.187 “S&P” shall mean Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. and its successors and assigns.
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1.188 “Secured Parties” shall mean, collectively, (a) Agent, (b) Lenders, (c) Co-Collateral Agents, (d) the Issuing Bank and (e) any Bank Product Provider; provided, that, (i) as to any Bank Product Provider, only to the extent of the Obligations owing to such Bank Product Provider and (ii) such parties are sometimes referred to herein individually as a “Secured Party”.
1.189 “Security Agreement” shall mean the collective reference to the Mortgages, the Pledge Agreement and all other similar security documents delivered to the Agent granting a Lien on any asset or assets of any Person to secure the obligations and liabilities of any Borrower or Guarantor hereunder and/or under any of the other Financing Agreements or to secure any guarantee of any such obligations and liabilities, in each case as amended, supplemented, waived or otherwise modified from time to time.
1.190 “Series B Preferred Stock CoD” shall mean the Certificate of Designations, Preferences and Rights of Series B Cumulative Convertible Participating Preferred Stock of NCI Building Systems, dated as of the date hereof.
1.191 “Solvent” shall mean, at any time with respect to any Person, that at such time such Person (a) is able to pay its debts as they mature and has sufficient capital (and not unreasonably small capital) to carry on its business, and (b) the assets and properties of such Person at a fair valuation (and including as assets for this purpose at a fair valuation all rights of subrogation, contribution or indemnification arising pursuant to any guarantees given by such Person) are greater than the Indebtedness of such Person, and including subordinated and contingent liabilities computed at the amount which, such Person has a reasonable basis to believe, represents an amount which can reasonably be expected to become an actual or matured liability (and including as to contingent liabilities arising pursuant to any guarantee the face amount of such liability as reduced to reflect the probability of it becoming a matured liability).
1.192 “Special Agent Advances” shall have the meaning set forth in Section 14.11 hereof.
1.193 “Specified Assets” shall mean the following property and assets of each Borrower or Guarantor:
(a) Intellectual Property constituting patents, patent licenses, trademarks and trademark licenses to the extent that Liens thereon cannot be perfected by the filing of financing statements under the UCC or by the filing and acceptance thereof in the United States Patent and Trademark Office;
(b) Intellectual Property constituting copyrights and copyright licenses and accounts or receivables arising therefrom to the extent that the UCC as in effect from time to time in the relevant jurisdiction is not applicable to the creation or perfection of Liens thereon or Liens thereon cannot be perfected by the filing and acceptance of this Agreement or short form thereof in the United States Copyright Office;
(c) Collateral for which the perfection of Liens thereon require filings in or other actions under the laws of jurisdictions outside of the United States of America, any state, territory or political division thereof or the District of Columbia;
(d) contracts, Accounts or receivables subject to the Assignment of Claims Act;
(e) goods received by any Person from a Borrower or Guarantor for “sale or return” within the meaning of Section 2-326 of the Uniform Commercial Code of the applicable jurisdiction, to the extent of claims of creditors of such Person;
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(f) money, cash and Cash Equivalents (except to the extent subject to a Deposit Account Control Agreement or Investment Property Control Agreement, as applicable) and Fixtures;
(g) proceeds of Accounts or Inventory that do not themselves constitute Collateral or that have not yet been transferred to or deposited in a Cash Management Account or Concentration Account; and
(h) uncertificated securities (to the extent a Lien therein is not be perfected by the filing of a financing statement).
1.194 “Specified Suppressed Availability” shall mean, as of any date of determination, an amount, if positive, by which (i) the Borrowing Base exceeds (ii) the Maximum Credit hereunder; provided, that, (x) if the Borrowing Base is equal to or less than the aggregate amount of the Maximum Credit hereunder, the Specified Suppressed Availability shall be zero and (y) if Excess Availability is less than the lesser of (1) 5% of the lesser of (x) the Maximum Credit and (y) the Borrowing Base and (2) $7.5 million, the Specified Suppressed Availability shall be zero.
1.195 “Sponsor” shall mean CD&R.
1.196 “Sponsor Affiliated Lender” shall mean financial institutions (including commercial finance companies), investment funds or managed accounts with respect to which Sponsor or an Affiliate of such Sponsor is an Affiliate or an advisor or manager in the ordinary course of business; provided, that, such Person executes a waiver in form and substance reasonably satisfactory to Agent that it shall have no right whatsoever so long as such Person is an Affiliate of any Parent or any of its Subsidiaries or Sponsor: (a) except as provided below, to consent to any amendment, modification, waiver, consent or other such action with respect to any of the terms of this Agreement or any of the other Financing Agreements, (b) otherwise to vote on any matter related to this Agreement or any other Financing Agreement, (c) to require Agent or any Lender to undertake any action (or refrain from taking any action) with respect to this Agreement or any other Financing Agreement, (d) to attend any meeting with Agent or any Lender or receive any information from Agent or any Lender or (e) make or bring any claim, in its capacity as Lender, against Agent with respect to the duties and obligations of Agent hereunder; except, that, no amendment, modification or waiver to this Agreement or any of the other Financing Agreements (i) relating to any of the matters described in clauses (i), (ii), (iv), (v), (vi) or (vii) of Section 13.3(a), or (ii) that would result in a disproportionate impact or effect on any Sponsor Affiliated Lender in relation to one or more Lenders that are not Sponsor Affiliated Lenders, shall be effected without the consent of such Sponsor Affiliated Lender.
1.197 “Stockholders Agreement” shall mean the Stockholders Agreement, dated as of the date hereof, by and between Parent and the CD&R Investors, as the same now exists or may hereafter be further amended, modified, supplemented, extended, renewed, restated or replaced.
1.198 “Subordinated Debt” shall mean any notes, debt securities or other Indebtedness of a Borrower or Guarantor that is subordinated in right of payment to the right of Agent and Lenders to receive the prior final payment and satisfaction in cash in full of all of the Obligations and is incurred in accordance with Section 10.3(j) hereof.
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1.199 “Subsidiary” or “subsidiary” shall mean, with respect to any Person, any corporation, limited liability company, limited liability partnership or other limited or general partnership, trust, association or other business entity of which an aggregate of at least a majority of the outstanding Equity Interests or other interests entitled to vote in the election of the board of directors of such corporation (irrespective of whether, at the time, Equity Interests of any other class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency), managers, trustees or other controlling persons, or an equivalent controlling interest therein, of such Person is, at the time, directly or indirectly, owned by such Person and/or one or more subsidiaries of such Person. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of Parent.
1.200 “Supermajority Lenders” shall mean, at any time, subject to Section 6.13(g), those Lenders whose Pro Rata Shares aggregate more than sixty-six and two-thirds (66.67%) percent of the aggregate of the Commitments of all Lenders, or if the Commitments shall have been terminated, Lenders to whom more than sixty-six and two-thirds (66.67%) percent of the then outstanding Loans and Letter of Credit Obligations are owing.
1.201 “Swing Line Lender” shall mean Wells Fargo Foothill, LLC, in its capacity as the lender of Swing Line Loans, and its successors and assigns.
1.202 “Swing Line Loans” shall mean loans now or hereafter made by Swing Line Lender on a revolving basis pursuant to the Credit Facility (involving advances, repayments and readvances) as set forth in Section 2 hereof.
1.203 “Swing Line Loan Limit” shall mean $10,000,000.
1.204 “Taxes” shall have the meaning set forth in Section 6.8.
1.205 “Tax Sharing Agreement” means any Tax Sharing Agreement entered between Parent and any Parent Entity, substantially in the form of Exhibit F or otherwise in form and substance reasonably satisfactory to the Agent.
1.206 “Term Loan Agent” shall mean (i) Wells Fargo Bank, National Association, successor by merger to Wachovia Bank, National Association, in its capacity as administrative and collateral agent acting for and on behalf of the Term Loan Lenders under the Initial Term Loan Agreement (as defined below), and (ii) any replacement or successor agent whether under the Initial Term Loan Agreement or any subsequent Term Loan Agreement.
1.207
“Term Loan Agreement” shall mean (i) the Amended
and Restated Credit Agreement, dated as of the date hereof, among Parent, the Lenders party thereto, and Wachovia Bank, National
Association, as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced
(the “Initial Term Loan Agreement”), and (ii) any other Term Loan Credit Agreement (as defined in the Intercreditor
Agreement), including without limitation the new term loan facility to be entered into on the closing date of the Metl-Span Acquisition
(the “New Term Loan Facility”), provided that the final maturity date of
the New Term Loan Facility shall be no earlier than ninety (90) days after the Maturity Date.
Any reference to the Term Loan Agreement hereunder shall be deemed a reference to any Term Loan Agreement then in existence.
1.208 “Term Loan Debt” shall mean the Indebtedness of Borrowers and Guarantors evidenced by or arising under the Term Loan Documents.
1.209 “Term Loan Documents” shall mean the Term Loan Agreement, the Loan Documents (as defined therein) and any other Term Loan Credit Documents (as defined in the Intercreditor Agreement), in each case, as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
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1.210 “Term Loan Lenders” shall mean the “Lenders”, as defined in the Term Loan Agreement.
1.211 “Term Loan Priority Collateral” shall mean the Collateral described on Schedule 1.192 hereto.
1.212 “Transactions” shall mean, collectively, any or all of the following: (a) the equity investment referred to in Section 4.1(a) hereof, (b) the amendment and restatement of the Term Loan Documents, (c) the acceptance of the Convertible Notes referred to in Section 4.1(a)(iii) hereof and the payment of the redemption price due in connection therewith and (d) all other transactions relating to any of the foregoing (including payment of fees and expenses related to any of the foregoing).
1.213 “UCC” shall mean the Uniform Commercial Code as in effect in the State of New York and any successor statute, as in effect from time to time (except that terms used herein which are not otherwise defined herein and defined in the Uniform Commercial Code as in effect in the State of New York on the date hereof shall continue to have the same meaning notwithstanding any replacement or amendment of such statute except as Agent may otherwise determine with the consent of the Administrative Borrower).
1.214 “US Dollars”, “US$” and “$” shall each mean lawful currency of the United States of America.
1.215 “Value” or “value” shall mean, with respect to Inventory, the lower of (a) cost computed on a first-in first-out basis in accordance with GAAP (calculated based on standard cost with adjustments for purchase price variances) or (b) market value according to GAAP for inventory purposes (including adjustments for any lower-of-cost-or market charges); provided, that, for purposes of the calculation of the Borrowing Base, the Value of the Inventory shall not include write-ups or write-downs in value with respect to currency exchange rates and (i) notwithstanding anything to the contrary contained herein, the cost of the Inventory shall be computed in the same manner and consistent with the most recent appraisal of the Inventory received and accepted by Agent prior to the date hereof, if any.
1.216 “Voting Stock” shall mean, as to any Person, Equity Interests of such Person entitled to vote generally in the election of directors of such Person.
1.217 “Weighted Average Life to Maturity” shall mean, when applied to any Indebtedness at any date, the number of years obtained by dividing (a) the then outstanding principal amount of such Indebtedness into (b) the total of the product obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one twelfth) that will elapse between such date and the making of such payment.
1.218 “Wells Fargo” shall mean Wells Fargo Foothill, LLC, and its successors and assigns.
SECTION 2. CREDIT FACILITIES
2.1 Revolving Loans.
(a) Subject to and upon the terms and conditions
contained herein, each Lender severally (and not jointly) agrees to make its Pro Rata Share of Revolving Loans to Borrowers from
time to time in amounts requested by any Borrower (or Administrative Borrower on behalf of Borrowers) up to the aggregate amount
outstanding equal to the Commitment of such Lender; provided, that, after giving effect to any such Revolving Loan,
the aggregate principal amount of the Revolving Loans, Swing Line Loans and Letter of Credit Obligations outstanding shall not
exceed the leastlesser
of: (i) the Borrowing Base at such time or (ii) the Maximum Credit as then in effect or (iii)
the Revolving Loan Limit. All Loans made by Lenders to Borrowers shall be denominated in US Dollars.
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(b) Except with the consent of Agent and
all Lenders, or as otherwise provided herein, (i) the aggregate amount of the Loans and the Letter of Credit Obligations outstanding
at any time shall not exceed the leastlesser
of: (A) the Borrowing Base or (B) the Maximum Credit or (C) the Revolving Loan Limit and
(ii) the outstanding amount of Swing Line Loans shall not exceed the Swing Line Loan Limit. Subject to the terms and conditions
hereof, each Borrower (or Administrative Borrower on behalf of such Borrower) may from time to time borrow, prepay and reborrow
Revolving Loans. No Lender shall be required to make any Revolving Loan, if, after giving effect thereto the aggregate outstanding
principal amount of all Revolving Loans of such Lender, together with such Lender’s Pro Rata Share of the aggregate amount
of all Swing Line Loans and Letter of Credit Obligations, would exceed such Lender’s Commitment.
2.2 Swing Line Loans.
(a) Subject to the terms and conditions
contained herein, the Swing Line Lender agrees that it will make Swing Line Loans to each Borrower from time to time in amounts
requested by such Borrower (or Administrative Borrower on behalf of such Borrower) up to the aggregate amount outstanding equal
to the Swing Line Loan Limit; provided, that, after giving effect to any such Swing Line Loan, the aggregate principal
amount of the Revolving Loans, Swing Line Loans and Letter of Credit Obligations outstanding shall not exceed the leastlesser
of (i) the Borrowing Base, or
(ii) the Revolving Loan Limit, or (iii) the Maximum Credit, in each case at such
time. Subject to the terms and conditions hereof, each Borrower (or Administrative Borrower on behalf of Borrowers) may from time
to time borrow, prepay and reborrow Swing Line Loans. Swing Line Lender shall not be required to make Swing Line Loans, if, after
giving effect thereto, the aggregate outstanding principal amount of all Swing Line Loans would exceed the then existing Swing
Line Loan Limit. Each Swing Line Loan shall be subject to all of the terms and conditions applicable to other Base Rate Loans funded
by the Lenders constituting Revolving Loans, except that all payments thereon shall be payable to the Swing Line Lender solely
for its own account. All Revolving Loans and Swing Line Loans shall be subject to the settlement among Lenders provided for in
Section 6.13 hereof.
(b) Upon the making of a Swing Line Loan, without further action by any party hereto, each Lender shall be deemed to have irrevocably and unconditionally purchased and received from the Swing Line Lender, without recourse or warranty, an undivided interest and participation to the extent of such Lender’s Pro Rata Share in such Swing Line Loan. To the extent that there is no settlement in accordance with Section 6.13 below, the Swing Line Lender may at any time, require the Lenders to fund their participations. From and after the date, if any, on which any Lender has funded its participation in any Swing Line Loan, Agent shall promptly distribute to such Lender, not less than weekly, such Lender’s Pro Rata Share of all payments of principal and interest received by Agent in respect of such Swing Line Loan.
2.3 Letters of Credit.
(a) General. Subject to and upon the terms and conditions contained herein and in the Letter of Credit Documents, at the request of a Borrower (or Administrative Borrower on behalf of such Borrower), Agent agrees to cause Issuing Bank to issue, and Issuing Bank agrees to issue, for the account of such Borrower one or more Letters of Credit, for the ratable risk of each Lender according to its Pro Rata Share, in such form as may be reasonably approved from time to time by Issuing Bank.
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(b) Notice of Issuance, Amendment, Renewal, Extension. The Borrower requesting such Letter of Credit (or Administrative Borrower on behalf of such Borrower) shall give Agent and the Issuing Bank with respect thereto three (3) Business Days’ prior written notice of such Borrower’s request for the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit). Such notice shall (i) specify the original face amount of the Letter of Credit requested (or identify the Letter of Credit to be amended, renewed or extended), (ii) the effective date (which date shall be a Business Day and in no event shall be a date less than ten (10) days prior to the end of the term of this Agreement) of issuance of such requested Letter of Credit (or such amendment, renewal or extension), (iii) whether such Letter of Credit may be drawn in a single or in partial draws, (iv) the date on which such requested Letter of Credit is to expire, (v) the purpose for which such Letter of Credit is to be issued, (vi) the name and address of the beneficiary of the requested Letter of Credit, (vii) such other information as shall be reasonably necessary to enable the Issuing Bank to prepare, amend, renew or extend such Letter of Credit and (viii) if requested by Issuing Bank or Agent, the Borrower requesting such Letter of Credit (or Administrative Borrower on behalf of such Borrower) shall have delivered to Issuing Bank with respect thereto at such times and in such manner as such Issuing Bank may reasonably require, an application, in form and substance consistent with this Agreement and otherwise reasonably satisfactory to such Issuing Bank and Agent, for the issuance of the Letter of Credit and such other Letter of Credit Documents as may be required pursuant to the terms thereof. If requested by the Issuing Bank, the Borrower requesting the Letter of Credit (or Administrative Borrower on behalf of such Borrower) shall attach to the request the proposed terms of the Letter of Credit. The renewal or extension of, or increase in the amount of, any Letter of Credit shall, for purposes hereof, be treated in all respects the same as the issuance of a new Letter of Credit hereunder.
(c) Certain Conditions to Letters of
Credit. In addition to being subject to the satisfaction of the applicable conditions precedent contained in Section 4 hereof
and the other terms and conditions contained herein, no Letter of Credit shall be available to Borrowers unless each of the following
conditions precedent have been satisfied in a manner satisfactory to Agent: (i) the Borrower requesting such Letter of Credit (or
Administrative Borrower on behalf of such Borrower) shall have delivered to the Issuing Bank at such times and in such manner as
Issuing Bank may reasonably require and to Agent, an application, in form and substance consistent with this Agreement and otherwise
reasonably satisfactory to Issuing Bank and Agent, for the issuance of the Letter of Credit and such other Letter of Credit Documents
as may be reasonably required pursuant to the terms thereof, and the form and terms of the proposed Letter of Credit shall be satisfactory
to Agent and Issuing Bank, (ii) as of the date of issuance, no order of any court or other Governmental Authority shall by its
terms enjoin or restrain Issuing Bank from issuing the proposed Letter of Credit, and no law, rule or regulation applicable to
Issuing Bank and no request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction
over Issuing Bank shall prohibit, or require that Issuing Bank refrain from, the issuance of such Letter of Credit and (iii) after
giving effect to the issuance of such Letter of Credit, (A) the Letter of Credit Obligations shall not exceed the Letter of Credit
Limit and (B) the aggregate principal amount of the Revolving Loans, Swing Line Loans and Letter of Credit Obligations outstanding
shall not exceed the leastlesser
of (x) the Borrowing Base, or
(y) the Revolving Loan Limit, or (z) the Maximum Credit, in each case at such
time. Notwithstanding anything to the contrary contained herein, Issuing Bank shall not be obligated to issue a Letter of Credit
in respect of the obligation of a Borrower or Guarantor arising in connection with a lease of Real Property or an employment contract,
(1) in the case of a Letter of Credit in connection with such a lease, with a face amount in excess of the amount equal to (x)
the amount of rent under such lease, without acceleration, for the greater of one year or fifteen (15%) percent, not to exceed
three (3) years, of the remaining term of such lease minus (y) the amount of any cash or other collateral to secure the obligations
of a Borrower or Guarantor in respect of such lease and (2) in the case of a Letter of Credit in connection with an employment
contract, with a face amount in excess of the compensation provided by such contract, without acceleration, for a one year period
..
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(d) Letter of Credit Sublimit. Except in Agent’s discretion and with the consent of all Lenders, the amount of all outstanding Letter of Credit Obligations shall not at any time exceed the Letter of Credit Limit.
(e) Expiration. Each standby Letter of Credit shall expire at or prior to the earlier of (i) twelve (12) months after the date of the issuance of such standby Letter of Credit (or in the case of any renewal or extension thereof, twelve (12) months after such renewal or extension) and (ii) the date that is five (5) Business Days prior to the Maturity Date; provided, that, (A) any standby Letter of Credit with a one year tenor may provide for automatic renewal or extension thereof for additional one year periods (which in no event shall extend beyond the date referred to in clause (ii) above) and (B) if the Issuing Bank and Agent each consent, the expiration date on any standby Letter of Credit may extend beyond the date referred to in clause (ii) above to the extent such Letter of Credit is fully cash-collateralized to reasonable satisfaction of Agent. Each other Letter of Credit shall expire on the earlier of one hundred eighty (180) days after such Letter of Credit’s date of issuance, renewal or extension (as applicable) or the date five (5) Business Days prior to the Maturity Date.
(f) Letter of Credit Participations. Immediately upon the issuance or amendment of any Letter of Credit issued for the account of a Borrower, each Lender shall be deemed to have irrevocably and unconditionally purchased and received, without recourse or warranty, an undivided interest and participation to the extent of such Lender’s Pro Rata Share of the liability with respect to such Letter of Credit and the obligations of Borrowers with respect thereto (including all Letter of Credit Obligations with respect thereto). Each Lender shall absolutely, unconditionally and irrevocably assume, as primary obligor and not as surety, and be obligated to pay to Issuing Bank therefor and discharge when due, its Pro Rata Share of all of such obligations arising under such Letter of Credit. Without limiting the scope and nature of each Lender’s participation in any such Letter of Credit, to the extent that Issuing Bank has not been reimbursed or otherwise paid as reasonably required hereunder with respect to any such Letter of Credit or under any such Letter of Credit, each such Lender shall pay to Issuing Bank its Pro Rata Share of such unreimbursed drawing or other amounts then due to Issuing Bank in connection therewith.
(g) Letter of Credit Reimbursement. If Issuing Bank shall make any payment in respect of a Letter of Credit, Borrowers shall reimburse Issuing Bank by paying to Agent an amount equal to such payment by Issuing Bank not later than 2:00 p.m. on the date that such payment by Issuing Bank is made, if the applicable Borrower (or Administrative Borrower on behalf of such Borrower) shall have received notice of such payment by the Issuing Bank prior to 10:00 a.m. on such date, or, if such notice shall not have been received by such Borrower (or Administrative Borrower) prior to such time on such date, then not later than 2:00 p.m. on the next Business Day; provided, that, unless such Borrower (or Administrative Borrower on behalf of such Borrower) requests otherwise, and, subject to the conditions to borrowing set forth herein, each drawing under any Letter of Credit or other amount payable in connection therewith when due shall constitute a request by the Borrower for whose account such Letter of Credit was issued to Agent for a Base Rate Loan in the amount of such drawing or other amount then due, and shall be made by Agent on behalf of Lenders as a Revolving Loan or Swing Line Loan as Administrative Borrower requests, or if such request is not received in a timely manner, as Agent determines (or, if determined by Agent as a Special Agent Advance, as the case may be) in an equivalent amount and, to the extent so financed, such Borrower’s obligation to make such payment shall be discharged and replaced by the resulting Revolving Loan, Swing Line Loan (or Special Agent Advance, as the case may be). If the applicable Borrower (or Administrative Borrower on behalf of such Borrower) fails to make such payment when due, subject to the rights of Agent under Section 6.13 hereof, Agent may notify each Lender of the applicable payment made by the Issuing Bank in respect of such Letter of Credit, the payment then due from such Borrower in respect thereof and such Lender’s Pro Rata Share thereof. Promptly following receipt of such notice, each Lender shall pay to Agent its Pro Rata Share of the payment then due and Agent shall promptly pay to the applicable Issuing Bank the amounts so received by it from Lenders. Promptly following receipt by Agent of any payment from a Borrower pursuant to this paragraph, Agent shall distribute such payment to the applicable Issuing Bank or, to the extent that Lenders have made payments pursuant to this paragraph to reimburse such Issuing Bank, then to such Lenders and such Issuing Bank as their interests may appear. Any payment made by a Revolving Lender pursuant to this paragraph to reimburse an Issuing Bank for any payment made by such Issuing Bank (other than the funding of a Revolving Loan, Swing Line Loan or Special Agent Advance as contemplated above) shall not constitute a Loan and shall not relieve the applicable Borrower of its obligation to reimburse such Issuing Bank for such payment.
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(h) Obligations Absolute. The obligations of Borrowers to pay each Letter of Credit Obligation, and the obligations of Lenders to make payments to Agent for the account of Issuing Bank with respect to Letters of Credit shall be absolute, unconditional and irrevocable and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances, whatsoever, notwithstanding the occurrence or continuance of any Default, Event of Default, the failure to satisfy any other condition set forth in Section 4 hereof or any other event or circumstance, and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, a Borrower’s obligations hereunder; provided, that, this clause (iv) shall not be construed to relieve Issuing Bank of any liability resulting from its gross negligence or willful misconduct as determined pursuant to a final, non-appealable order of a court of competent jurisdiction. None of Agent, Lenders or the Issuing Bank, or any of their Affiliates, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of an Issuing Bank; provided, that, the foregoing shall not be construed to excuse Issuing Bank from liability to the applicable Borrower resulting from the gross negligence or willful misconduct of Issuing Bank (as determined pursuant to a final, non-appealable order of a court of competent jurisdiction) or otherwise affect any defense or other right that such Borrower may have as a result of any such gross negligence or willful misconduct. In furtherance of the foregoing and without limiting the generality thereof, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, an Issuing Bank may, in its discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit; provided, that, the foregoing shall not be construed to excuse an Issuing Bank from liability to the applicable Borrower resulting from the gross negligence or willful misconduct of such Issuing Bank or otherwise affect any defense or other right that such Borrower may have as a result of any such gross negligence or willful misconduct as determined pursuant to a final, non-appealable order of a court of competent jurisdiction.
(i) Disbursement Procedures. The applicable Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit. Such Issuing Bank shall promptly notify Agent and the applicable Borrower (or Administrative Borrower on behalf of such Borrower) by telephone (confirmed by facsimile or otherwise as Administrative Borrower and Issuing Bank may agree) of such demand for payment and whether such Issuing Bank has made or will make any payment in respect thereof; provided, that, any failure to give or delay in giving such notice shall not relieve the applicable Borrower of its obligation to reimburse such Issuing Bank and Lenders with respect to any such payment, as provided in this Section 2.3.
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(j) Interim Interest. If an Issuing Bank shall make any payment in respect of a Letter of Credit, or otherwise be owed any amounts in respect thereof, then, unless the applicable Borrower shall reimburse Issuing Bank for such payment or other amount in full on the date such payment is made or amount due, the unpaid amount thereof shall bear interest, for each day from and including the date such payment is made or amount due but excluding the date that the applicable Borrower reimburses such payment or other amount, at the rate per annum then applicable to Base Rate Loans. Interest accrued pursuant to this paragraph shall be for the account of the applicable Issuing Bank; except, that, interest accrued on and after the date of payment by Agent or any Lender pursuant to Section 2.3(g) above to reimburse such Issuing Bank shall be for the account of Agent or such Lender to the extent of such payment, and shall be payable on demand or, if no demand has been made, on the date on which the applicable Borrower reimburses the applicable payment in full.
(k) Account Party. Each Borrower and Guarantor hereby irrevocably authorizes and directs each Issuing Bank to name such Borrower or Guarantor as the account party therein and to the extent that Agent or Wells Fargo is the co-applicant, guarantor or indemnitor in respect of any Letter of Credit to deliver to Agent all instruments, documents and other writings received by such Issuing Bank pursuant to the Letter of Credit and to accept and rely upon Agent’s instructions and agreements with respect to all matters arising in connection with the Letter of Credit or the Letter of Credit Documents with respect thereto. Without limitation upon the rights of any Borrower to request and obtain Loans and Letters of Credit for its benefit, subject to and in accordance with the terms and conditions set forth herein, nothing contained herein shall be deemed or construed to grant any Borrower or Guarantor any right or authority to pledge the credit of Agent or any Lender in any manner. Agent and Lenders shall have no liability of any kind with respect to any Letter of Credit provided by Issuing Bank unless Agent has duly executed and delivered to Issuing Bank the application or a guarantee or indemnification in writing with respect to such Letter of Credit. Borrowers and Guarantors shall be bound by any reasonable interpretation made in good faith by Agent, or an Issuing Bank under or in connection with any Letter of Credit or any documents, drafts or acceptances thereunder, notwithstanding that such interpretation may be inconsistent with any instructions of any Borrower or Guarantor. Except as Agent may otherwise specify, Borrowers and Guarantors shall designate Agent or the Issuing Bank with respect to a Letter of Credit as the consignee on all bills of lading and other negotiable and non-negotiable documents under such Letter of Credit.
(l) Rights of Lenders and Issuing Bank. Any rights, remedies, duties or obligations granted or undertaken by any Borrower to Issuing Bank in any application for any Letter of Credit, or any other agreement in favor of Issuing Bank relating to any Letter of Credit, shall be deemed to have been granted or undertaken by such Borrower to Agent. Any duties or obligations undertaken by Agent to Issuing Bank in any application for any Letter of Credit, or any other agreement by Agent in favor of Issuing Bank relating to any Letter of Credit, to the extent set forth in any corresponding application for such Letter of Credit or any other agreement in favor of Issuing Bank relating to such Letter of Credit executed by any Borrower shall be deemed to have been undertaken by Borrowers to Agent and to apply in all respects to Borrowers.
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2.4 Requests for Borrowings.
(a) To request a Revolving Loan or Swing Line Loan, the applicable Borrower (or Administrative Borrower on behalf of such Borrower) shall notify Agent of such request by telephone (i) in the case of a Eurodollar Rate Loan, not later than 11:00 a.m., three (3) Business Days before the date of the proposed Eurodollar Rate Loan or (ii) in the case of a Base Rate Loan (including a Swing Line Loan), not later than 1:00 p.m. on the same Business Day as the date of the proposed Base Rate Loan. Each such telephonic request shall be irrevocable and, to the extent required by Agent, shall be confirmed promptly by hand delivery or facsimile (including by email or other electronic communication) to Agent of a written request in a form reasonably satisfactory to Agent and signed by or on behalf of the applicable Borrower or Administrative Borrower on behalf of such Borrower.
(b) Each such telephonic and written request shall be in a form previously approved by Agent and shall specify the following information:
(i) the Borrower requesting such Revolving Loan or Swing Line Loan;
(ii) whether such Loan is a Revolving Loan or Swing Line Loan;
(iii) the aggregate amount of such Revolving Loan or Swing Line Loan;
(iv) the date of such Revolving Loan or Swing Line Loan, which shall be a Business Day;
(v) if such Loan is to be a Revolving Loan, whether such Revolving Loan is to be a Base Rate Loan or a Eurodollar Rate Loan or a combination thereof; and
(vi) the deposit account of the applicable Borrower specified on Schedule 8.21 or any other account with Agent (or one of its Affiliates) that shall be specified in a written notice signed by an officer of such Borrower and delivered to Agent, to which the proceeds of such Loan are to be remitted.
(c) If no election as to whether a Revolving Loan is to be a Base Rate Loan or Eurodollar Rate Loan is specified in the applicable request, then the requested Revolving Loan shall be a Base Rate Loan. Promptly following receipt of a request for a Revolving Loan in accordance with this Section, Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Revolving Loan to be made as part of the request.
(d) All Loans and Letters of Credit under this Agreement shall be conclusively presumed to have been made to, and at the request of and for the benefit of, any Borrower or Guarantor when deposited to the credit of any Borrower or Guarantor or otherwise disbursed or established in accordance with the instructions of any Borrower or Guarantor or in accordance with the terms and conditions of this Agreement.
2.5 Mandatory Prepayments.
(a) In the event that (i) the aggregate
amount of the Loans and the Letter of Credit Obligations outstanding at any time exceeds the leastlesser
of: (A) the Borrowing Base, or
(B) the Revolving Loan Limit, or (C) the Maximum Credit, or (ii) the outstanding
amount of the Swing Line Loans exceeds the Swing Line Loan Limit, such event shall not limit, waive or otherwise affect any rights
of Agent or Lenders in such circumstances or on any future occasions and Borrowers shall, upon demand by Agent at the direction
of Co-Collateral Agents, which demand may be made at any time or from time to time, immediately repay to Agent the entire amount
of any such excess(es) for which payment is demanded.
(b) At any time that a Dominion Event has occurred and is continuing, promptly (and in any case no later than the fifth (5th) day) following any Permitted Disposition (other than a Permitted Disposition referred to in clause (a), (b)(ii), (d), (f), (g), (i), (j), (l) or (n) of the definition of such term) not consisting of the issuance of an Equity Interest, Borrowers shall, absolutely and unconditionally without notice or demand, if and to the extent that the Net Cash Proceeds from such Permitted Disposition are not required to be applied to the payment of the obligations under the Term Loan Documents as provided in the Intercreditor Agreement, repay the outstanding Obligations in an amount equal to one hundred (100%) percent of the Net Cash Proceeds payable to or for the benefit of such Person in connection with such Permitted Disposition.
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(c) At any time that a Dominion Event has occurred and is continuing, promptly (and in any case no later than the fifth (5th) day) following the incurrence of any Indebtedness permitted under Section 10.3(j) hereof, Borrowers shall, absolutely and unconditionally without notice or demand, repay the outstanding Obligations (i) other than in the case of Subordinated Debt, in an amount equal to one hundred (100%) percent of the Net Cash Proceeds payable to or for the benefit of Borrowers and Guarantors in connection with the incurrence of such Indebtedness and (ii) in the case of Subordinated Debt, in an amount equal to fifty (50%) percent of the Net Cash Proceeds payable to or for the benefit of Borrowers and Guarantors in connection with the incurrence of such Indebtedness, in each case, under clause (i) or (ii), if and to the extent that the Net Cash Proceeds from such incurrence of Indebtedness are not required to be applied to the payment of the obligations under the Term Loan Documents as provided in the Intercreditor Agreement.
(d) At any time that a Dominion Event has occurred and is continuing, promptly (and in any case no later than the fifth (5th) day) following the receipt of any amounts as loss payee under any property insurance maintained by Parent and its Subsidiaries, Borrowers shall, absolutely and unconditionally without notice or demand, if and to the extent that the Net Cash Proceeds from such receipt are not required to be applied to the payment of the obligations under the Term Loan Documents as provided in the Intercreditor Agreement, repay the outstanding Obligations in an amount equal to one hundred (100%) percent of the Net Cash Proceeds payable to or for the benefit of such Person in connection therewith.
(e) All payments required to be made pursuant to any subsection of this Section 2.5 shall be in addition to any other payments required to be made pursuant to any other subsection of this Section 2.5.
(f) All amounts received by Agent pursuant to this Section 2.5 shall be applied by Agent to the Obligations, whether or not then due, in accordance with Section 6.4 hereof. There shall be no permanent reduction in the Commitments as a result of any prepayments of the Loans pursuant to this Section 2.5.
2.6 Optional Prepayments. Borrowers may prepay without penalty or premium the principal of any Revolving Loan or Swing Line Loan, in whole or in part, subject to Section 3.10 hereof; provided, that, any notice of such prepayment shall be revocable at any time prior to such prepayment All amounts received by Agent pursuant to this Section 2.6 shall be applied by Agent to the Obligations, whether or not then due, in accordance with Section 6.7 hereof; but, for the avoidance of doubt, the Commitments shall not be reduced by any amount of any prepayment of the Loans pursuant to this Section 2.6.
2.7 Increase in Maximum Credit.
(a) Administrative Borrower may, at any time, deliver a written request to Agent to increase the Maximum Credit. Any such written request shall specify the amount of the increase in the Maximum Credit that Borrowers are requesting; provided, that, (i) in no event shall the aggregate amount of any such increase in the Maximum Credit cause the Maximum Credit to exceed $175,000,000, (ii) such request shall be for an increase of not less than $10,000,000, and (iii) in no event shall the Maximum Credit be increased more than four (4) times during the term hereof.
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(b) Upon the receipt by Agent of any such written request, Agent shall notify each Lender of such request and each Lender shall have the option (but not the obligation) to increase the amount of its Commitment by an amount up to its Pro Rata Share of the amount of the increase in the Maximum Credit requested by Administrative Borrower as set forth in the notice from Agent to such Lender. Each Lender shall notify Agent within thirty (30) days after the receipt of such notice from Agent whether it is willing to so increase its Commitment, and if so, the amount of such increase; provided, that, (i) the minimum increase in the Commitments of each such Lender providing the additional Commitments shall equal or exceed $2,000,000, and (ii) no Lender shall be obligated to provide such increase in its Commitment and the determination to increase the Commitment of a Lender shall be within the sole and absolute discretion of such Lender. If the aggregate amount of the increases in the Commitments received from the Lenders does not equal or exceed the amount of the increase in the Maximum Credit requested by Administrative Borrower, Agent may, in consultation with Administrative Borrower, seek additional increases from Lenders, or Commitments from such Eligible Transferees or other Persons as are approved by Administrative Borrower. In the event Lenders (or Lenders and any such Eligible Transferees or other Persons, as the case may be) have committed in writing to provide increases in their Commitments or new Commitments in an aggregate amount in excess of the increase in the Maximum Credit requested by Borrowers or permitted hereunder, Agent shall then have the right to allocate such commitments, first to Lenders and then to Eligible Transferees or such other Persons, in such amounts and manner as Agent may determine, after consultation with Administrative Borrower.
(c) The Maximum Credit shall be increased by the amount of the increase in Commitments from Lenders or new Commitments from Eligible Transferees or other Persons, in each case selected in accordance with Section 2.7(b) above, for which Agent has received Assignment and Acceptances sixty (60) days after the date of the request by Administrative Borrower for the increase or such earlier date as Agent and Administrative Borrower may agree (but subject to the satisfaction of the conditions set forth below), whether or not the aggregate amount of the increase in Commitments and new Commitments, as the case may be, equal or exceed the amount of the increase in the Maximum Credit requested by Administrative Borrower in accordance with the terms hereof, effective on the date that each of the following conditions have been satisfied:
(i) Agent shall have received from each Lender or Eligible Transferee or other Person that is providing an additional Commitment as part of the increase in the Maximum Credit, an Assignment and Acceptance or one or more amendments to this Agreement and as appropriate, the other Financing Agreements and any such amendment may, without the consent of any other Lenders, effect such amendments to any Loan Document as may be necessary or appropriate in the opinion of the Administrative Agent, to effect the provisions of this Section 2.7, duly executed by such Lender or Eligible Transferee or other Person and each Borrower;
(ii) the conditions precedent to the making of Revolving Loans set forth in Section 4.2 shall be satisfied as of the date of the increase in the Maximum Credit, both before and after giving effect to such increase;
(iii) to the extent requested by Agent, Agent shall have received an opinion of counsel to Borrowers in form and substance and from counsel reasonably satisfactory to Agent and Lenders addressing such matters as Agent may reasonably request (including an opinion as to no conflicts with other Indebtedness);
(iv) such increase in the Maximum Credit on the date of the effectiveness thereof shall not violate any applicable law, regulation or order or decree of any court or other Governmental Authority and shall not be enjoined, temporarily, preliminarily or permanently;
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(v) there shall have been paid to each Lender and third-party bank or other Person providing an additional Commitment in connection with such increase in the Maximum Credit all fees and expenses due and payable to such Person on or before the effectiveness of such increase; and
(vi) there shall have been paid to Agent, for the account of the Agent and Lenders (in accordance with any agreement among them) all fees and expenses (including reasonable fees and expenses of counsel) due and payable pursuant to any of the Financing Agreements on or before the effectiveness of such increase.
(d) As of the effective date of any such increase in the Maximum Credit, each reference to the term Maximum Credit herein, and in any of the other Financing Agreements shall be deemed amended to mean the amount of the Maximum Credit as increased as specified in the most recent written notice from Agent to Administrative Borrower of the increase in the Maximum Credit.
2.8 Decrease in Maximum Credit.
(a) Administrative Borrower (on behalf of itself and each other Borrower) may, at any time, deliver a written request to Agent to decrease the Maximum Credit. Any such written request shall specify the amount of the decrease in the Maximum Credit that Administrative Borrower is requesting and the effective date of such decrease (which date shall not be less than five (5) nor more than ten (10) Business Days after the date of such request); provided, that, (i) in no event shall the aggregate amount of any such decrease cause the Maximum Credit to be less than $75,000,000, (ii) any such request for a decrease shall be for an amount of not less than $10,000,000, and (iii) in no event shall more than one such written request for a decrease be delivered to Agent in any calendar quarter.
(b) Upon the receipt by Agent of a written request to decrease the Maximum Credit, Agent shall notify each of the Lenders of such request and, subject to the terms of Section 2.8(c) hereof, the Commitment of each Lender shall be decreased on the date requested by Administrative Borrower by an amount equal to such Lender’s Pro Rata Share of the amount of the decrease in the Maximum Credit requested by Administrative Borrower as set forth in the notice from Agent to such Lender.
(c) In the event of a request to decrease the Maximum Credit, the Maximum Credit shall be decreased by the amount requested by Administrative Borrower in accordance with the terms hereof; provided, that, after giving effect to such decrease, the Maximum Credit shall not be less than the aggregate principal amount of the Loans, Special Agent Advances and Letter of Credit Obligations outstanding at such time.
(d) As of the effective date of any such decrease in the Maximum Credit, each reference to the term Maximum Credit and Commitments herein, as applicable, and in any of the other Financing Agreements shall be deemed amended to mean the amount of the Maximum Credit and Commitments specified in the most recent written notice from Agent to Borrower Agent of the decrease in the Maximum Credit and Commitments, as applicable.
2.9 Joint and Several Liability of Borrowers.
(a) Notwithstanding anything in this Agreement or any other Financing Agreements to the contrary, each Borrower, jointly and severally, in consideration of the financial accommodations to be provided by Agent and Lenders under this Agreement and the other Financing Agreements, for the mutual benefit, directly and indirectly, of each Borrower and in consideration of the undertakings of the other Borrowers to accept joint and several liability for the Obligations, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations, it being the intention of the parties hereto that all of the Obligations shall be the joint and several obligations of each Borrower without preferences or distinction among them. Borrowers shall be liable for all amounts due to Agent and Lenders under this Agreement, regardless of which Borrower actually receives the Loans or Letter of Credit Obligations hereunder or the amount of such Revolving Loans received or the manner in which Agent or any Lender accounts for such Loans, Letter of Credit Obligations or other extensions of credit on its books and records. The Obligations of Borrowers with respect to Revolving Loans made to one of them, and the Obligations arising as a result of the joint and several liability of one of the Borrowers hereunder with respect to Revolving Loans made to the other of the Borrowers hereunder, shall be separate and distinct obligations, but all such other Obligations shall be primary obligations of all Borrowers.
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(b) If and to the extent that any Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event, the other Borrowers will make such payment with respect to, or perform, such Obligation.
(c) The obligations of each Borrower under this Section 2.9 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Borrower. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any Borrower or any of the Lenders.
(d) The provisions of this Section 2.9 hereof are made for the benefit of the Lenders and their successors and assigns, and subject to Section 14.4 hereof, may be enforced by them from time to time against any Borrower as often as occasion therefor may arise and without requirement on the part of Agent or any Lender first to marshal any of its claims or to exercise any of its rights against the other Borrowers or to exhaust any remedies available to it against the other Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 2.9 shall remain in effect until the Payment in Full of all Obligations. If at any time, any payment, or any part thereof, made in respect of any of the Obligations is rescinded or must otherwise be restored or returned by Agent or any Lender upon the insolvency, bankruptcy or reorganization of any Borrower, or otherwise, the provisions of this Section 2.9 hereof will forthwith be reinstated and in effect as though such payment had not been made.
(e) Notwithstanding any provision to the contrary contained herein or in any of the other Financing Agreements, to the extent the obligations of a Borrower shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal, state or provincial and including, without limitation, the Bankruptcy Code of the United States).
(f) With respect to the Obligations arising as a result of the joint and several liability of Borrowers hereunder with respect to Loans, Letter of Credit Obligations or other extensions of credit made to the other Borrowers hereunder, each Borrower waives, until the Payment in Full of all Obligations, any right to enforce any right of subrogation or any remedy which Agent or any Lender now has or may hereafter have against any Borrower, any endorser or any guarantor of all or any part of the Obligations, and any benefit of, and any right to participate in, any security or collateral given to Agent or any Lender. Any claim which any Borrower may have against any other Borrower with respect to any payments to Agent or Lenders hereunder or under any of the other Financing Agreements are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior Payment in Full of all Obligations. Upon the occurrence of any Event of Default and for so long as the same is continuing, to the maximum extent permitted under applicable law, Agent and Lenders may proceed directly and at once, without notice (to the extent notice is waivable under applicable law), against (i) with respect to Obligations of Borrowers, either or all of them or (ii) with respect to Obligations of any Borrower, to collect and recover the full amount, or any portion of the applicable Obligations, without first proceeding against the other Borrowers or any other Person, or against any security or collateral for the Obligations. Each Borrower consents and agrees that Agent and Lenders shall be under no obligation to marshal any assets in favor of Borrower(s) or against or in payment of any or all of the Obligations. Subject to the foregoing, in the event that a Loan, Letter of Credit Obligation or other extension of credit is made to, or with respect to business of, one Borrower and any other Borrower makes any payments with respect to such Loan, Letter of Credit Obligation or extension of credit, the first Borrower shall promptly reimburse such other Borrower for all payments so made by such other Borrower.
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2.10 Commitments. The aggregate amount of each Lender’s Pro Rata Share of the Revolving Loans, Swing Line Loans and Letter of Credit Obligations shall not exceed the amount of such Lender’s Commitment, as the same may from time to time be amended in accordance with the provisions hereof.
SECTION 3. INTEREST AND FEES
3.1 Interest.
(a) Borrowers shall pay to Agent interest on the outstanding principal amount of the Loans at the Interest Rate. Interest shall be payable by Borrowers to Agent in arrears on each Interest Payment Date and shall be calculated on the basis of a three hundred sixty (360) day year and actual days elapsed, other than for Base Rate Loans which shall be calculated on the basis of three hundred sixty-five (365) or three hundred sixty-six (366) day year, as applicable, and actual days elapsed. The interest rate on non-contingent Obligations (other than Eurodollar Rate Loans) shall increase or decrease by an amount equal to each increase or decrease in the Base Rate effective on the date any change in such Base Rate is effective. All interest accruing hereunder on and after the date of any termination hereof shall be payable on demand.
(b) Each Borrower (or Administrative Borrower on behalf of such Borrower) may from time to time request that Base Rate Loans be converted to Eurodollar Rate Loans or that any existing Eurodollar Rate Loans continue for an additional Interest Period. Such request from a Borrower (or Administrative Borrower on behalf of such Borrower) shall specify the amount of the Eurodollar Rate Loans or the amount of the Base Rate Loans to be converted to Eurodollar Rate Loans or the amount of the Eurodollar Rate Loans to be continued (subject to the limits set forth below) and the Interest Period to be applicable to such Eurodollar Rate Loans (and if it does not specify an Interest Period, the Interest Period shall be deemed to be a one (1) month period). Subject to the terms and conditions contained herein, three (3) Business Days after receipt by Agent of such a request from a Borrower (or Administrative Borrower on behalf of such Borrower) which may be telephonic and followed by a confirmation in writing in the form provided by Agent to Administrative Borrower (and followed by a confirmation in writing if requested by Agent), Base Rate Loans shall be converted to Eurodollar Rate Loans or such Eurodollar Rate Loans shall continue, as the case may be; provided, that, (i) no Default or Event of Default shall exist or have occurred and be continuing, (ii) the Maturity Date is more than one (1) month after the date of the conversions, (iii) no more than seven (7) Interest Periods may be in effect at any one time, and (iv) the aggregate amount of the Eurodollar Rate Loans must be in an amount not less than $1,000,000 or an integral multiple of $500,000 in excess thereof. Any request by or on behalf of a Borrower for Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans or to continue any existing Eurodollar Rate Loans shall be irrevocable.
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(c) Any Eurodollar Rate Loans shall automatically convert to Base Rate Loans upon the last day of the applicable Interest Period, unless Agent has received and approved a request to continue such Eurodollar Rate Loan at least three (3) Business Days prior to such last day in accordance with the terms hereof and Borrowers are entitled to such Eurodollar Rate Loan under the terms hereof. Any Eurodollar Rate Loans shall, at Agent’s option, upon notice by Agent to Borrower (or Administrative Borrower on behalf of such Borrower), be subsequently converted to Base Rate Loans in the event that this Agreement shall terminate. Borrowers shall pay to Agent, upon demand by Agent (or Agent may, at its option, charge any loan account of any Borrower) any amounts required to compensate Agent or Participant for any reasonable loss (excluding loss of anticipated profits), cost or expense incurred by such person, as a result of the conversion of Eurodollar Rate Loans to Base Rate Loans other than the conversion on the last day of any Interest Period with respect thereto.
3.2 Fees.
(a) Borrowers shall pay to Agent, for the
account of Lenders, monthly an unused line fee at a rate equal to one-half (.50%) percent (on
a per annum basis) the Applicable Commitment Fee Rate
calculated upon the amount by which the Maximum Credit exceeds the average daily principal balance of the outstanding Revolving
Loans and Letter of Credit Obligations during the immediately preceding month (or part thereof) so long as any Obligations are
outstanding and the Commitments hereunder have not been terminated. If the Maximum Credit shall change during the immediately preceding
month (or part thereof), an average daily Maximum Credit shall be used for the purposes of calculating such fees for such period.
Such fees shall be payable on the first Business Day of each month in arrears, beginning with the first full calendar month that
commences following the date hereof (and prorated, if the Closing Date is not the end of a calendar month, for the portion of the
immediately preceding month from the Closing Date to the end thereof), and calculated based on a three hundred sixty (360) day
year and actual days elapsed.
(b) Borrowers shall pay to Agent, for the benefit of Lenders, quarterly a fee calculated at a rate per annum equal to the Applicable Margin as to Revolving Loans bearing interest using the Eurodollar Rate on the average daily outstanding balance of Letter of Credit Obligations for the immediately preceding calendar quarter (or part thereof), payable in arrears as of the first day of each calendar quarter; provided, that, Borrowers shall, at Agent’s option or at the written direction of the Required Lenders, (i) pay such fees at a rate two (2%) percent greater than such rate on such average daily maximum amount for the period from and after the date of termination hereof until Lenders have received Payment in Full of all Obligations (notwithstanding entry of a judgment against any Borrower or Guarantor) and (ii) upon written notice to Administrative Borrower at any time that an Event of Default shall have occurred and be continuing, pay such fees at a rate two (2%) percent greater than such rate on such average daily maximum amount for the period from and after the date of such notice but only for so long as such Event of Default is continuing. Such letter of credit fees shall be calculated on the basis of a three hundred sixty (360) day year and actual days elapsed and the obligation of Borrowers to pay such fee shall survive the termination or non-renewal of this Agreement. In addition to the letter of credit fees provided above, Borrowers shall pay to Issuing Bank for its own account (without sharing with Lenders) the letter of credit fronting fee of one hundred twenty-five thousandths of one (0.125%) percent per annum payable quarterly in arrears and the other reasonable customary charges from time to time of Issuing Bank with respect to the issuance, amendment, transfer, administration, cancellation and conversion of, and drawings under, such Letters of Credit.
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(c) Borrowers shall pay to Agent and Wells Fargo the other reasonable fees and amounts set forth in the Fee Letter in the amounts and at the times specified therein or as has otherwise been agreed by or on behalf of Borrowers. To the extent payment in full of the applicable fee is received by Agent from Borrowers on or about the date hereof, Agent shall pay to each Lender its share of such fees in accordance with the terms of the arrangements of Agent with such Lender.
3.3 Inability to Determine Applicable Interest Rate. If Agent shall determine in good faith (which determination shall, absent manifest error, be final and conclusive and binding on all parties hereto) that on any date by reason of circumstances affecting the London interbank market adequate and reasonable means do not exist for ascertaining the interest rate applicable to Eurodollar Rate Loans, Agent shall on such date give notice to Administrative Borrower and each Lender of such determination. Upon such date no Loans may be made as, or converted to, Eurodollar Rate Loans until such time as Agent notifies Administrative Borrower and Lenders that the circumstances giving rise to such notice no longer exist and any request for Eurodollar Rate Loans received by Agent shall be deemed to be a request, or a continuation or conversion, for or into Base Rate Loans.
3.4 Illegality. Notwithstanding anything to the contrary contained herein, if (a) any change in any law or interpretation thereof by any Governmental Authority after the Closing Date makes it unlawful or impractical for a Lender to make or maintain a Eurodollar Rate Loan, then such Lender shall give notice thereof to Agent and Administrative Borrower and may (i) declare that Eurodollar Rate Loans will not thereafter be made by such Lender, such that any request for a Eurodollar Rate Loans from such Lender shall be deemed to be a request for a Base Rate Loan unless such Lender’s declaration has been withdrawn (and it shall be withdrawn promptly upon the cessation of the circumstances described above) and (ii) require that all outstanding Eurodollar Rate Loans made by such Lender be converted to Base Rate Loans immediately, in which event all outstanding Eurodollar Rate Loans of such Lender shall be so converted. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations.
3.5 Increased Costs. If any Change in Law shall: (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or the Issuing Bank; (ii) subject any Lender or the Issuing Bank to any tax of any kind whatsoever with respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or any Eurodollar Rate Loan made by it, or change the basis of taxation of payments to such Lender or the Issuing Bank in respect thereof (except for Non-Excluded Taxes and taxes measured by or imposed upon net income, or franchise taxes, or taxes measured by or imposed upon overall capital or net worth, or branch taxes (in the case of such capital, net worth or branch taxes, imposed in lieu of such net income taxes); or (iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (in each case, excluding any taxes of any kind whatsoever) affecting this Agreement or Eurodollar Rate Loans made by such Lender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender by an amount such Lender deems to be material of making or maintaining any Eurodollar Rate Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or the Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or the Issuing Bank in respect thereof (whether of principal, interest or any other amount) then, upon request of such Lender or the Issuing Bank, Borrowers will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank, as the case may be, for such additional costs incurred or reduction suffered.
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(a) In any such case described in Section 3.5(a), such Borrower may elect to convert the Eurodollar Rate Loans made by such Lender hereunder to Base Rate Loans by giving Agent at least one (1) Business Day’s notice of such election, in which case such Borrower shall promptly pay to such Lender, upon demand, without duplication, amounts theretofore required to be paid to such Lender pursuant to this Section 3.5 and such amounts, if any, as may be required pursuant to Section 3.10. If any Lender becomes entitled to claim any additional amounts pursuant to this subsection, it shall provide prompt notice thereof to Administrative Borrower, through Agent, certifying (i) that one of the events described in this Section 3.5 has occurred and describing in reasonable detail the nature of such event, (ii)as to the increased cost or reduced amount resulting from such event and (iii) as to the additional amount demanded by such Lender and a reasonably detailed explanation of the calculation thereof. Such a certificate as to any additional amounts payable pursuant to this subsection submitted by such Lender, through Agent, to Administrative Borrower shall be conclusive in the absence of manifest error. Borrowers shall pay such Lender the amount shown as due on any such certificate within ten (10) days after receipt thereof in the absence of manifest error. This covenant shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
3.6 Capital Requirements. If any Lender or the Issuing Bank determines that any Change in Law affecting such Lender or the Issuing Bank or any lending office of such Lender or such Lender’s or the Issuing Bank’s holding company, if any, regarding capital requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law by an amount such Lender deems to be material (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy), then from time to time within ten (10) Business Days after submission by such Lender to the Borrowers (with a copy to Agent) of a written request therefor certifying (a) that one of the events described in this Section 3.6 has occurred and describing in reasonable detail the nature of such event, (b) as to the reduction of the rate of return on capital resulting from such event and (c) as to the additional amount or amounts demanded by such Lender or corporation and a reasonably detailed explanation of the calculation thereof, the applicable Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered. Such a certificate as to any additional amounts payable pursuant to this subsection submitted by such Lender or Issuing Bank, through the Administrative Agent, to the Borrowers shall be conclusive in the absence of manifest error.
3.7 Delay in Requests. Borrowers and Guarantors shall not be required to compensate Agent, a Lender or the Issuing Bank pursuant to Sections 3.5, 3.6 or 6.8 for any increased costs or other payments incurred or reductions occurring more than one hundred eighty (180) days prior to the date that Agent, such Lender or the Issuing Bank, as the case may be, becomes aware of the event giving rise to Agent’s, such Lender’s or Issuing Bank’s claim for compensation therefor (except that, if the Change in Law giving rise to such claim is retroactive, then the one hundred eighty (180) day period referred to above shall be extended to include the period of retroactive effect thereof).
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3.8 Mitigation; Replacement of Lenders.
(a) If any Lender requests compensation under Sections 3.4, 3.5 or 3.6, or Borrowers are required to make any payment to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 6.8, then such Lender shall, if requested by Administrative Borrower, use reasonable efforts (subject to overall policy considerations of such Lender) to designate a different lending office for funding or booking its Loans hereunder, to assign its rights and obligations hereunder to another of its offices, branches or affiliates or to take such other actions as such Lender or Agent determines, if, in the judgment of such Lender, such designation, assignment or other action (i) would eliminate or reduce amounts payable pursuant to such Sections in the future and (ii) would not subject Agent or such Lender to any unreimbursed cost or expense and Agent or such Lender would not suffer any economic, legal or regulatory disadvantage. Nothing in this Section 3.8 shall affect or postpone any of the obligations of Borrowers or the rights of Agent or such Lender pursuant to this Section 3.8. Borrowers hereby agree to pay on demand all reasonable costs and expenses incurred by Agent or any Lender in connection with any such designation or assignment.
(b) If any Lender requests compensation under Sections 3.4, 3.5 or Section 3.6 hereof, or Borrowers are required to make any payment to any Lender or Governmental Authority for the account of any Lender pursuant to Section 6.8, then within sixty (60) days thereafter, Administrative Borrower may, at its sole expense and effort, upon notice to such Lender and 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 15.7), all of its interests, rights and obligations under this Agreement to an Eligible Transferee that shall assume such obligations; provided, that, (i) Administrative Borrower has received the prior written consent of Agent and Issuing Bank to the extent required under Section 15.7 hereof, (ii) such Lender shall have received payment of an amount equal to the outstanding principal amount of its Loans and participations in Letter of Credit Obligations and Swing Line Loans that it has funded, if any, accrued interest thereon, accrued fees and other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal) and Administrative Borrower (in the case of accrued interest, fees and other amounts, including amounts under Section 3.9), and (iii) such assignment will result in a reduction in such compensation and payments. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Administrative Borrower to require such assignment and delegation cease to apply.
3.9 Funding Losses. Borrowers shall pay to each Lender all losses, expenses and liabilities (including any interest paid by such Lender to lenders of funds borrowed by it to make or carry its Eurodollar Rate Loans and any loss, expense or liability sustained by such Lender in connection with the liquidation or redeployment of such) that it sustains (a) by reason of a default by any Borrower in connection with the making of any Eurodollar Rate Loan that does not occur on a date specified therefor in a request for borrowing, or a conversion to, any Eurodollar Rate Loan that does not occur on a date specified therefor in a request for conversion or continuation, (b) if any prepayment or other principal payment of any of its Eurodollar Rate Loans occurs on a date prior to the last day of an Interest Period applicable to such Loan, or (c) if any prepayment of any of its Eurodollar Rate Loans is not made on any date specified in a notice of prepayment given by a Borrower. This covenant shall survive the termination or non-renewal of this Agreement and the payment of the Obligations.
3.10 Maximum Interest. Notwithstanding anything to the contrary contained in this Agreement or any of the other Financing Agreements, in no event whatsoever shall the aggregate of all amounts that are contracted for, charged or received by Agent or any Lender pursuant to the terms of this Agreement or any of the other Financing Agreements and that are deemed interest under applicable law exceed the Maximum Interest Rate (including, to the extent applicable, the provisions of Section 5197 of the Revised Statutes of the United States of America as amended, 12 U.S.C. Section 85, as amended). In no event shall any Borrower or Guarantor be obligated to pay interest or such amounts as may be deemed interest under applicable law in amounts which exceed the Maximum Interest Rate. In the event any Interest is charged or received in excess of the Maximum Interest Rate (the “Excess”), each Borrower and Guarantor acknowledges and stipulates that any such charge or receipt shall be the result of an accident and bona fide error, and that any Excess received by Agent or any Lender shall be applied, first, to the payment of the then outstanding and unpaid principal hereunder; second to the payment of the other Obligations then outstanding and unpaid; and third, returned to such Borrower or Guarantor. All monies paid to Agent or any Lender hereunder or under any of the other Financing Agreements, whether at maturity or by prepayment, shall be subject to any rebate of unearned interest as and to the extent required by applicable law. For the purpose of determining whether or not any Excess has been contracted for, charged or received by Agent or any Lender, all interest at any time contracted for, charged or received from any Borrower or Guarantor in connection with this Agreement or any of the other Financing Agreements shall, to the extent permitted by applicable law, be amortized, prorated, allocated and spread during the entire term of this Agreement in accordance with the amounts outstanding from time to time hereunder and the Maximum Interest Rate from time to time in effect in order to lawfully charge the maximum amount of interest permitted under applicable laws. The provisions of this Section 3.10 shall be deemed to be incorporated into each of the other Financing Agreements (whether or not any provision of this Section is referred to therein).
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3.11 No Requirement of Match Funding. Notwithstanding anything to the contrary contained herein, Agent and Lenders shall not be required to acquire US Dollar deposits in the London interbank market or any other offshore US Dollar market to fund any Eurodollar Rate Loan or to otherwise match fund any Obligations as to which interest accrues based on the Adjusted Eurodollar Rate. All of the provisions of this Section 3 shall be deemed to apply as if Agent, each Lender or any Participant had acquired such deposits to fund any Eurodollar Rate Loan or any other Obligation as to which interest is accruing at the Adjusted Eurodollar Rate by acquiring such US Dollar deposits for each Interest Period in the amount of the Eurodollar Rate Loans or other applicable Obligations.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Lenders to make the initial Loans and of Issuing Bank to provide for the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) Agent shall have received evidence that:
(i) Borrowers have received not less than $250,000,000 in cash as an equity contribution from the CD&R Investors in exchange for Equity Interests in the form of preferred stock of Parent, on terms and conditions substantially as provided in the Investment Documents or otherwise reasonably acceptable to Agent;
(ii) a portion of the existing Term Loan Debt shall have been repaid, so that after giving effect to all payments in respect of the Term Loan Documents, the outstanding principal balance of the Term Loan Debt thereunder will not exceed $150,000,000 as of the date hereof;
(iii) the Administrative Agent shall receive, substantially concurrently with the satisfaction of the other conditions precedent set forth in this Section 4.1, evidence reasonably satisfactory to it, that the Parent shall have accepted for redemption the tender of Convertible Notes in an aggregate principal amount not less than $171,000,000 and placed sufficient funds in a segregated account to pay the maximum consideration necessary to redeem all of the Convertible Notes not so redeemed pursuant to the terms of the Indenture;
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(b) Agent shall have received true, complete and correct copies of the Investment Documents and the transactions provided for therein shall have been consummated, or substantially concurrently with the initial Loans hereunder shall be consummated, substantially in accordance with the Investment Documents and all material conditions precedent to the consummation of such transactions set forth in the Investment Documents shall have been satisfied or waived;
(c) Agent shall have received true, complete and correct copies of the Term Loan Documents (including any amendment or amendment and restatement thereof on or about the date hereof, but excluding any Mortgages executed and delivered after the date hereof), as executed and delivered by the parties thereto, which shall be in form and substance reasonably satisfactory to Agent;
(d) Agent shall have received, in form and substance reasonably satisfactory to Agent, the Intercreditor Agreement, duly authorized, executed and delivered by the Term Loan Agent for itself and on behalf other Term Loan Lenders and acknowledged by each Borrower and Guarantor;
(e) all requisite corporate resolutions or equivalent action by Borrowers and Guarantors in connection with this Agreement and the other Financing Agreements shall be reasonably satisfactory in form and substance to Agent, and Agent shall have received such resolutions or records of equivalent action, certified where requested by Agent or its counsel by appropriate corporate officers of Borrowers and Guarantors and a copy of the certificate of incorporation or formation of each Borrower and Guarantor certified by the applicable Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Borrower or Guarantor as is set forth herein;
(f) Agent shall have received a certificate of each Borrower and Guarantor, dated the Closing Date, as to the incumbency and signature of the officers of such Borrower or Guarantor executing any of the Financing Agreements, reasonably satisfactory in form and substance to Agent executed by a Responsible Officer and the Secretary or any Assistant Secretary of such Borrower or Guarantor;
(g) No material adverse change shall have occurred in the business, operations or assets of Borrowers or Guarantors since November 2, 2008 and no change or event shall have occurred which would impair in any material respect the ability of any Borrower or Guarantor to perform its payment obligations hereunder or under any of the other Financing Agreements to which it is a party or of Agent to enforce the Obligations or realize upon the Collateral for itself and for the benefit of the Secured Parties;
(h) Agent shall have completed an updated field review of the Records (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory), the results of which shall be consistent in all material respects with the information received in the prior field examinations conducted by Agent taken as a whole or to the extent not consistent shall be otherwise reasonably satisfactory to Agent, not more than five (5) Business Days prior to the date hereof or such earlier date as Agent may agree;
(i) Agent shall have received all consents, waivers, acknowledgments and other agreements (other than Collateral Access Agreements), in form and substance reasonably satisfactory to Agent, from third persons necessary in order to permit, protect and perfect the Liens of Agent upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements;
(j) Borrowers and Guarantors shall have used commercially reasonable efforts to obtain Collateral Access Agreements (it being understood that Borrowers shall not be required to incur any expense, provide any security or agree to any adverse term or condition exclusively and directly required in order to obtain such Collateral Access Agreement) and to the extent not delivered prior to the date hereof Borrowers shall continue to use such efforts hereafter to obtain such Collateral Access Agreements for a reasonable period thereafter, and in any event not more than thirty (30) days after the date hereof;
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(k) Agent shall have received, in form and substance reasonably satisfactory to Agent, Deposit Account Control Agreements by and among Agent, each Borrower and Guarantor, as the case may be and each bank where such Borrower (or Guarantor) has a deposit account as contemplated by Section 6.6 hereof, in each case, duly authorized, executed and delivered by such bank and Borrower or Guarantor, as the case may be, for each of the deposit accounts of Borrowers and Guarantors, including the Concentration Account and the deposit account(s) used for Qualified Cash, but excluding (i) any deposit accounts where the balance is, and is reasonably anticipated at all times to be, less than $100,000, but only to the extent that the aggregate amount of funds in all such deposit accounts is less than $500,000, (ii) any deposit account that is specifically and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of any Borrower’s or Guarantor’s employees, (iii) any disbursement account, (iv)any account containing collateral to secure the obligations of Borrowers and Guarantors with respect to the Existing Letters of Credit, and (v) the account at Wachovia Securities Special Equities Group in the NCI Building Systems, Inc., account number 8525-6387, to the extent that no new deposits are made in such account after the date hereof.
(l) Agent shall have received evidence, in form and substance reasonably satisfactory to Agent, that as of the date hereof and after giving effect to the application of proceeds of the initial Revolving Loans, the restructuring of the Term Loan Documents, the repayment of a portion of the Convertible Notes and the establishment of the Convertible Note Account for the remaining balance) and the other Transactions and after provision for payment of all fees and expenses of the Transactions (i) the sum of Excess Availability plus unrestricted cash and Cash Equivalents of Borrowers (other than Qualified Cash) shall be not less than $90,000,000 and (ii) the sum of the aggregate amount of Loans and Letters of Credit requested and made or outstanding as of the Closing Date shall not exceed $20,000,000.
(m) Agent shall have received evidence, in form and substance reasonably satisfactory to Agent, that Agent has valid and perfected first priority security interests in all of the Working Capital Priority Collateral (as defined in the Intercreditor Agreement) and valid, perfected second priority security interests in all of the Term Loan Priority Collateral (to the extent provided herein), except, in each case, as to (i) Excluded Property, (ii) priority, subject to Permitted Liens, to the extent (in the case of Working Capital Priority Collateral (as defined in the Intercreditor Agreement)) that such liens have priority over the liens of Agent under applicable law or under the terms of a written agreement to which Agent is a party, (iii) any deposit accounts, to the extent that Agent has not required a Deposit Account Control Agreement pursuant to the terms hereof, (iv) Intellectual Property constituting Collateral, until the filings identified in Section 8.14 are made and accepted, and (v) all Real Property constituting Collateral, if Administrative Borrower has used commercially reasonable efforts to provide the Mortgages but completion thereof may not be accomplished on the Closing Date, then delivery of the Mortgages shall not constitute a condition precedent to the Closing Date if the Administrative Borrower agrees to deliver or cause to be delivered the Mortgages, and takes or causes to be taken such other actions to as may be reasonably necessary to perfect the security interests of such Mortgages;
(n) Agent shall have received and reviewed UCC, tax and judgment lien search results for the location of each Borrower and Guarantor (determined in accordance with the Uniform Commercial Code of the applicable jurisdiction and any other applicable law) and all counties and provinces in which property or assets of Borrowers and Guarantors are located, which search results shall not disclose any Liens other than the Permitted Liens;
(o) Agent shall have received, in similar form as and to the extent received as of the Closing Date by the Term Loan Agent, a title insurance policy issued by a title insurance company and to the extent acceptable to Term Loan Agent;
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(p) Agent shall have received a borrowing request, if applicable, and a Borrowing Base Certificate setting forth the Loans and Letters of Credit available to Borrowers as of the last day of the most recent month ended prior to the date hereof as completed in a manner reasonably satisfactory to Agent and duly authorized, executed and delivered on behalf of Borrowers;
(q) Agent shall have received any updates or modifications to the projected financial statements of Borrowers and Guarantors previously delivered to Agent on October 14, 2009 based on actuals as of August 2, 2009, in each case, containing information that is reasonably satisfactory to Agent and in a form consistent with the information received by Agent and Lenders prior to the date hereof, and otherwise reasonably satisfactory to Agent;
(r) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance reasonably satisfactory to Agent, and certificates of insurance policies and/or endorsements naming Agent as loss payee;
(s) Agent shall have received, each in form and substance reasonably satisfactory to Agent, the following opinion letters of counsel(s) to Borrowers and Guarantors:
(i) the executed legal opinion of Debevoise & Plimpton LLP, special New York counsel to CD&R Associates VIII, Ltd., the general partner to Clayton, Dubilier & Rice Fund VIII, L.P.;
(ii) the executed legal opinion of Richards, Layton & Finger, P.A., special Delaware counsel to NCI Systems, Inc. and Robertson-Ceco II Corporation;
(iii) the executed legal opinion of Holland & Hart LLP, special Nevada counsel to NCI Group, Inc.; and
(iv) to the extent received by the Term Loan Agent as of the Closing Date, the executed legal opinion of counsel to the owner of the Real Property subject to a Mortgage;
(t) Agents and Lenders shall have received all fees and expenses reasonably required to be paid or delivered by Borrowers to them in respect of the Transaction on or prior to the Closing Date, including the fees referred to in Section 3.2; and
(u) Agent shall have received the other Financing Agreements to be executed and delivered on the Closing Date as duly executed and delivered by the parties thereto to Agent.
Without limiting the generality of the provisions of Section 14.3 for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless Agent shall have received notice from such Lender prior to the date hereof specifying its objection thereto.
The execution and delivery hereof by Lenders hereunder shall conclusively be deemed to constitute an acknowledgment by Agent and each Lender that each of the conditions precedent set forth in this Section 4.1 shall have been satisfied in accordance with its respective terms or shall have been irrevocably waived by such Person.
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4.2 Conditions Precedent to All Loans and Letters of Credit. The obligation of Lenders to make the Loans, including the initial Loans, or of Issuing Bank to issue any Letter of Credit, including the initial Letters of Credit, is subject to the further satisfaction of, or waiver of, immediately prior to or concurrently with the making of each such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) each of the representations and warranties of Borrowers and Guarantors contained herein and in the other Financing Agreements shall be true and correct in all material respects, in each case with the same effect as though such representations and warranties had been made on and as of the date of the making of each such Loan or providing each such Letter of Credit and after giving effect thereto, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct to the extent required hereunder or under the other Financing Agreements on and as of such earlier date);
(b) no law, regulation, order, judgment or decree of any Governmental Authority shall exist, and no action, suit, investigation, litigation or proceeding shall be pending or to the best of the knowledge of any Responsible Officer of any Borrower or Guarantor, threatened in any court or before any arbitrator or Governmental Authority, which purports to enjoin, prohibit, restrain or otherwise affect the making of the Loans or providing the Letters of Credit;
(c) no Default or Event of Default shall exist or have occurred and be continuing on and as of the date of the making of such Loan or providing each such Letter of Credit and after giving effect thereto;
(d) if, after giving effect to such Loan or the issuance of such Letter of Credit, Excess Availability would be less than $15,000,000, then the Consolidated Fixed Charge Coverage Ratio of Parent and its Subsidiaries (on a consolidated basis) determined as of the end of the fiscal month most recently ended for which Agent has received financial statements shall be not less than 1.0 to 1.0 for the period of the immediately preceding twelve (12) consecutive fiscal months prior to such fiscal month end;
(e) each Borrower is Solvent as of the making of such Loan or issuance of such Letter of Credit and after giving effect thereto; and
(f) with respect to any Loan, Agent shall have received a request for such Loan as required by Section 2.4 (or such request shall have been deemed given in accordance with Section 2.3) and with respect to the issuance of any Letter of Credit, each of Agent and Issuing Bank shall have received the request and other documents required under Section 2.3.
Each borrowing of Loans by and each Letter of Credit issued on behalf of any Borrower hereunder shall constitute a representation and warranty by Borrowers and Guarantors as of the date of such borrowing or such issuance that the conditions contained in this Section 4.2 have been satisfied (including, to the extent provided herein, with respect to the initial Loans hereunder).
SECTION 5. GRANT AND PERFECTION OF SECURITY INTEREST
5.1 Grant of Security Interest. To secure payment and performance when due of all of its Obligations and all of its obligations under the Guaranty Agreement, each Borrower and Guarantor hereby grants to Agent, for itself and the benefit of the other Secured Parties, a continuing security interest in and Lien upon, the following items and types of personal property of such Borrower and Guarantor, whether now owned or hereafter acquired or existing, and wherever located (together with all other collateral security for the Obligations at any time granted to or held or acquired by Agent or any Lender including, but not limited to, the Mortgage Fee Properties, collectively, the “Collateral”), including all of such Borrower’s and Guarantor’s right, title and interest in and to the following:
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(a) all Accounts;
(b) all general intangibles, including, without limitation, (i) all Intellectual Property and (ii) goodwill associated with the Intellectual Property consisting of trademarks;
(c) all goods, including, without limitation, Inventory and Equipment;
(d) all fixtures;
(e) all chattel paper, including, without limitation, all tangible and electronic chattel paper;
(f) all instruments, including, without limitation, all promissory notes;
(g) all documents;
(h) all deposit accounts;
(i) all letters of credit, banker’s acceptances and similar instruments and including all letter-of-credit rights;
(j) all Receivables and all supporting obligations and all present and future liens, security interests, rights, remedies, title and interest in, to and in respect of Receivables and other Collateral, including (i) rights and remedies under or relating to guaranties, contracts of suretyship, letters of credit and credit and other insurance related to the Collateral, (ii) rights of stoppage in transit, replevin, repossession, reclamation and other rights and remedies of an unpaid vendor, lienor or secured party, (iii) goods described in invoices, documents, contracts or instruments with respect to, or otherwise representing or evidencing, Receivables or other Collateral, including returned, repossessed and reclaimed goods, and (iv) deposits by and property of account debtors or other persons securing the obligations of account debtors;
(k) all (i) investment property (including securities, whether certificated or uncertificated, securities accounts, security entitlements, commodity contracts or commodity accounts) and (ii) monies, credit balances, deposits and other property of any Borrower or Guarantor now or hereafter held or received by or in transit to Agent, any Lender or its Affiliates or at any other depository or other institution from or for the account of any Borrower or Guarantor, whether for safekeeping, pledge, custody, transmission, collection or otherwise;
(l) all commercial tort claims existing on the date hereof, including, without limitation, those identified on Schedule 5.1 hereto;
(m) all Records; and
(n) all products and proceeds of the foregoing, in any form, including insurance proceeds and all claims against third parties for loss or damage to or destruction of or other involuntary conversion of any kind or nature of any or all of the other Collateral.
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5.2 Perfection of Security Interests.
(a) Each Borrower and Guarantor irrevocably and unconditionally authorizes Agent (or its agent) to file (for itself and the benefit of the Secured Parties) on behalf of such Borrower or Guarantor at any time and from time to time such financing statements with respect to the Collateral of such Borrower or Guarantor naming Agent or its designee as the secured party and such Borrower or Guarantor as debtor, as Agent may reasonably require to evidence the security interest granted to the Agent under the Financing Agreements to the extent provided therein, and including any other information with respect to such Borrower or Guarantor or otherwise required by part 5 of Article 9 of the Uniform Commercial Code of such jurisdiction as Agent may reasonably determine, together with any amendment and continuations with respect thereto, which authorization shall apply to all financing statements filed on, prior to or after the date hereof. Each Borrower and Guarantor hereby ratifies and approves all financing statements naming Agent or its designee as secured party and such Borrower or Guarantor, as the case may be, as debtor with respect to the Collateral of such Borrower or Guarantor (and any amendments with respect to such financing statements) filed by or on behalf of Agent prior to the date hereof and ratifies and confirms the authorization of Agent to file such financing statements (and amendments, if any). Each Borrower and Guarantor hereby authorizes Agent to adopt on behalf of such Borrower and Guarantor any symbol required for authenticating any electronic filing. In the event that the description of the collateral in any financing statement naming Agent or its designee as the secured party and any Borrower or Guarantor as debtor includes assets and properties of such Borrower or Guarantor that do not at any time constitute Collateral, whether hereunder, under any of the other Financing Agreements or otherwise, the filing of such financing statement shall nonetheless be deemed authorized by such Borrower or Guarantor to the extent of the Collateral included in such description and it shall not render the financing statement ineffective as to any of the Collateral or otherwise affect the financing statement as it applies to any of the Collateral. In no event shall any Borrower or Guarantor at any time file, or permit or cause to be filed, any correction statement or termination statement with respect to any financing statement (or amendment or continuation with respect thereto) naming Agent or its designee as secured party and such Borrower or Guarantor as debtor, without the prior written consent of Agent, except with respect to any release of any Lien in assets or properties that do not constitute Collateral.
(b) Each Borrower and Guarantor does not
have any chattel paper (whether tangible or electronic) or instruments as of the date hereof, except as set forth in Schedule
5.1 hereto (which schedule may omit any bills of sale or purchase orders entered into by Borrowers in the ordinary course of
their business). Each Borrower or Guarantor shall (except as provided in the following sentences) be entitled to retain possession
of all Collateral of such Borrower or Guarantor evidenced by any instrument or tangible chattel paper, and shall hold all such
Collateral in trust for Agent, for the benefit of the Secured Parties. In the event that any Borrower or Guarantor shall receive
any chattel paper (other than bills of sale or purchase orders entered into by the Borrower in the ordinary course of business
(without limitation to the obligations of the Borrowers under Section 7.1(a)) or instrument having a face or principal amount in
excess of $3,000,000 in any one case or $5,000,000 in the aggregate after the date hereof, Borrowers and Guarantors shall promptly
notify Agent thereof in writing. Such Borrower or Guarantor shall deliver, or cause to be delivered, to Agent (or the Term Loan
Agent or any Additional Agent or such other agent as may be provided for under the Intercreditor Agreement and subject to the terms
thereof), all tangible chattel paper (other than bills of sale or purchase orders entered into by Borrowers in the ordinary course
of their business) and instruments that such Borrower or Guarantor has or may at any time acquire (i) having a face or principal
amount in excess of $3,000,000 in any one case or $5,000,000 in the aggregate, promptly upon the receipt thereof by or on behalf
of any Borrower or Guarantor (including by any agent or representative), except as Agent may otherwise agree and (ii) promptly
upon request by Agent, in accordance with the Intercreditor Agreement, if an Event of Default has occurred and is continuing, in
each case accompanied by such instruments of transfer or assignment duly executed in blank as Agent may from time to time reasonably
specify, subject to the terms of the Intercreditor Agreement. At Agent’s option, and subject to the terms of the Intercreditor
Agreement, each Borrower and Guarantor shall, or Agent may at any time on behalf of any Borrower or Guarantor, cause the original
of any such instrument or chattel paper (other than bills of sale or purchase orders entered into by Borrowers in the ordinary
course of their business) to be conspicuously marked in a form and manner reasonably acceptable to Agent with the following legend
referring to chattel paper or instruments as applicable: “This [chattel paper][instrument] is subject
to the security interest of Wells Fargo FoothillCapital
Finance, LLC as Agent and any sale, transfer, assignment or encumbrance of this [chattel paper][instrument]
violates the rights of such secured party.”
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(c) In the event that any Borrower or Guarantor shall at any time hold or acquire an interest in any electronic chattel paper (other than bills of sale or purchase orders entered into by Borrowers in the ordinary course of their business) or any “transferable record” (as such term is defined in Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or in Section 16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction) having a face or principal amount in excess of $3,000,000 in any one case or $5,000,000 in the aggregate, such Borrower or Guarantor shall promptly notify Agent thereof in writing. Promptly upon Agent’s request, and subject to the terms of the Intercreditor Agreement, such Borrower or Guarantor shall take, or cause to be taken, such actions as Agent may reasonably request to give Agent control of (i) electronic chattel paper (other than bills of sale or purchase orders entered into by Borrowers in the ordinary course of their business) and transferable records in excess of $3,000,000 in any one case or $5,000,000 in the aggregate and (ii) all electronic chattel paper (other than bills of sale or purchase orders entered into by Borrowers in the ordinary course of their business) and transferable records, if an Event of Default shall have occurred and be continuing, in each case under Section 9-105 of the UCC and under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, Section 16 of the Uniform Electronic Transactions Act, as in effect in such jurisdiction.
(d) Borrowers and Guarantors shall not,
directly or indirectly, after the date hereof open, establish or maintain any deposit account unless each of the following conditions
is satisfied: (i) Agent shall have received notice of the opening or establishment of such deposit account as required pursuant
to Section 7.1(a)(iiiv);
provided, that, at any time a Dominion Event exists, Agent shall have received not less than five (5) Business Days
prior written notice of the intention of any Borrower or Guarantor to open or establish such account (except that no notice shall
be required, regardless of whether any Dominion Event exists, with respect to any deposit account where the daily balance is expected
to be at no time greater than $100,000500,000
in such deposit account, but only to the extent that the aggregate daily balance of funds in all such new deposit accounts not
previously notified to Agent is not greater than $500,000 or, for a period not to exceed three (3) Business Days, such aggregate
daily balance of funds is greater than $500,000 but less than or equal to $2,500,000 as a result of inadvertent deposits made to
such accounts in error or in order to facilitate the issuance of payroll checks in exigent circumstances or in order to facilitate
the issuance of payroll checks in exigent circumstances), which notice shall specify in reasonable detail the name of the account,
the owner of the account, the name and address of the bank at which such account is to be opened or established, the individual
at such bank with whom such Borrower or Guarantor is dealing and the purpose of the account, (ii) the bank where such account is
opened or maintained shall be reasonably acceptable to Agent, and (iii) on or
before the opening of such deposit account, Agent shall have received a Deposit Account Control Agreement with respect to such
deposit account duly authorized, executed and delivered by such Borrower or Guarantor and the bank at which such deposit account
is opened and maintained (or with respect to any deposit account in
Canada will have complied with local law means for perfecting such account); except, that, Borrowers and
Guarantors shall not be required to deliver such Deposit Account Control Agreements with respect to (A) any deposit accounts where
the balance is, and shall at all times be, less than $100,000500,000,
unless Agent shall request such Deposit Account Control Agreement at any time a Dominion Event exists and only to the extent that
the aggregate amount of funds in all such deposit accounts is less than $500,000 or, for a period not to exceed three (3) Business
Days, is less than or equal to $2,500,000 as a result of inadvertent deposits made to such accounts in error or in order to facilitate
the issuance of payroll checks in exigent circumstances), (B) any deposit account that is specifically and exclusively used for
payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of any Borrower’s or Guarantor’s
employees, (C) any disbursement account, (D) any account containing collateral to secure the obligations of Borrowers and Guarantors
with respect to the Existing Letters of Credit, and (E) the account at Wachovia
Securities Special Equities Group in the NCI Building Systems, Inc., account number 8525-6387, to the extent that no new deposits
are made in such account after the date hereof.,
(F) any deposit account established or maintained outside the United States or Canada provided that any cash maintained in such
account shall not be Qualified Cash unless Agent holds a first priority perfected security interest in such account and (G) the
first 90 days after the date on which such deposit account is acquired (or the Person holding such account is acquired), pursuant
to a Permitted Acquisition.
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(e) No Borrower or Guarantor owns or holds, directly or indirectly, beneficially or as record owner or both, any investment property, as of the date hereof, or have any investment account, securities account, commodity account or other similar account with any bank or other financial institution or other securities intermediary or commodity intermediary as of the date hereof, in each case except as set forth in Schedule 5.1.
(i) In the event that any Borrower or Guarantor shall be entitled to or shall at any time after the date hereof hold or acquire any certificated securities representing the Equity Interests that are part of the Collateral, such Borrower or Guarantor shall promptly endorse, assign and deliver the same to Agent (or the Term Loan Agent or any Additional Agent or such other agent as may be provided for under the Intercreditor Agreement and subject to the terms thereof), accompanied by such instruments of transfer or assignment duly executed in blank as Agent may from time to time reasonably specify. If any securities representing Equity Interests that are part of the Collateral, now or hereafter acquired by any Borrower or Guarantor are uncertificated and are issued to such Borrower or Guarantor or its nominee directly by the issuer thereof, such Borrower or Guarantor shall immediately notify Agent thereof and shall use commercially reasonable efforts as Agent may reasonably specify subject to the Intercreditor Agreement, either (A) to cause the issuer to agree to comply with instructions from Agent as to such securities, without further consent of any Borrower or Guarantor or such nominee, or (B) to arrange for Agent to become the registered owner of the securities
(ii) Borrowers and Guarantors shall not, directly or indirectly, after the date hereof open, establish or maintain any investment account, securities account, commodity account or any other similar account (other than a deposit account in accordance with Section 6.6 hereof) with any securities intermediary or commodity intermediary unless each of the following conditions is satisfied: (A) Agent shall have received not less than five (5) Business Days prior written notice of the intention of such Borrower or Guarantor to open or establish such account which notice shall specify in reasonable detail the name of the account, the owner of the account, the name and address of the securities intermediary or commodity intermediary at which such account is to be opened or established, the individual at such intermediary with whom such Borrower or Guarantor is dealing and the purpose of the account, (B) the securities intermediary or commodity intermediary (as the case may be) where such account is opened or maintained shall be reasonably acceptable to Agent, and (C) on or before the opening of such investment account, securities account or other similar account with a securities intermediary or commodity intermediary, such Borrower or Guarantor shall as Agent may reasonably specify, subject to the terms of the Intercreditor Agreement, either (1) execute and deliver, and cause to be executed and delivered to Agent (or the Term Loan Agent or any Additional Agent or such other agent as may be provided for under the Intercreditor Agreement and subject to the terms thereof), an Investment Property Control Agreement with respect thereto duly authorized, executed and delivered by such Borrower or Guarantor and such securities intermediary or commodity intermediary or (2) arrange for Agent to become the entitlement holder with respect to such investment property on terms and conditions reasonably acceptable to Agent.
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(f) Borrowers and Guarantors are not the beneficiary or otherwise entitled to any Letter-of-Credit Rights with respect to any letter of credit, banker’s acceptance or similar instrument as of the date hereof, except as set forth in Schedule 5.1. In the event that any Borrower or Guarantor shall be entitled to, or shall receive, any letter-of-credit rights under any letter of credit, banker’s acceptance or any similar instrument, as beneficiary thereof, having a face value in excess of $1,000,000 in any one case or $2,500,000 in the aggregate for all letters of credit payable in respect of accounts due from account debtors located in the United States or $4,000,000 in the aggregate for all letters of credit payable in respect of accounts due from account debtors located outside the United States (not to exceed $5,000,000 in the aggregate for all such rights irrespective of the location of the applicable account debtors) after the date hereof, such Borrower or Guarantor shall promptly notify Agent thereof in writing. Such Borrower or Guarantor shall immediately, as Agent may reasonably specify subject to the terms of the Intercreditor Agreement, use its commercially reasonable efforts to either (i) deliver, or cause to be delivered to Agent (or the Term Loan Agent or any Additional Agent or such other agent as may be provided for under the Intercreditor Agreement and subject to the terms thereof), with respect to any such letter of credit, banker’s acceptance or similar instrument having a face value in excess of $1,000,000 in any one case or $2,500,000 in the aggregate for all letters of credit payable in respect of accounts due from account debtors located in the United States or $4,000,000 in the aggregate for all letters of credit payable in respect of accounts due from account debtors located outside the United States (not to exceed $5,000,000 in the aggregate for all such rights irrespective of the location of the applicable account debtors), the written agreement of Issuing Bank and any other nominated person obligated to make any payment in respect thereof (including any confirming or negotiating bank), in form and substance reasonably satisfactory to Agent, consenting to the assignment of the proceeds of the letter of credit to Agent by such Borrower or Guarantor and agreeing to make all payments thereon directly to Agent or as Agent may otherwise direct or (ii) cause Agent to become, at Borrowers’ expense, the transferee beneficiary of the letter of credit, banker’s acceptance or similar instrument (as the case may be).
(g) Borrowers and Guarantors do not have any commercial tort claims as of the date hereof, except as set forth in Schedule 5.1. In the event that any Borrower or Guarantor shall at any time after the date hereof have any Commercial Tort Claims, such Borrower or Guarantor shall promptly notify Agent thereof in writing, which notice shall (i) set forth in reasonable detail the basis for and nature of such Commercial Tort Claim and (ii) include the express grant by such Borrower or Guarantor to Agent of a security interest in such Commercial Tort Claim (and the proceeds thereof). In the event that such notice does not include such grant of a security interest, the sending thereof by such Borrower or Guarantor to Agent shall be deemed to constitute such grant to Agent. Upon the sending of such notice, any Commercial Tort Claim described therein shall constitute part of the Collateral and shall be deemed included therein. Without limiting the authorization of Agent provided in Section 5.2(a) hereof or otherwise arising by the execution by such Borrower or Guarantor of this Agreement or any of the other Financing Agreements, Agent is hereby irrevocably authorized from time to time and at any time to file such financing statements naming Agent or its designee as secured party and such Borrower or Guarantor as debtor, or any amendments to any financing statements, covering any such Commercial Tort Claim as Collateral. In addition, each Borrower and Guarantor shall promptly upon Agent’s request, execute and deliver, or cause to be executed and delivered, to Agent (or the Term Loan Agent or any Additional Agent or such other agent as may be provided for under the Intercreditor Agreement and subject to the terms thereof) such other agreements, documents and instruments as Agent may reasonably require in connection with such Commercial Tort Claim.
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(h) Borrowers and Guarantors do not have any Inventory or documents of title relating to Inventory in the custody, control or possession of a third party as of the date hereof, except as set forth in Schedule 5.1 and except for Inventory or documents of title relating to Inventory in transit in the ordinary course of business of such Borrower or Guarantor and in the possession of the carrier transporting such Inventory and except for Inventory or documents of title relating to Inventory having a value not exceeding $3,000,000 in the aggregate. In the event that any Inventory or documents of title relating to Inventory owned by any Borrower or Guarantor is at any time after the date hereof in the custody, control or possession of any other person except as provided in the foregoing sentence, such Borrower or Guarantor (or Administrative Borrower on its behalf) shall promptly notify Agent thereof in writing. Promptly upon Agent’s request, Borrowers and Guarantors shall use commercially reasonable efforts to deliver to Agent (or the Term Loan Agent or any Additional Agent or such other agent as may be provided for under the Intercreditor Agreement and subject to the terms thereof) a Collateral Access Agreement duly authorized, executed and delivered by such person and the Borrower or Guarantor that is the owner of such Inventory or documents of title (it being understood that Borrowers shall not be required to incur any expense, provide any security or agree to any adverse term or condition required in order to obtain such Collateral Access Agreement).
(i) Borrowers and Guarantors shall use reasonable efforts to take any other actions reasonably requested by Agent from time to time to cause the attachment and perfection of, in each case, to the extent provided herein or in any other Financing Agreement, and the ability of Agent to enforce, the security interest of Agent in any and all of the Collateral of such Borrower or Guarantor, to the extent reasonably required by Agent, including, without limitation, (i) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the UCC or other applicable U.S. law, to the extent, if any, that such Borrower’s or Guarantor’s signature thereon is required therefor, and (ii) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of Agent to enforce, the security interest of Agent in such Collateral, in each case, to the extent provided herein or in any other Financing Agreement.
5.3 Special Provisions Relating to Collateral. Notwithstanding anything to the contrary contained in this Section 5, the types or items of Collateral described in or covered by Sections 5.1 or 5.2 hereof and the term “Collateral” shall not include any rights or interest in any Excluded Property or Excluded Real Properties.
5.4 Intercreditor Relations. Notwithstanding anything herein to the contrary, it is the understanding of the parties that the Liens granted pursuant to Section 5 herein with respect to all Term Loan Priority Collateral shall be subject and subordinate to (a) the Liens granted to the Term Loan Agent for the benefit of the holders of the Term Loan Debt to secure the obligations pursuant to the relevant Term Loan Documents and (b) the Liens granted to any Additional Agent for the benefit of the holders of any Additional Indebtedness (as defined in the Intercreditor Agreement) to secure the obligations pursuant to the relevant Additional Documents (as defined in the Intercreditor Agreement, as an to the extent provided in the Intercreditor Agreement. The Liens granted pursuant to Section 5 herein with respect to all Working Capital Priority Collateral (as defined in the Intercreditor Agreement) shall, prior to the Payment in Full of all Obligations and in accordance with the Intercreditor Agreement, be senior and prior to (i) the Liens granted to the Term Loan Agent for the benefit of the holders of the Term Loan Debt to secure the obligations pursuant to the relevant Term Loan Documents and (ii) the Liens granted to any Additional Agent for the benefit of the holders of any Additional Indebtedness to secure the obligations pursuant to the relevant Additional Documents, as and to the extent provided in the Intercreditor Agreement. Each Secured Party acknowledges and agrees that the relative priority of such Liens granted to Agent and any Additional Agent and the Term Loan Agent may be determined solely pursuant to the Intercreditor Agreement, and not by priority as a matter of law or otherwise. Notwithstanding anything herein to the contrary, the Liens granted to Agent pursuant to this Agreement and the exercise of any right or remedy by Agent or any other Secured Party hereunder are subject to the provisions of the Intercreditor Agreement. In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement shall govern and control. Notwithstanding any other provision hereof, prior to the payment in full of the obligations under the Term Loan Documents and the obligations under any Additional Documents in accordance with the Intercreditor Agreement, any obligation hereunder to physically deliver to Agent any Collateral shall be satisfied by causing such Collateral to be physically delivered to Agent or the Term Loan Agent or any Additional Agent or such other agent as may be provided for under the Intercreditor Agreement, as applicable, acting as agent of Agent, to be held in accordance with the Intercreditor Agreement.
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SECTION 6. COLLECTION AND ADMINISTRATION
6.1 Borrowers’ Loan Accounts. Agent shall maintain one or more loan account(s) on its books in which shall be recorded (a) all Loans, Letters of Credit and other Obligations and the Collateral, (b) all payments made by or on behalf of any Borrower or Guarantor and (c) all other appropriate debits and credits as provided in this Agreement, including fees, charges, costs, expenses and interest. All entries in the loan account(s) shall be made in accordance with Agent’s customary practices as in effect from time to time.
6.2 Statements. Agent shall render to Administrative Borrower each month a statement setting forth the balance in the Borrowers’ loan account(s) maintained by Agent for Borrowers pursuant to the provisions of this Agreement, including principal, interest, fees, costs and expenses. Each such statement shall be subject to subsequent adjustment by Agent but shall, absent manifest errors or omissions, be considered correct and deemed accepted by Borrowers and Guarantors and conclusively binding upon Borrowers and Guarantors as an account stated except to the extent that Agent receives a written notice from Administrative Borrower of any specific exceptions of Administrative Borrower thereto within thirty (30) days after the date such statement has been received by Administrative Borrower. Until such time as Agent shall have rendered to Administrative Borrower a written statement as provided above, the balance in any Borrower’s loan account(s) as shown on Agent’s books maintained in accordance with Section 6.1 hereof shall be prima facie evidence of the amounts due and owing to Agent and Lenders by Borrowers and Guarantors, absent manifest error.
6.3 Lenders’ Evidence of Debt. Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the Obligations of each Borrower to such Lender, including the amounts of the Loans made by it and each repayment and prepayment in respect thereof, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder. Any such records shall be presumptively correct, absent manifest error; provided, that, the failure to make any entry or any error in such records, shall not affect any Lender’s Commitments hereunder or the Obligations in respect of any applicable Loans and in the event of any inconsistency between the Register and any Lender’s records, the Register shall govern.
6.4 Register.
(a) Agent (or its agent or sub-agent appointed by it) shall maintain a register (the “Register”) as an agent of Borrowers for the recordation of the names and addresses of Lenders and the Commitments of, and principal amount of the Loans (the “Registered Loans”) and Letter of Credit Obligations owing to each Lender from time to time. The Register, as in effect at the close of business on the preceding Business Day, shall be available for inspection by Administrative Borrower or any Lender (with respect to a Lender, solely with respect to the Obligations owing to such Lender) at a reasonable time and from time to time upon reasonable prior notice. Agent shall record, or cause to be recorded, in the Register, the Commitments and the Loans in accordance with the provisions of Section 15.7 and Agent shall also maintain a copy of each Assignment and Acceptance delivered to and accepted by it and shall modify the Register to give effect to each Assignment and Acceptance, and any such recording shall be presumptively correct, absent manifest error; provided, that, the failure to make any entry or any error in such records, shall not affect any Lender’s Commitments or Obligations in respect of any Loan. Borrowers, Guarantors, Agent and Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. Borrowers hereby designate and authorize Agent, and Agent agrees, to maintain, or cause to be maintained as agent for Borrowers solely for purposes of maintaining the Register as provided in this Section 6.4(a).
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(b) Each Lender that grants a participation shall maintain a register as a non-fiduciary agent of Borrowers on which it enters the name and address of each Participant and the principal and interest amount of each Participant’s interest in the Loans and Letters of Credit held by it (the “Participant Register”). The entries in the Participant Register shall be conclusive, absent manifest error, and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
6.5 Notes. Each Lender may at any time request that the Loans made by it be evidenced by a promissory note. In such event, Borrowers shall execute and deliver to such Lender a promissory note substantially in the form of Exhibit G (with appropriate insertions as to payee, date and principal amount) payable to such Lender. Thereafter, the Loans evidenced by such promissory note and interest thereon, unless surrendered by the holder thereof, shall at all times (including after assignment pursuant to Section 15.7) be represented by one or more promissory notes in such form payable to the payee named therein.
6.6 Cash Management; Collection of Proceeds of Collateral.
(a) Each Borrower and Guarantor shall establish
and maintain, at its expense, deposit accounts and cash management services of a type and on terms, and with the banks, set forth
on Schedule 8.21 hereto and, subject to Section 5.2(d) hereof, such other banks as such Borrower or Guarantor may hereafter
select. In addition to the Concentration Account, as of the date hereof Schedule 8.21 hereto identifies each of the
deposit accounts at such banks that are used for receiving receipts from particular locations of a Borrower or otherwise describes
the nature of the use of such deposit account by such Borrower or Guarantor (collectively, the “Cash Management Accounts”
and individually a “Cash Management Account”; provided, that, the term “Cash Management Account”
as used herein shall not include the deposit accounts described in clauses (i), (ii), (iii), (iv) and (v) of this Section 6.6(a)).
Borrowers and Guarantors shall deliver, or cause to be delivered to Agent (or the Term Loan Agent or any Additional Agent or such
other agent as may be provided for under the Intercreditor Agreement and subject to the terms thereof), a Deposit Account Control
Agreement duly authorized, executed and delivered by each bank where a Cash Management Account or Concentration Account is maintained
and by the applicable Borrower or Guarantor (or with respect to any
Cash Management Account or Concentration Account in Canada will have complied with local law means for perfecting such account);
except that Borrowers and Guarantors shall not be required to deliver such Deposit Account Control Agreements with
respect to (i) any deposit accounts where the balance is, and shall at all times be, less than $100,000500,000
(other than with respect to the deposit of amounts not to exceed $2,500,000 in the aggregate for a period not to exceed three (3)
Business Days as a result of inadvertent deposits made to such accounts in error or in order to facilitate the issuance of payroll
checks in exigent circumstances); provided, that, (A) the aggregate amount of funds in all such accounts is less
than $500,000 (other than with respect to the deposit of amounts not to exceed $2,500,000 in the aggregate for a period not to
exceed three (3) Business Days as a result of inadvertent deposits made to such accounts in error or in order to facilitate the
issuance of payroll checks in exigent circumstances) and/or (B) no Event of Default exists and is continuing, and then only to
the extent such Deposit Account Control Agreement is requested by Agent in its Permitted Discretion, (ii) any deposit account that
is specifically and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit
of any Borrower’s or Guarantor’s employees, (iii) any disbursement account, (iv) any account containing collateral
to secure the obligations of Borrowers and Guarantors with respect to the Existing Letters of Credit, and (v) the account at Wachovia
Securities Special Equities Group in the NCI Building Systems, Inc., account number 8525-6387 to the extent that no new amounts
are deposited in such account after the date hereof.,
(vi) any account established or maintained outside the United States or Canada provided that any cash maintained in such account
shall not be Qualified Cash unless Agent holds a first priority perfected security interest in such account and (vii) the first
90 days after the date on which such account is acquired (or the Person holding such account is acquired) pursuant to a Permitted
Acquisition.
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(b) Each Borrower shall, subject to the terms of the Intercreditor Agreement, deposit or cause to be deposited all proceeds of Collateral, including all proceeds from sales of Inventory from each location of such Borrower on each Business Day into the Cash Management Account of such Borrower used for such purpose. All such funds deposited into the Cash Management Accounts shall be sent by wire transfer or other electronic funds transfer no less frequently than twice each week (or more frequently upon Agent’s request at any time that a Dominion Event exists) to the Concentration Accounts, except nominal amounts which are required to be maintained in such Cash Management Accounts under the terms of such Borrower’s arrangements with the bank at which such Cash Management Accounts are maintained, which nominal amounts shall not exceed $5,000,000 as to all Cash Management Account at any time.
(c) Without limiting any other rights or remedies of Agent or Lenders, but subject to the terms of the Intercreditor Agreement, Agent may, at its option, or shall at the request of the Required Lenders, instruct the depository banks at which the Concentration Accounts are maintained to transfer all available funds received or deposited into the Concentration Accounts to the Agent Payment Account at any time that a Dominion Event exists (in each case after giving effect to the application of any such amounts otherwise required to be applied pursuant to Sections 2.5(b),(c) and (d)). Upon the termination of a Dominion Event to the extent provided in the definition of such term, Agent shall, at the written request of Administrative Borrower, promptly instruct the depository banks at which the Concentration Accounts are maintained to resume the transfer of funds in the Concentration Accounts to the disbursement accounts of Borrowers used for such purpose, to the extent that such banks had previously been instructed to transfer such funds to the Agent Payment Account. So long as no Dominion Event has occurred and is continuing, each Borrower and Guarantor may direct and shall have sole control over, the manner of the disposition of funds in each Concentration Account.
(d) For purposes of calculating the amount of the Loans available to each Borrower, such payments will be applied (conditional upon final collection) to the Obligations on the Business Day of receipt by Agent of immediately available funds in the Agent Payment Account; provided such payments are received prior to 2:00 p.m. Eastern Standard Time on such day, and if not, then on the next Business Day.
(e) Each Borrower and Guarantor shall, acting as trustee for Agent and subject to the terms of the Intercreditor Agreement, promptly upon receipt of any monies, checks, notes, drafts or any other payment relating to and/or proceeds of Accounts or other Collateral which come into their possession or under their control and promptly upon receipt thereof, shall deposit or cause the same to be deposited in Cash Management Accounts or Concentration Accounts, or remit the same or cause the same to be remitted, in kind, to Agent. In no event shall the same be commingled with any Borrower’s or Guarantor’s own funds other than the commingling of amounts not to exceed $2,500,000 in the aggregate for not more than three (3) Business Days as a result of inadvertent deposits made to other accounts in error or in order to facilitate the issuance of payroll checks in exigent circumstances. Borrowers agree to reimburse Agent on demand for any documented amounts owed or paid to any bank or other financial institution at which a Concentration Account or Cash Management Account or any other deposit account or investment account is established or any other bank, financial institution or other person involved in the transfer of funds to or from the Concentration Accounts arising out of Agent’s payments to or indemnification of such bank, financial institution or other person in connection with the Credit Facility. The obligations of Borrowers to reimburse Agent for such amounts pursuant to this Section 6.6 shall survive the termination of this Agreement.
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6.7 Payments.
(a) All Obligations shall be payable to the Agent Payment Account as provided in Section 6.6 or such other place as Agent may designate to Administrative Borrower in writing from time to time. Subject to the other terms and conditions contained herein and subject to the terms of the Intercreditor Agreement, Agent shall apply payments received or collected from any Borrower or Guarantor or for the account of any Borrower or Guarantor (including the monetary proceeds of collections or of realization upon any Collateral after giving effect to the application of any such amounts otherwise required to be applied pursuant to Section 2.5(b), (c) and (d)) as follows: first, to pay any fees, indemnities or expense reimbursements then due to Agent, Co-Collateral Agents, Lenders and Issuing Bank from any Borrower or Guarantor; second, to pay interest due in respect of any Loans (and including any Special Agent Advances) or Letter of Credit Obligations; third, to pay or prepay principal in respect of Special Agent Advances; fourth, to pay principal due in respect of the Loans; fifth, to pay or prepay any other Obligations whether or not then due, in such order and manner as Agent determines and at any time an Event of Default exists or has occurred and is continuing, to provide cash collateral for any Letter of Credit Obligations or other contingent Obligations (but not including for purposes of this clause any Obligations arising under or pursuant to any Bank Products); and sixth, to pay Obligations then due arising under or pursuant to any Hedge Agreements of a Borrower or Guarantor with Agent or a Bank Product Provider, on a pro rata basis and to pay or prepay any Obligations arising under or pursuant to any Bank Products on a pro rata basis.
(b) Notwithstanding anything to the contrary contained in this Agreement, unless so directed by Administrative Borrower, or unless a Default or an Event of Default shall exist or have occurred and be continuing, Agent shall not apply any payments which it receives to any Eurodollar Rate Loans, except in the event that there are no outstanding Base Rate Loans. To the extent Agent or any Lender receives any payments or collections in respect of the Obligations in a currency other than US Dollars Agent may, at its option (but is not obligated to), convert such other currency to US Dollars at the exchange rate on such date and in such market as Agent may select (regardless of whether such rate is the best available rate). Borrowers shall pay the costs of such conversion (or Agent may, at its option, charge such costs to the loan account of any Borrower maintained by Agent). Payments and collections received in any currency other than the currency in which any outstanding Obligations are denominated will be accepted and/or applied at the discretion of Agent. Except as permitted by Section 6.13(h) and subject to Section 6.8 hereof, any and all payments by or on account of the Obligations shall be made without setoff, counterclaim or deduction.
(c) For purposes of this Section 6.7, “paid in full” and “payment in full” and “prepayment in full” means payment of all applicable amounts owing under the Financing Agreements according to the terms thereof, including any such amounts consisting of loan fees, service fees, professional fees, interest (and including interest accrued after the commencement of any case under the U.S. Bankruptcy Code or any similar domestic or foreign similar statute), default interest, interest on interest, and expense reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any case under the U.S. Bankruptcy Code, or any similar statute in any jurisdiction.
(d) At Agent’s option, all principal, interest, fees, costs, expenses and other charges provided for in this Agreement or the other Financing Agreements may be charged directly to the loan account(s) of any Borrower maintained by Agent to the extent then due and payable in accordance with the terms of this Agreement. If after receipt of any payment of, or proceeds of Collateral applied to the payment of, any of the Obligations, Agent, any Lender or Issuing Bank is required to surrender or return such payment or proceeds to any Person for any reason, then the Obligations intended to be satisfied by such payment or proceeds shall be reinstated and continue and this Agreement shall continue in full force and effect as if such payment or proceeds had not been received by Agent or such Lender. Borrowers and Guarantors shall be liable to pay to Agent, and do hereby agree to indemnify and hold Agent and Lenders harmless for the amount of any payments or proceeds surrendered or returned. This Section 6.7(d) shall remain effective notwithstanding any contrary action which may be taken by Agent or any Lender in reliance upon such payment or proceeds. This preceding two sentences of this Section 6.7(d) shall survive the payment of the Obligations and the termination of this Agreement.
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6.8 Taxes.
(a) Except as provided below in this Section 6.8 or as required by law, all payments made by each Borrower and Guarantor under this Agreement or any of the other Financing Agreements shall be made free and clear of, and without deduction or withholding for or on account of, any present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority (“Taxes”), excluding Taxes measured by or imposed upon the overall net income of Agent or any Lender or its applicable lending office, or any branch or affiliate thereof, and all franchise Taxes, branch Taxes, Taxes on doing business or Taxes measured by or imposed upon the overall capital or net worth of any Agent or such Lender or its applicable lending office, or any branch or affiliate thereof, in each case imposed: (i) by the jurisdiction under the laws of which Agent or such Lender, applicable lending office, branch or affiliate is organized or is located, or in which its principal executive office is located, or any nation within which such jurisdiction is located or any political subdivision thereof; or (ii) by reason of any connection between the jurisdiction imposing such Tax and Agent or such Lender, applicable lending office, branch or affiliate other than a connection arising solely from such Agent or Lender having executed, delivered or performed its obligations under, or received payment under or enforced, this Agreement or any of the other Financing Agreements. If any such non-excluded Taxes (“Non-Excluded Taxes”) are required to be withheld from any amounts payable by any Borrower or Guarantor to Agent or any Lender hereunder or under any of the other Financing Agreements, the amounts payable by such Borrower or Guarantor shall be increased to the extent necessary to yield to Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that each of the Borrowers and Guarantors shall be entitled to deduct and withhold, and Borrowers and Guarantors shall not be required to indemnify for, any Non-Excluded Taxes, and any such amounts payable by any Borrower, Guarantor or Agent to, or for the account of, Agent or any Lender shall not be increased (i) if Agent or such Lender fails to comply with the requirements of this Section 6.8 (provided that while such failure shall limit the indemnity obligation of the Borrowers and Guarantors pursuant to this Section 6.8, such failure shall not be treated as a breach of this Agreement by Agent or such Lender for any other purpose) or (ii) with respect to any Non-Excluded Taxes imposed in connection with the payment of any fees paid under this Agreement or any of the other Financing Agreements unless such Non-Excluded Taxes are imposed as a result of a change in treaty, law or regulation that occurred after such Agent becomes an Agent hereunder or such Lender becomes a Lender hereunder (or, if such Agent or Lender is a non U.S. intermediary or flow-through entity for U.S. federal income tax purposes, after the relevant beneficiary or member of such Agent or Lender became such a beneficiary or member, if later) (such change, at such time, a “Change in Tax Law”) or (iii) with respect to any Non-Excluded Taxes imposed by the United States or any state or political subdivision thereof, unless such Non-Excluded Taxes are imposed as a result of a Change in Tax Law. Whenever any Non-Excluded Taxes are payable by any of the Borrowers, as promptly as possible thereafter the applicable Borrower shall send to Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt received by such Borrower showing payment thereof. If any Borrower fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to Agent the required receipts or other required documentary evidence, Borrowers (in the case of any failure by a Borrower), on a joint and several basis, shall indemnify Agent and Lenders for any incremental taxes, interest or penalties that may become payable by Agent or any Lender as a result of any such failure. The agreements in this Section 6.8 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
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(b) Agent and each Lender that is not organized under the laws of the United States of America or a state thereof or the District of Columbia shall:
(i) (A) on or before the date of any payment by any Borrower under this Agreement or any of the other Financing Agreements to, or for the account of, Agent or such Lender, deliver to Administrative Borrower and Agent (1) two duly completed copies of United States Internal Revenue Service Form W-8BEN (certifying that it is a resident of the applicable country within the meaning of the income tax treaty between the United States and that country) or Form W-8ECI, or successor applicable form, as the case may be, in each case certifying that it is entitled to receive all payments under this Agreement and any of the other Financing Agreements without deduction or withholding of any United States federal income taxes, and (2) such other forms, documentation or certifications, as the case may be, certifying that it is entitled to an exemption from United States backup withholding tax with respect to payments under this Agreement and any of the other Financing Agreements;
(A) deliver to Administrative Borrower and Agent two further copies of any such form or certification on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form or certificate previously delivered by it to Administrative Borrower;
(B) obtain such extensions of time for filing and completing such forms or certifications as may reasonably be requested by any Borrower or Agent; and
(C) deliver, to the extent legally entitled to do so, upon reasonable request by any Borrower or Guarantor, to Administrative Borrower and Agent such other forms as may be reasonably required in order to establish the legal entitlement of such Lender to an exemption from withholding with respect to payments under this Agreement and any of the other Financing Agreements, provided that in determining the reasonableness of a request under this clause (D) such Lender shall be entitled to consider the cost (to the extent unreimbursed by any Borrower or Guarantor) which would be imposed on such Lender of complying with such request; or
(ii) in the case of any such Lender that is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code and is claiming the so-called “portfolio interest exemption”,
(A) represent to Borrowers and Agent that it is not a bank within the meaning of Section 881(c)(3)(A) of the Code;
(B) deliver to Administrative Borrower on or before the date of any payment by any of Borrowers, with a copy to the Agent, (1) two certificates substantially in the form of Exhibit H (any such certificate a “U.S. Tax Compliance Certificate”) and (2) two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN, or successor applicable form, certifying to such Lender’s legal entitlement at the date of such form to an exemption from U.S. withholding tax under the provisions of Section 871(h) or Section 881(c) of the Code with respect to payments to be made under this Agreement and any of the other Financing Agreements (and shall also deliver to Administrative Borrower and Agent two further copies of such form or certificate on or before the date it expires or becomes obsolete and after the occurrence of any event requiring a change in the most recently provided form or certificate and, if necessary, obtain any extensions of time reasonably requested by any Borrower or Agent for filing and completing such forms or certificates); and
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(C) deliver, to the extent legally entitled to do so, upon reasonable request by any Borrower, to Administrative Borrower and Agent such other forms as may be reasonably required in order to establish the legal entitlement of such Lender to an exemption from withholding with respect to payments under this Agreement and any of the other Financing Agreements, provided that in determining the reasonableness of a request under this clause (C) such Lender shall be entitled to consider the cost (to the extent unreimbursed by any Borrower or Guarantor) which would be imposed on such Lender of complying with such request; or
(iii) in the case of any such Lender that is a non-U.S. intermediary or flow through entity for U.S. federal income tax purposes,
(A) on or before the date of any payment by any of Borrowers under this Agreement or any of the other Financing Agreements to, or for the account of, such Lender, deliver to Administrative Borrower and Agent two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY and, if any beneficiary or member of such Lender is claiming the so-called “portfolio interest exemption”, (x) represent to the Borrowers and Agent that such Lender is not a bank within the meaning of Section 881(c)(3)(A) of the Code and (y) also deliver to Administrative Borrower and Agent two U.S. Tax Compliance Certificates certifying to such Lender’s legal entitlement at the date of such certificate to an exemption from U.S. withholding tax under the provisions of Section 881(c) of the Code with respect to payments to be made under this Agreement and any of the other Financing Agreements; and
(1) with respect to each beneficiary or member of such Lender that is not claiming the so-called “portfolio interest exemption”, also deliver to Borrower and Agent (x) two duly completed copies of United States Internal Revenue Service Form W-8BEN (certifying that such beneficiary or member is a resident of the applicable country within the meaning of the income tax treaty between the United States and that country), Form W-8ECI or Form W-9, or successor applicable form, as the case may be, in each case so that each such beneficiary or member is entitled to receive all payments under this Agreement and any of the other Financing Agreements without deduction or withholding of any United States federal income taxes and (y) such other forms, documentation or certifications, as the case may be, certifying that each such beneficiary or member is entitled to an exemption from United States backup withholding tax with respect to all payments under this Agreement and any of the other Financing Agreements; and
(2) with respect to each beneficiary or member of such Lender that is claiming the so-called “portfolio interest exemption”, (x) represent to Borrowers and Agent that such beneficiary or member is not a bank within the meaning of Section 881(c)(3)(A) of the Code and (y) also deliver to Administrative Borrower and Agent two U.S. Tax Compliance Certificates from each beneficiary or member and two accurate and complete original signed copies of Internal Revenue Service Form W 8BEN, or successor applicable form, certifying to such beneficiary’s or member’s legal entitlement at the date of such certificate to an exemption from U.S. withholding tax under the provisions of Section 871(h) or Section 881(c) of the Code with respect to payments to be made under this Agreement and any of the other Financing Agreements;
(B) deliver to Administrative Borrower and Agent two further copies of any such forms, certificates or certifications referred to above on or before the date any such form, certificate or certification expires or becomes obsolete, or any beneficiary or member changes, and after the occurrence of any event requiring a change in the most recently provided form, certificate or certification and obtain such extensions of time reasonably requested by any U.S. Borrower or Agent for filing and completing such forms, certificates or certifications; and
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(C) deliver, to the extent legally entitled to do so, upon reasonable request by any Borrower, to Borrowers and Agent such other forms as may be reasonably required in order to establish the legal entitlement of such Lender (or beneficiary or member) to an exemption from withholding with respect to payments under this Agreement and any of the other Financing Agreements, provided that in determining the reasonableness of a request under this clause (C) such Lender shall be entitled to consider the cost (to the extent unreimbursed by any Borrower or Guarantor) which would be imposed on such Lender (or beneficiary or member) of complying with such request;
unless in any such case any change in treaty, law or regulation has occurred after the date such Person becomes a Lender hereunder (or a beneficiary or member in the circumstances described in clause (iii) above, if later) which renders all such forms inapplicable or which would prevent such Lender (or such beneficiary or member) from duly completing and delivering any such form with respect to it and such Lender so advises the Administrative Borrower and Agent.
(c) Agent and each Lender, in each case that is organized under the laws of the United States of America or a state thereof or the District of Columbia, shall on or before the date of any payment by any Borrower under this Agreement or any of the other Financing Agreements to, or for the account of, Agent or such Lender, deliver to Administrative Borrower and Agent two duly completed copies of Internal Revenue Service Form W-9, or successor form, certifying that Agent or such Lender is a United States Person (within the meaning of Section 7701(a)(30) of the Internal Revenue Code) and that Agent or such Lender is entitled to a complete exemption from United States backup withholding tax. Agent represents to the Borrowers that it is a financial institution within the meaning of Section 1.1441-1(c)(5) of the U.S. Treasury Regulations. Each such Lender shall also deliver, to the extent legally entitled to do so, upon reasonable request by any Borrower, to Administrative Borrower and Agent such other forms as may be reasonably required in order to establish the legal entitlement of such Lender to an exemption from withholding with respect to payments under this Agreement and any of the other Financing Agreements, provided that in determining the reasonableness of a request under this sentence such Lender shall be entitled to consider the cost (to the extent unreimbursed by any Borrower or Guarantor) which would be imposed on such Lender of complying with such request.
(d) Upon the request, and at the expense of Borrowers, each Lender to which any Borrower or Guarantor is required to make a payment pursuant to Section 3.5 or 6.8 shall reasonably afford the Administrative Borrower the opportunity to contest, and reasonably cooperate with the Administrative Borrower in contesting, the imposition of any such Tax giving rise to such payment; provided, that, (i) such Lender shall not be required to afford the Administrative Borrower the opportunity to so contest unless Borrowers shall have confirmed in writing to such Lender their obligation to make such payment pursuant to this Agreement and (ii) Borrowers shall reimburse such Lender for its reasonable attorneys’ and accountants’ fees and disbursements incurred in so cooperating with the Administrative Borrower in contesting the imposition of such Tax; provided, however, that notwithstanding the foregoing no Lender shall be required to afford the Administrative Borrower the opportunity to contest, or cooperate with the Administrative Borrower in contesting, the imposition of any such Taxes, if such Lender in its sole discretion in good faith determines that to do so would have an adverse effect on it.
(e) If any Lender changes its applicable lending office (other than (i) pursuant to Section 3.9(a) or (ii) after an Event of Default under Section 12.1(a) or (g) has occurred and is continuing) and the effect of such change, as of the date of such change, would result in any Borrower or Guarantor being obligated to make any payment under Section 3.5 or 6.8, none of Borrowers and Guarantor shall be obligated to make any such payment.
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(f) If a condition or an event occurs which would, or would upon the passage of time or giving of notice, result in the payment of any amount to or on behalf of any Lender by any Borrower or Guarantor pursuant to Section 3.5 or 6.8, such Lender shall promptly notify the Administrative Borrower and Agent and shall take such steps as may reasonably be available to it to mitigate the effects of such condition or event (which shall include efforts to rebook the Loans held by such Lender at another lending office, or through another branch or an affiliate, of such Lender pursuant to Section 3.9(a)); provided, that, such Lender shall not be required to take any step that, in its reasonable judgment, would be materially disadvantageous to its business or operations or would require it to incur additional costs (unless the Borrowers and Guarantor agree to reimburse such Lender for the reasonable incremental out-of-pocket costs thereof).
(g) If Agent or any Lender receives a refund directly attributable to Taxes for which any Borrower or Guarantor has made a payment under Section 3.5 or 6.8, Agent or such Lender, as the case may be, shall promptly pay such refund (together with any interest with respect thereto received from the relevant Governmental Authority, but net of any reasonable out-of-pocket cost incurred in connection therewith) to the Administrative Borrower; provided, however, that Borrowers agree to promptly return such refund (together with any interest with respect thereto due to the relevant Governmental Authority) to Agent or such Lender, as applicable, upon receipt of a notice that such refund is required to be repaid to the relevant Governmental Authority.
(h) For purpose of this Section 6.8, any reference of Lender in this Section 6.8 shall include the Issuing Bank. The agreements in this Section 6.8 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
6.9 Use of Proceeds. Borrowers shall use the initial proceeds of the Loans and Letters of Credit hereunder only for: (a) payments to each of the persons listed in the disbursement direction letter furnished by Borrowers to Agent on or about the date hereof and (b) costs, expenses and fees in connection with the Transactions and in connection with the preparation, negotiation, execution and delivery of this Agreement and the other Financing Agreements. All other Loans made or Letters of Credit provided to or for the benefit of any Borrower pursuant to the provisions hereof shall be used by such Borrower for general operating, working capital and other corporate purposes of Parent and its Subsidiaries not otherwise prohibited by the terms hereof.
6.10 Appointment of Administrative Borrower as Agent for Requesting Loans and Receipts of Loans and Statements.
(a) Each Borrower hereby irrevocably appoints and constitutes Administrative Borrower as its agent and attorney-in-fact to request and receive Loans and Letters of Credit pursuant to this Agreement and the other Financing Agreements from Agent or any Lender in the name or on behalf of such Borrower. Agent and Lenders shall disburse the Loans to such bank account of Administrative Borrower or a Borrower designated in writing by Administrative Borrower to Agent on or prior to the date hereof (or such other bank account as Administrative Borrower may specify to Agent in writing; provided, that, such other bank account shall be located in the United States at a depository institution that accepts transfers of funds without the imposition of fees or charges on the transferor) or otherwise make such Loans to a Borrower and provide such Letters of Credit to a Borrower as Administrative Borrower may designate or direct, without notice to any other Borrower or Guarantor. Notwithstanding anything to the contrary contained herein, Agent may at any time and from time to time following written notice to and consultation with Administrative Borrower, require that Loans to or for the account of any Borrower be disbursed directly to an operating account of such Borrower.
(b) Administrative Borrower hereby accepts the appointment by Borrowers to act as the agent and attorney-in-fact of Borrowers pursuant to this Section 6.10. Administrative Borrower shall ensure that the disbursement of any Loans to each Borrower requested by or paid to or for the account of Parent, or the issuance of any Letter of Credit for a Borrower hereunder, shall be paid to or for the account of such Borrower, except as agreed among Borrowers.
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(c) Each Borrower and other Guarantor hereby irrevocably appoints and constitutes Administrative Borrower as its agent to receive statements on account and all other notices from Agent and Lenders with respect to the Obligations or otherwise under or in connection with this Agreement and the other Financing Agreements.
(d) To the maximum extent permitted by applicable law, any notice, election, representation, warranty, agreement or undertaking by or on behalf of any other Borrower or any Guarantor by Administrative Borrower shall be deemed for all purposes to have been made by such Borrower or Guarantor, as the case may be, and shall be binding upon and enforceable against such Borrower or Guarantor to the same extent as if made directly by such Borrower or Guarantor.
(e) No termination of the appointment of Administrative Borrower as agent as aforesaid shall be effective, except after ten (10) Business Days’ prior written notice to Agent.
6.11 Pro Rata Treatment. Except to the extent otherwise provided in this Agreement or as otherwise agreed by the applicable Lenders and Administrative Borrower: (a) the making and conversion of Loans shall be made among the Lenders based on their respective Pro Rata Shares as to the Loans and (b) each payment on account of any Obligations to or for the account of one or more of Lenders in respect of any Obligations due on a particular day shall be allocated among the Lenders entitled to such payments based on their respective Pro Rata Shares and shall be distributed accordingly.
6.12 Sharing of Payments, Etc.
(a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 14.3(b) hereof), at any time an Event of Default under Section 12.1(a) exists or has occurred and is continuing, to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantor), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, such Lender’s failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
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(c) Each Borrower and Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
6.13 Settlement Procedures.
(a) In order to administer the Credit Facility in an efficient manner and to minimize the transfer of funds between Agent and Lenders, Agent may, at its option, subject to the terms of this Section, make available, on behalf of Lenders, including the Swing Line Lender, the full amount of the Revolving Loans or Swing Line Loans requested or charged to any Borrower’s loan account(s) or otherwise to be advanced by Lenders pursuant to the terms hereof, without requirement of prior notice to Lenders of the proposed Loans.
(b) With respect to all Loans made by Agent on behalf of Lenders, the amount of each Lender’s Pro Rata Share of the outstanding Loans shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Loans as of 5:00 p.m. New York City time on the Business Day immediately preceding the date of each settlement computation; provided, that, Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly, but in no event more than twice in any week. With respect to Swing Line Loans made by Swing Line Lender (or Agent on behalf of Swing Line Lender), Swing Line Lender (or Agent on behalf of Swing Line Lender) may settle on the Swing Line Loans from time to time as it determines, but not less frequently than once each week. Agent (or Swing Line Lender as to Swing Line Loans) shall deliver to each of the Lenders after the end of each week, or at such period or periods as Agent (or Swing Line Lender as to Swing Line Loans) shall determine, a summary statement of the amount of outstanding Loans (whether Revolving Loans, Swing Line Loans or both, as applicable) for such period (such week or other period or periods being hereinafter referred to as a “Settlement Period”). If the summary statement is sent by Agent (or Swing Line Lender in the case of Swing Line Loans) and received by a Lender prior to 12:00 p.m., then such Lender shall make the settlement transfer described in this Section by no later than 3:00 p.m. on the same Business Day and if received by a Lender after 12:00 p.m., then such Lender shall make the settlement transfer by not later than 3:00 p.m. on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a Lender’s Pro Rata Share of the outstanding Loans is more than such Lender’s Pro Rata Share of the outstanding Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Lender’s pro rata share of the outstanding Loans in any Settlement Period is less than the amount of such Lender’s Pro Rata Share of the outstanding Loans for the previous Settlement Period, Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. Each Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to Swing Line Lender (or upon its request to Agent) by wire transfer in immediately available funds the amount of such Lender’s Pro Rata Share of the outstanding Swing Line Loans as set forth in the summary statement provided to such Lender as provided above. Amounts transferred to Swing Line Lender (or Agent as the case may be) in respect to a settlement of Swing Line Loans shall be applied to the payment of the Swing Line loans and shall constitute Loans of such Lenders. The obligation of each of the Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by Agent and may occur at any time a Default or Event of Default exists or has occurred and whether or not the conditions set forth in Section 4.2 are satisfied (except if there is an Event of Default under Section 12.1(g), in which case the funds shall be in respect of each Lender’s participation). Agent and each Lender agrees to mark its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro Rata Share of the outstanding Loans and Letters of Credit. Each Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because the Agent on behalf of Lenders may be advancing and/or may be repaid Loans prior to the time when Lenders will actually advance and/or be repaid such Loans, interest with respect to Loans shall be allocated by Agent in accordance with the amount of Loans actually advanced by and repaid to each Lender and the Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by Borrowers or actually settled with the applicable Lender as described in this Section.
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(c) To the extent that Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any Loans by a Borrower, Agent may apply such amounts repaid directly to any amounts made available by Agent pursuant to this Section. In lieu of settlements, Agent may, at its option, at any time require each Lender to provide Agent with immediately available funds representing its Pro Rata Share of each Loan, prior to Agent’s disbursement of such Loan to a Borrower. In such event, Agent shall notify each Lender promptly after Agent’s receipt of the request for the Loans from a Borrower (or Administrative Borrower on behalf of such Borrower) or any deemed request hereunder and each Lender shall provide its Pro Rata Share of such requested Loan to the account specified by Agent in immediately available funds not later than 2:00 p.m. on the requested funding date, so that all such Loans shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. No Lender shall be responsible for any default by any other Lender in the other Lender’s obligation to make a Loan requested hereunder nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in the other Lender’s obligation to make a Loan hereunder.
(d) Upon the making of any Loan by Agent as provided herein, without further action by any party hereto, each Lender shall be deemed to have irrevocably and unconditionally purchased and received from Agent, without recourse or warranty, an undivided interest and participation to the extent of such Lender’s Pro Rata Share in such Loan. To the extent that there is no settlement in accordance with the terms hereof, Agent may at any time require the Lenders to fund their participations. From and after the date, if any, on which any Lender has funded its participation in any such Loan, Agent shall promptly distribute to such Lender, such Lender’s Pro Rata Share of all payments of principal and interest received by Agent in respect of such Loan.
(e) As to any Loan funded by Agent on behalf of a Lender (including Swing Line Lender) whether pursuant to Sections 6.13(a), 6.13(b) or 6.13(c) above, Agent may assume that each Lender will make available to Agent such Lender’s Pro Rata Share of the Loan requested or otherwise made on such day in the case of Loans funded pursuant to Section 6.13(c) above or otherwise on the applicable settlement date. If Agent makes amounts available to a Borrower and such corresponding amounts are not in fact made available to Agent by such Lender, Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to Agent at the Federal Funds Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent’s option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. on that day by each of the three leading brokers of Federal funds transactions in New York selected by Agent) and if such amounts are not paid within three (3) days of Agent’s demand, at the highest Interest Rate provided for in Section 3.1 hereof applicable to Base Rate Loans. During the period in which such Lender has not paid such corresponding amount to Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other Financing Agreements, the amount so advanced by Agent to or for the benefit of any Borrower shall, for all purposes hereof, be a Loan made by Agent for its own account.
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(f) Upon any failure by a Lender to pay Agent (or Swing Line Lender) pursuant to the settlement described in Section 6.13(b) above or to pay Agent pursuant to Section 6.13(c), 6.13(d) or Section 6.13(e), Agent shall promptly thereafter notify Administrative Borrower of such failure and Borrowers shall pay such corresponding amount to Agent for its own account within five (5) Business Days of Administrative Borrower’s receipt of such notice. The term “Defaulting Lender” shall mean (i) any Lender that has failed to fund any portion of the Revolving Loans, participations in Letter of Credit Obligations or participations in Swing Line Loans required to be funded by it hereunder within one (1) Business Day of the date required to be funded by it hereunder, or has otherwise failed to pay over to Agent or any other Lender any other amount required to be paid by it hereunder within one (1) Business Day of the date when due, (ii) any Lender that has notified Agent, any Lender, Issuing Bank, or any Borrower or Guarantor in writing that it will not or does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it will not or does not intend to comply with its funding obligations under this Agreement or under other agreements in which it has agreed to make loans or provide other financial accommodations, (iii) any Lender that has failed, within five (5) Business Days after request by Agent or the Administrative Borrower to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans and participations in then outstanding Letters of Credit and Swing Line Loans; provided that any such Lender shall cease to be a Defaulting Lender under this clause (iii) upon receipt of such confirmation by Agent and the Administrative Borrower, or (iv) any Lender that becomes or is insolvent or has a parent company that has become or is insolvent or becomes the subject of a bankruptcy or insolvency proceeding, or has a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment and has not obtained all required orders, approvals or consents of any court or other Governmental Authority to continue to fulfill its obligations hereunder, in form and substance satisfactory to Agent and the Administrative Borrower.
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(g) Agent shall not be obligated to transfer to a Defaulting Lender any payments received by Agent for the Defaulting Lender’s benefit, nor shall a Defaulting Lender be entitled to the sharing of any payments hereunder (including any principal, interest or fees and whether in respect of Revolving Loans, participation interests or otherwise). For purposes of voting or consenting to matters with respect to this Agreement and the other Financing Agreements, including for purposes of the Required Lenders and the Supermajority Lenders, and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Revolving Loan Commitment shall be deemed to be zero (0). So long as there is a Defaulting Lender, the maximum amount of the Loans and Letters of Credit shall not exceed the aggregate amount of the Commitments of the Lenders that are not Defaulting Lenders plus the Pro Rata Share of the Defaulting Lender (determined immediately prior to its being a Defaulting Lender) of the Loans and Letters of Credit outstanding as of the date that the Defaulting Lender has become a Defaulting Lender. At any time that there is a Defaulting Lender, payments received for application to the Obligations payable to Lenders in accordance with the terms of this Agreement shall be distributed to Lenders based on their Pro Rata Shares calculated after giving effect to the reduction of the Defaulting Lender’s Revolving Loan Commitment to zero (0) as provided herein or at Agent’s option, Agent may instead receive and retain such amounts that would be otherwise attributable to the Pro Rata Share of a Defaulting Lender (which for such purpose shall be such Pro Rata Share as in effect immediately prior to its being a Defaulting Lender). To the extent that Agent elects to receive and retain such amounts, Agent may hold such amounts (which shall not accrue interest) and, in its reasonable discretion, relend such amounts to a Borrower. To the extent that Agent exercises its option to relend such amounts, such amounts shall be treated as Revolving Loans for the account of Agent in addition to the Revolving Loans that are made by the Lenders other than a Defaulting Lender based on their respective Pro Rata Shares as calculated after giving effect to the reduction of such Defaulting Lender’s Commitment to zero (0) as provided herein but shall be repaid in the same order of priority as the principal amount of the Loans on a pro rata basis for purposes of Section 6.7 hereof. Agent shall determine whether any Revolving Loans requested shall be made from relending such amounts or from Revolving Loans from the Lenders (other than a Defaulting Lender) and any allocation of requested Revolving Loans between them. The rights of a Defaulting Lender shall be limited as provided herein until such time as the Defaulting Lender has made all payments to Agent of the amounts that it had failed to pay causing it to become a Defaulting Lender and such Lender is otherwise in compliance with the terms of this Agreement (including making any payments as it would have been required to make as a Lender during the period that it was a Defaulting Lender other than in respect of the principal amount of Revolving Loans, which payments as to the principal amount of Revolving Loans shall be made based on the outstanding balance thereof on the date of the cure by Defaulting Lender or at such other time thereafter as Agent may specify) or has otherwise provided evidence in form and substance satisfactory to Agent and Administrative Borrower that such Defaulting Lender will be able to fund its Pro Rata Share (as in effect immediately prior to its being a Defaulting Lender) in accordance with the terms hereof. Upon the cure by Defaulting Lender of the event that is the basis for it to be a Defaulting Lender by making such payment or payments and such Lender otherwise being in compliance with the terms hereof, such Lender shall cease to be a Defaulting Lender and shall only be entitled to payment of interest accrued during the period that such Lender was a Defaulting Lender to the extent previously received and retained by Agent from or for the account of Borrowers on the funds constituting Loans funded by such Lender prior to the date of it being a Defaulting Lender (and not previously paid to such Lender) and shall otherwise, on and after such cure, make Loans and settle in respect of the Loans and other Obligations in accordance with the terms hereof. The existence of a Defaulting Lender and the operation of this Section shall not be construed to increase or otherwise affect the Commitment of any Lender. Borrowers shall not be required to make any payments of principal, interest or fees in respect of Loans by a Defaulting Lender, but all payments required hereunder shall be made in respect of the Loans and other Obligations owing to the other Lenders, so that the payments in respect of principal and fees received by or on behalf of Agent or any Lender shall be made and allocated among the Lenders other than a Defaulting Lender in respect of amounts owing to such Lenders, and Borrowers may, except after a Dominion Event, retain the amount of interest that would otherwise be payable in respect of Loans by a Defaulting Lender. At any time that one or more of the Lenders is a Defaulting Lender, payments received for application to the Obligations shall be distributed among Lenders based on their Pro Rata Shares calculated after giving effect to the reduction of the Defaulting Lenders’ Commitments as provided above.
(h) Notwithstanding anything to the contrary contained in this Agreement, in the event there is a Defaulting Lender, upon any issuance or amendment of any Letter of Credit by the Issuing Bank, each Non-Defaulting Lender shall be deemed to have irrevocably and unconditionally purchased and received, without recourse or warranty, an undivided interest and participation to the extent of such Non-Defaulting Lender’s Pro Rata Share of the liability with respect to such Letters of Credit and the obligations of the Borrowers with respect thereto (it being understood that the Defaulting Lender’s Pro Rata Share is zero), but solely to the extent that the sum of any Non-Defaulting Lender’s Pro Rata Share of the outstanding Loans and its participations in Letters of Credit does not exceed the Commitment of such Non-Defaulting Lender. So long as there is a Defaulting Lender, the Issuing Bank shall not be required to issue, renew, extend or amend any Letter of Credit where the sum of the Non-Defaulting Lenders Pro Rata Share of the outstanding Loans and their participations in Letters of Credit after giving effect to any such requested Letter of Credit (or renewal, extension or amendment) would exceed the aggregate Commitments of such Non-Defaulting Lenders, unless Agent has cash collateral from Borrowers in an amount equal to the Pro Rata Share of the Defaulting Lender (calculated as in effect immediately prior to such Lender becoming a Defaulting Lender) of the Letter of Credit Obligations outstanding after giving effect to any such requested Letter of Credit (or renewal, extension or amendment) to be held by Agent on its behalf on terms and conditions reasonably satisfactory to Agent and Issuing Bank or there are other arrangements reasonably satisfactory to Issuing Bank with respect to the participation in Letters of Credit by such Defaulting Lender. Such cash collateral shall be applied first to the Letter of Credit Obligations before application to any other Obligations, notwithstanding anything to the contrary contained in Section 6.7 hereof.
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(i) Notwithstanding anything to the contrary contained in this Agreement, in the event there is a Defaulting Lender, upon any extension of Swing Line Loans by the Swing Line Lender, each Non-Defaulting Lender shall be deemed to have irrevocably and unconditionally purchased and received, without recourse or warranty, an undivided interest and participation to the extent of such Non-Defaulting Lender’s Pro Rata Share of the liability with respect to such Swing Line Loan (it being understood that the Defaulting Lender’s Pro Rata Share is zero), but solely to the extent that the sum of any Non-Defaulting Lender’s Pro Rata Share of the outstanding Loans and its participations in Letters of Credit does not exceed the Commitment of such Non-Defaulting Lender. So long as there is a Defaulting Lender, Swing Line Lender shall not be required to make any Swing Line Loans in which the Defaulting Lender would have had a participation (but for being a Defaulting Lender), where the sum of the Non-Defaulting Lenders Pro Rata Share of the outstanding Loans and their participations in Letters of Credit after giving effect to any such Swing Line Loans would exceed the aggregate Commitments of such Non-Defaulting Lenders, unless Agent has cash collateral from Borrowers in an amount equal to the Pro Rata Share of the Defaulting Lender (calculated as in effect immediately prior to such Lender becoming a Defaulting Lender) of any such Swing Line Loans to be held by Agent on its behalf on terms and conditions reasonably satisfactory to Agent and Swing Line Lender or there are other arrangements reasonably satisfactory to Swing Line Lender with respect to the participation in Swing Line Loans by such Defaulting Lender. Such cash collateral shall be applied first to the Obligations relating to the Swing Line Loans before application to any other Obligations, notwithstanding anything to the contrary contained in Section 6.7 hereof.
(j) If any Swing Line Loans or Letters of Credit are outstanding at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of the interests of Lenders in such Swing Line Loans and Letters of Credit, and Obligations arising pursuant thereto, shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Shares (as adjusted as provided herein, it being understood that the Defaulting Lender’s Pro Rata Share is zero) but only to the extent the sum of all non-Defaulting Lenders’ Pro Rata Shares in respect of outstanding Loans and Letters of Credit (calculated before giving effect to such adjustment) plus such Defaulting Lender’s Pro Rata Share (calculated as in effect immediately prior to it becoming a Defaulting Lender) of such Loans and Letters of Credit does not exceed the total of all Non-Defaulting Lenders’ Commitments; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, Borrowers shall within one (1) Business Day following notice by Agent (A) first, prepay such Defaulting Lender’s Pro Rata Share (calculated as in effect immediately prior to it becoming a Defaulting Lender) of any Swing Line Loans (after giving effect to any partial reallocation pursuant to clause (i) above) and (B) second, provide to Agent cash collateral to be held by Agent on behalf of Issuing Bank on terms and conditions reasonably satisfactory to Agent in an amount equal to the Defaulting Lender’s Pro Rata Share (calculated as in effect immediately prior to it becoming a Defaulting Lender), in each case under clauses (A) and (B) after giving effect to any partial reallocation pursuant to paragraph (i) above).
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(k) Notwithstanding anything to the contrary contained in this Agreement, in the event that there is a Defaulting Lender, Administrative Borrower and Agent shall each have the right, on prior written notice to the other, to cause the Defaulting Lender to, and upon the exercise by Administrative Borrower or Agent of such right, such Defaulting Lender shall have the obligation to, sell, assign and transfer to such Eligible Transferee as Administrative Borrower may specify, or as Agent may specify with the consent of the Administrative Borrower, the Commitment of such Defaulting Lender and all rights and interests of such Defaulting Lender pursuant thereto (without payment of the assignment fee and with any other costs and expenses to be paid by Borrowers in such instance); provided that neither Agent nor any Lender shall have any obligation to Borrowers to find a replacement Lender. Such purchase and sale shall be pursuant to the terms of an Assignment and Acceptance (whether or not executed by the Defaulting Lender). Such purchase and sale shall be effective on the date of the payment of the amounts required under such Assignment and Acceptance to the Defaulting Lender and the Commitment of the Defaulting Lender shall terminate on such date. Nothing in this Section 6.13 shall impair any rights that any Borrower, Agent, any Lender or Issuing Bank may have against any Lender that is a Defaulting Lender.
(l) Nothing in this Section or elsewhere in this Agreement or the other Financing Agreements shall be deemed to require Agent to advance funds on behalf of any Lender or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights or remedies that any Borrower may have against a Lender as a result of any default by such Lender hereunder in fulfilling its Commitment.
6.14 Obligations Several; Independent Nature of Lenders’ Rights. The obligation of each Lender hereunder is several, and no Lender shall be responsible for the obligation or commitment of any other Lender hereunder. Nothing contained in this Agreement or any of the other Financing Agreements and no action taken by the Lenders pursuant hereto or thereto shall be deemed to constitute the Lenders to be a partnership, an association, a joint venture or any other kind of entity. The amounts payable at any time hereunder to each Lender shall be a separate and independent debt, and subject to Section 14.3 hereof, each Lender shall be entitled to protect and enforce its rights arising out of this Agreement and it shall not be necessary for any other Lender to be joined as an additional party in any proceeding for such purpose.
6.15 Bank Products. Borrowers and Guarantors, or any of their Subsidiaries, may (but no such Person is required to) request that the Bank Product Providers provide or arrange for such Person to obtain Bank Products from Bank Product Providers, and each Bank Product Provider may, in its sole discretion, provide or arrange for such Person to obtain the requested Bank Products. Borrower and its Subsidiaries acknowledge and agree that the obtaining of Bank Products from Bank Product Providers (a) is in the sole discretion of such Bank Product Provider, and (b) is subject to all rules and regulations of such Bank Product Provider. To the extent that the obligations liabilities and indebtedness owing to any Bank Product Provider constitute Obligations in accordance with the definition thereof, such Bank Product Provider shall be deemed a third party beneficiary hereto for purposes of any reference in any of the Financing Agreements to the parties for whom Agent is acting; provided, that, the rights of such Bank Product Provider hereunder and under any of the other Financing Agreements shall consist exclusively of such Bank Product Provider’s right to share in payments and collections out of the Collateral as set forth herein and shall be subject in all respects to Section 13.3 hereof. In connection with any such distribution of payments and collections, Agent shall be entitled to assume that no amounts are due to any Bank Product Provider unless such Bank Product Provider has notified Agent and Administrative Borrower in writing of any such liability owed to it as of the date of any such distribution.
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SECTION 7. COLLATERAL REPORTING AND COVENANTS
7.1 Collateral Reporting.
(a) Borrowers shall provide Agent with the following documents in a form reasonably satisfactory to Co-Collateral Agents:
(i) as soon as possible after the end of each
fiscal month (but in any event within twenty (20x)
days afterif there
were any outstanding Loans as of the end of any fiscal month that is not also the end of a fiscal quarter
and, twenty (20) days after the end of such fiscal month,
(y) if there were no outstanding Loans as of the end of any fiscal month that is not also the end of a fiscal quarter, twenty-five
(25) days after the end of such fiscal month and (z) thirty (30) days after the end of any fiscal month that is also
the end of a fiscal quarter), (A) a Borrowing Base Certificate setting forth the calculation of the Borrowing Base as of the last
Business Day of the immediately preceding period, duly completed and executed by a Responsible Officer of Parent, together with
all schedules required pursuant to the terms of the Borrowing Base Certificate duly completed, (B) inventory reports by division,
location and the categories of raw materials, finished goods and work-in-process (and including the amounts of Inventory and the
value thereof at any leased locations and at premises of warehouses, processors or other third parties or consignees and including
reports of standard costs, lower of cost or market and purchase price variance), (C) reconciliation of inventory as set forth in
the perpetual inventory reports and general ledger of Borrowers and to the most recent monthly financial statement delivered pursuant
to Section 9.1(c) hereof, (D) agings of accounts receivable (together with a reconciliation to the previous period’s aging
and the general ledger and to the most recent monthly financial statement delivered pursuant to Section 9.1(c) hereof),
and (E) agings of outstanding accounts payable (and including
information indicating the amounts owing to owners and lessors of leased premises, warehouses, processors, and other third parties
from time to time in possession of any Collateral);
(ii) In the event that Administrative Borrower so elects or Agent requires at any time an Event of Default exists or has occurred and is continuing or Excess Availability is less than the greater of $25,000,000 or twenty (20%) percent of the lesser of the Maximum Credit or the Borrowing Base, on a weekly basis (but in no event earlier than the fifth (5th) Business Day following the end of the immediately preceding fiscal month), the most recent Borrowing Base Certificate delivered pursuant to Section 7.1(a)(i), setting forth the calculation of the Borrowing Base, updated to include the following information and executed by a Responsible Officer of Parent: (A) inventory reports by division, location and the categories of raw materials, finished goods and work-in-process, (B) agings of accounts receivable and (C) agings of outstanding accounts payable; provided, that, in the event that Administrative Borrower elects to provide the foregoing more frequently than once each month, it shall do so for not less than twelve (12) consecutive weeks or such shorter period as Agent may reasonably agree;
(iii) In the event that Administrative Borrower
so elects or Agent requires at any time an Event of Default exists or has occurred and is continuing or Excess Availability is
less than the greater of $25,000,000 or twenty (20%) percent of the leastlesser
of the Maximum Credit, the Revolving Loan Limit, or the Borrowing Base, on a daily
basis (A) a daily total for sales for the prior Business Day, and (B) a daily total for collections for the prior Business Day;
provided, that, in the event that Administrative Borrower elects to provide the foregoing more frequently than once
each month, it shall do so for not less than twelve (12) consecutive weeks or such shorter period as Agent may reasonably agree;
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(iv) as soon as possible after the end of
each fiscal month (but in any event within twenty (20x)
days afterif there
were any outstanding Loans as of the end of any fiscal month that is not also the end of a fiscal quarter
and, twenty (20) days after the end of such fiscal month,
(y) if there were no outstanding Loans as of the end of any fiscal month that is not also the end of a fiscal quarter, twenty-five
(25) days after the end of such fiscal month and (z) thirty (30) days after the end of any fiscal month that is also
the end of a fiscal quarter), a certificate by a Responsible Officer of Parent consisting of: (A)
a statement confirming the payment of rent and other amounts due to owners and lessors of real property owned or leased by Borrowers
where Inventory was regularly located in the immediately preceding month,
subject to year-end or monthly percentage rent payment adjustments and the payment of charges of outside processors, except as
described in such certificate, (B) the addresses of all new locations of Inventory owned or leased by Borrowers
and Guarantors and of outside processors, acquired, opened or engaged since the date of the most recent certificate delivered to
Agent under this clause (ii) (or in the case of the first such certificate, the date hereof), and (CB)
a report of any new deposit account established by any Borrower or Guarantor with any bank or other financial institution since
the date of the most recent certificate delivered to Agent under this clause (ii) (or in the case of the first such certificate,
the date hereof), except with respect to any deposit account where the balance is expected to
be less than $100,000 in such deposit account, but only to the extent that the aggregate amount of funds in all deposit accounts
not previously notified to Agent is less than $500,000, including in each case, the Borrower or Guarantor in whose name the account
is maintained, the account number, the name and address of the financial institution at which such account is maintained, the purpose
of such account and, if any, the amount held in such account on or about the date of such report;not
required to be subject to a Deposit Account Control Agreement pursuant to Section 5.2(d);
(v) upon Co-Collateral Agents’ reasonable
request, (A) reports of tons of steel on hand to the extent such reports are maintained by Borrowers in tons prior to the date
hereof, (B) copies of customer statements, purchase orders, sales invoices, credit memos, remittance advices and reports, and copies
of deposit slips and bank statements, (C) copies of shipping and delivery documents, (D) summary reports on sales and use tax collections,
deposits and payments, including monthly sales and use tax accruals, (E) true, correct and complete copies of all principal agreements,
documents or instruments evidencing Indebtedness for borrowed money or Capital Leases in excess of $1,000,000 that Agent has not
otherwise received (provided, that, the Borrowers shall provide copies of such principal agreements, documents or
instruments to the extent such principal agreements, documents or instruments evidence Indebtedness for borrowed money secured
by a Permitted Lien on acquired assets or property described in clause (t) of Section 1.1431.161
promptly after the acquisition of such assets or property) and (F) a certificate by a Responsible Officer of Parent stating that
all sales, use and excise taxes (that are known by a Responsible Officer to be due and payable) have been paid when due as of the
date of the certificate, except as specifically described in such certificate; and
(vi) such other reports as to the Collateral as Co-Collateral Agents shall reasonably request from time to time.
(b) Within ninety (90) days after the end of each fiscal year, the Borrowers shall provide to Agent a certificate of a Responsible Officer of Parent listing all United States applications or registrations of any material copyright, patent or trademark owned by a Borrower or Guarantor (except for trademark or service mark applications that have been filed with the U.S. Patent and Trademark Office on the basis of an “intent-to-use” with respect to such marks, unless and until a statement of use or amendment to allege use is filed and accepted) since the date of the prior certificate (or, in the case of the first such certificate, the date hereof).
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(c) Nothing contained in any Borrowing Base Certificate shall be deemed to limit, impair or otherwise affect the rights of Agent or Co-Collateral Agents contained herein and in the event the calculation of the Borrowing Base as set forth in any Borrowing Base Certificate is inaccurate or in any manner conflicts with the terms hereof, Agent, Co-Collateral Agents and Lenders shall not be bound by the terms thereof to the extent of such inaccuracy, conflict or inconsistency. Without limiting the foregoing, Borrowers shall furnish to Co-Collateral Agents any information which Co-Collateral Agents may reasonably request regarding the determination and calculation of any of the amounts set forth in any Borrowing Base Certificate. Subject to the limitations set forth herein, the Borrowing Base may be adjusted based on the information received by Agent or Co-Collateral Agents pursuant to this Agreement.
7.2 Accounts Covenants.
(a) Administrative Borrower shall notify Agent promptly of (i) the assertion of any claims, offsets, defenses or counterclaims by any account debtor of a Borrower, or any disputes with any account debtor of a Borrower or any settlement, adjustment or compromise thereof, to the extent any of the foregoing exceeds $3,000,000 in any one case or $5,000,000 in the aggregate and (ii) any change in the financial condition of any account debtor of a Borrower that Administrative Borrower reasonably believes could reasonably be expected to adversely affect in any material respect the payment of any Account owing by such account debtor. No credit, discount, allowance or extension or agreement for any of the foregoing shall be granted to any account debtor of a Borrower except in the ordinary course of a Borrower’s business.
(b) With respect to each Account of a Borrower: (i) the amounts shown on any invoice delivered to Agent or schedule thereof delivered to Agent shall be true and complete in all material respects, (ii) no payments shall be made thereon except in accordance with Section 6.6, and (iii) no credit, discount, allowance, extensions or agreements for any of the foregoing shall be granted to any account debtor except as are provided for in the reports furnished to Agent in accordance with Section 7.1 of this Agreement and except for credits, discounts, allowances, extensions or agreements made or given in the ordinary course of each Borrower’s business.
(c) Agent shall have the right at any time or times at reasonable intervals and based on such samples of obligors in respect of Receivables as Agent may from time to time select, in Agent’s name or in the name of a nominee of Agent, to verify the validity, amount or any other matter affecting the payment of any Receivables or other related Collateral, by mail, telephone (during which a representative of Administrative Borrower may be present), facsimile transmission or otherwise. Prior to sending any forms to the account debtors, Agent will consult with Administrative Borrower with respect to, and provide to Administrative Borrower copies of, such forms of letter and other correspondence pursuant to which Agent conducts its account verifications in respect of the Accounts of Borrowers.
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7.3 Inventory Covenants. With respect
to the Inventory: (a) each Borrower shall at all times maintain inventory records that are correct and accurate in all material
respects and itemizing and describing the kind, type, quality and quantity of Inventory, such Borrower’s or Guarantor’s
cost therefor and daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall conduct a physical count
of the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at
least once each year, but at any time or times (but not more frequently than once in any fiscal quarter) as Agent may reasonably
request at any time a Default or an Event of Default exists or has occurred and is continuing, and promptly following such physical
inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent at least once each fiscal quarter if
any such counts are performed within such quarter, or otherwise once each fiscal year, with a report in the form and with such
specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers shall not remove any Inventory
from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in
the ordinary course of its business and except to move Inventory directly from one location set forth or permitted herein to another
such location and except for Inventory shipped from the manufacturer thereof to a Borrower which is in transit to the locations
set forth or permitted herein; (d) Borrowers shall deliver or cause to be delivered to Agent, at Borrowers’ expense, written
appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent (and by an appraiser selected from
a list of Agent-approved appraisers to be supplied by Agent to the Administrative Borrower containing not fewer than two appraisers,
as such list may be augmented to include additional appraisers at the reasonable request of the Administrative Borrower or otherwise
amended by Agent, from time to time), addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to
rely, upon Agent’s request (x) if no more than $15,000,000 principal
or face amount of Loans and Letters of Credit are outstanding, up to one (1) time in any twelve (12) consecutive month period,
(y) if more than $15,000,000 principal or face amount of Loans and Letters of Credit are outstanding, up to two (2)
times in any twelve (12) consecutive month period, or (z)
at any time or times as Excess Availability shall be less than the greater of $25,000,000 or twenty (20%) percent of the leastlesser
of the Maximum Credit, or
the Borrowing Base or the Revolving Loan Limit, up to three (3) times in any twelve
(12) consecutive month period, or at any other time or times as Agent may request at any time an Event of Default shall exist or
have occurred and be continuing or at any other time at Agent’s expense; (e) as between Agent and Lenders, on the one hand,
and Borrowers, on the other hand, each Borrower assumes all responsibility and liability arising from or relating to the use, sale
or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower
as to any third party); (f) as of the date hereof, Borrowers do not sell Inventory to any customer on approval, or any other basis
which entitles the customer to return or may obligate any Borrower to repurchase such Inventory but shall give Agent prior written
notice if such practice changes together with such information with respect to the new policy as may reasonably be requested by
Agent; (g) Borrowers shall use commercially reasonable practices to keep the Inventory generally in good and marketable condition
in the ordinary course of business; and (h) Borrowers shall not acquire or accept any Inventory on consignment or approval unless
such Inventory has been identified in a report with respect thereto provided by Administrative Borrower to Agent pursuant to Section
7.1(a) hereof when required to be included in such report or Agent has otherwise received prior written notice thereof in form
and substance reasonably satisfactory to Agent.
7.4 Equipment and Real Property Covenants. With respect to the Equipment and Real Property: (a) Borrowers shall deliver or cause to be delivered to Co-Collateral Agents any written appraisals as to the Equipment and Mortgaged Fee Properties conducted by or on behalf of Borrowers or Term Loan Agent (and provided to Term Loan Agent or any Term Loan Lender); (b) Borrowers shall keep all Equipment useful and necessary in the business of Borrowers, taken as a whole, in good working order and condition (ordinary wear and tear excepted); and (c) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the use, sale or other disposition of the Equipment or Real Property (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party).
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7.5 Power of Attorney. Each Borrower and Guarantor hereby irrevocably designates and appoints Agent (and all persons designated by Agent) as such Borrower’s and Guarantor’s true and lawful attorney-in-fact, and authorizes Agent, in such Borrower’s, Guarantor’s or Agent’s name, subject to the terms of the Intercreditor Agreement and the obligation of Agent to comply with applicable laws, to: (a) at any time an Event of Default exists or has occurred and is continuing (i) demand payment on any Collateral (to the extent such payment is due), (ii) enforce payment of any of the Collateral by legal proceedings or otherwise, (iii) exercise all of such Borrower’s or Guarantor’s rights and remedies to collect any Collateral, (iv) subject to pre-existing rights and licenses with respect to the Term Loan Priority Collateral, sell or assign any Collateral upon such terms, for such amount and at such time or times as the Agent deems advisable, (v) settle, adjust, compromise, extend or renew any of the Collateral, (vi) discharge and release any Collateral, (vii) prepare, file and sign such Borrower’s or Guarantor’s name on any proof of claim in bankruptcy or other similar document against an account debtor or other obligor in respect of any Collateral, (viii) clear Inventory the purchase of which was financed with a Letter of Credit through U.S. Bureau of Customs and Border Protection or foreign export control authorities in such Borrower’s or Guarantor’s name, Agent’s name or the name of Agent’s designee, and to sign and deliver to customs officials powers of attorney in such Borrower’s or Guarantor’s name for such purpose, and to complete in such Borrower’s or Guarantor’s or Agent’s name, any order, sale or transaction, obtain the necessary documents in connection therewith and collect the proceeds thereof, (ix) sign, subject to the Intercreditor Agreement, such Borrower’s or Guarantor’s name on notices to account debtors or any secondary obligors or other obligors in respect of Collateral, and (x) do all acts and things which are necessary, in Agent’s reasonable determination, to protect, preserve or realize upon the Collateral or otherwise to exercise any of the rights and remedies of Agent hereunder and under the other Financing Agreements and (b) at any time a Dominion Event exists to (i) take control in any manner of any item of payment received in or for deposit in the Concentration Accounts or other Cash Management Accounts in accordance with this Agreement and any of the other Financing Agreements and (ii) have access to any lockbox or postal box into which remittances from account debtors or other obligors in respect of Collateral are sent or received if a Dominion Event exists, and (c) at any time to (i) take control of, subject to the Intercreditor Agreement, any item of payment constituting Collateral that is comes into the possession of Agent or any Lender (and remit such item to a Cash Management Account or Concentration Account), (ii) endorse, subject to the Intercreditor Agreement, such Borrower’s or Guarantor’s name upon any items of payment in respect of Collateral received by Agent and any Lender and deposit the same in Agent’s account for application to the Obligations, (iii) endorse, subject to the Intercreditor Agreement, such Borrower’s or Guarantor’s name upon any chattel paper, document, instrument, invoice, or similar document or agreement relating to any Receivable or any goods pertaining thereto or any other Collateral, including any warehouse or other receipts, or bills of lading and other negotiable or non-negotiable documents, and (iv) sign such Borrower’s or Guarantor’s name on any verification of amounts owing constituting Collateral. Each Borrower and Guarantor hereby releases Agent and Lenders and their respective officers, employees and designees from any liabilities arising from any act or acts under this power of attorney and in furtherance thereof, whether of omission or commission, except as a result of Agent’s or any Lender’s own, or their respective officers’, employees’ or designees’, gross negligence or willful misconduct as determined pursuant to a final non-appealable order of a court of competent jurisdiction.
7.6 Right to Cure. Subject to the Intercreditor Agreement, Co-Collateral Agents may, at their option, upon prior notice to Administrative Borrower, at any time an Event of Default exists or has occurred and is continuing (a) cure any default by any Borrower or Guarantor under any material agreement with a third party that affects the Collateral, its value or the ability of Agent to collect, sell or otherwise dispose of the Collateral or the rights and remedies of Agent or any Lender therein or the ability of any Borrower or Guarantor to perform its obligations hereunder or under any of the other Financing Agreements, (b) pay or bond on appeal any judgment entered against any Borrower or Guarantor, (c) discharge taxes, liens, security interests or other encumbrances at any time levied on or existing with respect to the Collateral and (d) pay any amount, incur any expense or perform any act which, in Co-Collateral Agents’ judgment, is necessary or appropriate to preserve, protect, insure or maintain the Collateral and the rights of Agent and Lenders with respect thereto. Agent may add any amounts so expended to the Obligations and charge any Borrower’s account therefor or may demand immediate payment thereof. Co-Collateral Agents and Lenders shall be under no obligation to effect such cure, payment or bonding and shall not, by doing so, be deemed to have assumed any obligation or liability of any Borrower or Guarantor.
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7.7 Access to Premises. From time
to time as reasonably requested by Agent, at the cost and expense of Borrowers, (a) Agent or its designee shall have reasonable
access to all of each Borrower’s and Guarantor’s premises during normal business hours and after reasonable prior notice
to Administrative Borrower, or at any time and without notice to Administrative Borrower if an Event of Default exists or has occurred
and is continuing, for the purposes of inspecting, verifying and auditing the Collateral and all of each Borrower’s and Guarantor’s
books and records, including the Records, and (b) each Borrower and Guarantor shall promptly furnish to Agent such copies of such
books and records or extracts therefrom as Agent may reasonably request, and Agent or Agent’s designee may use during normal
business hours such of any Borrower’s and Guarantor’s personnel, equipment, supplies and premises as may be reasonably
necessary for the foregoing and if an Event of Default exists or has occurred and is continuing, subject to the Intercreditor Agreement,
for the collection of Receivables and realization of other Collateral. Agent may conduct, at the expense of Borrowers, up
to three (3(x) if no more than $15,000,000 principal
or face amount of Loans and Letters of Credit are outstanding, up to one (1) field examination (or such lesser number as Agent
may determine) with respect to the Collateral in any twelve (12) consecutive month period, (y) if more than $15,000,000 principal
or face amount of Loans and Letters of Credit are outstanding, up to two (2) field examinations (or such lesser number
as Agent may determine) with respect to the Collateral in any twelve (12) consecutive month period,
or (z) at any time or times as Excess Availability shall
be less than the greater of $25,000,000 or twenty (20%) percent of the leastlesser
of the Maximum Credit, or
the Borrowing Base or the Revolving Loan Limit, up to fourthree
(43) timesfield
examinations (or such lesser number as Agent may determine) with respect to the Collateral in any twelve (12) consecutive
month period, or at any other time or times as Agent may request at any time an Event of Default shall exist or have occurred and
be continuing or at any other time at Agent’s expense.
7.8 Bills of Lading and Other Documents of Title.
(a) On and after the date of this Agreement, Borrowers shall cause all bills of lading or other documents of title relating to goods purchased by a Borrower included or requested by Borrowers to be included as Eligible Inventory in the calculation of the Borrowing Base and set forth in the applicable Borrowing Base Certificate which are outside the United States of America and in transit to the premises of such Borrower or the premises of a Freight Forwarder in the United States of America (i) to be issued in a form so as to constitute negotiable documents as such term is defined in the Uniform Commercial Code and (ii) other than those relating to goods being purchased pursuant to a Letter of Credit, to be issued either to the order of Agent or such other person as Agent may from time to time designate for such purpose as consignee or such Borrower as consignee, as Agent may specify.
(b) There shall be no more than three (3) originals of any such bills of lading and other documents of title relating to goods being purchased by a Borrower which are outside the United States of America and in transit to the premises of such Borrower or the premises of a Freight Forwarder in the United States of America. As to any such bills of lading or other documents of title, unless and until Agent shall direct otherwise, (i) two (2) originals of each of such bill of lading or other document of title shall be delivered to such Freight Forwarder as such Borrower may specify and that is party to a Collateral Access Agreement and (ii) one (1) original of each such bill of lading or other document of title shall be delivered to Agent. To the extent that the terms of this Section have not been satisfied as to any Inventory, such Inventory shall not constitute Eligible Inventory, except as Agent may otherwise agree.
SECTION 8. REPRESENTATIONS AND WARRANTIES
All representations and warranties made in this Agreement or any of the other Financing Agreements shall survive the execution and delivery of this Agreement and shall be deemed to have been made again to Agent and Lenders on the date of each additional borrowing or Letter of Credit issued hereunder, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and accurate on and as of such earlier date). Each Borrower and Guarantor hereby represents and warrants to Agent, Lenders and Issuing Bank the following:
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8.1 Financial Condition.
(a) The audited consolidated balance sheets of Parent and its consolidated Subsidiaries as of November 2, 2008 and October 28, 2007 and the consolidated statements of income, shareholders’ equity and cash flows for the three fiscal years ended November 2, 2008 reported on by and accompanied by unqualified reports from Ernst & Young, LLP, present fairly, in all material respects, the consolidated financial condition as at such date, and the consolidated results of operations and consolidated cash flows for the respective fiscal years then ended, of Parent and its consolidated Subsidiaries. All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP consistently applied throughout the periods covered thereby (except as approved by a Responsible Officer, and disclosed in any such schedules and notes). During the period from November 2, 2008 to and including the Closing Date, there has been no sale, transfer or other disposition by Parent and its consolidated Subsidiaries of any material part of the business or property of Parent and its consolidated Subsidiaries, taken as a whole, and no purchase or other acquisition by any of them of any business or property (including any Equity Interests of any other Person) material in relation to the consolidated financial condition of Parent and its consolidated Subsidiaries, taken as a whole, in each case, which is not reflected in the foregoing financial statements or in the notes thereto and has not otherwise been disclosed in writing to Agent and Lenders on or prior to the Closing Date.
(b) The pro forma balance sheet and statements of operations of Parent and its consolidated Subsidiaries, copies of which have heretofore been furnished to Agent and each Lender, are the balance sheet and statements of operations of Parent and its consolidated Subsidiaries as of August 2, 2009 adjusted to give effect (as if such events had occurred on such date for purposes of the balance sheet and on November 3, 2008, for purposes of the statement of operations), to the consummation of the Transactions, and the Loans and Letters of Credit hereunder on the Closing Date.
8.2 No Change; Solvent. There
Since October 20, 2009, there has not been any event, change,
circumstance or development (including any damage, destruction or loss whether or not covered by insurance) which, individually
or in the aggregate, has had, or could reasonably be expected to have, a Material Adverse Effect on Parent and its consolidated
Subsidiaries, taken as a whole. Since the Closing Date, except
as and to the extent disclosed on Schedule 8.2, there has been no development or event relating to or affecting any
Borrower or Guarantor which has had or could reasonably be expected to have a Material Adverse Effect (after giving effect to:
(a) the consummation of the Transactions, (b) the making of the Loans and Letters of Credit to be made on the Closing Date and
the application of the proceeds thereof as contemplated hereby, and (c) the payment of actual or estimated fees, expenses, financing
costs and tax payments related to the transactions contemplated hereby). Since November 2, 2008, except otherwise permitted under
this Agreement and each of the other Financing Agreements, no dividends or other distributions have been declared, paid or made
upon the Equity Interests of Parent, nor have any of the Equity Interests of Parent been redeemed, retired, purchased or otherwise
acquired for value by Parent or any of its Subsidiaries. As of the date hereof, after the creation of the Obligations, the security
interests of Agent and after giving effect to the consummation of the transactions described in preceding clauses (a) through (c)
of the second preceding sentence, each Borrower is Solvent.
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8.3 Corporate Existence; Compliance with Law. Each Borrower and Guarantor (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation, (b) has the corporate or other organizational power and authority, and the legal right, to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged, except to the extent that the failure to have such legal right could not be reasonably expected to have a Material Adverse Effect, (c) is duly qualified as a foreign corporation or limited liability company and in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification, other than in such jurisdictions where the failure to be so qualified and in good standing could not reasonably be expected to have a Material Adverse Effect and (d) is in compliance with all Requirements of Law, except to the extent that the failure to comply therewith could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
8.4 Corporate Power; Authorization; Enforceable Obligations. Each Borrower and Guarantor has the corporate or other organizational power and authority, and the legal right, to make, deliver and perform the Financing Agreements to which it is a party and, in the case of each Borrower or Guarantor, to obtain Loans and Letters of Credit hereunder, and each such Borrower or Guarantor has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of the Financing Agreements to which it is a party and, in the case of each Borrower, to authorize the Loans or Letters of Credit to it, if any, on the terms and conditions of this Agreement and any requests for Letters of Credit. No consent or authorization of, filing with, notice to or other similar act by or in respect of, any Governmental Authority or any other Person is required to be obtained or made by or on behalf of any Borrower or Guarantor in connection with the execution, delivery, performance, validity or enforceability of the Financing Agreements to which it is a party or, in the case of each Borrower, with Loans and Letters of Credit to it, if any, hereunder, except for (a) consents, authorizations, notices and filings described in Schedule 8.4, all of which have been obtained or made prior to the Closing Date, (b) filings to perfect the security interests created hereunder and by the other Financing Agreements (to the extent provided herein and therein), and (c) consents, authorizations, notices and filings which the failure to obtain or make could not reasonably be expected to have a Material Adverse Effect. This Agreement has been duly executed and delivered by each Borrower and Guarantor, and each of the other Financing Agreements to which any Borrower or Guarantor is a party will be duly executed and delivered on behalf of such Borrower or Guarantor. This Agreement constitutes a legal, valid and binding obligation of each Borrower and Guarantor and each of the other Financing Agreements to which any Borrower or Guarantor is a party when executed and delivered will constitute a legal, valid and binding obligation of such Borrower or Guarantor, enforceable against such Borrower or Guarantor in accordance with its terms, except as enforceability may be limited by applicable domestic or foreign bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).
8.5 No Legal Bar. The execution,
delivery and performance of the Financing Agreements by any Borrower or Guarantor, the Loans and Letters of Credit hereunder and
the use of the proceeds thereof (a) will not (i) to the knowledge of any Responsible Officer of
any Borrower or Guarantor, violate any of the Anti-Terrorism Laws or (ii) violate any Requirement of Law (other
than the Anti-Terrorism Laws) or Contractual Obligation of such Borrower or Guarantor in any respect that has or
could reasonably be expected to have a Material Adverse Effect and (b) will not result in, or require the creation or imposition
of any Lien (other than Permitted Liens) on any of its properties or revenues pursuant to any such Requirement of Law or Contractual
Obligation.
8.6 No Material Litigation. No litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the best of the knowledge of any Borrower or Guarantor, threatened by or against Parent or any of its Subsidiaries or against any of their respective properties or revenues, (a) except as described on Schedule 8.6, which is so pending or threatened at any time on or prior to the Closing Date and relates to any of the Financing Agreements or any of the transactions contemplated hereby or thereby or (b) which could reasonably be expected to have a Material Adverse Effect.
8.7 No Default. No Default or Event of Default has occurred and is continuing.
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8.8 Ownership of Property; Liens. Each of Parent and its Subsidiaries has good title in fee simple to, or a valid leasehold interest in, all its Mortgaged Fee Properties, and good title to, or a valid leasehold interest in, all its other material property and none of such property is subject to any Lien or other encumbrance, except for Permitted Liens. Except for the Excluded Real Properties, the Mortgaged Fee Properties as listed on Part I of Schedule 1.120 together constitute all the material real properties owned in fee by Borrowers and Guarantors as of the Closing Date.
8.9 Intellectual Property. Parent and each of its Subsidiaries owns, or has the legal right to use, all Intellectual Property and Foreign Intellectual Property necessary for each of them to conduct its business as currently conducted except for those the failure to own or have such legal right to use could not be reasonably expected to have a Material Adverse Effect. Except as provided on Schedule 8.9, no claim has been asserted and is pending by any Person against Parent or any of its Subsidiaries challenging or questioning the use of any such Intellectual Property or Foreign Intellectual Property or the validity or effectiveness of any such Intellectual Property or Foreign Intellectual Property, nor does any Borrower or Guarantor Party know of any such claim, and, to the best of the knowledge of any Borrower or Guarantor, the use of such Intellectual Property or Foreign Intellectual Property by Parent and its Subsidiaries does not infringe on the rights of any Person, except for such claims and infringements which in the aggregate, could not be reasonably expected to have a Material Adverse Effect. To the best of any Borrower’s or Guarantor’s actual knowledge, no trademark, servicemark, copyright or other Intellectual Property or Foreign Intellectual Property at any time used by any Borrower or Guarantor which is owned by another person, or owned by such Borrower or Guarantor subject to any security interest, lien, collateral assignment, pledge or other encumbrance in favor of any person other than Agent, is affixed to or incorporated or used in any Eligible Inventory, except (a) to the extent permitted by such person or (b) that would not materially impair the Agent’s or Lenders’ rights or remedies with respect to such Eligible Inventory under applicable law.
8.10 No Burdensome Restrictions.
Neither Parent nor any of its Subsidiaries is in violation of (a) to the knowledge of any Responsible
Officer of any Borrower or Guarantor, any Anti-Terrorism Law or (b) any Requirement of Law (other
than an Anti-Terrorism Law) or Contractual Obligation of or applicable to Parent or any of its Subsidiaries that
could reasonably be expected to have a Material Adverse Effect.
8.11 Taxes. Except for any taxes with respect to which the failure to pay individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect and except for taxes the validity of which are currently being contested in good faith by appropriate proceedings diligently conducted and with respect to which reserves in conformity with GAAP have been provided on the books of Parent or its Subsidiaries, as the case may be, each of Parent and its Subsidiaries has filed or caused to be filed all United States federal income tax returns and all other material tax returns which are required to be filed by it and has paid (a) all taxes shown to be due and payable on such returns and (b) all taxes shown to be due and payable on any assessments of which it has received notice made against it or any of its property (including the Mortgaged Fee Properties) and all other taxes, fees or other charges imposed on it or any of its property by any Governmental Authority; and no tax lien or other encumbrance has been filed, and no claim is being asserted, with respect to any such tax, excluding, however, any Lien on the Mortgaged Fee Properties existing on the Closing Date.
8.12 Federal Regulations. No part of the proceeds of any Loans or Letters of Credit will be used for any purpose which violates the provisions of the Regulations of the Board, including without limitation, Regulation T, Regulation U or Regulation X of the Board. If requested by any Lender or Agent, Administrative Borrower will furnish to Agent and each Lender a statement to the foregoing effect in conformity with the requirements of FR Form G-3 or FR Form U-1, referred to in said Regulation U.
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8.13 Employee Benefits.
(a) Each Pension Plan is in compliance in all respects with the applicable provisions of ERISA, the Code and other Federal or State law where the failure to comply has or could reasonably be expected to have a Material Adverse Effect. Each Pension Plan which is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service and to the best of any Borrower’s or Guarantor’s knowledge, nothing has occurred which would cause the loss of such qualification, which has or could reasonably be expected to have a Material Adverse Effect. Each Borrower and its ERISA Affiliates have made all required contributions to any Plan subject to Section 412 of the Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Plan.
(b) There are no pending, or to the best of any Borrower’s or Guarantor’s knowledge, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan which has or could reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan where it has or could reasonably be expected to have a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) based on the latest valuation of each Pension Plan and on the actuarial methods and assumptions employed for such valuation (determined in accordance with the assumptions used for funding such Pension Plan pursuant to Section 412 of the Code), the aggregate current value of accumulated benefit liabilities of such Pension Plan under Section 4001(a)(16) of ERISA does not exceed the aggregate current value of the assets of such Pension Plan or, to the extent that the aggregate current value of accumulated benefit liabilities of such Pension Plan under Section 4001(a)(16) of ERISA exceeds the aggregate current value of the assets of such Pension Plan, such underfunding could not reasonably be expected to have a Material Adverse Effect and Borrowers and Guarantors have complied and shall continue to comply with the requirements of ERISA with respect to the funding of their Pension Plans; (iii) each Borrower and Guarantor, and their ERISA Affiliates, have not incurred and do not reasonably expect to incur, any liability under Title IV of ERISA with respect to any Plan (other than premiums due and not delinquent under Section 4007 of ERISA) which has or could reasonably be expected to have a Material Adverse Effect; (iv) each Borrower and Guarantor, and their ERISA Affiliates, have not incurred and do not reasonably expect to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan which has or could reasonably be expected to have a Material Adverse Effect; and (v) each Borrower and Guarantor, and their ERISA Affiliates, have not engaged in a transaction that would be subject to Section 4069 or 4212(c) of ERISA that has or could reasonably be expected to have a Material Adverse Effect.
8.14 Collateral.
(a) Upon execution and delivery hereof
and thereof by the parties hereto and thereto, this Agreement and the other Financing Agreements that include the grant of a security
interest in or Lien or mortgage on any property or assets (other than the Excluded Property and the Excluded Real Properties) of
any Borrower or Guarantor to secure the Obligations, will be effective to create (to the extent described herein and therein) in
favor of Agent for the benefit of the Secured Parties, a valid security interest (to the extent provided herein and therein) in
the Collateral described herein and therein, except (ix)
as may be limited by (i) applicable domestic or foreign bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’
rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law), and (iii)
an implied covenant of good faith and fair dealing, and (ivy)
with respect to the enforceability of such Liens, Collateral for which the perfection of Liens thereon require filings in or other
actions under the laws of a jurisdiction outside of the United States of America, any state, territory or political division thereof
or the District of Columbia or the recording of an assignment or other transfer of title to the Agent, or the recording of other
applicable documents in the United States Patent and Trademark Office of the United States Copyright Office.
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(b) Such security interests, other than those with respect to the Specified Assets, are, or in the case of Collateral in which any Borrower or Guarantor obtains rights after the date hereof will be, with respect to Working Capital Priority Collateral (as defined in the Intercreditor Agreement), perfected, first priority security interests, subject as to priority only to the Permitted Liens that have priority by operation of law or by agreement and with respect to Term Loan Priority Collateral, perfected second priority security interests, subject as to priority only to the Permitted Liens that have priority by operation of law or by agreement and upon (i) in the case of all Collateral in which a security interests may be perfected by filing a financing statements under the UCC, the filing of the UCC financing statement naming such Borrower or Guarantor as “debtor” and Agent as “secured party” and describing the Collateral in the filing offices set forth opposite such Borrower’s or Guarantor’s name on Schedule 8.14 hereof (as such schedule may be amended or supplemented from time to time), (ii) with respect to any deposit account, securities account, commodity account, securities entitlement or commodity contract, the execution of Control Agreements, (iii) in the case of U.S. copyrights, trademarks and patents to the extent that UCC financing statements may be insufficient to establish the rights of a secured party as to certain parties, the recording of the appropriate filings based on the form of Copyright Security Agreement, Trademark Security Agreement or Patent Security Agreement, as applicable, executed pursuant hereto in the United States Patent and Trademark Office and the United States Copyright Office, as applicable, (iv) in the case of letter-of-credit rights that are not supporting obligations (as defined in the UCC), the execution by the issuer or any nominated person of an agreement granting control to Agent over such letter-of-credit rights, (v) in the case of electronic chattel paper, the completion of steps necessary to grant control to Agent over such electronic chattel paper, (vi) in the case of Commercial Tort Claims arising after the date hereof, sufficient identification of such Commercial Tort Claims and compliance by the Borrower with the second sentence of Section 5.7(g), in each case with respect to clauses (ii) through (vi) above, such perfection only to the extent required pursuant to Section 5.2.
8.15 Investment Company Act; Other Regulations. None of the Borrowers is an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act. None of the Borrowers is subject to regulation under any Federal or State statute or regulation (other than Regulation X of the Board) which limits its ability to incur Indebtedness as contemplated hereby.
8.16 Subsidiaries. Schedule 8.16 sets forth all the Subsidiaries of Parent at the Closing Date (after giving effect to the Transactions), the jurisdiction of their organization and the direct or indirect ownership interest of Parent therein.
8.17 Purpose of Loans. The proceeds
of Revolving Loans, Swing Line Loans and Letters of Credit shall be used by to
finance the working capital and business requirements of, and for general corporate purposes of, Borrowers and Guarantors.
8.18 Environmental Compliance.
(a) Except as set forth on Schedule 8.18 hereto, Borrowers, Guarantors and any Subsidiary of any Borrower or Guarantor have not generated, used, stored, treated, transported, manufactured, handled, produced or disposed of any Hazardous Materials, on or off its premises (whether or not owned by it) in any manner which at any time violates any applicable Environmental Law or Permit where such violation has or could reasonably be expected to have a Material Adverse Effect, and the operations of Borrowers, Guarantors and any Subsidiary of any Borrower or Guarantor complies with all Environmental Laws and all Permits where the failure to so comply has or could reasonably be expected to have a Material Adverse Effect.
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(b) Except as set forth on Schedule 8.18 hereto, there has been no investigation by any Governmental Authority or any proceeding, complaint, order, directive, claim, citation or notice by any Governmental Authority or any other person nor is any pending or to the best of any Borrower’s or Guarantor’s knowledge threatened in writing, with respect to any non compliance with or violation of the requirements of any Environmental Law by any Borrower or Guarantor and any Subsidiary or the release, spill or discharge, threatened or actual, of any Hazardous Material or the generation, use, storage, treatment, transportation, manufacture, handling, production or disposal of any Hazardous Materials or any other environmental, health or safety matter, which in each instance, has or could reasonably be expected to have a Material Adverse Effect.
(c) Except as set forth on Schedule 8.18 hereto, Borrowers, Guarantors and their Subsidiaries have no liability (contingent or otherwise) in connection with a release, spill or discharge, threatened or actual, of any Hazardous Materials or the generation, use, storage, treatment, transportation, manufacture, handling, production or disposal of any Hazardous Materials which in any case or in the aggregate, has or could reasonably be expected to have a Material Adverse Effect.
(d) Except as set forth on Schedule 8.18 hereto, Borrowers, Guarantors and their Subsidiaries have all Permits required to be obtained or filed in connection with the operations of Borrowers and Guarantors under any Environmental Law and all Permits are valid and in full force and effect where the failure to do so has or could reasonably be expected to have a Material Adverse Effect.
8.19 Name; State of Organization; Chief Executive Office; Collateral Locations.
(a) As of the Closing Date, the exact legal name of each Borrower and Guarantor is as set forth on the signature page of this Agreement and in Schedule 8.19 hereto. No Borrower or Guarantor has, during the five years prior to the date of this Agreement, been known by or used any other corporate or fictitious name or been a party to any merger or consolidation, or acquired all or substantially all of the assets of any Person, except as set forth in Schedule 8.19.
(b) As of the Closing Date, each Borrower and Guarantor is an organization of the type and organized in the jurisdiction set forth in Schedule 8.19 and Schedule 8.19 accurately sets forth the organizational identification number of each Borrower and Guarantor or accurately states that such Borrower or Guarantor has none and accurately sets forth the federal employer identification number of each Borrower and Guarantor.
(c) Schedule 8.19 identifies (i) the chief executive office and mailing address of each Borrower and Guarantor, (ii) a location within the United States or Canada at which a copy of Records concerning Accounts and Inventory of each Borrower and Guarantor are maintained and (iii) any and all locations which are not owned by a Borrower or Guarantor as of the date hereof where Inventory is located (other than such locations where inventory is located having a value not in excess of $150,000 at any one location, and not exceeding $1,000,000 in the aggregate), and sets forth the owners and/or operators thereof, in each case subject to the rights of any Borrower or Guarantor to move its chief executive office, change its mailing address, change the location at which Records are maintained or establish new locations in accordance with Sections 9.4 and 9.8 below.
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8.20 Labor Disputes.
(a) Set forth on Schedule 8.20 is a list (including dates of termination) of all collective bargaining or similar agreements between or applicable to each Borrower and Guarantor and any union, labor organization or other bargaining agent in respect of the employees of any Borrower or Guarantor on the date hereof.
(b) Except as could not be reasonably expected to have a Material Adverse Effect, there is (i) no unfair labor practice complaint pending against any Borrower or Guarantor or, to the best of any Borrower’s or Guarantor’s knowledge, threatened in writing against it, before the National Labor Relations Board, and no grievance or significant arbitration proceeding arising out of or under any collective bargaining agreement is pending on the date hereof against any Borrower or Guarantor or, to best of any Borrower’s or Guarantor’s knowledge, threatened against it, and (ii) no strike, labor dispute, slowdown or stoppage is pending against any Borrower or Guarantor or, to the best of any Borrower’s or Guarantor’s knowledge, threatened against any Borrower or Guarantor.
8.21 Bank Accounts. All of the deposit
accounts, investment accounts or other accounts in the name of or used by any Borrower or Guarantor (other thenthan
the TL Deposit Account (as defined in the Intercreditor Agreement)) maintained at any bank or other financial institution are set
forth on Schedule 8.21 hereto, subject to the right of each Borrower and Guarantor to establish new accounts in accordance
with Section 5.2 hereof.
8.22 Insurance. Schedule 8.22 sets forth a complete and correct listing of all insurance that is (a) maintained by Borrowers and Guarantors and (b) material to the business and operations of Parent and its Subsidiaries taken as a whole and maintained by Subsidiaries other than Borrowers and Guarantors, in each case as of the Closing Date, with the amounts insured (and any deductibles) set forth therein.
8.23 Eligible Accounts. As of the date of any Borrowing Base Certificate, all Accounts included in the calculation of Eligible Accounts on such Borrowing Base Certificate satisfy all requirements of an “Eligible Account” hereunder.
8.24 Eligible Inventory. As of the date of any Borrowing Base Certificate, all Inventory included in the calculation of Eligible Inventory on such Borrowing Base Certificate satisfy all requirements of an “Eligible Inventory” hereunder.
8.25 Interrelated Businesses. Borrowers and Guarantors make up a related organization of various entities constituting an overall economic and business enterprise. One or more of the Borrowers and Guarantors may from time to time purchase or sell goods from, to or for the benefit of, or render services, make loans or advances, or provide other financial accommodations to or for the benefit of, one or more of the other Borrowers and Guarantors. Borrowers and Guarantors each expect to derive substantial benefit from the Loans and other financial accommodations hereunder.
8.26 OFAC. No Borrower, Guarantor
or Subsidiary of any Borrower or Guarantor: (a) is a Sanctioned Person,
(b) has any of its assets in Sanctioned Entities, or (c) derives any of its operating income from investments in, or transactions
with Sanctioned Persons or Sanctioned Entities. TheEntity.
No proceeds of any Loan will not be used and have not been used to fund any operations
in, finance any investments or activities in, or make any payments to,be
directly (or, to the knowledge of any Borrower or any Guarantor, indirectly) used for the purpose of funding or financing any activities
or business with a Person that at the time of such funding or financing is a Sanctioned Person or a Sanctioned Entity.
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8.27 True and Correct Disclosure. As of the Closing Date, all information furnished by or on behalf of any Borrower or Guarantor to Agent and Lenders for purposes of or in connection with this Agreement, the other Financing Agreements or any transaction contemplated hereby or thereby, but excluding projections, is, taken as a whole, true and correct in all material respects on the date as of which such information is dated or certified and does not omit to state any material fact necessary to make such information (taken as a whole) not materially misleading in their presentation of Parent and its Subsidiaries (taken as a whole) at such time in light of the circumstances under which such information was provided. The written information hereafter furnished by or on behalf of any Borrower or Guarantor to Agent or any Lender in any Borrowing Base Certificate will be true and accurate in all material respects. No event or circumstance has occurred which has had or could reasonably be expected to have a Material Adverse Effect, which has not been fully and accurately disclosed to Agent in writing prior to the date hereof. It is understood that (a) no representation or warranty is made concerning the forecasts, estimates, pro forma information, projections and statements as to anticipated future performance or conditions, and the assumptions on which they were based, contained in any such information, reports, financial statements, exhibits or schedules, except that as of the date such forecasts, estimates, pro forma information, projections and statements were generated, (i) such forecasts, estimates, pro forma information, projections and statements were based on the good faith assumptions of the management of Parent and its Subsidiaries and (ii) such assumptions were believed by such management to be reasonable and (b) such forecasts, estimates, pro forma information and statements, and the assumptions on which they were based, may or may not prove to be correct.
8.28 Delivery of Investment Documents. Borrowers have delivered to Agent a complete copy of the Investment Documents (including all exhibits, schedules, disclosure letters referred to therein or delivered pursuant thereto, if any) and all amendments thereto, waivers relating thereto and other side letters or agreements affecting the terms thereof in any material respect.
SECTION 9. AFFIRMATIVE COVENANTS
9.1 Financial Statements.
(a) Borrowers shall furnish or cause to be furnished to Agent for Agent to make available to each Lender (and Agent agrees to so make available such copies):
(i) as soon as available, but in any event not later than the fifth (5th) Business Day after the ninetieth (90th) day following the end of each fiscal year of Parent ending on or after November 1, 2009, a copy of the consolidated balance sheet of Parent and its consolidated Subsidiaries as at the end of such year and the related consolidated statements of operations, changes in common stockholders’ equity and cash flows for such year, setting forth in each case, in comparative form the figures for and as of the end of the previous year, reported on without a “going concern” or like qualification, exception, explanation or comment, or qualification arising out of the scope of the audit, by Ernst &Young, LLP or other independent certified public accountants of nationally recognized standing acceptable to Agent in its reasonable judgment (it being agreed that the furnishing of Parent’s annual report on Form 10-K for such year, as filed with the United States Securities and Exchange Commission, will satisfy the obligation under this Section 9.1(a)(i) with respect to such year except with respect to the requirement that such financial statements be reported on without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit);
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(ii) as soon as available, but in any event not later than the fifth (5th) Business Day after the forty-fifth (45th) day following the end of each of the first three (3) quarterly periods of each fiscal year of Parent, the unaudited consolidated balance sheet of Parent and its consolidated Subsidiaries as at the end of such quarter and the related unaudited consolidated statements of operations and cash flows of Parent and its consolidated Subsidiaries for such quarter and the portion of the fiscal year through the end of such quarter, setting forth in each case, in comparative form the figures for and as of the corresponding periods of the previous year, certified by a Responsible Officer of Parent as being fairly stated in all material respects (subject to normal year-end audit and other adjustments) (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for such quarter, as filed with the United States Securities and Exchange Commission, will satisfy the obligations under this Section 9.1(a)(ii) with respect to such quarter);
(iii) as soon as available, but in any event not later than the fifth (5th) Business Day following the thirtieth (30th) day following the end of each fiscal month (other than any month that is the last month of a fiscal quarter), the unaudited consolidated monthly management reports of Parent and its consolidated Subsidiaries (and to the extent prepared by or on behalf of Parent or any of its Subsidiaries, unaudited consolidating monthly financial reports of Parent and its consolidated Subsidiaries) as at the end of such month in form and scope substantially consistent with prior monthly management reports of Parent received by Agent and Lenders prior to the date hereof (or otherwise reasonably satisfactory to Agent) including (A) an income report of Parent and its consolidated Subsidiaries for such month, setting forth in comparative form the figures for the immediately preceding fiscal month and as of the end of the corresponding month during the previous fiscal year (and to the extent otherwise prepared by or on behalf of Parent or any of its Subsidiaries, including a comparative form to the figures for and as of the end of the corresponding month in the business plan previously delivered applicable to such period under Section 9.2(a)(iii) hereof) and (B) a balance sheet of Parent and its consolidated Subsidiaries for such month setting forth in comparative form the figures for the immediately preceding fiscal month and as of the end of the immediately preceding fiscal year (and to the extent otherwise prepared by or on behalf of Parent or any of its Subsidiaries, including a comparative form to the figures for and as of the end of the corresponding month in the business plan previously delivered applicable to such period under Section 9.2(a)(iii) hereof); and
(b) All such financial statements delivered pursuant to Sections 9.1(a)(i) or (a)(ii) to be (and, in the case of any financial statements delivered pursuant to subsection 9.1(a)(ii) shall be certified by a Responsible Officer of Parent as being) complete and correct in all material respects in conformity with GAAP and to be (and, in the case of any financial statements delivered pursuant to subsection 9.1(a)(ii) shall be certified by a Responsible Officer of Parent as being) prepared in reasonable detail in accordance with GAAP applied consistently throughout the periods reflected therein and with prior periods that began on or after the Closing Date (except as approved by such accountants or officer, as the case may be, and disclosed therein, and except, in the case of any financial statements delivered pursuant to Section 9.1(a)(ii), for the absence of certain notes).
9.2 Certificates; Other Information.
(a) Borrowers shall furnish or cause to be furnished to Agent for delivery to each Lender (and Agent agrees to make and so deliver such copies):
(i) concurrently with the delivery of the financial statements and reports referred to in Sections 9.1(a), a certificate signed by a Responsible Officer of Parent substantially in the form of Exhibit I hereto, together with a schedule thereto setting forth the calculations required to determine compliance (whether or not such compliance is at the time required) with the covenant set forth in subsection 11.1 and a written summary of material changes in GAAP and in the consistent application thereof that materially affected the financial covenant calculations for the applicable period;
(ii) concurrently
with the delivery of the financial statements referred to in Section 9.1(a), the insurance binder or other evidence of insurance
for any insurance coverage of Borrowers, Guarantors or any Subsidiary, if any, that was renewed, replaced or modified during the
period covered by such financial statements;[Reserved.]
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(iii) as soon as available, but in any event not later than the fifth (5th) Business Day after the ninetieth (90th) day after the beginning of each fiscal year of Parent, beginning with the fiscal year ending November 1, 2009, a copy of the annual business plan by Parent of the projected operating budget (including an annual consolidated balance sheet, income statement and statement of cash flows of Parent and its Subsidiaries in each case substantially in the same format and with the same scope of information as in the projections most recently provided to Agent prior to the date hereof) for such fiscal year, which projected financial statements shall be prepared on a monthly basis for such year and shall represent the reasonable estimate by Borrowers and Guarantors of the future financial performance of Parent and its Subsidiaries for the periods set forth therein and shall have been prepared on the basis of the assumptions set forth therein which Borrowers and Guarantors believe are reasonable as of the date of preparation in light of current and reasonably anticipated business conditions (it being understood that actual results may differ from those set forth in such projected financial statements), each such business plan to be accompanied by a certificate signed by a Responsible Officer of Parent to the effect that such Responsible Officer believes such projections to have been prepared on the basis set forth herein;
(iv) substantially
at the same time aswithin five (5) Business Days of
when the same are sent, copies of all financial statements and reports which Parent sends to its public security holders,
and at substantially the same time aswithin
five (5) Business Days of when the same are filed, copies of all financial statements and periodic reports which Parent
may file with the United States Securities and Exchange Commission or any successor or analogous Governmental Authority;
(v)substantially
at the same time as within five
(5) Business Days of when the same are filed,
copies of all registration statements and any amendments and exhibits thereto, which Parent may file with the United States Securities
and Exchange Commission or any successor or analogous Governmental Authority, and such other documents or instruments as may be
reasonably requested by Agent in connection therewith; and
(vi) promptly, such additional financial and other information as Agent or any Lender may from time to time reasonably request.
(b) Borrowers and Guarantors hereby acknowledge that, subject to Section 15.5, Agent and/or its Affiliates may make available to Lenders and Issuing Bank materials and/or information provided by or on behalf of Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system.
(c) Agent is hereby authorized to deliver a copy of any financial statement or any other information relating to the business of Borrowers and Guarantors to any court or other Governmental Authority or to any Lender or Participant or prospective Lender or Participant or any Affiliate of any Lender or Participant subject to Section 15.5 hereof. Each Borrower and Guarantor hereby irrevocably authorizes and requests that all accountants or auditors to deliver to Agent, at Borrowers’ expense, copies of the financial statements of any Borrower and Guarantor and any reports or management letters prepared by such accountants or auditors on behalf of any Borrower or Guarantor and to disclose to Agent and Lenders such information as they may have regarding the business of any Borrower and Guarantor with copies to Administrative Borrower. Agent will not meet with the accountants or auditors except after reasonable prior notice to Administrative Borrower and with the invitation to a Responsible Officer of Parent to be present.
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9.3 Payment of Obligations. Each Borrower and Guarantor shall, and shall cause any Subsidiary to, pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all its obligations of whatever nature, including taxes, except (a) where the amount or validity thereof is currently being contested in good faith by appropriate proceedings diligently conducted and reserves in conformity with GAAP with respect thereto have been provided on the books of Parent or any of its Subsidiaries, as the case may be or (b) to the extent such failure to pay, discharge or otherwise satisfy the same could not reasonably be expected to have a Material Adverse Effect.
9.4 Conduct of Business and Maintenance of Existence.
(a) Each Borrower and Guarantor shall at
all times (i) preserve, renew and keep in full force and effect its corporate or other organizational existence and rights and
franchises with respect thereto and (ii) maintain in full force and effect all licenses, approvals, authorizations and Permits
necessary to carry on its business, and
(iii) comply with all applicable Anti-Terrorism Laws, and (iv) comply
with all Contractual Obligations and Requirements of Law (other than Anti-Terrorism Laws),
except (A) in each case as permitted under Section 10.1 hereof or otherwise permitted hereunder or under any of the other Financing
Agreements or (B) under clauses (i), (ii) or (iviii)
of this Section, as applicable, where the failure to do so, individually or in the aggregate, has
or could not reasonably be expected to have
a Material Adverse Effect.
(b) No Borrower or Guarantor shall change its name unless each of the following conditions is satisfied: (i) Agent shall have received not less than fifteen (15) days (or such shorter time as Agent may agree) prior written notice from Administrative Borrower of such proposed change in its corporate name, which notice shall accurately set forth the new name; and (ii) Agent shall have received a copy of the amendment to the certificate of incorporation, certificate of formation or other organizational document of such Borrower or Guarantor, as applicable, providing for the name change certified by the Secretary of State of the jurisdiction of incorporation or organization of such Borrower or Guarantor as soon as it is available.
(c) No Borrower or Guarantor shall change its chief executive office or its mailing address or organizational identification number (or if it does not have one, shall not acquire one) unless Agent shall have received not less than fifteen (15) days’ (or such shorter time as Agent may agree) prior written notice from Administrative Borrower of such proposed change. No Borrower or Guarantor shall change its type of organization, jurisdiction of organization or other legal structure (except that a Borrower, Guarantor or Subsidiary may convert (either directly or by way of merger) into a corporation, limited liability company or limited partnership or other form of legal entity acceptable to Agent), unless Agent shall have received prior written notice from Administrative Borrower of such proposed change, which notice shall accurately set forth a description of the new form, and Agent shall have received such agreements, documents, and instruments as Agent may deem reasonably necessary or desirable in connection therewith and in no event will any Borrower or Guarantor change its jurisdiction to a jurisdiction outside the United States, without the prior written consent of Agent and Required Lenders.
(d) No Borrower or Guarantor shall change the location set forth on Schedule 8.19 hereto at which a copy of all Records with respect to Accounts and Inventory of each Borrower and Guarantor are maintained, unless Agent shall have received prior written notice of the intention to change such location, which notice shall specify the new location in the United States of America at which such Records are proposed to be maintained.
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9.5 Maintenance of Property; Insurance.
(a) Each Borrower and Guarantor shall, and shall cause any Subsidiary to (i) at all times, keep all property useful and necessary in the business of Parent and its Subsidiaries, taken as a whole, in good working order and condition and maintain with financially sound and reputable insurance companies insurance on all property material to the business of Parent and its Subsidiaries, taken as a whole, in at least such amounts (subject to customary deductibles with respect to policies of insurance issued by third parties and self-insured retentions other than, as to such self-insured retentions, with respect to Revolving Loan Priority Collateral having an aggregate value in excess of $500,000) and against at least such risks (but including in any event public liability, product liability and business interruption) as are consistent with the past practices of the Parent and its Subsidiaries and otherwise as are usually insured against in the same general area by companies engaged in the same or a similar business; (ii) furnish to Agent, upon written request, information in reasonable detail as to the insurance carried; and (iii) ensure that at all times Agent shall be named as additional insured with respect to liability policies (but without any liability for any premiums) and as a loss payee as its interests may appear with respect to casualty insurance policies pursuant to a non-contributory lender’s loss payable endorsements in form and substance satisfactory to Agent. Such lender’s loss payable endorsements shall specify that the proceeds of such insurance shall be payable to Agent as its interests may appear and further specify that Agent and Lenders shall be paid regardless of any act or omission by any Borrower, Guarantor or any of its or their Affiliates. All such policies shall provide for at least thirty (30) prior written notice to Agent of any cancellation or reduction of coverage. At any time an Event of Default exists or has occurred and is continuing, subject to the Intercreditor Agreement, Agent may act as attorney for each Borrower and Guarantor in obtaining, adjusting and settling such insurance with respect to Revolving Loan Priority Collateral. Unless and until an Event of Default or a Dominion Event exists or has occurred and is continuing (including after giving effect to any event giving rise to any claim under such insurance policies, including, but not limited to, any reduction in the Borrowing Base as a result of any loss, damage, destruction or other casualty with respect to any Collateral giving rise to any insurance claim), (A) Agent shall turn over to Administrative Borrower any amounts received by it as loss payee under any casualty insurance maintained by Parent and its Subsidiaries, the disposition of such amounts to be subject to the mandatory prepayments provided for herein and (B) Parent and/or the applicable Borrower or Guarantor shall have the sole right to adjust or settle any claims under such insurance.
(b) With respect to any Real Property of Borrowers and Guarantors subject to a Mortgage:
(i) If any portion of any such property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, such Borrower or Guarantor shall maintain or cause to be maintained, flood insurance to the extent required by law.
(ii) The applicable Borrower or Guarantor promptly shall comply with and conform to (A) all provisions of each such insurance policy, and (B) all requirements of the insurers applicable to such party or to such property or to the use, manner of use, occupancy, possession, operation, maintenance, alteration or repair of such property, except for such non-compliance or non-conformity as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The applicable Borrower or Guarantor shall not use or permit the use of such property in any manner which could reasonably be expected to result in the cancellation of any insurance policy or could reasonably be expected to void coverage required to be maintained with respect to such property pursuant to Section 9.5(a).
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(iii) If any Borrower or Guarantor is in default of its obligations to insure or deliver any such prepaid policy or policies, the result of which could reasonably be expected to have a Material Adverse Effect, then Agent, at its option upon ten (10) days’ written notice to Administrative Borrower, may effect such insurance from year to year at rates substantially similar to the rate at which such Borrower or Guarantor had insured such property, and pay the premium or premiums therefor, and Borrowers shall pay to Agent on demand such premium or premiums so paid by Agent, which shall be part of the Obligations.
(iv) If such property, or any part thereof, shall be destroyed or damaged and the reasonably estimated cost thereof would exceed $5,000,000 Administrative Borrower shall give prompt notice thereof to Agent. All insurance proceeds paid or payable in connection with any damage or casualty to any property shall be applied in the manner specified in Section 9.5(a).
9.6 Notices. Borrowers and Guarantors shall promptly, but in any event within five (5) Business Days after a Responsible Officer knows or reasonably should know, notify Agent and each Lender of: (a) the occurrence of any Default or Event of Default; (b) any default or event of default under any Contractual Obligation of Parent or any of its Subsidiaries, other than as previously disclosed in writing to Agent and Lenders, which could reasonably be expected to have a Material Adverse Effect; (c) any litigation, investigation or proceeding which may exist at any time between Parent or any of its Subsidiaries and any Governmental Authority, which in either case, has or could reasonably be expected to have a Material Adverse Effect; (d) the occurrence of any default or event of default under the Term Loan Documents or the Convertible Notes; (e) any litigation or proceeding involving Collateral or affecting Parent or any of its Subsidiaries that is reasonably likely to result in an adverse determination and, if adverse, could reasonably be expected to have a Material Adverse Effect; (f) the occurrence of any ERISA Event; (g) the receipt of written notice of any material violation of any law which could reasonably be expected to have a Material Adverse Effect; (h) any release or discharge by Parent or any of its Subsidiaries of any Hazardous Materials required to be reported under applicable Environmental Laws to any Governmental Authority, unless Parent reasonably determines that the total costs arising out of such release or discharge could not reasonably be expected to have a Material Adverse Effect; (i) any condition, circumstance, occurrence or event not previously disclosed in writing to Agent that could reasonably be expected to result in liability or expense under applicable Environmental Laws, unless Parent reasonably determines that the total costs arising out of such condition, circumstance, occurrence or event could not reasonably be expected to have a Material Adverse Effect or could not reasonably be expected to result in the imposition of any Lien or other material restriction on the title, ownership or transferability of any facilities and properties owned, leased or operated by Parent or any of its Subsidiaries that could reasonably be expected to result in a Material Adverse Effect; and any proposed action to be taken by Parent or any of its Subsidiaries that could reasonably be expected to subject Parent or any of its Subsidiaries to any material additional or different requirements or liabilities under Environmental Laws, unless Parent reasonably determines that the total costs arising out of such proposed action could not reasonably be expected to have a Material Adverse Effect; (j) any loss, damage, or destruction to the Collateral in the amount of $1,000,000 or more, whether or not covered by insurance; (k) any and all default notices received under or with respect to any leased location or public warehouse where Collateral, either individually or in the aggregate, in excess of $1,000,000 is located. In addition, Borrowers and Guarantors shall notify Agent and each Lender at any time that a Responsible Officer has actual knowledge of, and has determined that, there has been a Material Adverse Effect. Each notice pursuant to this Section shall be accompanied by a statement of a Responsible Officer of Parent (and, if applicable, the relevant Affiliate or Subsidiary) setting forth details of the occurrence referred to therein and stating what action Parent (or, if applicable, the relevant Affiliate or Subsidiary) proposes to take with respect thereto. Borrowers and Guarantors shall furnish to Agent notice in writing of the details of any merger, consolidation or amalgamation or wind up, liquidation or dissolution of any Subsidiary of Parent as permitted pursuant to Section 10.1(c).
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9.7 Environmental Laws. Each Borrower and Guarantor shall, and shall cause any Subsidiary to,
(a) (i) comply substantially with, and require substantial compliance by all tenants, subtenants, contractors, and invitees with, all applicable Environmental Laws; (ii) obtain, comply substantially with and maintain any and all Environmental Permits necessary for its operations as conducted and as planned; and (iii) require that all tenants, subtenants, contractors, and invitees obtain, comply substantially with and maintain any and all Environmental Permits necessary for their operations as conducted and as planned, with respect to any property leased or subleased from, or operated by Parent or its Subsidiaries, in each case under clauses (i), (ii) or (iii) where the failure to do so has or could reasonably be expected to have a Material Adverse Effect;
(b) promptly comply, in all material respects, with all orders and directives of all Governmental Authorities regarding Environmental Laws, other than such orders or directives (i) where the failure to comply has or could reasonably be expected to result in a Material Adverse Effect or (ii) as to which: (A) appropriate reserves have been established in accordance with GAAP; (B) an appeal or other appropriate contest is or has been timely and properly taken and is being diligently pursued in good faith; and (C) if the effectiveness of such order or directive has not been stayed, the failure to comply with such order or directive during the pendency of such appeal or contest has or could reasonably be expected to result in a Material Adverse Effect;
(c) maintain its existing program, if any, reasonably designed to ensure that all the properties and operations of Parent and its Subsidiaries are periodically reasonably reviewed by competent personnel to identify and promote compliance with and to reasonably and prudently manage any material costs related to compliance with Environmental Laws that affect Parent or any of its Subsidiaries, including compliance and liabilities relating to: discharges to air and water; acquisition, transportation, storage and use of Hazardous Materials; waste disposal; species protection; and recordkeeping required under Environmental Laws.
9.8 New
Inventory Locations. Each Borrower and Guarantor may only open any new location where any Inventory may be stored so
long as (a) such locations are within the United States or its territories or Canada, (b) if it is a warehouse or distribution
center such location is set forth in the applicable report provided for in Section 7.1(a) to the extent required under such Section
or for any other location where Inventory having an aggregate value in excess of $150,000 is stored, Agent has received five
(5) Business Days’ written notice within the time of the opening of any such new location
and (c) upon Agent’s request, such Borrower or Guarantor shall use commercially reasonable efforts to obtain Collateral Access
Agreements with respect to such locations (it being understood that Borrowers shall not be required to incur any expense, provide
any security or agree to any adverse term or condition required in order to obtain such Collateral Access Agreements).
9.8 [Reserved].
9.9 Compliance with ERISA. Except as could not reasonably be expected to have a Material Adverse Effect, each Borrower and Guarantor shall, and shall cause each of its ERISA Affiliates to: (a) maintain each Plan in compliance with the applicable provisions of ERISA, the Code and other Federal and State law; (b) cause each Plan which is qualified under Section 401(a) of the Code to maintain such qualification; (c) not terminate any Pension Plan so as to incur any liability to the Pension Benefit Guaranty Corporation; (d) not allow or suffer to exist any prohibited transaction involving any Plan or any trust created thereunder which would subject such Borrower, Guarantor or such ERISA Affiliate to a tax or other liability on prohibited transactions imposed under Section 4975 of the Code or ERISA; (e) make all required contributions to any Plan which it is obligated to pay under Section 302 of ERISA, Section 412 of the Code or the terms of such Plan; (f) not allow or suffer to exist any accumulated funding deficiency, whether or not waived, with respect to any such Pension Plan; (g) not engage in a transaction that could be subject to Section 4069 or 4212(c) of ERISA; or (h) not allow or suffer to exist any occurrence of a reportable event or any other event or condition which presents a risk of termination by the Pension Benefit Guaranty Corporation of any Plan that is a single employer plan, which termination could result in any liability to the Pension Benefit Guaranty Corporation.
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9.10 End of Fiscal Years. Each Borrower and Guarantor shall, for financial reporting purposes, cause its, and each of its Subsidiary’s fiscal years to end on the Sunday closest to October 31st in any calendar year.
9.11 Additional Guaranties and Collateral Security; Further Assurances.
(a) In the case of the formation or acquisition by a Borrower or Guarantor of any Subsidiary after the date hereof (other than a Foreign Subsidiary or any Subsidiary of a Foreign Subsidiary), as to any such Subsidiary, (i) the Borrower or Guarantor forming such Subsidiary shall cause any such Subsidiary to execute and deliver to Agent, in form and substance reasonably satisfactory to Agent, a joinder agreement to the Financing Agreements in order to make such Subsidiary a party to this Agreement as a “Borrower” if it owns accounts or inventory that would constitute Eligible Accounts and Eligible Inventory or otherwise as a “Guarantor”, and a party to any guarantee as a “Guarantor” or pledge agreement as a “Pledgor”, in each case as applicable, which joinder agreement shall include, but not be limited to, supplements and amendments hereto and to any of the other Financing Agreements, authorization to file UCC financing statements, Collateral Access Agreements (to the extent required under Section 9.8), other agreements, documents or instruments contemplated under Section 5.2, corporate resolutions and other organization and authorizing documents of such Person, and, in addition, as a condition to any assets of such Subsidiary being included the Borrowing Base, except as Agent may otherwise agree, Agent shall have received favorable opinions of counsel to such person with respect to the enforceability of such joinder agreement and that as a result, the agreements to which such Subsidiary has been joined constitute the valid, binding and enforceable obligations of such Subsidiary, enforceable against it in accordance with the respective terms of such agreements and (ii) the Borrower or Guarantor forming such Subsidiary shall comply with the terms of Section 5.2 hereof with respect to the Equity Interests of such Subsidiary.
(b) With respect to any owned real property or fixtures thereon, in each case with a purchase price or a fair market value at the time of acquisition of at least $2,000,000, in which any Borrower or Guarantor acquires ownership rights at any time after the Closing Date, promptly following any request by Agent grant to Agent a Lien of record on all such owned real property and fixtures, upon terms reasonably satisfactory in form and substance to Agent, and in accordance with any applicable requirements of any Governmental Authority (including any required appraisals of such property under FIRREA); provided, that, (i) nothing in this Section 9.11(b) shall defer or impair the attachment or perfection of any security interest in any Collateral covered by any of the Financing Agreements which would attach or be perfected pursuant to the terms thereof without action by Parent, any of its Subsidiaries or any other Person, (ii) no such Lien shall be required to be granted as contemplated by this Section 9.11(b) on any owned real property or fixtures the acquisition of which is financed, or is to be financed within any time period permitted by Section 10.3(b), in whole or in part through the incurrence of Indebtedness permitted by subsection 10.3(b), until such Indebtedness is repaid in full (and not refinanced as permitted by subsection 10.3). In connection with any such grant to Agent of a Lien of record on any such real property in accordance with this subsection, Parent or such Subsidiary shall deliver or cause to be delivered to Agent any title searches in connection with such grant of such Lien obtained by it in connection with the acquisition of such ownership rights in such real property or any title search as Agent shall reasonably request (in light of the value of such real property and the cost and availability of such title search and whether the delivery of such title search would be customary in connection with such grant of such Lien in similar circumstances).
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(c) At the request of Agent at any time and from time to time, Borrowers and Guarantors shall, at their expense, duly execute and deliver, or cause to be duly executed and delivered, such further agreements, documents and instruments, and do or cause to be done such further acts as may be reasonably necessary or proper to evidence, perfect, maintain and enforce (to the extent provided herein) the security interests and the Lien (subject to Permitted Liens) in the Collateral and to otherwise effectuate the provisions of this Agreement or any of the other Financing Agreements. Notwithstanding anything to contrary in this Agreement, with respect to assets of the type constituting Term Loan Priority Collateral, no Borrower or Guarantor shall be required to take any action in any non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction in order to create any security interests in assets located or titled outside of the U.S. or to perfect any security interests (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction).
9.12 Costs and Expenses. Borrowers and Guarantors shall pay to Agent, promptly after demand and identification thereof by Agent, all reasonable costs and expenses paid or payable in connection with the preparation, negotiation, execution, delivery, recording, syndication, administration, collection, liquidation, enforcement and defense of the Obligations, Agent’s rights in the Collateral, this Agreement, the other Financing Agreements and all other documents related hereto or thereto, including any amendments, supplements or consents which may hereafter be contemplated (whether or not executed) or entered into in respect hereof and thereof, including: (a) all reasonable costs and expenses of filing or recording (including UCC financing statement filing taxes and fees, documentary taxes, intangibles taxes and mortgage recording taxes and fees, if applicable) (and the amount of all fees required to be paid under any law, regulation or otherwise by any Governmental Authority shall be reasonable for purposes of this clause (a)), (b) reasonable costs and expenses and fees for insurance premiums, environmental audits, title insurance premiums, surveys, assessments, engineering reports and inspections, appraisal fees and search fees, background checks, costs and expenses of remitting loan proceeds, collecting checks and other items of payment, and establishing and maintaining the Concentration Accounts, together with Agent’s reasonable customary charges and fees with respect thereto, in each case with respect to environmental audits, title insurance premiums, surveys, engineering reports and otherwise solely with respect to Term Loan Priority Collateral, approved by Administrative Borrower (other than during the continuance of an Event of Default), such approval not to be unreasonably withheld, conditioned or delayed; (c) customary charges, fees or expenses charged by any Issuing Bank in connection with any Letter of Credit; (d) reasonable costs and expenses incurred by Issuing Bank and Swing Line Lender in connection with the arrangements relating to a Defaulting Lender as provided in Section 6.13; (e) actual costs and expenses of preserving and protecting the Collateral; (f) actual costs and expenses paid or incurred in connection with obtaining payment of the Obligations, enforcing the security interests and liens of Agent in the Collateral, selling or otherwise realizing upon the Collateral, and otherwise enforcing the provisions of this Agreement and the other Financing Agreements; (g) all out-of-pocket expenses and costs heretofore and from time to time hereafter incurred by Agent during the course of periodic field examinations of the Collateral and such Borrower’s or Guarantor’s operations, plus a per diem charge at Agent’s then standard rate for Agent’s examiners in the field and office (which rate as of the date hereof is $1,000 per person per day), subject to the limitations set forth in Section 7.7 hereof; and (h) the reasonable fees and disbursements of counsel (including legal assistants) to Agent in connection with any of the foregoing and in addition, at any time an Event of Default exists or has occurred and is continuing, the reasonable fees and disbursements of one counsel (including legal assistants) to Lenders in connection with matters described in clauses (e) or (f) above. Notwithstanding the foregoing, except for taxes described in section 9.12(a), none of Borrowers and Guarantor shall have any obligation under this section 9.12 to Agent, Issuing Bank or any Lender with respect to any Taxes.
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SECTION 10. NEGATIVE COVENANTS
10.1 Limitation on Fundamental Changes.
Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly,
(a) enter into any merger, consolidation
or amalgamation with any other Person or permit any other Person to merge into or with or consolidate with it, except that
(i) any Subsidiary of Parent may be merged, consolidated or amalgamated with or into Parent (provided that Parent
shall be the continuing or surviving entity) or with or into any one or more wholly owned Subsidiaries of Parent (provided
that the wholly owned Subsidiary or Subsidiaries of Parent shall be the continuing or surviving entity); provided
that if a party to such merger, consolidation or amalgamation is a Borrower or Guarantor, the continuing or surviving entity
shall be a Borrower or Guarantor, (ii) any Subsidiary of Parent may be merged, consolidated or amalgamated pursuant to a Permitted
Acquisition or Permitted Disposition, and
(iii) Parent may be merged, consolidated or amalgamated with or into a Parent Entity; provided, that, (A) if the
Parent Entity shall be the continuing or surviving entity, such Parent Entity shall expressly assume all of the obligations of
Parent under this Agreement and the other Financing Agreement to which Parent is a party executed and delivering to Agent a joinder
and such other agreements, documents and instruments as Agent may reasonably request, in a form reasonably satisfactory to Agent
(and thereafter shall be deemed to be “NCI Building Systems” and “Parent” for all purposes under this Agreement
and such other Financing Agreements) and (B) after giving effect thereto, no Change of Control shall occur;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any of its Equity Interests or any of its property or assets to any other Person, except for Permitted Dispositions; provided, that, to the extent that any Disposition of any property or assets constituting Collateral is made as permitted by Section 10.1(a)(ii) or this Section 10.1(b), (including through any Disposition of any Subsidiary owning any such property or assets), other than to a Borrower or Guarantor, or to the extent that Agent and Required Lenders may consent to any other sale or other Disposition of any property or assets, concurrently with, and subject to the satisfaction of the conditions to such sale or other Disposition (including the receipt of the Net Cash Proceeds related thereto), effective upon the transfer of the title and ownership of such property or assets (including through any Disposition of any Subsidiary), (i) the Lien of Agent on the property or assets for which title and ownership is transferred shall be released and (ii) upon the written request of Administrative Borrower, Agent shall, at Borrowers’ expense, and Lenders hereby authorize Agent to, cause to be filed a UCC financing statement amendment or other release documents and take such other action necessary or reasonably desirable to evidence and effect the release by Agent of such property or assets from its security interest granted hereunder and under any other Financing Agreement and, if there is a Mortgage on such Collateral, execute and deliver to Administrative Borrower a release instrument with respect thereto; or
(c) wind up, liquidate or dissolve except that any Guarantor (other than Parent) or Subsidiary of Parent may wind up, liquidate and dissolve; provided, that, in connection with any such winding up, liquidation or dissolution, (i) any Collateral of the Person so winding up, liquidating or dissolving that is a Borrower or Guarantor shall be duly and validly transferred and assigned to a Borrower or Guarantor and Agent shall maintain and have a perfected Lien upon all such assets and properties as so transferred on the terms and with the priority provided for in the Financing Agreements and (ii) in the case of a Borrower, (A) such Borrower shall not have any property or assets constituting Revolving Loan Priority Collateral and Agent shall have received a Borrowing Base Certificate that does not include any assets of such Borrower as part of the calculation of the Borrowing Base, and (B) simultaneously with the commencement of such winding up, liquidation or dissolution, its right to borrow hereunder shall automatically terminate and Agent and Lenders shall have no further obligations to make any Loans to, or provide any Letters of Credit for, such Person.
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10.2 Encumbrances. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, create, incur, assume or suffer to exist any security interest, mortgage, pledge, Lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, except the Permitted Liens.
10.3 Indebtedness. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, incur, create, assume, become or be liable in any manner with respect to, or permit to exist, any Indebtedness, or guarantee of any Indebtedness, obligations or dividends of any other Person (other than pursuant to Permitted Guarantees), except:
(a) the Obligations;
(b) Indebtedness arising after the date hereof (including pursuant to Capital Leases) either:
(i) incurred to finance or refinance the acquisition, leasing, construction or improvement of Equipment or Real Property or other fixed or capital assets, or
(ii) secured by security interests, mortgages or other Liens on Equipment or Real Property or other fixed or capital assets acquired after the date hereof, or
(iii) otherwise in respect of Capital Leases;
provided, that, (A) the aggregate principal amount of Indebtedness incurred under this clause (b) in any fiscal year of Parent shall not exceed $10,000,000 in the aggregate; provided, that, in the event that the aggregate principal amount of such Indebtedness incurred during any fiscal year commencing with the fiscal year of Parent ending on November 2, 2009 is less than $10,000,000 for such year, the amount by which $10,000,000 exceeds the amount of the Indebtedness incurred in such year may be carried forward to and incurred during the subsequent fiscal year only and in no event shall the aggregate principal amount of such Indebtedness incurred in any fiscal year after giving effect to any carry forward of amounts from the prior fiscal year or otherwise exceed $20,000,000 in the aggregate, and (B) any security interests, mortgages or other Liens on Equipment or Real Property provided for above shall not apply to any property or assets constituting Revolving Loan Priority Collateral;
(c) Indebtedness of any Borrower, Guarantor
or Existing Foreign Subsidiary to any other Borrower or Guarantor or any other
Subsidiary of Parent;
(d) Indebtedness of any Borrower or Guarantor entered into in the ordinary course of business pursuant to a Hedge Agreement; provided, that, (i) such arrangements are not for speculative purposes, and (ii) are with reputable financial institutions or vendors;
(e) Indebtedness under the Term Loan Documents;
provided, that, (iA)
the aggregate principal amount of such Indebtedness shall not exceed (x) $250.0 million plus (y) additional amounts if, after giving
effect to any incurrence of such additional amounts, the Consolidated Secured Leverage Ratio shall not exceed 3.50 to 1.00 and
(iiB) such
Indebtedness is, and at all times shall be, subject to the terms and conditions of the Intercreditor Agreement;
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(f) Indebtedness evidenced by the Convertible Notes in the aggregate principal amount outstanding not to exceed $9,000,000; provided, that, all such Indebtedness shall be repaid, redeemed, defeased, discharged or otherwise acquired or retired in full no later than January 15, 2010, with payment therefor to be made only from the Convertible Note Account;
(g) Indebtedness to an insurance company or Affiliate thereof arising pursuant to financing of insurance premiums payable on insurance policies maintained by any Borrower or Guarantor or any Subsidiary;
(h) unsecured Indebtedness of Parent or any of its Subsidiaries incurred to finance all or a portion of the purchase price for any Permitted Acquisition; provided, that, (i) such Indebtedness is incurred prior to or substantially contemporaneously with the consummation of such acquisition or within three (3) months thereafter, (ii) if such Indebtedness is owed to a Person other than the Person from whom such acquisition is made or any Affiliate thereof, such Indebtedness shall be on terms and conditions reasonably satisfactory to Agent and the aggregate principal amount of such Indebtedness, shall not exceed fifty (50%) percent of the purchase price of such acquisition (or such greater percentage as shall be reasonably satisfactory to Agent) and (iii) as of the date of incurring such Indebtedness and after giving effect thereto, no Event of Default shall exist or have occurred and be continuing;
(i) Indebtedness assumed by Parent or any
of its Subsidiaries (or of any Person acquired) pursuant
to a Permitted Acquisition; provided that (i) such Indebtedness
shall not have been incurred by any party in contemplation of the acquisition and (ii) immediately
after giving effect to such acquisition, no Event of Default shall exist or
have occurred and be continuing;
(j) Indebtedness evidenced by any senior notes or other senior debt securities or other senior indebtedness or Subordinated Debt arising after the date hereof; provided, that: (i) no principal payments in respect of such Indebtedness shall be due earlier than six (6) months after the Maturity Date, other than for mandatory prepayments based on asset dispositions and change of control, (ii) subject to the Intercreditor Agreement, the Net Cash Proceeds of such Indebtedness shall be paid to Agent for application to the Obligations to the extent required under Section 2.5(c), (iii) to the extent such Indebtedness is secured, such Indebtedness is subject to the terms of the Intercreditor Agreement or an intercreditor agreement in form and substance reasonably satisfactory to Agent, (iv) the aggregate principal amount of all such Indebtedness incurred pursuant to this Section 10.3(j) shall not exceed $100,000,000 at any time outstanding, and (v) as of the date of incurring such Indebtedness and after giving effect thereto, no Event of Default shall exist or have occurred and be continuing;
(k) Indebtedness in respect of performance bonds, bid bonds, material and supply bonds, tax bonds, appeal bonds, surety bonds, judgment bonds, replevin and similar bonds and obligations, in each case provided or entered into in the ordinary course of business;
(l) Indebtedness arising in connection with the endorsement of instruments for deposit or collection in the ordinary course of business;
(m) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, that, (i) such Indebtedness is extinguished within two (2) Business Days of incurrence and (ii) the aggregate principal amount of such Indebtedness outstanding at any time shall not exceed $3,000,000;
(n) Indebtedness incurred in respect of Bank Products (other than Hedge Agreements), or credit card and stored value card processing and administrative services, cash management obligations, netting services, overdraft protection and similar arrangements in the ordinary course of business in each case arising under standard terms of any Bank Product Provider (or, (i) with respect to credit card and stored value card processing and administrative services and (ii) in the case of any Foreign Subsidiary, any other financial institution), at which Parent or any Subsidiary maintains an overdraft, cash pooling or similar facility or agreement;
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(o) Indebtedness in respect of obligations evidenced by bonds, debentures, notes or similar instruments issued as payment-in-kind interest payments in respect of Indebtedness otherwise permitted under this Section 10.3;
(p) accretion of the principal amount of obligations evidenced by bonds, debentures, notes or similar instruments in respect of Indebtedness otherwise permitted under this Section 10.3 issued at any original issue discount;
(q) Guaranty Obligations in respect of Indebtedness of a Borrower, Guarantor or a Subsidiary to the extent that such Indebtedness is otherwise permitted pursuant to this Section 10.3;
(r) Indebtedness of any Foreign Subsidiary (other than a Borrower or Guarantor);
(s) Indebtedness of Parent or any of its Subsidiaries arising after the date hereof in connection with the issuance by any State, county or municipal industrial development authority or similar Governmental Authority of industrial development or revenue bonds or similar obligations secured by Real Property or Equipment or other fixed or capital assets leased to and operated by Parent or such Subsidiary; provided, that, Parent or any such Subsidiary may obtain title to such assets free and clear of any Lien related to such industrial development or revenue bonds or similar obligations at any time by optionally canceling such bonds or obligations, paying a nominal fee and terminating such financing transaction;
(t) Indebtedness of Parent or any of its Subsidiaries arising after the date hereof in connection with the issuance by any State, county or municipal industrial development authority or similar Governmental Authority of industrial development or revenue bonds or similar obligations secured by Real Property or Equipment or other fixed or capital assets leased to and operated by Parent or such Subsidiary that were issued in connection with the financing of, or the renewal, extension, replacement, refinancing or rollover of financing with respect to, such assets; provided, that, (i) the aggregate principal amount of such Indebtedness outstanding at any time shall not exceed $30,000,000, and (ii) as of the date any such Indebtedness is incurred and after giving effect thereto, no Event of Default shall exist or have occurred and be continuing;
(u) Indebtedness consisting of the obligations of Borrowers and Guarantors under the Existing Letters of Credit as in effect on the date hereof for their unexpired term, exclusive of any renewals or extensions thereof;
(v) the Indebtedness set forth on Schedule
10.3 hereto; and
(w) Indebtedness of any Borrower or Guarantor
arising after the date hereof issued in exchange for, or the proceeds of which are used to extend, refinance, replace or substitute
for, in whole or in part, Indebtedness permitted under Sections 10.3(b), 10.3(e), 10.3(h), 10.3(i), 10.3(j), 10.3(o), 10.3(p),
10.3(r), 10.3(t), or 10.3(v) hereof (the “Refinancing Indebtedness”); provided, that, (i) as to any such
Refinancing Indebtedness under Section 10.3(e) or 10.3(j), the Refinancing Indebtedness shall have a Weighted Average Life to Maturity
and a final maturity equal to or greater than the Weighted Average Life to Maturity and the final maturity, respectively, of the
Indebtedness being extended, refinanced, replaced, or substituted for, (ii) the Refinancing Indebtedness shall rank in right of
payment no more senior than, and be at least subordinated (if subordinated) in right of payment to, the Obligations as the Indebtedness
being extended, refinanced, replaced or substituted for, (iii) as of the date of incurring such Indebtedness and after giving effect
thereto, no Event of Default shall exist or have occurred and be continuing, (iv) the principal amount (or accreted value, if applicable)
of such Refinancing Indebtedness (less any original issue discount, if applicable) shall not exceed the principal amount (or accreted
value, if applicable) of the Indebtedness so extended, refinanced, replaced or substituted for (plus the amount of accrued interest
and premium (including applicable prepayment penalties) thereon, plus discounts, commissions and other reasonable fees and expenses
incurred in connection therewith), (v) the Refinancing Indebtedness may be secured by substantially the same or all or part of
the property or assets (including after-acquired property as applicable) as the Indebtedness so extended, refinanced replaced or
substituted for; provided, that, that, such security interests (if
any) with respect to the Refinancing Indebtedness shall have a priority no more senior than, and be at least as subordinated, if
subordinated (on terms and conditions substantially similar to (or no less favorable to the Lenders than) the subordination provisions
applicable to the Indebtedness so extended, refinanced, replaced or substituted for or as is otherwise reasonably acceptable to
Agent) as the security interests with respect to the Indebtedness so extended, refinanced, replaced or substituted for; and
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(x) unsecured Indebtedness not otherwise
permitted by the preceding clauses of this Section 10.3; provided, that, the aggregate principal amount of such Indebtedness
outstanding at any time shall not exceed $5,000,000.;
(y) unsecured Indebtedness not otherwise permitted by the preceding clauses of this Section 10.3; provided, that, after giving effect to the incurrence of such Indebtedness, the Consolidated Total Leverage Ratio shall not exceed 4.50 to 1.00; and
(z) (1) The Centria Financing and (2) any Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, replace or substitute for, in whole or in part, the Centria Financing or any Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, replace or substitute, in whole or in part any such Indebtedness (collectively, “Centria Refinancing Indebtedness”), in an aggregate principal amount not to exceed the sum of (x) $275,000,000, (y) an amount sufficient to fund original issue discount or upfront fees incurred in connection with (1) the Centria Financing or (2) Centria Refinancing Indebtedness incurred to refinance, replace or substitute Centria Financing comprising a customary bridge financing incurred to consummate the Centria Transactions and (z) the amount of accrued interest and premium (including applicable prepayment penalties) on the Indebtedness extended, refinanced, replaced or substituted for, plus discounts, commissions and other fees and expenses in connection therewith, provided, that, (i) as to any Centria Refinancing Indebtedness (other than Centria Refinancing Indebtedness extending, refinancing, replacing or otherwise substituting for Centria Financing which is in the form of a customary bridge financing), as of the date of incurrence, no Event of Default shall exist or have occurred and be continuing and (ii) as to any Centria Refinancing Indebtedness, the Centria Refinancing Indebtedness shall have a Weighted Average Life to Maturity and a final maturity equal to or greater than the Weighted Average Life to Maturity and the final Maturity respectively, of the Indebtedness being extended, refinanced, replaced or substituted for.
For purposes of determining compliance with this Section 10.3,
in the event that any Indebtedness meets the criteria of more than one of the types of Indebtedness described in clauses (a) through
(xz) above,
Administrative Borrower shall classify such item of Indebtedness and may include the amount and type of such Indebtedness in one
or more of such clauses (including in part under one such clause and in part under another such clause).
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10.4 Investments. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary immediately prior to such merger) any Equity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, or make or permit to exist any capital contribution or other investment in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or all or a substantial part of the assets or property of any other Person (whether through purchase of assets, merger or otherwise), or acquire any Subsidiaries (each of the foregoing an “Investment”), or agree to do any of the foregoing, except subject to and conditioned upon the prior written consent of Agent and Lenders to the extent required hereunder, except (a) Permitted Investments and (b) Permitted Acquisitions. For purposes of determining compliance with this Section 10.4, in the event that any Investment meets the criteria of more than one of the types of Investments described in the definitions of the terms Permitted Investments and Permitted Acquisitions, Administrative Borrower shall classify such item of Investment and may include the amount and type of such Investment in one or more of such clauses (including in part under one such clause and in part under another such clause).
Notwithstanding the foregoing, nothing in this Section 10.4 shall prohibit the 2012 Transactions or the Centria Transactions. Notwithstanding anything to the contrary contained herein, upon the request of Administrative Borrower (which, for the avoidance of doubt, may be prior to the consummation of the Metl-Span Acquisition or the Centria Acquisition, as applicable), Agent shall use best efforts to initiate, as soon as commercially practicable, a field examination with respect to the business and assets to be acquired pursuant to the Metl-Span Acquisition or the Centria Acquisition, as applicable, in accordance with Agent’s customary procedures and practices and as otherwise required by the nature and circumstances of the business to be acquired pursuant to the Metl-Span Acquisition or the Centria Acquisition, as applicable.
10.5 Restricted Payments. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, declare or make, or agree to pay or make (except subject to and conditioned on the prior written consent of Agent and Lenders to the extent required hereunder), directly or indirectly, any Restricted Payment, except:
(a) any Subsidiary of Parent may make Restricted Payments with regard to its Equity Interests to Parent or to a wholly-owned Subsidiary of Parent which owns Equity Interests therein;
(b) any non-wholly-owned Subsidiary of Parent may make Restricted Payments to holders of its Equity Interests so long as Parent or its respective Subsidiary which owns the Equity Interests in the Subsidiary making such Restricted Payments receives at least its proportionate share thereof (based upon its relative holding of the Equity Interests in the Subsidiary making such Restricted Payments and taking into account the relative preferences, if any, of the various classes of Equity Interests of such Subsidiary);
(c) Parent may pay cash dividends or distributions to any Parent Entity that are used to reimburse or pay all reasonable fees and expenses incurred in connection with the Transactions and the other transactions expressly contemplated by this Agreement and the other Financing Agreements;
(d) Parent and any of its Subsidiaries may pay cash dividends or distributions that are used to reimburse or pay reasonable and necessary expenses (including professional fees and expenses) (other than taxes) incurred by any Parent Entity (i) in connection with (A) registration, public offerings and exchange listing of equity or debt securities and maintenance of the same, (B) compliance with reporting obligations under, or in connection with compliance with, any Requirement of Law, any rules of any self-regulatory body or stock exchange, this Agreement or any of the other Financing Agreements, or any other agreement or instrument relating to Indebtedness of any Borrower, Guarantor or Subsidiary, (C) indemnification and reimbursement of directors, officers and employees in respect of liabilities relating to their serving in any such capacity, or obligations in respect of director and officer insurance (including premiums therefor) or (ii) and otherwise incurred in the ordinary course of business; provided, that, in the case of clause (i)(A) above, if any Parent Entity shall own any material assets other than the Equity Interests of Parent or another Parent Entity or other assets relating to the ownership interest of such Parent Entity in another Parent Entity, Parent or its Subsidiaries, with respect to such Parent Entity such cash dividends and distributions shall be limited to the reasonable and proportional share, as determined by Parent in its reasonable discretion, of such expenses incurred by such Parent Entity relating or allocable to its ownership interest in another Parent Entity, Parent and its Subsidiaries, and such other assets;
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(e) Parent and any of its Subsidiaries may pay, without duplication, cash dividends distributions and other payments (i) pursuant to the Tax Sharing Agreement and (ii) to any Parent Entity to pay any Related Taxes;
(f) Parent may make payments to repurchase or redeem Equity Interests and options to purchase Equity Interests of Parent or any Parent Entity held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates) of any Borrower, Guarantor or Subsidiary, upon their death, disability, retirement, severance or termination of employment or service; provided, that, the aggregate cash consideration paid for all such payments, repurchases or redemptions shall not exceed (i) $3,000,000 in any fiscal year of Parent or (ii) $5,000,000 during the term of this Agreement;
(g) each Borrower and Guarantor, and each Subsidiary, may declare and make dividends or make other Restricted Payments payable solely in the Equity Interests of such Person (other than Disqualified Equity Interests)
(h) Parent may repurchase or withhold or may pay cash or other dividends in an amount sufficient to allow any Parent Entity to repurchase or withhold Equity Interests of Parent in connection with the exercise of stock options or warrants or the vesting of restricted stock (including restricted stock units) if such Equity Interests represent a portion of the exercise price of, or withholding obligation with respect to, such options, warrants or restricted stock;
(i) Parent may make Restricted Payments substantially contemporaneously with, or within ninety (90) days after the receipt of, Net Cash Proceeds from any issuance or sale of its Equity Interests (other than Disqualified Equity Interests) or from an equity capital contribution made after the Closing Date (and not including the equity contribution contemplated under Section 4.1 hereof), in an amount equal to all or any portion of such Net Cash Proceeds;
(j) Parent may pay or make dividends or distributions to any Parent Entity that are used to reimburse or pay any of the following: (i) accounting, legal, administrative and other general corporate and overhead expenses, franchise or similar taxes and other fees and expenses required to maintain the existence of such Parent Entity and to pay other operating costs and expenses, including salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers and employees of any such Parent Entity, in each case as to any of the foregoing only to the extent related to, and required for, the existence of such Parent Entity, or as are reasonably and in good faith determined by Parent to be allocable to the operation of Parent and its Subsidiaries or to such Parent Entity’s ownership interest therein (directly or through another Parent Entity), and (ii) reasonable directors fees and out-of-pocket expenses of directors of any Parent Entity, in each case in an amount not more than the portion of such fees and expenses as are reasonably and in good faith determined by Parent to be allocable to the operation of Parent and its Subsidiaries or to such Parent Entity’s ownership interest therein (directly or through another Parent Entity);
(k) Parent and any of its Subsidiaries
may pay cash dividends and make other Restricted Payments (other thanin
addition to the cash dividends permitted pursuant to Section 10.5(m) below); provided, that,:
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(i) either:
(A) as of the date of the payment of any
such dividend or other Restricted Payment and after giving effect thereto, Excess Availability shall be not less than the greater
of (1) $30,000,000 or (2) twenty-four (24%) percent of the leastlesser
of the Maximum Credit, or
the Borrowing Base or the Revolving Loan Limit, on a pro forma basis using the
Excess Availability as of the date of the most recent calculation of the Borrowing Base immediately prior to any such dividend
or other Restricted Payment; or
(B) on a pro forma basis, after giving effect to such dividend or other Restricted Payment, the Consolidated Fixed Charge Coverage Ratio for Parent and its Subsidiaries for the immediately preceding twelve (12) consecutive month period ending on the last day of the fiscal month prior to the date of the payment thereof for which Agent has received financial statements shall be equal to or greater than 1.00 to 1.00; provided, that, for purposes of determining the Consolidated Fixed Charge Coverage Ratio under this Section 10.5(k) only, Fixed Charges shall include all prepayments of Indebtedness of Parent and its Subsidiaries under clauses (a), (b), or (c) of the definition of the term “Indebtedness” made in such period; and
(ii) the aggregate amount of such dividends or Restricted Payments paid pursuant to this clause (k) shall not exceed the amount equal to fifty (50%) percent of the Adjusted Consolidated Net Income accrued during the period (treated as one accounting period) beginning on August 3, 2009 to the end of the most recent fiscal quarter for which consolidated financial statements of Parent are available;
(iii) no such dividends or other Restricted Payments are made prior to the first anniversary of the date hereof, and
(iv) as of the date of such dividend or other Restricted Payment and after giving effect thereto, no Event of Default shall exist or have occurred and be continuing; and
(v) Agent shall have received a certificate of a Responsible Officer of Parent certifying on behalf of Parent to Agent and Lenders that such dividend or other Restricted Payment complies with the terms of this clause; and
(l) Parent and any of its Subsidiaries
may pay cash dividends or other Restricted Payments (other thanin
addition to the cash dividends permitted pursuant to Section 10.5(m) below); provided, that,
(i) no such dividend or other Restricted Payments are made prior to the first anniversary of the date hereof, and
(ii) as of the date of any such dividend or other Restricted Payment and after giving effect thereto, each of the Payment Conditions is satisfied; and
(iii) Agent shall have received a certificate of a Responsible Officer of Parent certifying on behalf of Parent to Agent and Lenders that such dividend or other Restricted Payment complies with the terms of this clause.
(m) Parent and any of its Subsidiaries may pay cash dividends or other Restricted Payments once each calendar quarter in an aggregate amount not to exceed $6,500,000; provided, that
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(i) either:
(A) as of the date of the payment of any
such dividend or other Restricted Payment and after giving effect thereto, Excess Availability shall be not less than the greater
of (1) $30,000,000 or (2) twenty-four (24%) percent of the leastlesser
of the Maximum Credit, or
the Borrowing Base or the Revolving Loan Limit, on a pro forma basis using the
Excess Availability as of the date of the most recent calculation of the Borrowing Base immediately prior to any such dividend
or other Restricted Payment; or
(B) on a pro forma basis, after giving
effect to any such dividend or other Restricted Payment (1) Excess Availability shall be not less than the greater of (x) $25,000,000
or (y) twenty (20%) percent of the leastlesser
of the Maximum Credit, or
the Borrowing Base or the Revolving Loan Limit, using the Excess Availability
as of the date of the most recent calculation of the Borrowing Base immediately prior to any such dividend or other Restricted
Payment and (2) the Consolidated Fixed Charge Coverage Ratio for Parent and its Subsidiaries for the immediately preceding twelve
(12) consecutive month period ending on the last day of the fiscal month prior to the date of the payment thereof for which Agent
has received financial statements shall be equal to or greater than 1.00 to 1.00; provided, that, for purposes of
determining the Consolidated Fixed Charge Coverage Ratio under this Section 10.5(m) only, Fixed Charges shall include all prepayments
of Indebtedness of Parent and its Subsidiaries under clauses (a), (b), or (c) of the definition of the term “Indebtedness”
made in such period; and
(ii) as of the date of any such dividend or other Restricted Payment and after giving effect thereto, no Event of Default shall exist or have occurred and be continuing; and
(iii) Agent shall have received a certificate of a Responsible Officer of Parent certifying on behalf of Parent to Agent and Lenders that such dividend complies with the terms of this clause.
10.6 Transactions with Affiliates. Each Borrower and Guarantor shall not, directly or indirectly, purchase, acquire or lease any property from, or sell, transfer or lease any property to, any Affiliate of such Borrower or Guarantor or pay any management, consulting, advisory, brokerage or similar fees to any Affiliate of such Borrower or Guarantor, except upon terms no less favorable to such Borrower or Guarantor than such Borrower or Guarantor would obtain in a comparable arm’s length transaction with a Person that is not an Affiliate; provided, that, nothing contained in this Section 10.6 shall be deemed to prohibit:
(a) Restricted Payments permitted under Section 10.5 hereof or entering into and performing the Tax Sharing Agreement;
(b) loans and other Investments permitted under clauses (f), (h), (i), (j), (l) or (o) of the definition of Permitted Investments;
(c) reasonable director, officer and employee compensation (including bonuses and stock option programs), benefits and indemnification and contribution arrangements, in each case approved by the Board of Directors (or a committee thereof) of such Borrower, Parent or Guarantor;
(d) Parent or any of its Subsidiaries from entering into or performing an agreement with Sponsor, any CD&R Investor or any Affiliate of Sponsor or any CD&R Investor for the rendering of management consulting, monitoring, financial advisory or other services for compensation not to exceed in the aggregate $2,000,000 per year plus reasonable out-of-pocket expenses; provided, that, no payments of such compensation shall be made (other than for reasonable out-of-pocket expenses) if as of the date of any such payment, and after giving effect thereto, an Event of Default shall exist or have occurred and be continuing;
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(e) Parent or any of its Subsidiaries from entering into, making payments pursuant to and otherwise performing an indemnification and contribution agreement in favor of any Permitted Holder and each person who is or becomes a director, officer, agent or employee of Parent or any of its Subsidiaries that has been approved by the Board of Directors (or a committee thereof) of Parent, or of such Borrower or Guarantor, in respect of liabilities (i) arising under the Securities Act, the Exchange Act and any other applicable securities laws or otherwise, in connection with any offering of securities by any Parent Entity (provided that, if such Parent Entity shall own any material assets other than the Capital Stock of Parent or another Parent Entity, or other assets relating to the ownership interest of such Parent Entity in Parent or another Parent Entity, such liabilities shall be limited to the reasonable and proportional share, as determined by Parent in its reasonable discretion, of such liabilities relating or allocable to the ownership interest of such Parent Entity in Parent or another Parent Entity and such other related assets) or Parent or any of its Subsidiaries, (ii) incurred to third parties for any action or failure to act of Parent or any of its Subsidiaries, predecessors or successors, (iii) arising out of the performance by Sponsor, any CD&R Investor or any Affiliate of Sponsor or any CD&R Investor of management consulting, monitoring, financial advisory or other services provided to Parent or any of its Subsidiaries, (iv) arising out of the fact that any indemnitee was or is a director, officer, agent or employee of Parent or any of its Subsidiaries, or is or was serving at the request of any such corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or enterprise or (v) to the fullest extent permitted by Delaware or other applicable state law, arising out of any breach or alleged breach by such indemnitee of his or her fiduciary duty as a director or officer of Parent or any of its Subsidiaries;
(f) Parent or any of its Subsidiaries from entering into or performing the Investment Documents, or any agreements or commitments with or to any Affiliate existing on the Closing Date and described on Schedule 10.6;
(g) any transaction permitted under Section 10.1;
(h) transactions between any Borrower or Guarantor and any other Borrower or Guarantor that are not prohibited by the terms of this Agreement;
(i) the payment of expenses incurred in connection with the Transactions and the other transactions expressly contemplated by this Agreement and the other Financing Agreements on or about the Closing Date;
(j) sales or issuances of Equity Interests of a Borrower or Guarantor to an Affiliate thereof not otherwise prohibited by this Agreement and the granting of registration and other customary rights in connection therewith;
(k) payments to Sponsor or any of its Affiliates of fees of up to $8,250,000 in the aggregate, plus out-of-pocket expenses, in connection with the Transactions;
(l) transactions with Existing
Foreign Subsidiaries in the ordinary course of the business of Borrowers and Guarantors; and
(m) the Transactions and all transactions relating thereto contemplated by this Agreement.
For purposes of this Section 10.6, (A) any transaction with any Affiliate shall be deemed to have satisfied the standard set forth in the first sentence hereof if (i) such transaction is approved by a majority of the Disinterested Directors of the board of directors of the applicable Borrower or Guarantor, or (ii) in the event that at the time of any such transaction, there are no Disinterested Directors serving on the board of directors of such Borrower or Guarantor, such transaction shall be approved by a nationally recognized expert with expertise in appraising the terms and conditions of the type of transaction for which approval is required, and (B) “Disinterested Director” shall mean, with respect to any Person and transaction, a member of the board of directors of such Person who does not have any material direct or indirect financial interest in or with respect to such transaction or, to the extent any such transaction involves Sponsor, a member of the board of directors of such Person who is not an officer, director or employee of Sponsor.
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10.7 Change in Business. Each Borrower and Guarantor shall not engage in any business other than the business of any Borrower or Guarantor on the date hereof and any business reasonably related, ancillary or complementary to the business in which any Borrower or Guarantor is engaged on the date hereof, and any other business that in the aggregate is not material to Parent and its Subsidiaries taken as a whole.
10.8 Limitation of Restrictions Affecting Subsidiaries. Each Borrower and Guarantor shall not, directly, or indirectly, create or otherwise cause or suffer to exist any encumbrance or restriction which prohibits or limits the ability of any Subsidiary of such Borrower or Guarantor to (a) pay dividends or make other distributions or pay any Indebtedness owed to such Borrower or Guarantor or any Subsidiary of such Borrower or Guarantor (other than dividends or distributions paid or made by Parent); (b) make loans or advances to such Borrower or Guarantor or any Subsidiary of such Borrower or Guarantor, (c) transfer any of its properties or assets to such Borrower or Guarantor or any Subsidiary of such Borrower or Guarantor; or (d) in the case of any Borrower or Guarantor, create, incur, assume or suffer to exist any Lien in favor of any of Secured Parties upon any of its property, assets or revenues constituting Working Capital Priority Collateral (as defined in the Intercreditor Agreement) or affecting the rights or remedies of Agent with respect thereto, whether now owned or hereafter acquired (provided, that, to the extent otherwise expressly permitted hereunder, dividend or liquidation priority between classes of Equity Interests, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such a Lien, encumbrance or restriction); except, for, encumbrances and restrictions arising under, pursuant to or by reason of:
(i) applicable law, rule, regulation
or order, or required by any regulatory authority,;
(ii) this Agreement, the other Financing
Agreements, the Term Loan Documents, the documents relating to Indebtedness permitted by Section 10.3(j) or Sections 10.3(s)
or, 10.3(t)
or 10.3(z) hereof (and, in the case of Indebtedness permitted under Sections 10.3(s) or 10.3(t), any encumbrance or
restriction shall only be effective against the assets financed or acquired thereby) and the documents relating to any Refinancing
Indebtedness in respect of any of the foregoing,;
(iii) customary provisions restricting
subletting, assignment or transfer of any lease governing a leasehold interest of such Borrower or Guarantor or any Subsidiary
of such Borrower or Guarantor,;
(iv) customary restrictions on dispositions
of real property interests found in reciprocal easement agreements of such Borrower or Guarantor or any Subsidiary of such Borrower
or Guarantor,;
(v) any agreement relating to permitted
Indebtedness incurred by a Subsidiary of such Borrower or Guarantor prior to the date on which such Subsidiary was acquired by
such Borrower or such Guarantor and outstanding on such acquisition date or any agreement or instrument of a Person, or relating
to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into Parent or any
of its Subsidiaries, or which agreement or instrument is assumed by Parent or any of its Subsidiaries in connection with an acquisition
of assets from such Person, as in effect at the time of such acquisition, merger or consolidation,;
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(vi) with respect to a Subsidiary
(or any of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or disposition
of all or substantially all the Capital Stock or assets of such Subsidiary (or the property or assets that are subject to such
restriction), during an interim period prior to the closing of such sale or disposition of such Capital Stock, property or assets,;
(vii) customary restrictions on
the assignment or transfer of any licenses or other contracts, or of any property or assets subject thereto,;
(viii) customary restrictions in
agreements relating to purchase money financing arrangements (or other arrangements relating to Indebtedness incurred to finance
or refinance the acquisition, leasing, construction or improvement of property (real or personal) or assets) or contained in pledges,
mortgages or other security agreements with respect to such property or assets,;
(ix) the extension, replacement
or continuation of contractual obligations in existence on the date hereof; provided, that, any such encumbrances
or restrictions taken as a whole contained in such extension, replacement or continuation are no less favorable to Agent and Lenders
in any material respect than those encumbrances and restrictions under or pursuant to the contractual obligations so extended,
replaced or continued,;
(x) agreements entered into in the
ordinary course of business with customers or suppliersuppliers
as to cash or other deposits or net worth required by such customers or suppliers,;
(xi) customary provisions in joint
venture or other agreements or instruments entered into in the ordinary course of business of the applicable Person,;
(xii) any other agreement or instrument
in effect at or entered into on the Closing Date,;
(xiii) Hedging Agreements,;
(xiv) pursuant to an agreement or
instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise
extends, renews, refunds, refinances or replaces, an agreement or instrument referred to in clause (v) or (xii) of this Section
10.8 or this clause (xiv) (an “Initial Agreement”) or contained in any amendment, supplement or other modification
to an Initial Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained
in any such Refinancing Agreement or Amendment taken as a whole are no less favorable to Agent and the Lenders in any material
respect than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement
or Amendment relates, or;
or
(xv) an agreement or instrument relating to (A) any Indebtedness incurred after the date hereof if such encumbrances and restrictions taken as a whole are no less favorable to Agent and the Lenders in any material respect either than the encumbrances and restrictions contained in the Initial Agreements or the Term Loan Documents, or than is customary in comparable financings, or (B) any sale of receivables by a Foreign Subsidiary,
and except for encumbrances and restrictions
that arise or are agreed to in the ordinary course of business and do not detract from the value of property or assets of Parent
or any of its Subsidiaries in any manner material to Parent or such Subsidiary..
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10.9 Certain Payments of Indebtedness, Etc. Borrowers and Guarantors shall not, and shall not permit any Subsidiary to, make or agree to make any optional or voluntary payment, prepayment, redemption, retirement, defeasance, purchase or sinking fund payment or other acquisition for value of any of the principal of its Indebtedness prior to the stated maturity thereof other than the Indebtedness under the Financing Agreements (including, without limitation, by way of depositing money or securities with the trustee therefor before the date required for the purpose of paying any portion of such Indebtedness when due), or otherwise set aside or deposit or invest any sums for such purpose (each, an “Optional Payment”); except, that:
(a) any of Borrowers and Guarantors, and any such Subsidiary, may make Optional Payments in respect of its Indebtedness permitted under Sections 10.3(a), 10.3(b), 10.3(c), 10.3(d), 10.3(g),10.3(m), 10.3(n), 10.3(r), 10.3(s), 10.3(t) and 10.3(w) (or 10.3(o) or 10.3(p) to the extent related to any of the foregoing);
(b) any of Borrowers and Guarantors, and any such Subsidiary, may make Optional Payments of its Indebtedness with (i) the proceeds of Refinancing Indebtedness to the extent permitted in Section 10.3(w) or (ii) in exchange for any Equity Interests of Parent or any Parent Entity and/or with Net Cash Proceeds of the issuance or sale of any such Equity Interests;
(c) Parent may establish and maintain the Convertible Note Account and make Optional Payments in respect of the Indebtedness evidenced by the Convertible Notes with the proceeds of funds then held in the Convertible Note Account;
(d) Parent may make Optional Payments in
respect of the Term Loan Debt, the Centria Financing or Centria Refinancing
Indebtedness; provided, that, as to any such Optional Payment, each of the following conditions is satisfied:
(i) no such Optional Payment shall be made prior to January 1, 2012, (ii) in no event shall the aggregate amount of such Optional
Payments in any fiscal year of Parent exceed $15,000,00030,000,000,
(iii) as of the date of any such Optional Payment and after giving effect thereto, using the most recent calculation of the Borrowing
Base prior to the date of any such Optional Payment, on a pro forma basis, Excess Availability shall be not less than the greater
of (A) $30,000,000 or (B) twenty-four (24%) percent of the leastlesser
of (1) the Maximum Credit or (2) the Borrowing Base or (C) the Revolving Loan Limit, and
(iv) as of the date of any such Optional Payment, and after giving effect thereto, no Event of Default shall exist or have occurred
and be continuing;
(e) any of Borrowers and Guarantors, and any such Subsidiary, may make Optional Payments in respect of any of its Indebtedness; provided, that, (i) the aggregate amount of all such Optional Payments in any fiscal year of Parent shall not exceed $5,000,000 and (ii) as of the date of any such Optional Payment, no Event of Default shall exist or have occurred and be continuing;
(f) any of Borrowers and Guarantors, and any such Subsidiary, may make Optional Payments in respect of any of its Indebtedness not otherwise permitted under this Section 10.9; provided, that, as of the date of any such Optional Payment and after giving thereto, the Payment Conditions are satisfied and Agent shall have received a certificate of a Responsible Officer of Parent certifying on behalf of Parent to Agent and Lenders that such payment complies with the terms of this clause.
(g) any of Borrowers and Guarantors, and any such Subsidiary, may make any Optional Payment of Term Loan Debt with proceeds of the Centria Financing;
(h) any of Borrowers and Guarantors, and any such Subsidiary, may make any Optional Payment of the Centria Financing with proceeds of Centria Refinancing Indebtedness or otherwise; and
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(i) any of Borrowers and Guarantors, and any such Subsidiary, may make prepayments, redemptions, retirements, defeasances or purchases of any of the principal of Indebtedness within sixty (60) days after the date of giving of notice thereof, if (x) the failure of such prepayment, redemption, retirement, defeasance or purchase to comply with the terms of this Agreement would not permit such notice to be revoked and (y) at the date of giving such notice, such prepayments, redemptions, retirements, defeasances or purchases would have complied with the provisions of this Section 10.9.
Notwithstanding the foregoing, nothing in this Section 10.9 shall prohibit the 2012 Transactions or the Centria Transactions.
10.10 Modifications of Indebtedness, Organizational Documents and Certain Other Agreements. Borrowers and Guarantors shall not, and shall not permit any Subsidiary to:
(a) amend, supplement, modify or otherwise change its certificate of incorporation, articles of association, certificate of formation, limited liability company agreement, limited partnership agreement or other similar organizational documents, as applicable (and, for the avoidance of doubt, excluding by-laws, committee charters and other similar governing documents), except for amendments, supplements, modifications or other changes (i) pursuant to transactions permitted under Section 10.1 hereof, (ii) as contemplated in Section 6.2 of the Stockholders Agreement as in effect on the date hereof, or (iii) that do not adversely affect the ability of a Borrower, Guarantor or such Subsidiary to borrow hereunder or otherwise adversely affect the interests of Agent or Lenders in any material respect;
(b) amend, supplement, modify or otherwise change, pursuant to a waiver or otherwise (or permit the amendment, modification or other change in any manner of) any of the provisions of any of Term Loan Documents, the Convertible Notes, any Subordinated Debt or any agreements related to the Indebtedness permitted under Section 10.3 (j) hereof, in a manner that shortens the fixed maturity or increases the principal amount thereof, except in the case of the Term Loan Documents as permitted by the Intercreditor Agreement; or
(c) amend, supplement, modify or otherwise change, pursuant to a waiver or otherwise, the terms and conditions of the Tax Sharing Agreement in any manner that would increase the amounts payable by Parent or any of its Subsidiaries thereunder, (other than amendments reasonably reflecting changes in law or regulations after the date hereof), or otherwise amend, supplement, modify or otherwise change the terms and conditions of the Tax Sharing Agreement (except to the extent that any such amendment, supplement or modification could not reasonably be expected to have a Material Adverse Effect).
Notwithstanding the foregoing, nothing in this Section 10.10 shall prohibit the 2012 Transactions or the Centria Transactions.
10.11 Sale and Leaseback Transactions. Borrowers and Guarantors shall not, and shall not permit any Subsidiary to, enter into any Sale and Leaseback Transaction, provided that a Sale and Leaseback Transaction shall be permitted so long as (a) the assets sold or otherwise subject to any Disposition in connection with such Sale and Leaseback Transaction shall not include any of the Revolving Loan Priority Collateral; (b) subject to the Intercreditor Agreement, the Net Cash Proceeds from such sale are applied to the Obligations to the extent required under Section 2.5(b); (c) in the event that the lease back of such property is pursuant to a Capital Lease, the Indebtedness arising pursuant to such Capital Lease is permitted under Section 10.3; (d) in the event that the lease back of such property is pursuant to an operating lease, such lease shall be on market terms as reasonably determined by Parent; and (e) Borrowers and Guarantors shall have used commercially reasonable efforts to obtain from the purchaser or transferee a Collateral Access Agreement with respect to the property subject to such Sale and Leaseback Transaction duly executed and delivered by the purchaser or transferee to the extent contemplated by Sections 5.2(h) or 9.8 (it being understood that Borrowers and Guarantors shall not be required to incur any expense, provide any security or agree to any adverse term or condition exclusively and directly required in order to obtain such Collateral Access Agreement).
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10.12 Designation of Designated Senior Debt. Borrowers and Guarantors shall not designate any Indebtedness, other than the Obligations, as “Designated Senior Debt”, or any similar term under and as defined in the agreements relating to the Convertible Notes or any Subordinated Debt of any Borrower or Guarantor which contains such designation. Borrowers and Guarantors shall designate the Obligations as “Designated Senior Debt” or any similar term under and as defined in the agreements relating to any Subordinated Debt of any Borrower or Guarantor which contains such designation.
10.13 Term
Loan Agreement. Borrowers and Guarantors shall not amend Section 7.2(d) of the Initial Term Loan Agreement to reduce
any amount specified thereunder without the written consent of Agent.
SECTION 11. FINANCIAL COVENANTS
11.1 Consolidated Fixed Charge Coverage
Ratio. At any time that Excess Availability is less than the greater of (a) $15,000,000 or (b) fifteen (15%) percent of the
leastlesser
of the Maximum Credit, or
the Borrowing Base or the Revolving Loan Limit (such amount, the “applicable
amount”), and at all times thereafter (except as otherwise provided below), the Consolidated Fixed Charge Coverage Ratio
of Parent and its Subsidiaries (on a consolidated basis) determined as of the end of each fiscal month most recently ended for
which Agent has received financial statements shall be not less than 1.0 to 1.0 for the period of the immediately preceding twelve
(12) consecutive fiscal months prior to such fiscal month end; provided, that, if, at any time after Excess Availability
shall be less than the applicable amount, then Excess Availability shall be greater than such amount for ninety (90) consecutive
days (or ten (10) consecutive days if Borrowers have received a cash capital contribution from CD&R or the CD&R Investors
in an amount equal to the greater of (i) such amount so that Excess Availability is greater than the applicable amount after the
application of the proceeds of such contribution to Qualified Cash or to prepay the Revolving Loans and (ii) $2,500,000), Parent
and its Subsidiaries shall not thereafter be required to comply with the Consolidated Fixed Charge Coverage Ratio as set forth
above until such time as Excess Availability shall again be less than the applicable amount; provided, that, in the
event that Agent receives reasonably satisfactory evidence that, within five (5) Business Days after the date that Excess Availability
is less than the applicable amount, CD&R has requested payments from the CD&R Investors in accordance with the terms of
the agreements of CD&R with such CD&R Investors in an amount sufficient to increase the Excess Availability in excess of
the then applicable amount, Parent and its Subsidiaries shall not thereafter be required to comply with the Consolidated Fixed
Charge Coverage Ratio as set forth above for an additional period of fifteen (15) Business Days (as increased by the number of
days, if any, necessary to permit the passage of ten (10) consecutive days from the date of the receipt by Borrowers of such cash
capital contribution (such aggregate twenty (20) Business Day period, the “Non-Test Period”)) and during the Non-Test
Period, Borrowers will not request, and Agent and Lenders will not be required to make any Loans, except in the discretion of Agent
and Required Lenders. Any subsequent increase in Excess Availability after it has been less than the applicable amount shall not
be the basis for any cure of any Event of Default arising prior thereto as a result of the failure to comply with the covenant
in this Section 11.1.
11.2 Excess Availability. At all times from and after the date hereof, through and including the date on which Borrowers deliver or cause to be delivered to Agent the quarterly consolidated financial statements of Parent and its Subsidiaries with respect to the fiscal quarter ending on or about May 3, 2010 in accordance with the terms hereof, the aggregate Excess Availability of Borrowers shall not at any time be less than $15,000,000.
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SECTION 12. EVENTS OF DEFAULT AND REMEDIES
12.1 Events of Default. The occurrence or existence of any one or more of the following events are referred to herein individually as an “Event of Default”, and collectively as “Events of Default”:
(a) any Borrower fails to make any principal payment hereunder when due in accordance with the terms hereof (whether at stated maturity, by mandatory prepayment or otherwise) or fails to pay interest, fees or any of the other Obligations within three (3) Business Days after any such interest or other amount becomes due in accordance with the terms hereof;
(b) any Borrower or Guarantor:
(i) fails to perform or observe any of the covenants or other agreements contained in Sections 5.2(a), (d), (e), and (h)), 6.6, 7.1, 7.2, 7.3, 7.7, 7.8, 9.1, 9.2, 9.5 (as it relates to Revolving Loan Priority Collateral), 9.6(a), 10 and 11 of this Agreement or the sections specified on Schedule 12.1 hereto of the other Financing Agreements; provided, that, in the case of a default in the observance or performance of its obligations under Section 9.6(a) hereof, such default shall have continued unremedied for a period of two (2) Business Days after a Responsible Officer of Parent shall have discovered such default, or
(ii) fails to perform or observe any of the covenants or other agreements contained in Sections 6.7, 7.4, 9.3, 9.4, 9.5 (as it relates to property other than Revolving Loan Priority Collateral), 9.6(b), 9.6(d), 9.6(j), 9.6(k), 9.8, 9.9, 9.11(c), of this Agreement and such failure continues for a period of fifteen (15) days after the earlier of: (A) the date on which such failure is first known to any Responsible Officer of Parent or (B) the date on which written notice thereof is given to Administrative Borrower by Agent;
(iii) fails to perform or observe any of the covenants or other agreements contained in this Agreement or any of the other Financing Agreements other than those described in Sections 12.1(b)(i) and 12.1(b)(ii) above and such failure shall continue for thirty (30) days after the earlier of: (A) the date on which such failure is first known to any Responsible Officer of Parent or (B) the date on which written notice thereof is given to Administrative Borrower by Agent; or
(c) any representation or warranty made by any Borrower or Guarantor to Agent or any Lender in this Agreement, the other Financing Agreements or that is contained in any certificate furnished pursuant hereto that is qualified as to materiality or Material Adverse Effect shall when made or deemed made be incorrect and any other such representation or warranty made by any Borrower or Guarantor to Agent or any Lender shall when made or deemed made be incorrect in any material respect;
(d) any Guarantor revokes or terminates any guarantee of such party of the Obligations in favor of Agent or any Lender, except as a result of a transaction permitted under Section 10.1 hereof or as otherwise permitted hereunder or any of the other Financing Agreements;
(e) (i) one or more judgments, orders or decrees for the payment of money in an aggregate amount in excess of $10,000,000 (net of any insurance or indemnity payments actually received in respect thereof prior to or within sixty (60) days from the entry thereof) shall be rendered against any Borrower or Guarantor or any combination thereof and the same shall remain undischarged, unvacated or unbonded for a period of sixty (60) consecutive days or execution shall not be effectively stayed, or (ii) any judgment other than for the payment of money, or injunction, attachment, garnishment or execution is rendered against any of the Revolving Loan Priority Collateral having a value in excess of $2,000,000 or any Collateral (whether or not including Revolving Loan Priority Collateral) having a value in excess of $10,000,000 and either (A) is made or rendered against any Revolving Loan Priority Collateral having a value in excess of $2,000,000 or any Collateral (whether or not including Revolving Loan Priority Collateral) having a value in excess of $10,000,000 or (B) in the case of a deposit account, securities account or similar account in which the value of such deposits, securities or similar items is in excess of $5,000,000 the bank or financial intermediary maintaining such account shall refuse to remit deposits, securities, funds or similar items in such account in excess of such claim to any Borrower or Guarantor;
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(f) any Borrower dissolves, suspends or discontinues doing business, other than as expressly permitted under Section 9.4 or Section 10.1 hereof, except any such dissolution, suspension, or discontinuance that could not reasonably be expected to have a Material Adverse Effect;
(g) (i) any Borrower or Guarantor shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other similar relief with respect to it or its debts, or (B) seeking appointment of a receiver, interim receiver, receivers, receiver and manager, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or any Borrower or Guarantor shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against any Borrower or Guarantor any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged, unstayed or unbonded for a period of sixty (60) days; or (iii) any Borrower or Guarantor shall file any answer that indicates its consent to, acquiescence in or approval of, any such action or proceeding referred to in clause (i) above or the relief requested is granted sooner; or (iv) any Borrower or Guarantor shall be generally unable to, or shall admit in writing its general inability to, pay its debts as they become due;
(h) (i) any default in (A) any payment of principal, interest in respect of any Indebtedness (excluding the Loans and the Letter of Credit Obligations) in excess of $15,000,000 beyond the period of grace (not to exceed thirty (30) days), if any, provided in the instrument or agreement under which such Indebtedness was created or (B) the observance or performance of any other agreement or condition (including the failure to pay any amount other than principal or interest) relating to any Indebtedness (excluding the Loans and the Letter of Credit Obligations) or with respect to in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders, or beneficiary or beneficiaries of such Indebtedness (or a trustee, agent or other representative on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice or lapse of time if required, such Indebtedness to become due prior to its stated maturity or become subject to a mandatory offer to purchase (an “Acceleration”) and such notice shall have lapsed and if any notice (a “Default Notice”) shall be required to commence a grace period or declare the occurrence of an event of default before notice of Acceleration may be delivered such Default Notice shall have been given, (ii) the subordination provisions with respect to any Subordinated Debt shall cease to be in full force and effect and such Subordinated Debt shall thereby cease to be validly subordinated to the Obligations as and to the extent as provided in such subordination provisions;
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(i) (i) any material provision of any of the Financing Agreements shall cease for any reason to be valid, binding and enforceable with respect to any Borrower or Guarantor thereto (other than pursuant to the terms hereof or thereof), or any Borrower or Guarantor shall challenge in writing the enforceability hereof or thereof, or shall assert in writing to Agent or any Lender, or take any action or fail to take any action based on such assertion that any material provision hereof or of any of the other Financing Agreements has ceased to be or is otherwise not valid, binding or enforceable in accordance with its terms, or (ii) the Lien created by any of the Financing Agreements shall cease to be perfected and enforceable in accordance with its terms or of the same effect as to perfection and priority purported to be created thereby with respect to any of the Revolving Loan Priority Collateral purported to be subject thereto having a value in excess of $2,000,000 or any of the Collateral (whether or not including Revolving Loan Priority Collateral) having a value in excess of $5,000,000 (except as otherwise permitted herein or therein); provided, that, with respect any Collateral other than Revolving Loan Priority Collateral, such default shall have continued unremedied for a period of twenty (20) days;
(j) an ERISA Event shall occur which results in or could reasonably be expected to have a Material Adverse Effect; or
(k) any Borrower or Guarantor shall be prohibited or otherwise restrained for a period of more than fifteen (15) days from conducting the business theretofore conducted by it in any manner that has or could reasonably be expected to result in a Material Adverse Effect within the immediately succeeding ninety (90) day period by virtue of any determination, ruling, decision, decree or order of any court or Governmental Authority of competent jurisdiction;
(l) any Change of Control.
12.2 Remedies.
(a) At any time an Event of Default exists or has occurred and is continuing, Agent and Lenders shall have all rights and remedies provided in this Agreement, the other Financing Agreements, the UCC and other applicable law, all of which rights and remedies may be exercised without notice to or consent by any Borrower or Guarantor, except as such notice or consent is expressly provided for hereunder or required by applicable law. All rights, remedies and powers granted to Agent and Lenders hereunder, under any of the other Financing Agreements, the UCC or other applicable law, are cumulative, not exclusive and enforceable, in Agent’s discretion, alternatively, successively, or concurrently on any one or more occasions, and shall include, without limitation, the right to apply to a court of equity for an injunction to restrain a breach or threatened breach by any Borrower or Guarantor of this Agreement or any of the other Financing Agreements. Subject to Section 14 hereof, at any time an Event of Default exists or has occurred and is continuing, Agent may, and at the direction of the Required Lenders shall, at any time or times, proceed directly against any Borrower or Guarantor to collect the Obligations of such Borrower or Guarantor then due and owing without prior recourse to the Collateral.
(b) Without limiting the generality of the foregoing, at any time an Event of Default exists or has occurred and is continuing, Agent may, at its option and shall upon the direction of the Required Lenders, (i) upon notice to Administrative Borrower, accelerate the payment of all Obligations and demand immediate payment thereof to Agent for itself and the benefit of Lenders (provided, that, upon the occurrence of any Event of Default described in Section 12.1(g), all Obligations shall automatically become immediately due and payable), and (ii) terminate the Commitments whereupon the obligation of each Lender to make any Loan and Issuing Bank to issue any Letter of Credit shall immediately terminate (provided, that, upon the occurrence of any Event of Default described in Section 12.1(g), the Commitments and any such obligation of each Lender to make a Loan or Issuing Bank to issue any Letters of Credit hereunder shall automatically terminate).
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(c) Without limiting the foregoing, at any time an Event of Default exists or has occurred and is continuing, Agent may, in its discretion, and subject to and in compliance with applicable law and the terms of the Intercreditor Agreement, and subject (in the case of Term Loan Priority Collateral) to pre-existing Liens, security interests, title imperfections and other defects and impairments of any nature whatsoever (i) with or without judicial process or the aid or assistance of others, enter upon any premises on or in which any of the Collateral may be located and take possession of the Collateral or complete processing, manufacturing and repair of all or any portion of the Collateral, (ii) require any Borrower or Guarantor, at Borrowers’ expense, to assemble and make available to Agent any part or all of the Collateral at any place and time reasonably designated by Agent, (iii) collect, foreclose, receive, appropriate, setoff and realize upon any and all Collateral, (iv) remove any or all of the Collateral from any premises on or in which the same may be located for the purpose of effecting the sale, foreclosure or other disposition thereof or for any other purpose, (v) subject to pre-existing rights and licenses permitted hereunder with respect to Term Loan Priority Collateral, sell, lease, transfer, assign, deliver or otherwise dispose of any and all Collateral (including entering into contracts with respect thereto, public or private sales at any exchange, broker’s board, at any office of Agent or elsewhere) at such prices or terms as Agent may deem reasonable, for cash, upon credit or for future delivery, with the Agent having the right to purchase the whole or any part of the Collateral at any such public sale, all of the foregoing being free from any right or equity of redemption of any Borrower or Guarantor, which right or equity of redemption is hereby expressly waived and released by Borrowers and Guarantors to the fullest extent permitted by applicable law, and/or (vi) with the consent of Required Lenders (and shall at the direction of Required Lenders), terminate this Agreement. If any of the Collateral is sold or leased by Agent upon credit terms or for future delivery, the Obligations shall not be reduced as a result thereof until payment therefor is finally collected by Agent. If notice of disposition of Collateral is required by law, ten (10) days prior notice by Agent to Administrative Borrower designating the time and place of any public sale or the time after which any private sale or other intended disposition of Collateral is to be made, shall be deemed to be reasonable notice thereof, and Borrowers and Guarantors waive any other notice to the fullest extent that the consent thereto of Borrowers and Guarantors hereunder is permitted by applicable law. In the event Agent institutes an action to recover any Collateral or seeks recovery of any Collateral by way of prejudgment remedy, to the fullest extent permitted by applicable law, each Borrower and Guarantor waives the posting of any bond which might otherwise be required. At any time an Event of Default exists or has occurred and is continuing, upon Agent’s request, Borrowers will either, as Agent shall specify, furnish cash collateral to Issuing Bank to be used to secure and fund the reimbursement obligations to Issuing Bank in connection with any Letter of Credit Obligations or furnish cash collateral to Agent for the Letter of Credit Obligations. Such cash collateral shall be in the amount equal to one hundred three (103%) percent of the amount of the Letter of Credit Obligations plus the amount of any fees and expenses payable in connection therewith.
(d) At any time or times that an Event of Default exists or has occurred and is continuing, Co-Collateral Agents may, subject to the terms of the Intercreditor Agreement, in their discretion, enforce the rights of any Borrower or Guarantor against any account debtor, secondary obligor or other obligor in respect of any of the Accounts or other Receivables. Without limiting the generality of the foregoing, Co-Collateral Agents may, subject to the terms of the Intercreditor Agreement, in their discretion, at such time or times (i) notify any or all account debtors, secondary obligors or other obligors in respect thereof that the Receivables have been assigned to Agent and that Agent has a security interest therein and Agent may direct any or all account debtors, secondary obligors and other obligors to make payment of Receivables directly to Agent, (ii) extend the time of payment of, compromise, settle or adjust for cash, credit, return of merchandise or otherwise, and upon any terms or conditions, any and all Receivables or other obligations included in the Collateral and thereby discharge or release the account debtor or any secondary obligors or other obligors in respect thereof without affecting any of the Obligations, (iii) demand, collect or enforce payment of any Receivables or such other obligations, but without any duty to do so, and Agent and Lenders shall not be liable for any failure to collect or enforce the payment thereof and (iv) take whatever other action Co-Collateral Agents may deem necessary or desirable for the protection of its interests and the interests of Lenders. At any time that an Event of Default exists or has occurred and is continuing, at Co-Collateral Agents’ request, all invoices and statements sent to any account debtor shall state that the Accounts have been assigned to Agent and are payable directly and to Agent and Borrowers and Guarantors shall deliver to Agent such originals of documents evidencing the sale and delivery of goods or the performance of services giving rise to any Accounts as Agent may require. In the event any account debtor returns Inventory when an Event of Default exists or has occurred and is continuing, Borrowers shall, upon Agent’s request, hold the returned Inventory in trust for Agent, segregate all returned Inventory from all of its other property, dispose of the returned Inventory solely according to Agent’s instructions, and not issue any credits, discounts or allowances with respect thereto without Agent’s prior written consent, except as may be required by the terms of any pre-existing agreement permitted hereunder of any Borrower with a third-party or by applicable law.
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(e) For the purpose of enabling Agent and Co-Collateral Agents (and to the extent necessary) to exercise the rights and remedies under this Section 12.2 and subject to the Intercreditor Agreement, each Borrower and Guarantor hereby grants to Agent and each of Co-Collateral Agents, a non-exclusive license (exercisable at any time an Event of Default shall exist or have occurred and only for so long as the same is continuing, but irrevocable so long as such Event of Default shall exist or have occurred and be continuing) without payment of royalty or other compensation to any Borrower or Guarantor, to use (directly or indirectly through any agent), license or sublicense any of the trademarks, service-marks, trade names, business names, trade styles, designs, logos and other source of business identifiers and other Intellectual Property and Foreign Intellectual Property and general intangibles now owned or hereafter acquired by any Borrower or Guarantor, wherever the same may be located, including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer programs used for the compilation or printout thereof.
(f) At any time an Event of Default exists or has occurred and is continuing, Agent may apply the cash proceeds of Collateral actually received by Agent from any sale, lease, foreclosure or other disposition of the Collateral to payment of the Obligations then due and owing, in whole or in part and in accordance with Section 6.7 hereof, subject to the terms of the Intercreditor Agreement, or may hold such proceeds as cash collateral for the Obligations. Borrowers and Guarantors shall remain liable to Agent and Lenders for the payment of any deficiency with interest at the highest rate provided for herein and all costs and expenses of collection or enforcement, including attorneys’ fees and expenses.
SECTION 13. JURY TRIAL WAIVER; OTHER WAIVERS, CONSENTS; GOVERNING LAW
13.1 Governing Law; Choice of Forum; Service of Process; Jury Trial Waiver.
(a) This Agreement and the rights and obligations of the parties hereto under this Agreement shall be governed by the internal laws of the State of New York without giving effect to the rules and principles of conflicts of law or other rule of law to the extent the same are not mandatorily applicable by statute and would cause the application of the law of any jurisdiction other than the laws of the State of New York.
(b) Each of Borrowers, Guarantors, Agent, Lenders and Issuing Bank irrevocably (i) consents and submits to the non-exclusive jurisdiction of the Supreme Court of the State of New York for New York County and the United States District Court for the Southern District of New York, and appellate courts from either thereof, in any action instituted therein that (x) arises out of or relates to this Agreement, (y) arises out of or relates to any of the other Financing Agreements or (z) in any way is connected with or related or incidental to the dealings of the parties hereto in respect of this Agreement or any of the other Financing Agreements or the transactions related hereto or thereto, in each case under this clause (z) whether now existing or hereafter arising, and whether in contract, tort, equity or otherwise, and (ii) to the fullest extent permitted by applicable law, waives any objection based on venue or forum non conveniens with respect to such action. Each of Borrowers, Guarantors, Agent, Lenders and Issuing Bank agrees that any dispute with respect to any such matters shall be heard only in the courts described above unless such courts shall decline to exercise jurisdiction over such dispute in whole or in part (except that Agent and Lenders shall have the right to bring any action or proceeding against any Borrower or Guarantor or its or their property in the courts of any other jurisdiction which Agent deems reasonably necessary or appropriate in order to realize on the Collateral and which have jurisdiction over such Borrower or Guarantor or property).
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(c) Each Borrower and Guarantor (to the fullest extent permitted by applicable law) hereby waives personal service of any and all process upon it and consents that all such service of process may be made by certified mail (return receipt requested) directed to its address set forth herein or otherwise notified to Agent and service so made shall be deemed to be completed five (5) days after the same shall have been so deposited in the U.S. mails, or, at Agent’s option, by service upon any Borrower or Guarantor (or Administrative Borrower on behalf of such Borrower or Guarantor) in any other manner provided under the rules of any such courts.
(d) BORROWERS, GUARANTORS, AGENT, CO-COLLATERAL AGENTS, LENDERS AND ISSUING BANK EACH HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS AGREEMENT OR ANY OF THE OTHER FINANCING AGREEMENTS OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE OTHER FINANCING AGREEMENTS OR THE TRANSACTIONS RELATED HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. BORROWERS, GUARANTORS, AGENT, CO-COLLATERAL AGENTS, LENDERS AND ISSUING BANK EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY BORROWER, ANY GUARANTOR, AGENT, ANY LENDER OR ISSUING BANK MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
13.2 Waiver of Notices. Each Borrower and Guarantor hereby expressly waives (to the fullest extent permitted by applicable law) demand, presentment, protest and notice of protest and notice of dishonor with respect to any and all instruments and chattel paper, included in or evidencing any of the Obligations or the Collateral, and any and all other demands and notices of any kind or nature whatsoever with respect to the Obligations, the Collateral and this Agreement, except such as are expressly provided for herein or in the Intercreditor Agreement. No notice to or demand on any Borrower or Guarantor which Agent or any Lender may elect to give shall entitle such Borrower or Guarantor to any other or further notice or demand in the same, similar or other circumstances.
13.3 Amendments and Waivers.
(a) Neither this Agreement nor any other Financing Agreement (other than any Deposit Account Control Agreement or Investment Property Control Agreement, as to which only the consent of Agent shall be required) nor any terms hereof or thereof may be amended, waived (other than by a Borrower or Guarantor), modified or supplemented unless such amendment, waiver, modification or supplement is in writing signed by Agent and the Required Lenders or at Agent’s option, by Agent with the authorization or consent of the Required Lenders, and as to amendments to any of the Financing Agreements (other than with respect to any provision of Sections 14.1 through 14.10 and 14.13 hereof not affecting any Borrower or Guarantor), by any Borrower or Guarantor party thereto and such amendment, waiver, discharge or termination shall be effective and binding as to all Lenders and Issuing Bank only in the specific instance and for the specific purpose for which given; except, that, no such amendment, waiver, discharge or termination shall:
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(i) reduce the interest rate or any fees or extend the scheduled date of payment of principal, interest or any fees or reduce the principal amount of any Loan or Letters of Credit, in each case without the consent of each Lender directly affected thereby,
(ii) increase the Commitment of any Lender over the amount thereof then in effect or provided hereunder, in each case without the consent of such Lender directly affected thereby (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of mandatory reduction in the aggregate Commitment of all Lenders shall not constitute an increase of the Commitment of any Lender and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender),
(iii) release all or substantially all of the Collateral (except as expressly permitted hereunder or under any of the other Financing Agreements or applicable law and except as permitted under Section 14.11(b) hereof), without the consent of all of Lenders,
(iv) reduce any percentage specified in the definition of Required Lenders or otherwise amend the definition of such term or amend the percentage specified in or otherwise amend the definition of “Supermajority Lenders”, in the case of any of the foregoing, without the consent of all of Lenders,
(v) consent to the assignment or transfer by any Borrower or Guarantor of any of their rights and obligations under this Agreement (except as permitted hereunder or under any of the other Financing Agreements), without the consent of all of Lenders,
(vi) amend, modify or waive any terms of Section 6.7 or this Section 13.3 hereof, without the consent of Agent and all of Lenders,
(vii) amend, modify or waive any terms of Section 8.26, Section 9.4(a) or Section 14.16 hereof, or amend the definition of “Co-Collateral Agents”, in each case without the consent of each of the Co-Collateral Agents, or
(viii) increase the advance rates constituting part of the Borrowing Base or increase the Letter of Credit Limit, or make any change to the definition of “Borrowing Base” (by adding additional categories or components thereof), “Eligible Accounts”, “Eligible Inventory”, that would have the effect of increasing the amount of the Borrowing Base, reduce the Dollar amount set forth in the definition of “Dominion Event”, in each case, without the written consent of the Supermajority Lenders and the Co-Collateral Agents.
(b) Agent, Lenders and Issuing Bank shall not, by any act, delay, omission or otherwise be deemed to have expressly or impliedly waived any of its or their rights, powers and/or remedies unless such waiver shall be in writing and signed as provided herein. Any such waiver shall be enforceable only to the extent specifically set forth therein. A waiver by Agent, any Lender or Issuing Bank of any right, power and/or remedy on any one occasion shall not be construed as a bar to or waiver of any such right, power and/or remedy which Agent, any Lender or Issuing Bank would otherwise have on any future occasion, whether similar in kind or otherwise.
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(c) Notwithstanding anything to the contrary contained in Section 13.3(a) above, in connection with any amendment, waiver, modification or supplement, in the event that any Lender whose consent thereto is required shall fail to consent or fail to consent in a timely manner (such Lender being referred to herein as a “Non-Consenting Lender”), but the consent of the Required Lenders to such amendment, waiver, modification or supplement is obtained, then the Administrative Borrower shall have the right at any time thereafter to cause the Non-Consenting Lender to, and upon the exercise by the Administrative Borrower of such right, such Non-Consenting Lender shall have the obligation to, sell, assign and transfer to such Eligible Transferee as the Administrative Borrower may specify, the Commitment of such Non-Consenting Lender and all rights and interests of such Non-Consenting Lender pursuant thereto. The Administrative Borrower shall provide the Non-Consenting Lender with prior written notice of its intent to exercise its right under this Section, which notice shall specify on date on which such purchase and sale shall occur. Such purchase and sale shall be pursuant to the terms of an Assignment and Acceptance (whether or not executed by the Non-Consenting Lender); except, that, on the date of such purchase and sale, such Eligible Transferee specified by the Administrative Borrower, shall pay to the Non-Consenting Lender (except as such Eligible Transferee and such Non-Consenting Lender may otherwise agree) the amount equal to: (i) the principal balance of the Loans held by the Non-Consenting Lender outstanding as of the close of business on the business day immediately preceding the effective date of such purchase and sale, plus (ii) amounts accrued and unpaid in respect of interest and fees payable to the Non-Consenting Lender to the effective date of the purchase (but in no event shall the Non-Consenting Lender be deemed entitled to any early termination fee). Such purchase and sale shall be effective on the date of the payment of such amount to the Non-Consenting Lender and the Commitment of the Non-Consenting Lender shall terminate on such date.
(d) The consent of Agent shall be required for any amendment, waiver or consent affecting the rights or duties of Agent hereunder or under any of the other Financing Agreements, in addition to the consent of the Lenders otherwise required by this Section; provided, that, the consent of Agent shall not be required for any other amendments, waivers or consents. The exercise by Agent or Co-Collateral Agents, as applicable, of any of its or their rights hereunder with respect to Reserves or Eligible Accounts or Eligible Inventory shall not be deemed an amendment to the advance rates provided for in this Section 13.3. The consent of Issuing Bank shall be required for any amendment, waiver or consent affecting the rights or duties of Issuing Bank hereunder or under any of the other Financing Agreements, in addition to the consent of the Lenders otherwise required by this Section; provided, that, the consent of Issuing Bank shall not be required for any other amendments, waivers or consents. The consent of each Co-Collateral Agent affected thereby shall be required for any amendment, waiver or consent affecting the rights or duties of such Co-Collateral Agent hereunder or under any of the other Financing Agreements, in addition to the consent of the Lenders otherwise required by this Section. Notwithstanding anything to the contrary contained in Section 13.3(a) above, (i) in the event that Agent shall agree that any items otherwise required to be delivered to Agent as a condition of the initial Loans and Letters of Credit hereunder may be delivered after the date hereof, Agent may, in its discretion, agree to extend the date for delivery of such items or take such other action as Agent may deem appropriate as a result of the failure to receive such items as Agent may determine or may waive any Event of Default as a result of the failure to receive such items, in each case without the consent of any Lender and (ii) Agent may consent to any change in the type of organization, jurisdiction of organization or other legal structure of any Borrower, Guarantor or any of their Subsidiaries and amend the terms hereof or of any of the other Financing Agreements as may be necessary or desirable to reflect any such change to the extent permitted hereunder, in each case without the approval of any Lender.
(e) In addition to the consent of all Lenders as required pursuant to clause (a)(vi) above, the consent of Agent and a Bank Product Provider that is providing Bank Products and has outstanding any such Bank Products at such time that are secured hereunder shall be required for any amendment to the priority of payment of Obligations arising under or pursuant to any Hedge Agreements of a Borrower or Guarantor or other Bank Products as set forth in Section 6.7(a) hereof.
(f) Notwithstanding anything to the contrary set forth in this Section 13 or otherwise, Agent may waive, in its discretion, for a period not to exceed five (5) Business Days, any Event of Default arising from the failure of Borrowers or Guarantors (i)timely to deliver any reports and/or other information as and when required to be delivered under Section 7.1 hereof, any financial statement and/or other information as and when required to be delivered under Section 9.1 hereof or (ii) to maintain its Revolving Loan Priority Collateral or provide insurance coverage for such Revolving Loan Priority Collateral to the extent required under Section 9.5 hereof.
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(g) Notwithstanding that the consent of all Lenders is required in certain circumstances as set forth in this Section 13, (i) each Lender is entitled to vote as such Lender may elect on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent provisions set forth herein and (ii) the Required Lenders may consent to allow a Borrower or Guarantor to use cash collateral in the context of a bankruptcy or insolvency proceeding.
13.4 Indemnification.
(a) Each Borrower and Guarantor shall, jointly and severally, indemnify and hold Agent, each Co-Collateral Agent, each Lender and Issuing Bank, their respective Affiliates and their respective officers, directors, agents, employees, advisors and counsel and their respective Affiliates (each such person being an “Indemnitee”), harmless from and against any and all losses, claims, damages, liabilities, costs or expenses (including attorneys’ fees and expenses) imposed on, incurred by or asserted against any of them in connection with any litigation, investigation, claim or proceeding commenced or threatened related to the negotiation, preparation, execution, delivery, enforcement, performance or administration of this Agreement, any other Financing Agreements, or any undertaking or proceeding related to any of the transactions contemplated hereby (including preparations for and consultations concerning any such matters) or any act, omission, event or transaction related or attendant thereto, including amounts paid in settlement, court costs, and the fees and expenses of counsel except that Borrowers and Guarantors shall not have any obligation under this Section 13.5 to indemnify an Indemnitee or any Related Person of an Indemnitee with respect to a matter covered hereby resulting from the gross negligence or willful misconduct of such Indemnitee or any Related Person of such Indemnitee as determined pursuant to a final, non-appealable order of a court of competent jurisdiction (but without limiting the obligations of Borrowers or Guarantors as to any other Indemnitee). For purposes of this Section 13.4, a “Related Person” of an Indemnitee shall mean any of such Indemnitee and its officers, directors, agents, employees, advisors and counsel and their respective Affiliates (each, a “Related Person”). To the extent that the undertaking to indemnify, pay and hold harmless set forth in this Section may be unenforceable because it violates any law or public policy, Borrowers and Guarantors shall pay the maximum portion which it is permitted to pay under applicable law to Agent and Lenders in satisfaction of indemnified matters under this Section. To the extent permitted by applicable law, no Borrower or Guarantor shall assert, and each Borrower and Guarantor hereby waives, any claim against any Indemnitee, on any theory of liability for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any of the other Financing Agreements or any undertaking or transaction contemplated hereby. No Indemnitee referred to above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or any of the other Financing Agreements or the transaction contemplated hereby or thereby.
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(b) Without limiting the generality of the foregoing, Borrowers and Guarantors shall indemnify and hold Agent and Lenders harmless from and against any and all losses, claims, damages, liabilities, costs and expenses which Agent or any Lender may suffer or incur in connection with any Letter of Credit and any documents, drafts or acceptances relating thereto, including any losses, claims, damages, liabilities, costs and expenses due to any action taken by an Issuing Bank or correspondent with respect to any Letter of Credit, except for such losses, claims, damages, liabilities, costs or expenses that are a direct result of the gross negligence or willful misconduct of Agent or any Lender or their respective Related Persons as determined pursuant to a final non-appealable order of a court of competent jurisdiction. Each Borrower and Guarantor assumes all risks for, and agrees to pay, all foreign, Federal, State and local taxes, duties and levies relating to any goods subject to any Letter of Credit or any documents, drafts or acceptances thereunder. Each Borrower and Guarantor hereby releases and holds Agent and Lenders harmless from and against any acts, waivers, errors, delays or omissions with respect to or relating to any Letter of Credit, except for the gross negligence or willful misconduct of Agent or any Lender as determined pursuant to a final, non-appealable order of a court of competent jurisdiction.
(c) All amounts due under this Section shall be payable thirty (30) days after written demand. The foregoing indemnity shall survive the payment of the Obligations and the termination of this Agreement. Notwithstanding anything to the contrary in this Section 13.5, Borrowers and Guarantors shall not have any obligations under this Section 13.5 to any Indemnitee with respect to any Taxes, but without limiting any obligations of Borrowers and Guarantors to any Indemnitee with respect to Taxes under Section 6.8.
SECTION 14. THE AGENT AND CO-COLLATERAL AGENTS
14.1 Appointment, Powers and Immunities. Each Secured Party irrevocably designates, appoints and authorizes Wells Fargo to act as Agent hereunder and under the other Financing Agreements and each of Wells Fargo, Bank of America, N.A. and General Electric Capital Corporation to act as Co-Collateral Agents hereunder, in each case with such powers as are specifically delegated to Agent and Co-Collateral Agents, respectively, by the terms of this Agreement and of the other Financing Agreements, together with such other powers as are reasonably incidental thereto. Agent and Co-Collateral Agents (a) shall have no duties or responsibilities except those expressly set forth in this Agreement and in the other Financing Agreements, and shall not by reason of this Agreement or any other Loan Document be a trustee or fiduciary for any Lender; (b) shall not be responsible to Lenders for any recitals, statements, representations or warranties contained in this Agreement or in any of the other Financing Agreements, or in any certificate or other document referred to or provided for in, or received by any of them under, this Agreement or any other Loan Document, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document or any other document referred to or provided for herein or therein or for any failure by any Borrower or any Guarantor or any other Person to perform any of its obligations hereunder or thereunder; and (c) shall not be responsible to Secured Parties for any action taken or omitted to be taken by it hereunder or under any other Loan Document or under any other document or instrument referred to or provided for herein or therein or in connection herewith or therewith, except for its own gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdiction. Agent and Co-Collateral Agents may employ agents and attorneys in fact and shall not be responsible for the negligence or misconduct of any such agents or attorneys in fact selected by it in good faith. Agent may deem and treat the payee of any note as the holder thereof for all purposes hereof unless and until the assignment thereof pursuant to an agreement (if and to the extent permitted herein) in form and substance satisfactory to Agent shall have been delivered to and acknowledged by Agent.
14.2 Reliance by Agent. Agent and each Co-Collateral Agent shall be entitled to rely upon any certification, notice or other communication (including any thereof by telephone, telecopy, telex, telegram or cable) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper Person or Persons, and upon advice and statements of legal counsel, independent accountants and other experts selected by Agent or such Co-Collateral Agent, respectively. As to any matters not expressly provided for by this Agreement or any of the other Financing Agreements, Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder or thereunder in accordance with instructions given by the Required Lenders or all of Lenders as is required in such circumstance, and such instructions of such Required Lenders or of all Lenders and any action taken or failure to act pursuant thereto shall be binding on all Lenders.
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14.3 Events of Default.
(a) Agent shall not be deemed to have knowledge or notice of the occurrence of a Default or an Event of Default or other failure of a condition precedent to the Loans and Letters of Credit hereunder, unless and until Agent has received written notice from a Lender, or Borrower specifying such Event of Default or any unfulfilled condition precedent, and stating that such notice is a “Notice of Default or Failure of Condition”. In the event that Agent receives such a Notice of Default or Failure of Condition, Agent shall give prompt notice thereof to the Lenders. Agent shall (subject to Section 14.7 hereof) take such action with respect to any such Event of Default or failure of condition precedent as shall be directed by the Required Lenders to the extent provided for herein; provided, that, unless and until Agent shall have received such directions, Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to or by reason of such Event of Default or failure of condition precedent, as it shall deem advisable in the best interest of Lenders. Without limiting the foregoing, and notwithstanding the existence or occurrence and continuance of an Event of Default or any other failure to satisfy any of the conditions precedent set forth in Section 4 of this Agreement to the contrary, unless and until otherwise directed by the Required Lenders, Agent may, but shall have no obligation to, continue to make Loans and Issuing Bank may, but shall have no obligation to, issue or cause to be issued any Letter of Credit for the ratable account and risk of Lenders from time to time if Agent believes making such Loans or issuing or causing to be issued such Letter of Credit is in the best interests of Lenders.
(b) Except with the prior written consent of Agent, no Lender or Issuing Bank may assert or exercise any enforcement right or remedy in respect of the Loans, Letter of Credit Obligations or other Obligations, as against any Borrower or Guarantor or any of the Collateral or other property of any Borrower or Guarantor.
14.4 Wells Fargo in its Individual Capacity; Co-Agents in their Individual Capacity.
(a) With respect to its Commitment and the Loans made and Letters of Credit issued or caused to be issued by it (and any successor acting as Agent), so long as Wells Fargo shall be a Lender hereunder, it shall have the same rights and powers hereunder as any other Lender and may exercise the same as though it were not acting as Agent, and the term “Lender” or “Lenders” shall, unless the context otherwise indicates, include Wells Fargo in its individual capacity as Lender hereunder. Wells Fargo (and any successor acting as Agent) and its Affiliates may (without having to account therefor to any Lender) lend money to, make investments in and generally engage in any kind of business with Borrowers (and any of its Subsidiaries or Affiliates) as if it were not acting as Agent, and Wells Fargo and its Affiliates may accept fees and other consideration from any Borrower or Guarantor and any of its Subsidiaries and Affiliates for services in connection with this Agreement or otherwise without having to account for the same to Lenders.
(b) With respect to its Commitment and the Loans made (and any successor acting as a Co-Collateral Agent), so long as each of Wells Fargo, Bank of America, N.A. and General Electric Capital Corporation shall be a Lender hereunder, it shall have the same rights and powers hereunder as any other Lender and may exercise the same as though it were not acting as a Co-Collateral Agent, and the term “Lender” or “Lenders” shall, unless the context otherwise indicates, include such Co-Collateral Agent in its individual capacity as Lender hereunder. Each of Wells Fargo, Bank of America, N.A. and General Electric Capital Corporation (and any successor acting as a Co-Collateral Agent) and its Affiliates may (without having to account therefor to any Lender) lend money to, make investments in and generally engage in any kind of business with Borrowers (and any of its Subsidiaries or Affiliates) as if it were not acting as a Co-Collateral Agent, and each of Wells Fargo, Bank of America, N.A. and General Electric Capital Corporation and their respective Affiliates may accept fees and other consideration from any Borrower or Guarantor and any of its Subsidiaries and Affiliates for services in connection with this Agreement or otherwise without having to account for the same to Lenders.
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14.5 Indemnification. Lenders agree to indemnify Agent, each Co-Collateral Agent and Issuing Bank (to the extent not reimbursed by Borrowers hereunder and without limiting any obligations of Borrowers hereunder) ratably, in accordance with their Pro Rata Shares, for any and all claims of any kind and nature whatsoever that may be imposed on, incurred by or asserted against Agent (including by any Lender) or any Co-Collateral Agent arising out of or by reason of any investigation in or in any way relating to or arising out of this Agreement or any of the other Financing Agreements or any other documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby (including the costs and expenses that Agent is obligated to pay hereunder) or the enforcement of any of the terms hereof or thereof or of any such other documents; provided, that, no Lender shall be liable for any of the foregoing to the extent it arises from the gross negligence or willful misconduct of the party to be indemnified as determined by a final non-appealable judgment of a court of competent jurisdiction. The foregoing indemnity shall survive the payment of the Obligations and the termination or non-renewal of this Agreement.
14.6 Non-Reliance on Agent and Other Lenders. Each Lender agrees that it has, independently and without reliance on Agent, any Co-Collateral Agent or other Lender, and based on such documents and information as it has deemed appropriate, made its own credit analysis of Borrowers and Guarantors and has made its own decision to enter into this Agreement and that it will, independently and without reliance upon Agent, any Co-Collateral Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own analysis and decisions in taking or not taking action under this Agreement or any of the other Financing Agreements. Neither Agent nor any Co-Collateral Agent shall be required to keep itself informed as to the performance or observance by any Borrower or Guarantor of any term or provision of this Agreement or any of the other Financing Agreements or any other document referred to or provided for herein or therein or to inspect the properties or books of any Borrower or Guarantor. Agent and each Co-Collateral Agent will use reasonable efforts to provide Lenders with any information received by Agent or such Co-Collateral Agent from any Borrower or Guarantor which is required to be provided to Lenders or deemed to be requested by Lenders hereunder and with a copy of any Notice of Default or Failure of Condition received by Agent from any Borrower or any Lender; provided, that, Agent or Co-Collateral Agents shall not be liable to any Lender for any failure to do so, except to the extent that such failure is attributable to Agent’s or such Co-Collateral Agent’s own gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdiction. Except for notices, reports and other documents expressly required to be furnished to Lenders by Agent or Co-Collateral Agents or deemed requested by Lenders hereunder, Agent and Co-Collateral Agents shall not have any duty or responsibility to provide any Lender with any other credit or other information concerning the affairs, financial condition or business of any Borrower or Guarantor that may come into the possession of Agent or any Co-Collateral Agent.
14.7 Failure to Act. Except for action expressly required of Agent or any Co-Collateral Agent hereunder and under the other Financing Agreements, Agent and each Co-Collateral Agent shall in all cases be fully justified in failing or refusing to act hereunder and thereunder unless it shall receive further assurances to its satisfaction from Lenders of their indemnification obligations under Section 14.5 hereof against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action.
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14.8 Additional Loans. Agent shall
not make any Revolving Loans or Issuing Bank provide any Letter of Credit to any Borrower on behalf of Lenders intentionally and
with actual knowledge that such Revolving Loans or Letter of Credit would cause the aggregate amount of the total outstanding Revolving
Loans and Letters of Credit to such Borrower to exceed the Borrowing Base, without the prior consent of all Lenders; except,
that, Agent may make such additional Revolving Loans or Issuing Bank may provide such additional Letter of Credit on behalf
of Lenders, intentionally and with actual knowledge that such Revolving Loans or Letter of Credit will cause the total outstanding
Revolving Loans and Letters of Credit to such Borrower to exceed the Borrowing Base, as Co-Collateral Agents may deem necessary
or advisable in their discretion; provided, that (a) the total principal amount of the additional Revolving Loans
or additional Letters of Credit to any Borrower which Agent may make or provide after obtaining such actual knowledge that the
aggregate principal amount of the Revolving Loans equal or exceed the Borrowing Base, plus the amount of Special Agent Advances
made pursuant to Section 14.11(a)(ii) hereof then outstanding, shall not exceed the aggregate amount equal to seven and one-half
(7.5%) percent of the Maximum Credit and shall not cause the total principal amount of the Loans and Letters of Credit to exceed
the lesser of (i) the Maximum Credit and (ii)
the Revolving Loan Limit and (b) no such additional Revolving Loan or Letter of Credit shall be outstanding more
than forty-five (45) days after the date such additional Revolving Loan or Letter of Credit is made or issued (as the case may
be), except as the Required Lenders may otherwise agree. Each Lender shall be obligated to pay Agent the amount of its Pro Rata
Share of any such additional Revolving Loans or Letters of Credit.
14.9 Concerning the Collateral and the Related Financing Agreements. Each Secured Party authorizes and directs Agent and Co-Collateral Agents to enter into this Agreement and the other Financing Agreements. Each Secured Party agrees that any action taken by Agent, Co-Collateral Agents or Required Lenders (or such greater percentage as may be required hereunder) in accordance with the terms of this Agreement or the other Financing Agreements and the exercise by Agent, Co-Collateral Agents or Required Lenders (or such greater percentage as may be required hereunder) of their respective powers set forth therein or herein, together with such other powers that are reasonably incidental thereto, shall be binding upon all of the Secured Parties.
14.10 Field Audit, Examination Reports and other Information; Disclaimer by Lenders. By signing this Agreement, each Lender:
(a) is deemed to have requested that Agent furnish such Lender, promptly after it becomes available, a copy of each field audit or examination report and report with respect to the Borrowing Base prepared or received by Agent (each field audit or examination report and report with respect to the Borrowing Base being referred to herein as a “Report” and collectively, “Reports”), appraisals with respect to the Collateral and financial statements with respect to Parent and its Subsidiaries received by Agent;
(b) expressly agrees and acknowledges that Agent or any Co-Collateral Agent (i) does not make any representation or warranty as to the accuracy of any Report, appraisal or financial statement or (ii) shall not be liable for any information contained in any Report, appraisal or financial statement;
(c) expressly agrees and acknowledges that the Reports are not comprehensive audits or examinations, that Agent or any other party performing any audit or examination will inspect only specific information regarding Borrowers and Guarantors and will rely significantly upon Borrowers’ and Guarantors’ books and records, as well as on representations of Borrowers’ and Guarantors’ personnel; and
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(d) agrees to keep all Reports and appraisals confidential and strictly for its internal use in accordance with the terms of Section 15.5 hereof, and not to distribute or use any Report or appraisals in any other manner.
14.11 Collateral Matters.
(a) Agent may, at the direction of Co-Collateral
Agents, from time to time, at any time on or after an Event of Default and for so long as the same is continuing or upon any other
failure of a condition precedent to the Loans and Letters of Credit hereunder, make such disbursements and advances (“Special
Agent Advances”) which Co-Collateral Agents, in their sole discretion, (i) deem necessary or desirable either to preserve
or protect the Collateral or any portion thereof or (ii) to enhance the likelihood or maximize the amount of repayment by Borrowers
and Guarantors of the Loans and other Obligations; provided, that, (A) the aggregate principal amount of the Special
Agent Advances pursuant to this clause (ii) outstanding at any time, plus the then outstanding principal amount of the additional
Loans and Letters of Credit which Agent may make or provide as set forth in Section 14.8 hereof, shall not exceed the amount equal
to seven and one-half (7.5%) percent of the Maximum Credit and (B) the aggregate principal amount of the Special Agent Advances
pursuant to this clause (ii) outstanding at any time, plus the then outstanding principal amount of the Loans, shall not exceed
the lesser of (i) the Maximum Credit and (ii)
the Revolving Loan Limit, except at Co-Collateral Agents’ option; provided, that, to the extent
that the aggregate principal amount of Special Agent Advances plus the then outstanding principal amount of the Loans exceed the
lesser of (i) the Maximum Credit and (ii) the
Revolving Loan Limit the Special Agent Advances that are in excess of the lesser
of (i) the Maximum Credit and (ii) the Revolving Loan Limit shall
be for the sole account and risk of such Co-Collateral Agents as may elect to fund such amounts and notwithstanding anything to
the contrary set forth below, no Lender shall have any obligation to provide its share of such Special Agent Advances in excess
of the lesser of (i) the Maximum Credit and (ii)
the Revolving Loan Limit, or (iii) to pay any other amount chargeable to any Borrower or Guarantor pursuant
to the terms of this Agreement or any of the other Financing Agreements consisting of (A) costs, fees and expenses and (B) payments
to Issuing Bank in respect of any Letter of Credit Obligations. The Special Agent Advances shall be repayable on demand and together
with all interest thereon shall constitute Obligations secured by the Collateral. Special Agent Advances shall not constitute Loans
but shall otherwise constitute Obligations hereunder. Interest on Special Agent Advances shall be payable at the Interest Rate
then applicable to Base Rate Loans and shall be payable within five (5) Business Days after demand. Without limitation of its obligations
pursuant to Section 6.13, each Lender agrees that it shall make available to Agent, upon Agent’s demand, in immediately available
funds, the amount equal to such Lender’s Pro Rata Share of each such Special Agent Advance. If such funds are not made available
to Agent by such Lender, such Lender shall be deemed a Defaulting Lender and Agent shall be entitled to recover such funds, on
demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount
is paid to Agent at the Federal Funds Rate for each day during such period (as published by the Federal Reserve Bank of New York
or at Agent’s option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight
Federal funds arranged prior to 9:00 a.m. on that day by each of the three leading brokers of Federal funds transactions in New
York City selected by Agent) and if such amounts are not paid within three (3) days of Agent’s demand, at the highest Interest
Rate provided for in Section 3.1 hereof applicable to Base Rate Loans.
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(b) Lenders hereby irrevocably authorize Agent, at its option and in its discretion to release any security interest in, mortgage or Lien upon, any of the Collateral (i) upon termination of the Commitments and payment and satisfaction of all of the Obligations and delivery of cash collateral to the extent required under Section 15.1 below, or (ii) constituting property being sold or disposed of if Administrative Borrower or any Borrower or Guarantor certifies to Agent that the sale or Disposition is made in compliance with Section 10.1 hereof (and Agent may rely conclusively on any such certificate, without further inquiry), or (iii) constituting property in which any Borrower or Guarantor did not own an interest at the time the security interest, mortgage or Lien was granted or at any time thereafter, or (iv) for which the consideration received in the aggregate in any twelve (12) month period is less than $10,000,000 and to the extent Agent may release its security interest in and Lien upon any such Collateral pursuant to the sale or other disposition thereof, such sale or other disposition shall be deemed consented to by Lenders, or (v) if required or permitted under the terms of any of the other Financing Agreements, including the Intercreditor Agreement and any other intercreditor agreement, or (vi) approved, authorized or ratified in writing by such percentage of Lenders as required by Section 13.3(a). Except as provided above, Agent will not release any security interest in, mortgage or Lien upon, any of the Collateral without the prior written authorization of such percentage of Lenders as required by Section 13.3(a). Upon request by Agent at any time, Lenders will promptly confirm in writing Agent’s authority to release particular types or items of Collateral pursuant to this Section. In no event shall the consent or approval of Issuing Bank to any release of Collateral be required.
(c) Without any manner limiting Agent’s authority to act without any specific or further authorization or consent by the Required Lenders, each Lender agrees to confirm in writing, upon request by Agent, the authority to release Collateral conferred upon Agent under this Section. Agent shall (and is hereby irrevocably authorized by Lenders to) execute such documents as may be necessary to evidence the release of the security interest, mortgage or Liens granted to Agent upon any Collateral to the extent set forth above; provided, that, such release shall not in any manner discharge, affect or impair the Obligations or any security interest, mortgage or Lien upon (or obligations of any Borrower or Guarantor in respect of) the Collateral retained by such Borrower or Guarantor.
(d) Neither Agent nor any Co-Collateral Agent shall have any obligation whatsoever to any Lender, Issuing Bank or any other Person to investigate, confirm or assure that the Collateral exists or is owned by any Borrower or Guarantor or is cared for, protected or insured or has been encumbered, or that any particular items of Collateral meet the eligibility criteria applicable in respect of the Loans or Letters of Credit hereunder, or whether any particular reserves are appropriate, or that the liens and security interests granted to Agent pursuant hereto or any of the Financing Agreements or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to Agent or Co-Collateral Agents in this Agreement or in any of the other Financing Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, subject to the other terms and conditions contained herein, Agent and any Co-Collateral Agent may act in any manner it may deem appropriate, in its discretion, given Agent’s and each Co-Collateral Agent’s own interest in the Collateral as a Lender and that Agent and Co-Collateral Agents shall have no duty or liability whatsoever to any other Lender or Issuing Bank.
14.12 Agency for Perfection. Each Lender and Issuing Bank hereby appoints Agent and each other Lender and Issuing Bank as agent and bailee for the purpose of perfecting the security interests in and liens upon the Collateral of Agent in assets which, in accordance with Article 9 of the UCC can be perfected only by possession (or where the security interest of a secured party with possession has priority over the security interest of another secured party) and Agent and each Lender and Issuing Bank hereby acknowledges that it holds possession of any such Collateral for the benefit of Agent as secured party. Should any Lender or Issuing Bank obtain possession of any such Collateral, such Lender shall notify Agent thereof, and, promptly upon Agent’s request therefor shall deliver such Collateral to Agent or in accordance with Agent’s instructions.
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14.13 Agent May File Proofs of Claim.
(a) In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Borrower or Guarantor, Agent (irrespective of whether the principal of any Loan or Letter of Credit Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether Agent shall have made any demand on the Borrowers) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, Letter of Credit Obligations and all other Obligations (other than obligations under Bank Products to which Agent is not a party) that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of Lenders, Issuing Bank, Agent and Co-Collateral Agents (including any claim for the reasonable compensation, expenses, disbursements and advances of Lenders, Issuing Bank, Agent and Co-Collateral Agents and their respective agents and counsel and all other amounts due Lenders, Issuing Bank, Agent and Co-Collateral Agents allowed in such judicial proceeding; and
(ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender, each Co-Collateral Agent and Issuing Bank to make such payments to Agent and, in the event that Agent shall consent to the making of such payments directly to Lenders, Co-Collateral Agents and Issuing Bank, to pay to Agent any amount due for the reasonable compensation, expenses, disbursements and advances of Agent and its agents and counsel, and any other amounts due Agent.
(b) Nothing contained herein shall be deemed to authorize Agent or any Co-Collateral Agent to authorize or consent to or accept or adopt on behalf of any Lender or Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize Agent or any Co-Collateral Agent to vote in respect of the claim of any Lender in any such proceeding.
14.14 Successor Agent. Agent may resign as Agent upon thirty (30) days’ notice to Lenders and Administrative Borrower. If Agent resigns under this Agreement, the Required Lenders shall appoint from among the Lenders a successor agent for Lenders, which successor agent shall be subject to the approval of Administrative Borrower (such approval not to be unreasonably withheld, conditioned or delayed), so long as no Event of Default shall exist or have occurred and be continuing. If no successor agent is appointed prior to the effective date of the resignation of Agent, Agent may appoint, after consulting with Lenders and Administrative Borrower, a successor agent from among Lenders. In the event that no Lender accepts such designation, Agent may appoint a commercial bank that is organized under the laws of the United States of America or any state or district thereof, has a combined capital surplus of at least $200,000,000 and so long as no Event of Default exists or has occurred and is continuing, is acceptable to Administrative Borrower. Upon the acceptance by the Lender so selected of its appointment as successor agent hereunder, such successor agent shall succeed to all of the rights, powers and duties of the retiring Agent and the term “Agent” as used herein and in the other Financing Agreements shall mean such successor agent and the retiring Agent’s appointment, powers and duties as Agent shall be terminated. The fees payable by Borrowers to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between Administrative Borrower and such successor. After any retiring Agent’s resignation hereunder as Agent, the provisions of this Section 14 shall inure to its benefit as to any actions taken or omitted by it while it was Agent under this Agreement. If no successor agent has accepted appointment as Agent by the date which is thirty (30) days after the date of a retiring Agent’s notice of resignation, the retiring Agent’s resignation shall nonetheless thereupon become effective and Lenders shall perform all of the duties of Agent hereunder until such time, if any, as the Required Lenders appoint a successor agent as provided for above. Any resignation by Agent pursuant to this Section shall also constitute its resignation as Issuing Bank and Swing line Lender. Upon the acceptance of a successor’s appointment as Agent hereunder, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank and Swing Line Lender, (b) the retiring Issuing Bank and Swing Line Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Financing Agreements, and (c) the successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring Issuing Bank to effectively assume the obligations of the retiring Issuing Bank with respect to such Letters of Credit.
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14.15 Other Agent Designations. Agent may at any time and from time to time determine that a Lender may, in addition, be a “Co-Agent”, “Syndication Agent”, “Documentation Agent” or similar designation hereunder and enter into an agreement with such Lender to have it so identified for purposes of this Agreement. Any such designation shall be effective upon written notice by Agent to Administrative Borrower of any such designation. Any Lender that is so designated as a Co-Agent, Syndication Agent, Documentation Agent or such similar designation by Agent shall have no right, power, obligation, liability, responsibility or duty under this Agreement or any of the other Financing Agreements other than those applicable to all Lenders as such. Without limiting the foregoing, the Lenders so identified shall not have or be deemed to have any fiduciary relationship with any Lender and no Lender shall be deemed to have relied, nor shall any Lender rely, on a Lender so identified as a Co-Agent, Syndication Agent, Documentation Agent or such similar designation in deciding to enter into this Agreement or in taking or not taking action hereunder.
14.16 Co-Collateral Agent Determinations. Each reference in this Agreement to any action, determination, decision, consent, approval, satisfaction, acceptance, exercise of discretion or other act of or by or with respect to “Co-Collateral Agents” shall be deemed to refer to such action, determination, decision, consent, approval, satisfaction, acceptance, exercise of discretion or other act of or by the Co-Collateral Agents exercised, as the case may be, by the consenting vote of any two (2) of the three (3) Collateral Agents; provided, however, that if there shall be at any time only two (2) Co-Collateral Agents, then each reference to “Co-Collateral Agents” shall be deemed to refer to such action, determination, exercise of discretion or other conduct taken, made or exercised, as the case may be, on the basis of the more conservative credit judgment of the two (2) remaining Co-Collateral Agents.
14.17 Intercreditor Arrangements. Each Lender hereby (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, (c) authorizes and instructs Agent to enter into the Intercreditor Agreement on behalf of such Lender and agrees that Agent may take such actions on its behalf as is contemplated by the terms of the Intercreditor Agreement, and (d) acknowledges (or is deemed to acknowledge) that a copy of the Intercreditor Agreement was delivered, or made available, to such Lender and it has received and reviewed the Intercreditor Agreement. In the event of any conflict between the terms of the Intercreditor Agreement and any of the other Financing Agreements, the terms of the Intercreditor Agreement shall govern and control except as expressly set forth in the Intercreditor Agreement.
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SECTION 15. TERM OF AGREEMENT; MISCELLANEOUS
15.1 Term.
(a) This Agreement and the other Financing Agreements shall become effective as of the date set forth on the first page hereof and shall continue in full force and effect for a term ending on the Maturity Date, unless sooner terminated pursuant to the terms hereof. In addition, Borrowers may terminate this Agreement at any time upon ten (10) days prior written notice to Agent (which notice shall be irrevocable) and Agent shall, at the direction of Required Lenders, terminate this Agreement at any time that an Event of Default exists or has occurred and is continuing. Upon the Maturity Date or any other effective date of termination of the Financing Agreements, Borrowers shall pay to Agent all outstanding and unpaid Obligations and shall furnish cash collateral to Agent (or at Agent’s option, a letter of credit issued for the account of Borrowers and at Borrowers’ expense, in form and substance satisfactory to Agent, by an issuer acceptable to Agent and payable to Agent as beneficiary) in such amounts as Agent determines are reasonably necessary to secure Agent, Lenders and Issuing Bank from loss, cost, damage or expense, including attorneys’ fees and expenses, in connection with any issued and outstanding Letter of Credit Obligations and checks or other payments provisionally credited to the Obligations and/or as to which Agent or any Lender has not yet received final and indefeasible payment and any continuing obligations of Agent or any Lender pursuant to any Deposit Account Control Agreement and for any of the Obligations arising under or in connection with any Bank Products in such amounts as the Bank Product Provider providing such Bank Products may require, unless such Obligations arising under or in connection with any Bank Products are paid in full in cash and terminated in a manner satisfactory to such Bank Product Provider (for purposes of this Section 15.1 and references hereto, such payments to Agent and/or delivery of letter of credit as provided above with respect to the Obligations, together with the termination of any commitment to make any Loans or provide any Letters of Credit is referred to as the “Payment in Full of all Obligations”). The amount of such cash collateral (or letter of credit, as Agent may determine) as to any Letter of Credit Obligations shall be in the amount equal to one hundred three (103%) percent of the face amount of the Letter of Credit Obligations plus the amount of any fees and expenses due and payable in connection therewith. Such payments in respect of the Obligations and cash collateral shall be remitted by wire transfer in Federal funds to the Agent Payment Account or such other bank account of Agent, as Agent may, in its discretion, designate in writing to Administrative Borrower for such purpose. Interest shall be due until and including the next Business Day, if the amounts so paid by Borrowers to the Agent Payment Account or other bank account designated by Agent are received in such bank account later than 2:00 p.m. Eastern Standard Time
(b) No termination of the Commitments, this Agreement or any of the other Financing Agreements shall relieve or discharge any Borrower or Guarantor of its respective duties, obligations and covenants under this Agreement or any of the other Financing Agreements until Payment in Full of all Obligations and Agent’s continuing security interest in the Collateral and the rights and remedies of Agent and Lenders hereunder, under the other Financing Agreements and applicable law, shall remain in effect until the Payment in Full of all Obligations. Accordingly, each Borrower and Guarantor waives any rights it may have under the UCC to demand the filing of termination statements with respect to the Collateral and Agent shall not be required to send such termination statements to Borrowers or Guarantors, or to file them with any filing office, unless and until the Payment in Full of all Obligations.
15.2 Interpretative Provisions.
(a) All terms used herein which are defined in Article 1, Article 8 or Article 9 of the UCC shall have the meanings given therein unless otherwise defined in this Agreement.
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(b) All references to the plural herein shall also mean the singular and to the singular shall also mean the plural unless the context otherwise requires.
(c) All references to any Borrower, Guarantor, Agent and Lenders pursuant to the definitions set forth in the recitals hereto, or to any other person herein, shall include their respective successors and assigns.
(d) The words “hereof”, “herein”, “hereunder”, “this Agreement” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not any particular provision of this Agreement and as this Agreement now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
(e) The word “including” when used in this Agreement shall mean “including, without limitation” and the word “will” when used in this Agreement shall be construed to have the same meaning and effect as the word “shall”.
(f) All references to the term “good faith” used herein when applicable to Agent or any Lender shall mean, notwithstanding anything to the contrary contained herein or in the UCC (except to the extend mandatorily applicable), honesty in fact in the conduct or transaction concerned.
(g) Any accounting term used in this Agreement
shall have, unless otherwise specifically provided herein, the meaning given in accordance with GAAP, and all financial computations
hereunder shall be computed unless otherwise specifically provided herein, in accordance with GAAP as consistently applied; provided,
that, if Parent or Borrowers change the method for inventory valuation as used in the preparation of its financial statements,
the Administrative Borrower shall deliver notice of such change to Agent thirty (30) days prior to such change and shall provide
materials to Agent to show the effect on the financial statements and the Borrowing Base, if applicable, of such change on a pro
forma basis when and to the extent included in the immediately subsequent financial statements delivered pursuant to Section 9.1(a)
or Borrowing Base delivered hereunder, it being agreed that Agent may adjust the Borrowing Base to account for the effect thereon
of any such change. Notwithstanding anything to the contrary contained in GAAP or any interpretations or other pronouncements by
the Financial Accounting Standards Board or otherwise, the term “unqualified opinion” as used herein to refer to opinions
or reports provided by accountants shall mean an opinion or report that is unqualified and also does not include any explanation,
supplemental comment or other comment concerning the ability of the applicable person to continue as a going concern or the scope
of the audit..
(h) Unless otherwise indicated herein, all references to time of day refer to Eastern Standard Time or Eastern daylight saving time, as in effect in New York City on such day. For purposes of the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each means “to and including”; provided, that, with respect to a computation of fees or interest payable to Agent or any Lender, such period shall in any event consist of at least one full day.
(i) Unless otherwise expressly provided herein, (i) references herein to any agreement, document or instrument shall be deemed to include all subsequent amendments, modifications, supplements, extensions, renewals, restatements or replacements with respect thereto, but only to the extent the same are not prohibited by the terms hereof or of any other Financing Agreement, and (ii) references to any statute or regulation are to be construed as including all statutory and regulatory provisions consolidating, amending, replacing, recodifying, supplementing or interpreting the statute or regulation.
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(j) The captions and headings of this Agreement are for convenience of reference only and shall not affect the interpretation of this Agreement.
(k) This Agreement and the other Financing Agreements are the result of negotiations among and have been reviewed by counsel to Agent and the other parties, and are the products of all parties. Accordingly, this Agreement and the other Financing Agreements shall not be construed against Agent or Lenders merely because of Agent’s or any Lender’s involvement in their preparation.
15.3 Notices.
(a) All notices, requests and demands hereunder shall be in writing and deemed to have been given or made: if delivered in person, immediately upon delivery; if by telex, telegram or facsimile transmission, immediately upon sending and upon confirmation of receipt; if by nationally recognized overnight courier service with instructions to deliver the next Business Day, one (1) Business Day after sending; and if by certified mail, return receipt requested, five (5) days after mailing. Notices delivered through electronic communications shall be effective to the extent set forth in Section 15.3(b) below. All notices, requests and demands upon the parties are to be given to the following addresses (or to such other address as any party may designate by notice in accordance with this Section):
If to any Borrower or Guarantor: | NCI Building Systems, Inc. | |
10943 North Sam Houston parkway West | ||
Houston, Texas 77064 | ||
Attention: | Chief Financial Officer | |
Telephone No.: | 281-897-7837 | |
Telecopy No.: | 281-897-7658 | |
E-mail: | mejohnson@ncilp.com | |
with copies (which copies | Debevoise & Plimpton LLP | |
will not constitute notice to: | 919 Third Avenue | |
New York, New York 10022 | ||
Attention: | David A. Brittenham | |
Telephone No.: | 212-909-6000 | |
Telecopy No.: | 212-909-6836 | |
E-mail: | dabrittenham@debevoise.com | |
If to Agent or Issuing Bank: | Wells Fargo | |
1100 Abernathy Road | ||
Suite 1600 | ||
Atlanta, Georgia 30328 | ||
Attention: | Business Finance Manager | |
Telephone No.: | 770-508-1300 | |
Telecopy No.: | 770-804-0551 |
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(b) Notices and other communications to Lenders and Issuing Bank hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by Agent or as otherwise determined by Agent; provided, that, the foregoing shall not apply to notices to any Lender or Issuing Bank pursuant to Section 2 hereof if such Lender or Issuing Bank, as applicable, has notified Agent that it is incapable of receiving notices under such Section by electronic communication. Unless Agent otherwise requires, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s 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 such notice or other communication is not given during the normal business hours of the recipient, such notice shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communications is available and identifying the website address therefor.
15.4 Partial Invalidity. If any provision of this Agreement is held to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate this Agreement as a whole, but this Agreement shall be construed as though it did not contain the particular provision held to be invalid or unenforceable and the rights and obligations of the parties shall be construed and enforced only to such extent as shall be permitted by applicable law.
15.5 Confidentiality.
(a) Agent, each Lender and Issuing Bank shall keep confidential any Information (as defined below) supplied to it by or on behalf of Parent or any Subsidiary pursuant to or in connection with this Agreement or any of the other Financing Agreements or obtained by it based on a review of the books and records of Parent or any Subsidiary; provided, that, nothing contained herein shall limit the disclosure of any such information: (i) to the extent required by statute, rule, regulation, subpoena or court order, (ii) to bank examiners and other regulators, auditors and/or accountants, in connection with any litigation to which Agent, such Lender or Issuing Bank is a party, (iii) to any Lender or Participant (or prospective Lender or Participant) or Issuing Bank or to any Affiliate of any Lender so long as such Lender, Participant (or prospective Lender or Participant), Issuing Bank or Affiliate shall have agreed in writing to treat such information as confidential in accordance with this Section 15.5 (which may be in the form of an electronic recorded agreement for any prospective Lender or Participant, including through Intralinks or similar systems, that has been approved by Administrative Borrower, and otherwise shall be in the form of a written manually executed agreement), or (iv) to counsel for Agent, any Lender, Participant (or prospective Lender or Participant) or Issuing Bank; provided, that, each Agent, Lender or Participant shall inform such counsel of the agreement under this Section 15.5 and take reasonable actions to cause compliance by any such counsel with such provision.
(b) In the event that Agent, any Lender or Issuing Bank receives a request or demand to disclose any confidential information pursuant to any subpoena or court order, Agent or such Lender or Issuing Bank, as the case may be, agrees (i) to the extent not prohibited by applicable law, Agent or such Lender or Issuing Bank will promptly notify Administrative Borrower of such request so that Administrative Borrower may seek a protective order or other appropriate relief or remedy and (ii) if disclosure of such information is required, disclose such information and, subject to reimbursement by Borrowers of Agent’s or such Lender’s or Issuing Bank’s expenses, cooperate with Administrative Borrower in the reasonable efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the disclosed information which Administrative Borrower so designates, to the extent not prohibited by applicable law.
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(c) In no event shall this Section 15.5 or any other provision of this Agreement, any of the other Financing Agreements or applicable law be deemed: (i) to apply to or restrict disclosure of information that is or becomes generally available to the public other than as a result of a disclosure in violation hereof, (ii) to apply to or restrict disclosure of information that was or becomes available to Agent, any Lender (or any Affiliate of any Lender) or Issuing Bank on a non-confidential basis from a person other than a Borrower or Guarantor, (iii) to require Agent, any Lender or Issuing Bank to return any materials furnished by a Borrower or Guarantor to Agent, a Lender or Issuing Bank or prevent Agent, a Lender or Issuing Bank from responding to routine mandatory informational requests from regulators, agencies and Governmental Authorities in accordance with applicable industry standards relating to the exchange of credit information, it being agreed that Agent, such Lender or Issuing Bank, as applicable, will endeavor when commercially practicable to provide reasonable notice thereof to Administrative Borrower. The obligations of Agent, Lenders and Issuing Bank under this Section 15.5 shall supersede and replace the obligations of Agent, Lenders and Issuing Bank under any confidentiality letter relating hereto signed prior to the date hereof or any other arrangements concerning the confidentiality of information provided by any Borrower or Guarantor to Agent or any Lender. In addition, Agent and Lenders may disclose the information relating to the Credit Facility set forth on Schedule 15.5(c) to Gold Sheets and other publications, and Co-Collateral Agents may otherwise use the corporate name and logo of Borrowers and Guarantors and such information in “tombstones” or other advertisements, public statements or marketing materials.
(d) For purposes of this Section, “Information” means all information received from a Borrower or Guarantor or any Subsidiary relating to Borrowers, Guarantors or any Subsidiary or any of their respective businesses, other than any such information that is available to Agent, any Lender or the Issuing Bank on a nonconfidential basis prior to disclosure by such Borrower or Guarantor or any Subsidiary, and any materials or information filed in whole or in part with the Securities and Exchange Commission.
(e) Notwithstanding any other provision of this Agreement, any other Financing Agreement or any Assignment and Acceptance, the confidentiality provisions of this Section 15.5 shall survive with respect to each Lender and Agent until the second (2nd) anniversary of such Lender or Agent ceasing to be a Lender or Agent, respectively.
15.6 Successors. This Agreement, the other Financing Agreements and any other document referred to herein or therein shall be binding upon and inure to the benefit of and be enforceable by Agent, Lenders, Issuing Bank, Borrowers, Guarantors and their respective successors and assigns; except, that, other than as permitted hereunder, Borrower may not assign its rights under this Agreement, the other Financing Agreements and any other document referred to herein or therein without the prior written consent of Agent and Lenders. Any such purported assignment without such express prior written consent shall be void. No Lender may assign or otherwise transfer its rights and obligations under this Agreement without the prior written consent of Agent and Administrative Borrower, except as provided in such Section 15.7. The terms and provisions of this Agreement and the other Financing Agreements are for the purpose of defining the relative rights and obligations of Borrowers, Guarantors, Agent, Lenders and Issuing Bank with respect to the transactions contemplated hereby and there shall, other than to the extent expressly provided with respect to Bank Product Providers, be no third party beneficiaries of any of the terms and provisions of this Agreement or any of the other Financing Agreements.
15.7 Assignments; Participations.
(a) Each Lender may make assignments of all or, if less than all, a portion equal to at least $5,000,000 in the aggregate for the assigning Lender (unless the Administrative Borrower and Agent otherwise consent), of such rights and obligations under this Agreement to other financial institutions or other Persons in each case approved in writing by Agent, Swing Line Lender and Issuing Bank and, so long as no Event of Default shall exist or have occurred and be continuing, Administrative Borrower, which approval shall not be unreasonably withheld or delayed; provided, that, (i) the approval of Administrative Borrower shall not be required in connection with assignments to another Lender, to any Affiliate of a Lender (except for assignments to any Affiliate of a Lender in connection with or in contemplation of the sale or other disposition of such Affiliate) or to any Approved Fund, or with respect to any assignment in the form of a participation, (ii) the approval of Agent shall not be required for an assignment to a Lender or any Affiliate of any Lender; (iii) such transfer or assignment will not be effective until recorded by Agent on the Register and (iv) Agent shall have received for its sole account payment of a processing fee from the assigning Lender or the assignee in the amount of $5,000. Upon the receipt of a duly completed Assignment and Acceptance executed by an assigning Lender and an assignee in accordance with this Section 15.7, the processing fee referred to in this Section 15.7(a) and any written approval of such assignment by Agent and Administrative Borrower required by Section 15.7, Agent shall accept such Assignment and Acceptance, record the information contained therein in the Register in accordance with Section 6.4(a) and give prompt notice of such assignment and recordation to the Administrative Borrower.
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(b) Upon such execution, delivery, acceptance and recording as provided in this Section 15.7, from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party hereto and to the other Financing Agreements and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations (including, without limitation, the obligation to participate in Letter of Credit Obligations) of a Lender hereunder and thereunder and the assigning Lender shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (except for any obligations under Section 15.5).
(c) By execution and delivery of an Assignment and Acceptance, the assignor and assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, the 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 any of the other Financing Agreements or the execution, legality, enforceability, genuineness, sufficiency or value of this Agreement or any of the other Financing Agreements furnished pursuant hereto, (ii) the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Borrower, Guarantor or any of their Subsidiaries or the performance or observance by any Borrower or Guarantor of any of the Obligations; (iii) such assignee confirms that it has received a copy of this Agreement and the other Financing Agreements, together with such other documents and information it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such assignee will, independently and without reliance upon the assigning Lender, Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement and the other Financing Agreements, (v) such assignee confirms its other agreements, acknowledgments and representations as a Lender pursuant to Section 14.6, (vi) such assignee appoints and authorizes Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Financing Agreements as are delegated to Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Financing Agreements are required to be performed by it as a Lender. Agent and Lenders may, subject to Section 15.5, furnish any information concerning any Borrower or Guarantor in the possession of Agent or any Lender from time to time to assignees and Participants.
(d) Notwithstanding anything to the contrary in this Agreement, no assignee, which as of the date of any assignment to it pursuant to this Section 15.7 would be entitled to any payment under Section 3.5, 3.6, 6.8 or 9.12 in an amount greater than the assigning Lender would have been entitled to as of such date under such Sections with respect to the rights assigned, shall be entitled to such greater payments unless the assignment was made after an Event of Default under Section 12.1(a) or (g) has occurred and is continuing or Administrative Borrower has expressly consented in writing to waive the benefit of this provision at the time of such assignment.
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(e) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement and the other Financing Agreements (including, without limitation, all or a portion of its Commitments and the Loans owing to it and its participation in the Letter of Credit Obligations, without the consent of Agent or the other Lenders); provided, that, (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment hereunder) and the other Financing Agreements shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and Borrowers, Guarantors, the other Lenders and Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Financing Agreements, (iii) such Lender shall remain the holder of any Loan for all purposes under this Agreement and the other Financing Agreements, and (iv) the Participant shall not have any rights under this Agreement or any of the other Financing Agreements (the Participant’s rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the Participant relating thereto) and all amounts payable by any Borrower or Guarantor under this Agreement (including, without limitation, Sections 3.5, 3.6, 6.8 and 9.12) and the other Financing Agreements shall be determined as if such Lender had not sold such participation. Any agreement 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.
(f) Nothing in this Agreement shall prevent or prohibit any Lender from pledging its Loans hereunder to a Federal Reserve Bank in support of borrowings made by such Lenders from such Federal Reserve Bank; provided, that, no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee for such Lender as a party hereto.
(g) Any Lender that is an Issuing Bank may at any time assign all of its Commitments pursuant to this Section 15.7. If such Issuing Bank ceases to be a Lender, it may, at its option, resign as Issuing Bank and such Issuing Bank’s obligations to issue Letters of Credit shall terminate but it shall retain all of the rights and obligations of Issuing Bank hereunder with respect to Letters of Credit outstanding as of the effective date of its resignation and all Letter of Credit Obligations with respect thereto (including the right to require Lenders to make Revolving Loans or fund risk participations in outstanding Letter of Credit Obligations), shall continue.
(h) On or prior to the effective date of any assignment pursuant to this Section 15.7, the assigning Lender shall surrender any outstanding notes held by it all or a portion of which are being assigned. Any such notes surrendered by the assigning Lender shall be returned by Agent to the Administrative Borrower marked “cancelled”.
(i) No assignment or participation made or purported to be made to any assignee Lender or Participant shall be effective without the prior written consent of the Administrative Borrower if it would require the Administrative Borrower to make any filing with any Governmental Authority or qualify any Loan, or any of the Financing Agreements under the laws of any jurisdiction, and the Administrative Borrower shall be entitled to request and receive such information and assurances as it may reasonably request from any Lender or any assignee or Participant to determine whether any such filing or qualification is required or whether any assignment or participation is otherwise in accordance with applicable law.
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(j) If the Administrative Borrower wishes to replace the Loans or Commitments under this Agreement with ones having different terms, it shall have the option, with the consent of Agent and subject to at least three Business Days’ advance notice to the Lenders, instead of prepaying the Loans or reducing or terminating the Commitments to be replaced, to (i) require the Lenders to assign without representation, warranty or recourse of any kind whatsoever, such Loans or Commitments to Agent or its designees and (ii) amend the terms thereof in accordance with Section 13.3, which amendment shall in any such case reflect the resignation effective contemporaneously therewith of Agent as agent. Pursuant to any such assignment, all Loans and Commitments to be replaced shall be purchased at par (allocated among the Lenders under such Facility in the same manner as would be required if such Loans were being optionally prepaid or such Commitments were being optionally reduced or terminated by the Borrower), accompanied by payment of any accrued interest and fees thereon and breakage costs as otherwise required hereunder. By receiving such purchase price, the existing Lenders shall automatically be deemed to have assigned without representation, warranty or recourse of any kind whatsoever, the Loans or Commitments under such Facility, and accordingly no other action by such Lenders shall be required in connection therewith. The provisions of this paragraph are intended to facilitate the maintenance of the perfection and priority of existing security interests in the Collateral during any such replacement.
15.8 Entire Agreement. This Agreement, the other Financing Agreements, any supplements hereto or thereto, and any instruments or documents delivered or to be delivered in connection herewith or therewith represents the entire agreement and understanding concerning the subject matter hereof and thereof between the parties hereto, and supersede all other prior agreements, understandings, negotiations and discussions, representations, warranties, commitments, proposals, offers and contracts concerning the subject matter hereof, whether oral or written. In the event of any inconsistency between the terms of this Agreement and any schedule or exhibit hereto, the terms of this Agreement shall govern.
15.9 USA Patriot Act. Each Lender subject to the USA PATRIOT Act (Title III of Pub.L. 107-56 (signed into law October 26, 2001) (the “Act”) hereby notifies Borrowers and Guarantors that pursuant to the requirements of the Act, it is required to obtain, verify and record information that identifies each person or corporation who opens an account and/or enters into a business relationship with it, which information includes the name and address of Borrowers and Guarantors and other information that will allow such Lender to identify such person in accordance with the Act and any other applicable law. Borrowers and Guarantors are hereby advised that any Loans or Letters of Credit hereunder are subject to satisfactory results of such verification.
15.10 Counterparts, Etc. This Agreement or any of the other Financing Agreements may be executed in any number of counterparts, each of which shall be an original, but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Agreement or any of the other Financing Agreements by telefacsimile or other electronic method of transmission shall have the same force and effect as the delivery of an original executed counterpart of this Agreement or any of such other Financing Agreements. Any party delivering an executed counterpart of any such agreement by telefacsimile or other electronic method of transmission shall also deliver an original executed counterpart, but the failure to do so shall not affect the validity, enforceability or binding effect of such agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Agent, Lenders, Borrowers and Guarantors have caused these presents to be duly executed as of the day and year first above written.
LENDERS: | ||
WELLS FARGO FOOTHILL, LLC, as Administrative and Co-Collateral Agent and a Lender |
||
By: | ||
Name: | ||
Title: | ||
BANK OF AMERICA, N.A., as Co-Collateral Agent and a Lender |
||
By: | ||
Name: | ||
Title: | ||
|
||
[SIGNATURES CONTINUED ON NEXT PAGE]
BORROWERS: | ||
NCI GROUP, INC | ||
By: | ||
Name: | ||
Title: | ||
ROBERTSON-CECO II CORPORATION | ||
By: | ||
Name: | ||
Title: | ||
GUARANTORS: | ||
NCI BUILDING SYSTEMS, INC. | ||
By: | ||
Name: | ||
Title: | ||
STEELBUILDING.COM INC. | ||
By: | ||
Name: | ||
Title: |
[Signature Page Loan and Security Agreement (NCI)]
161 |
EXHIBIT C
|
|
Royal Bank of Canada | $20,000,000 |
[Signature
Page Loan and Security Agreement (NCI)]
162 |
Annex B
EXHIBIT C
Lender | Commitment | |||
Wells Fargo Capital Finance, LLC | $ | 60,000,000 | ||
Bank of America, N.A. | $ | 50,000,000 | ||
UBS AG, Stamford Branch | $ | 20,000,000 | ||
Royal Bank of Canada | $ | 20,000,000 | ||
Total | $ | 150,000,000 |
[Signature
Page Loan and Security Agreement (NCI)]
163 |
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