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:
|
April
4, 2007
(March
29,
2007)
|
|
(Date
of earliest event reported)
|
|
SPECTRUM
BRANDS, INC.
|
|
(Exact
Name of Registrant as Specified in
Charter)
|
|
Wisconsin
|
001-13615
|
22-2423556
|
||
|
(State
or other Jurisdiction of Incorporation)
|
(Commission
File No.)
|
(IRS
Employer Identification No.)
|
Six
Concourse Parkway, Suite 3300, Atlanta, Georgia 30328
(Address
of principal executive offices, including zip code)
|
(770)
829-6200
|
|
(Registrant's
telephone number, including area
code)
|
|
N/A
|
|
(Former
Name or Former Address, if Changed Since Last
Report)
|
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the Registrant under any of the following
provisions:
| o |
Written
communications pursuant to Rule 425 under the Securities Act (17
CFR
230.425)
|
| o |
Soliciting
material
pursuant
to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
| o |
Pre-commencement
communications
pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
|
| o |
Pre-commencement
communications
pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
|
Item
1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT
Variable
Rate Toggle Senior Subordinated Notes due 2013
As
previously publicly disclosed, on March 30, 2007, the Company exchanged Variable
Rate Toggle Senior Subordinated Notes due 2013 (“New
Notes”)
for
its 8 1/2% Senior Subordinated Notes due 2013 (“Existing
Notes”)
in an
early exchange pursuant to the terms of an exchange offer (“Exchange
Offer”).
On
the date of and in connection with the early exchange, the Company and certain
of its domestic subsidiaries, as guarantors, entered into an indenture (the
“Indenture”)
with
Wells Fargo Bank, N.A., as trustee (the “Trustee”),
governing the New Notes.
Subject
to certain conditions, the Company has the option to pay interest on the New
Notes entirely in cash or by increasing the principal amount of the New Notes.
The New Notes bear interest at an initial rate of 11%, increasing to 11.25%
on
April 2, 2007 and thereafter increasing semi-annually, which interest rate
varies depending on whether interest is paid in cash or increased principal.
Interest will be payable semi-annually in arrears on October 2 and April 2,
beginning on October 2, 2007. The Company will make each interest payment to
the
holders of records as of the immediately preceding March 15 and September 15,
respectively. The New Notes are general unsecured obligations of the Company.
They are subordinated in right of payment to all existing and future senior
debt
of the Company, including the indebtedness of the Company under its New Senior
Credit Facility (as defined below). The New Notes are pari passu in right of
payment with all existing and any future senior subordinated indebtedness of
the
Company, including, without limitation, the Company’s 7 3/8% Senior Subordinated
Notes due 2015 and
its
remaining 8 1/2% Senior Subordinated Notes due 2013, and are senior in right
of
payment to any future subordinated indebtedness of the Company. The New Notes
are scheduled to mature on October 2, 2013.
The
terms
of the New Notes are governed by the Indenture. The Indenture contains customary
covenants that limit the Company’s ability to, among other things, incur
additional indebtedness, pay dividends on or redeem or repurchase the Company’s
equity interests, make certain investments, expand into unrelated businesses,
create liens on assets, merge or consolidate with another company, transfer
or
sell all or substantially all of the Company’s assets, and enter into
transactions with affiliates. Upon the occurrence of a “change of control,” as
defined in the Indenture, the Company is required to make an offer to repurchase
the outstanding New Notes for a redemption price, which redemption price begins
at 110% (expressed as a percentage of the principal amount being repurchased)
and declines to 100% on October 1, 2010, in each case plus accrued and unpaid
interest on such principal.
The
Company may redeem all or a part of the New Notes upon not less than 30 nor
more
than 60 days’ notice, at redemption prices (expressed as percentages of
principal amount) beginning at 110% of the principal amount thereof and
declining to 100% on October 1, 2010, in each case plus accrued and unpaid
interest on such principal.
In
addition, the Indenture is subject to customary events of default, including
failure to make required payments, failure to comply with certain agreements
or
covenants, failure to make payments on or acceleration of certain other
indebtedness, and certain events of bankruptcy and insolvency. Events of default
under the Indenture arising from certain events of bankruptcy or insolvency
will
automatically cause the acceleration of the amounts due under the New Notes.
If
any other event of default under the Indenture occurs and is continuing, the
Trustee or the registered holders of at least 25% in aggregate principal amount
of the then outstanding New Notes may declare the acceleration of the amounts
due under the New Notes.
A
copy of
the Indenture is attached hereto as Exhibit 4.1 and is incorporated herein
by
reference. The foregoing description of the Indenture is qualified in its
entirety by reference to the full text of the Indenture.
Supplement
to Existing Indenture
On March
29,
2007, the Company, U.S. Bank National Association, as trustee, and certain
domestic subsidiaries of the Company entered into the Fifth Supplemental
Indenture (the “Fifth
Supplemental Indenture”)
to the
indenture dated as of September 30, 2003 (as previously supplemented, the
“Existing
Indenture”)
governing the Company’s 8 1/2% Senior Subordinated Notes due 2013. The Fifth
Supplemental Indenture (i) amends the Existing Indenture to eliminate
substantially all of the restrictive covenants and certain event of default
provisions contained in the Existing Indenture and (ii) contains a waiver of
any
alleged or existing default or event of default under the Indenture which has
been asserted by certain holders of the Existing Notes who previously delivered
a purported notice of default to the Company relating to the incurrence of
indebtedness, limitations on senior subordinated debt, incurrence of liens
and
delivery of notices under the Existing Indenture.
A
copy of
the Fifth Supplemental Indenture is attached hereto as Exhibit 4.2 and is
incorporated herein by reference. The foregoing description of the Fifth
Supplemental Indenture is qualified in its entirety by reference to the full
text of the Fifth Supplemental Indenture.
New
Credit Agreement and Guarantee and Collateral Agreement
On
March
30,
2007, the Company, Goldman Sachs Credit Partners L.P. (“GSCP”),
as
administrative agent and syndication agent, Goldman Sachs Credit Partners L.P.
and Banc of America Securities LLC (“BAS”),
as
joint lead arrangers and joint bookrunners and the lenders party thereto,
entered into the Credit Agreement (the “Senior
Credit Facility”).
The
Senior Credit Facility provides the opportunity to borrow in domestic and
foreign currencies through various term loan facilities in an aggregate amount
of $1.55 billion, consisting of $1
billion
(“Term B”) and $200
million (“Term
B
II”)
U.S.
Dollar term loan facilities as well as a $350
million
Euro term loan facility (“Euro
Facility”
and,
collectively, the “Term
Loan Facilities”).
The
Senior Credit Facility also provides for a synthetic
letter
of
credit facility with initial aggregate commitments of $50 million (a
“Letter
of Credit Facility”).
In
addition, the Senior Credit Facility permits
a
portion of the Term Loan Facilities in an aggregate principal amount of up
to
$300 million to be replaced with
an asset
based loan facility. The proceeds of borrowings under the Term Loan Facilities
may be used solely to repay outstanding obligations under the Company’s Fourth
Amended and Restated Credit Agreement, dated as of February 7, 2005, and to
pay
fees and expenses in connection with the Exchange Offer and related
transactions, and to use any remaining proceeds for general corporate purposes.
Letters of credit issued under the Letter of Credit Facility may be used solely
to support ordinary course obligations of the Company and its
subsidiaries.
The
interest
and fees per annum are calculated on a 365-day (or 366-day, as the case may
be)
basis for Base Rate (as defined below) loans when the Base Rate is determined
by
reference to the Prime Rate (as defined below). All other computations of
interest and fees are calculated on the basis of a 360-day year and actual
days
elapsed. Base rate (“Base
Rate”)
interest is an alternate base rate equal to the greater of (i) the prime rate,
as defined in the Credit Agreement (the “Prime
Rate”),
and
(ii) the federal funds effective rate in effect on such day published by the
Federal Reserve Bank in New York plus
1/2 of
1%. At the Company’s option and subject to certain conditions, interest on U.S.
dollar-denominated loans will accrue at a reserve-adjusted LIBOR rate for a
specified interest period plus a margin rate of 4.00%
per
annum
or the
Base Rate plus a margin rate of 3.00%
per
annum. The loans denominated in Euros
will accrue interest at a
reserve-adjusted LIBOR rate for a specified interest period plus a margin rate
of 4.50% per annum.
Pursuant
to the Letter of Credit Facility, the Company is required to pay quarterly
participation and fronting fees based on the amount of the letter of credit
deposits and the letter of credit exposures, respectively, of the applicable
lenders.
The
Term
Loan Facilities are subject to repayment according to a scheduled amortization,
with the final payment of all amounts outstanding, plus accrued and unpaid
interest, due on March 30, 2013. Letters of credit issued pursuant to the Letter
of Credit Facility are required to expire, at the latest, five business days
prior to March 30, 2013.
Voluntary
prepayments
are applied first to the Term B
II
facility
and then ratably to the Term B facility and Euro Facility. Beginning with the
fiscal year ended September 30, 2007, the Senior Credit Facility provides for
annual mandatory prepayments, over and above the normal amortization as a result
of Excess Cash Flow (as defined in the Senior Credit Facility). The Senior
Credit Facility also provides for other mandatory prepayments (subject to
certain exceptions and reinvestment provisions) of net proceeds as a result
of
issuance of debt (excluding certain permitted indebtedness), sales of certain
assets above a specified threshold, receipt of proceeds from certain casualty
events and the issuance by the Company or any of its subsidiaries of equity
interests. The
Letter of Credit Facility is subject to an early termination premium of 1.00%
(expressed as a percentage of the aggregate amount of the letter of credit
commitments terminated) in the event that the letter of credit commitments
are
terminated in full or substantially in full on or prior to March 30, 2008.
In
addition, loans made under the Term Loan Facilities are subject to a prepayment
premium of 1.00% (as a percentage of the aggregate principal amount of loans
prepaid) in the event that such loans are prepaid in full or substantially
in
full on or prior to March 30, 2008.
The
Senior Credit Facility contains financial covenants with respect to debt which
include a maximum senior secured leverage ratio. In
accordance with the agreement, the limits imposed by such ratio become more
restrictive over time.
In
addition, the Senior Credit Facility contains customary restrictive covenants,
including, but not limited to, restrictions on the Company’s ability to incur
additional indebtedness, create liens, make investments or specified payments,
give guarantees, pay dividends, make capital expenditures and merge or acquire
or sell assets.
The
Senior Credit Facility also contains customary events of default, including,
without limitation, payment defaults, breaches of representations and
warranties, covenant defaults, cross-defaults to similar obligations, certain
events of bankruptcy and insolvency, judgment defaults, failure of any guaranty
or security document supporting the Senior Credit Facility to be in full force
and effect, change of control and customary ERISA defaults. If an event of
default occurs and is continuing, amounts due under the Senior Credit Facility
may be accelerated and the rights and remedies of the lenders under the Senior
Credit Facility available under the applicable loan documents may be exercised,
including rights with respect to the collateral securing obligations under
the
Senior Credit Facility.
The
Senior Credit Facility is secured by substantially all of the Company’s domestic
assets and the obligations under the Senior Credit Facility are guaranteed
pursuant to a guaranty and collateral agreement (the “Guarantee
and Collateral Agreement”)
made
by the Company and certain of its subsidiaries on March 30, 2007.
Copies
of
the Senior Credit Facility and the Guarantee and Collateral Agreement are
attached hereto as Exhibits 10.1 and 10.2,
respectively, and are incorporated herein by reference. The foregoing
descriptions of the Senior Credit Facility and the Guarantee and Collateral
Agreement are qualified in their entirety by reference to the full text of
the
respective agreements.
Certain
Relationships
Each
of
BAS and GSCP and their respective affiliates have performed certain investment
banking and advisory services and general banking and financing services for
the
Company from time to time for which they have received customary fees and
expenses. Bank of America, N.A., an affiliate of BAS, was the administrative
agent and a lender under the Company’s former senior secured credit facility,
and Banc of America Bridge LLC, another affiliate of BAS, is an initial lender
under the Senior Secured Credit Facility. In addition, BAS has been one of
the
initial purchasers in connection with offerings of the Company’s senior
subordinated unsecured notes. Each of BAS, GSCP and their respective affiliates
may, from time to time in the future, engage in transactions with and perform
services for the Company in the ordinary course of their business for which
they
will receive customary fees or expenses.
Item
1.02 TERMINATION
OF A MATERIAL DEFINITIVE AGREEMENT
On
March
30,
2007, Spectrum Brands, Inc. (the “Company”)
fully
prepaid the outstanding loans and paid the other outstanding obligations under
its Fourth Amended and Restated Credit Agreement, dated as of February 7, 2005
(the “Existing
Credit Agreement”),
at
which time the Existing Credit Agreement and the related Security Agreement,
ROV
Guaranty, KGaA Guaranty and UK Guaranty, each dated as of February 7, 2005,
were
terminated, subject to the survival of any provisions which by their terms
survive the prepayment and the termination. The payment included a
$1,412,617,690 principal payment, approximately $16
million
in
accrued interest and approximately $46
million
for
various fees.
Item
2.03 CREATION
OF A DIRECT FINANCIAL OBLIGATION OR AN OBLIGATION UNDER AN OFF-BALANCE SHEET
ARRANGEMENT OF THE REGISTRANT
The
disclosures under Item 1.01 of this Current Report on Form 8-K
relating to the Indenture and the Senior Credit Facility are incorporated into
this Item 2.03 by reference.
On
March
30, 2007, the Company borrowed $1,550,000,000, or the full amount, of the term
loans available for borrowing under the Credit Agreement dated as of March
30,
2007 (the "Credit
Agreement"),
among
the Company and Goldman Sachs Credit Partners L.P., as administrative agent,
and
the other parties and financial institutions party thereto.
Item
9.01. FINANCIAL STATEMENTS AND EXHIBITS
(d)
Exhibits
|
4.1
|
Indenture
dated as of March 30, 2007, among Spectrum Brands, Inc. (the
“Company”), certain subsidiaries of the Company, as guarantors,
and
Wells Fargo Bank, N.A., as trustee.
|
|
4.2
|
Fifth
Supplemental Indenture dated as of March 29, 2007, among the Company,
certain subsidiaries of the Company, as guarantors, and U.S. Bank
National
Association, as trustee.
|
|
|
Credit
Agreement dated as of March 30, 2007, among the Company, Goldman
Sachs
Credit Partners L.P., as administrative agent, and the other parties
and
financial institutions party thereto.
|
||
|
10.2
|
Guarantee
and Collateral Agreement dated as of March 30, 2007, among the
Company,
certain subsidiaries of the Company and Goldman Sachs Credit Partners
L.P., as administrative agent.
|
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.
| Date: April 4, 2007 |
SPECTRUM
BRANDS, INC.
|
|
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name: Randall J. Steward |
||
|
Title:
Executive Vice President and Chief
Financial Officer
|
||
EXHIBIT
INDEX
|
Exhibit
|
Description
|
|
|
4.1
|
Indenture
dated as of March 30, 2007, among Spectrum Brands, Inc. (the “Company”),
certain subsidiaries of the Company, as guarantors, and Wells Fargo
Bank,
N.A., as trustee.
|
|
|
4.2
|
Fifth
Supplemental Indenture dated as of March 29, 2007, among the Company,
certain subsidiaries of the Company, as guarantors, and U.S. Bank
National
Association, as trustee.
|
|
|
10.1
|
Credit
Agreement dated as of March 30, 2007, among the Company, Goldman
Sachs
Credit Partners L.P., as administrative agent, and the other parties
and
financial institutions party thereto.
|
|
|
10.2
|
Guarantee
and Collateral Agreement dated as of March 30, 2007, among the Company,
certain subsidiaries of the Company and Goldman Sachs Credit Partners
L.P., as administrative agent.
|
SPECTRUM
BRANDS, INC.
VARIABLE
RATE TOGGLE SENIOR SUBORDINATED NOTES DUE 2013
INDENTURE
Dated
as
of March
30,
2007
WELLS
FARGO BANK, N.A.
Trustee
CROSS-REFERENCE
TABLE*
|
Trust
Indenture Act
|
Indenture
|
||
|
Section
|
Section
|
||
|
310
|
(a)(1)
|
7.10
|
|
|
(a)(2)
|
7.10
|
||
|
(a)(5)
|
7.10
|
||
|
(b)
|
7.10
|
||
|
(c)
|
N.A.
|
||
|
311
|
(a)
|
7.11
|
|
|
(b)
|
7.11
|
||
|
312
|
(a)
|
2.05
|
|
|
(b)
|
12.03
|
||
|
(c)
|
12.03
|
||
|
313
|
(a)
|
7.06
|
|
|
(b)(2)
|
7.06
|
||
|
(c)
|
7.06
|
||
|
(d)
|
7.06
|
||
|
314
|
(a)
|
4.03
|
|
|
(c)(1)
|
12.04
|
||
|
(c)(2)
|
12.04
|
||
|
(e)
|
12.05
|
||
|
316
|
(a)(last
sentence)
|
2.09
|
|
|
(a)(1)(A)
|
|||
|
(a)(1)(B)
|
6.04
|
||
|
317
|
(a)(1)
|
6.08
|
|
* This
Cross-Reference Table is not part of this Indenture.
TABLE
OF
CONTENTS
| ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE |
1
|
||
|
Section
1.01
|
Definitions
|
1
|
|
|
Section
1.02
|
Other
Definitions
|
24
|
|
|
Section
1.03
|
Incorporation
by Reference of Trust Indenture Act
|
24
|
|
|
Section
1.04
|
Rules
of Construction
|
25
|
|
| ARTICLE II THE NOTES |
26
|
||
|
Section
2.01
|
Form
and Dating
|
26
|
|
|
Section
2.02
|
Execution
and Authentication
|
26
|
|
|
Section
2.03
|
Registrar
and Paying Agent
|
27
|
|
|
Section
2.04
|
Paying
Agent to Hold Money in Trust
|
27
|
|
|
Section
2.05
|
Holder
Lists
|
28
|
|
|
Section
2.06
|
Transfer
and Exchange
|
28
|
|
|
Section
2.07
|
Replacement
Notes
|
31
|
|
|
Section
2.08
|
Outstanding
Notes
|
32
|
|
|
Section
2.09
|
Treasury
Notes
|
32
|
|
|
Section
2.10
|
Certificated
Notes
|
32
|
|
|
Section
2.11
|
Temporary
Notes
|
34
|
|
|
Section
2.12
|
Cancellation
|
34
|
|
|
Section
2.13
|
Defaulted
Interest
|
34
|
|
|
Section
2.14
|
CUSIP
and ISIN Numbers
|
34
|
|
|
Section
2.15
|
Deposit
of Moneys
|
34
|
|
|
Section
2.16
|
Computation
of Interest
|
35
|
|
|
Section
2.17
|
Characterization
of Notes for U.S. Federal Income Tax Purposes
|
35
|
|
| ARTICLE III REDEMPTION AND PREPAYMENT |
35
|
||
|
Section
3.01
|
Notices
to Trustee
|
35
|
|
|
Section
3.02
|
Selection
of Notes to Be Redeemed
|
35
|
|
|
Section
3.03
|
Notice
of Redemption
|
35
|
|
|
Section
3.04
|
Effect
of Notice of Redemption
|
36
|
|
|
Section
3.05
|
Deposit
of Redemption Price
|
36
|
|
|
Section
3.06
|
Notes
Redeemed in Part
|
37
|
|
|
Section
3.07
|
Optional
Redemption
|
37
|
|
|
Section
3.08
|
Mandatory
Redemption
|
38
|
|
|
Section
3.09
|
Offer
to Purchase
|
38
|
|
| ARTICLE IV COVENANTS |
40
|
||
|
Section
4.01
|
Payment
of Notes
|
40
|
|
|
Section
4.02
|
Maintenance
of Office or Agency
|
40
|
|
i
|
Section
4.03
|
Reports
|
41
|
|
|
Section
4.04
|
Compliance
Certificate
|
41
|
|
|
Section
4.05
|
Taxes
|
42
|
|
|
Section
4.06
|
Stay,
Extension and Usury Laws
|
42
|
|
|
Section
4.07
|
Restricted
Payments
|
42
|
|
|
Section
4.08
|
Dividend
and Other Payment Restrictions Affecting Restricted
Subsidiaries
|
46
|
|
|
Section
4.09
|
Incurrence
of Indebtedness and Issuance of Preferred Stock
|
47
|
|
|
Section
4.10
|
Asset
Sales
|
50
|
|
|
Section
4.11
|
Transactions
with Affiliates
|
52
|
|
|
Section
4.12
|
Liens
|
54
|
|
|
Section
4.13
|
Corporate
Existence
|
54
|
|
|
Section
4.14
|
Offer
to Repurchase upon Change of Control
|
54
|
|
|
Section
4.15
|
Limitation
on Senior Subordinated Debt
|
55
|
|
|
Section
4.16
|
Designation
of Restricted and Unrestricted Subsidiaries
|
55
|
|
|
Section
4.17
|
Payments
for Consent
|
57
|
|
|
Section
4.18
|
Business
Activities
|
57
|
|
|
Section
4.19
|
Limitation
on Issuances and Sales of Equity Interests in Restricted
Subsidiaries
|
58
|
|
|
Section
4.20
|
Additional
Note Guarantees
|
58
|
|
|
ARTICLE
V SUCCESSORS
|
59
|
||
|
Section
5.01
|
Merger,
Consolidation or Sale of Assets
|
59
|
|
|
Section
5.02
|
Successor
Corporation Substituted
|
60
|
|
| ARTICLE VI DEFAULTS AND REMEDIES |
61
|
||
|
Section
6.01
|
Events
of Default
|
61
|
|
|
Section
6.02
|
Acceleration
|
63
|
|
|
Section
6.03
|
Other
Remedies
|
64
|
|
|
Section
6.04
|
Waiver
of Past Defaults
|
64
|
|
|
Section
6.05
|
Control
by Majority
|
64
|
|
|
Section
6.06
|
Limitation
on Suits
|
65
|
|
|
Section
6.07
|
Rights
of Holders of Notes to Receive Payment
|
65
|
|
|
Section
6.08
|
Collection
Suit by Trustee
|
65
|
|
|
Section
6.09
|
Trustee
May File Proofs of Claim
|
66
|
|
|
Section
6.10
|
Priorities
|
66
|
|
|
Section
6.11
|
Undertaking
for Costs
|
66
|
|
|
Section
6.12
|
Restoration
of Rights and Remedies
|
67
|
|
|
Section
6.13
|
Rights
and Remedies Cumulative
|
67
|
|
|
Section
6.14
|
Delay
or Omission Not Waiver
|
67
|
|
|
Section
6.15
|
Record
Date
|
67
|
|
| ARTICLE VII TRUSTEE |
67
|
||
|
Section
7.01
|
Duties
of Trustee
|
67
|
|
ii
|
Section
7.02
|
Rights
of Trustee
|
69
|
|
|
Section
7.03
|
Individual
Rights of Trustee
|
69
|
|
|
Section
7.04
|
Trustee’s
Disclaimer
|
70
|
|
|
Section
7.05
|
Notice
of Defaults
|
70
|
|
|
Section
7.06
|
Reports
by Trustee to the Holders of the Notes
|
70
|
|
|
Section
7.07
|
Compensation
and Indemnity
|
70
|
|
|
Section
7.08
|
Replacement
of Trustee
|
71
|
|
|
Section
7.09
|
Successor
Trustee by Merger, Etc.
|
72
|
|
|
Section
7.10
|
Eligibility;
Disqualification
|
73
|
|
|
Section
7.11
|
Preferential
Collection of Claims Against Company
|
73
|
|
| ARTICLE VIII LEGAL DEFEASANCE AND COVENANT DEFEASANCE; SATISFACTION AND DISCHARGE |
73
|
||
|
Section
8.01
|
Option
to Effect Legal Defeasance or Covenant Defeasance
|
73
|
|
|
Section
8.02
|
Legal
Defeasance and Discharge
|
73
|
|
|
Section
8.03
|
Covenant
Defeasance
|
74
|
|
|
Section
8.04
|
Conditions
to Legal Defeasance or Covenant Defeasance
|
74
|
|
|
Section
8.05
|
Satisfaction
and Discharge of Indenture
|
76
|
|
|
Section
8.06
|
Survival
of Certain Obligations
|
77
|
|
|
Section
8.07
|
Acknowledgment
of Discharge by Trustee
|
77
|
|
|
Section
8.08
|
Deposited
Money and Cash Equivalents to Be Held in Trust; Other Miscellaneous
Provisions
|
77
|
|
|
Section
8.09
|
Repayment
to Company
|
78
|
|
|
Section
8.10
|
Indemnity
for Government Securities
|
78
|
|
|
Section
8.11
|
Reinstatement
|
78
|
|
| ARTICLE IX AMENDMENT, SUPPLEMENT AND WAIVER |
78
|
||
|
Section
9.01
|
Without
Consent of Holders of Notes
|
78
|
|
|
Section
9.02
|
With
Consent of Holders of Notes
|
79
|
|
|
Section
9.03
|
Compliance
with Trust Indenture Act
|
81
|
|
|
Section
9.04
|
Revocation
and Effect of Consents
|
81
|
|
|
Section
9.05
|
Notation
on or Exchange of Notes
|
82
|
|
|
Section
9.06
|
Trustee
to Sign Amendments, Etc.
|
82
|
|
| ARTICLE X SUBORDINATION |
82
|
||
|
Section
10.01
|
Agreement
to Subordinate
|
82
|
|
|
Section
10.02
|
Liquidation;
Dissolution; Bankruptcy
|
82
|
|
|
Section
10.03
|
Default
on Designated Senior Debt
|
83
|
|
|
Section
10.04
|
Acceleration
of Securities
|
84
|
|
|
Section
10.05
|
When
Distribution Must Be Paid Over
|
84
|
|
|
Section
10.06
|
Notice
by the Company
|
84
|
|
|
Section
10.07
|
Subrogation
|
84
|
|
|
Section
10.08
|
Relative
Rights
|
84
|
|
|
Section
10.09
|
Subordination
May Not Be Impaired by the Company
|
85
|
|
iii
|
Section
10.10
|
Distribution
or Notice to Representative
|
85
|
|
|
Section
10.11
|
Rights
of Trustee and Paying Agent
|
85
|
|
|
Section
10.12
|
Authorization
to Effect Subordination
|
85
|
|
| ARTICLE XI NOTE GUARANTEES |
86
|
||
|
Section
11.01
|
Guarantee
|
86
|
|
|
Section
11.02
|
Subordination
of Note Guarantee
|
87
|
|
|
Section
11.03
|
Limitation
on Guarantor Liability
|
87
|
|
|
Section
11.04
|
Execution
and Delivery of Note Guarantee
|
87
|
|
|
Section
11.05
|
Releases
Following Sale of Assets
|
88
|
|
|
Section
11.06
|
Additional
Guarantors
|
88
|
|
|
Section
11.07
|
Notation
Not Required
|
88
|
|
|
Section
11.08
|
Successors
and Assigns
|
88
|
|
|
Section
11.09
|
No
Waiver
|
89
|
|
|
Section
11.10
|
Modification
|
89
|
|
| ARTICLE XII MISCELLANEOUS |
89
|
||
|
Section
12.01
|
Trust
Indenture Act Controls
|
89
|
|
|
Section
12.02
|
Notices
|
89
|
|
|
Section
12.03
|
Communication
by Holders of Notes with Other Holders of Notes
|
91
|
|
|
Section
12.04
|
Certificate
and Opinion as to Conditions Precedent
|
91
|
|
|
Section
12.05
|
Statements
Required in Certificate or Opinion
|
91
|
|
|
Section
12.06
|
Rules
by Trustee and Agents
|
92
|
|
|
Section
12.07
|
No
Personal Liability of Directors, Officers, Employees and
Stockholders
|
92
|
|
|
Section
12.08
|
Governing
Law
|
92
|
|
|
Section
12.09
|
No
Adverse Interpretation of Other Agreements
|
92
|
|
|
Section
12.10
|
Successors
|
92
|
|
|
Section
12.11
|
Severability
|
92
|
|
|
Counterpart
Originals
|
92
|
||
|
Section
12.13
|
Table
of Contents, Headings, Etc.
|
92
|
|
iv
EXHIBITS
|
Exhibit
A
|
FORM
OF NOTE
|
|
|
FORM
OF NOTICE OF ELECTION
|
||
|
Exhibit
C
|
FORM
OF NOTE GUARANTEE
|
|
|
Exhibit
D
|
FORM
OF SUPPLEMENTAL INDENTURE
|
|
|
Schedule
I
|
GUARANTORS
|
v
INDENTURE
dated as of March 30, 2007 among Spectrum Brands, Inc., a Wisconsin corporation
(the “Company”),
the
Guarantors listed in Schedule
I
hereto
and Wells Fargo Bank, N.A., as trustee (the “Trustee”).
The
Company, the Guarantors and the Trustee agree as follows for the benefit of
each
other and for the equal and proportionate benefit of the Holders of the Variable
Rate Toggle Senior Subordinated Notes Due 2013.
ARTICLE
I
DEFINITIONS
AND INCORPORATION BY REFERENCE
Section
1.01 Definitions.
“Acquired
Debt”
means,
with respect to any specified Person:
(a) Indebtedness
of any other Person existing at the time such other Person is merged with or
into, or becomes a Subsidiary of, such specified Person, whether or not such
Indebtedness is incurred in connection with, or in contemplation of, such other
Person merging with or into, or becoming a Subsidiary of, such specified Person;
and
(b) Indebtedness
secured by a Lien encumbering any asset acquired by such specified
Person.
“Additional
Notes”
means
an additional principal amount of Notes which may be issued in connection with
any PIK Payment.
“Affiliate”
of
any
specified Person means (a) any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified
Person or (b) any executive officer or director of such specified Person. For
purposes of this definition, “control,” as used with respect to any Person,
shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or otherwise;
provided
that
beneficial ownership of 10% or more of the Voting Stock of a Person shall be
deemed to be control. For purposes of this definition, the terms “controlling,”
“controlled by” and “under common control with” shall have correlative meanings;
provided,
further,
that
each of Paula Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs-KG,
Mannheim and ROSATA Grundstücksvermietungsgesellschaft mbH & Co. Object
Dischingen KG, Dusseldorf, shall not be deemed Affiliates of the Company or
any
of its Restricted Subsidiaries solely by virtue of the beneficial ownership
by
the Company or its Restricted Subsidiaries of up to 20% of the Voting Stock
of
each entity.
1
“Agent”
means
any Registrar, Paying Agent or co-registrar.
“Applicable
Procedures”
means,
with respect to any transfer or exchange of or for beneficial interests in
any
Global Note, the rules and procedures of the Depositary that apply to such
transfer or exchange.
“Asset
Sale”
means:
(a) the
sale,
lease, conveyance or other disposition of any property or assets; provided
that the
sale, conveyance or other disposition of all or substantially all of the assets
of the Company and its Restricted Subsidiaries, taken as a whole, shall be
governed by the provisions of Section 4.14 and/or Section 5.01 and not by the
provisions of Section 4.10; and
(b) the
issuance of Equity Interests by any of the Company’s Restricted Subsidiaries or
the sale by the Company or any Restricted Subsidiary of Equity Interests in
any
of its Subsidiaries.
Notwithstanding
the preceding, the following items shall be deemed not to be Asset
Sales:
(i) any
single transaction or series of related transactions that involves assets having
a fair market value of less than $5.0 million;
(ii) a
transfer of assets between or among the Company and its Restricted
Subsidiaries;
(iii) an
issuance of Equity Interests by a Restricted Subsidiary to the Company or to
another Restricted Subsidiary of the Company;
(iv) the
sale,
lease or other disposition of equipment, inventory, accounts receivable or
other
assets in the ordinary course of business;
(v) the
sale
or other disposition of Cash Equivalents;
(vi) a
Restricted Payment that is permitted by Section 4.07;
2
(vii) any
sale
or disposition of any property or equipment that has become damaged, worn out,
obsolete or otherwise unsuitable or no longer required for use in the ordinary
course of the business of the Company or its Restricted
Subsidiaries;
(viii) the
licensing of intellectual property in the ordinary course of
business;
(ix) any
sale
or other disposition deemed to occur with creating or granting a Lien not
otherwise prohibited by this Indenture; and
(x) upon
the
termination of the VARTA joint venture with VARTA AG, the sale, transfer or
other disposition of the Equity Interests in FinanceCo (as defined in the VARTA
Joint Venture Agreement) and the forgiveness of any loans owed by VARTA AG,
in
each case pursuant to, and in accordance with the terms of, the VARTA Joint
Venture Agreement as in effect on the date of this Indenture.
“Bankruptcy
Law”
means
any law relating to bankruptcy, insolvency, receivership, winding-up,
liquidation, reorganization or relief of debtors or any amendment to, succession
to or change in any such law, including, without limitation, the state
bankruptcy law of the Company or the Guarantor’s jurisdiction and title 11,
United States Bankruptcy Code of 1978, as amended.
“Beneficial
Owner”
has
the
meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange
Act, except that in calculating the beneficial ownership of any particular
“person” (as that term is used in Section 13(d)(3) of the Exchange Act), such
“person” shall be deemed to have beneficial ownership of all securities that
such “person” has the right to acquire by conversion or exercise of other
securities, whether such right is currently exercisable or is exercisable only
upon the occurrence of a subsequent condition. The terms “Beneficially Owns” and
“Beneficially Owned” shall have a corresponding meaning.
“Board
of Directors”
means
(a) with respect to a corporation, the board of directors of the corporation;
(b) with respect to a partnership, the Board of Directors of the general partner
of the partnership; and (c) with respect to any other Person, the board or
committee of such Person serving a similar function.
“Business
Day”
means
any day other than a Legal Holiday.
“Capital
Lease Obligation”
means,
at the time any determination thereof is to be made, the amount of the liability
in respect of a capital lease that would at that time be required to be
capitalized on a balance sheet in accordance with GAAP.
3
“Capital
Stock”
means
(a) in the case of a corporation, corporate stock; (b) in the case of an
association or business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock; (c) in
the
case of a partnership or limited liability company, partnership or membership
interests (whether general or limited); and (d) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing
Person.
“Cash
Equivalents”
means
(a) United States dollars; (b) securities issued or directly and fully
guaranteed or insured by the United States government or any agency or
instrumentality thereof (provided
that the
full faith and credit of the United States is pledged in support thereof) having
maturities of not more than six months from the date of acquisition; (c)
certificates of deposit and eurodollar time deposits with maturities of six
months or less from the date of acquisition, bankers’ acceptances with
maturities not exceeding six months and overnight bank deposits, in each case,
with any domestic commercial bank having capital and surplus in excess of $500.0
million and a Thomson Bank Watch Rating of “B” or better; (d) repurchase
obligations with a term of not more than seven days for underlying securities
of
the types described in clauses (b) and (c) above entered into with any financial
institution meeting the qualifications specified in clause (c) above; (e)
commercial paper having the highest rating obtainable from Moody’s or S&P
and in each case maturing within nine months after the date of acquisition;
(f)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof having the highest ratings obtainable from Moody’s or
S&P and maturing within six months from the date of acquisition thereof; and
(g) money market funds at least 95% of the assets of which constitute Cash
Equivalents of the kinds described in clauses (a) through (f) of this
definition.
“Certificated
Note”
means
a
certificated note in registered certificated form in the name of the Holder
thereof and issued in accordance with Section 2.06 hereof, in the form of
Exhibit A hereto, except that such Note shall not bear the Global Note Legend
and shall not have the “Schedule of Exchanges of Interests in the Global Note”
attached thereto.
“Change
of Control”
means
the occurrence of any of the following: (a) the direct or indirect sale,
transfer, conveyance or other disposition (other than by way of merger or
consolidation), in one or a series of related transactions, of all or
substantially all of the properties or assets of the Company and its Restricted
Subsidiaries, taken as a whole, to any “person” (as that term is used in Section
13(d)(3) of the Exchange Act); (b) the adoption of a plan relating to the
liquidation or dissolution of the Company; (c) any “person” or “group” (as such
terms are used in Sections 13(d) and 14(d) of the Exchange Act) becomes the
ultimate Beneficial Owner, directly or indirectly, of 50% or more of the voting
power of the Voting Stock of the Company; (d) the first day on which a majority
of the members of the Board of Directors of the Company are not Continuing
Directors; or (e) the Company consolidates with, or merges with or into, any
Person, or any Person consolidates with, or merges with or into the Company,
in
any such event pursuant to a transaction in which any of the outstanding Voting
Stock of the Company or such other Person is converted into or exchanged for
cash, securities or other property, other than any such transaction where (i)
the Voting Stock of the Company outstanding immediately prior to such
transaction is converted into or exchanged for Voting Stock (other than
Disqualified Stock) of the surviving or transferee Person constituting a
majority of the outstanding shares of such Voting Stock of such surviving or
transferee Person (immediately after giving effect to such issuance) and (ii)
immediately after such transaction, no “person” or “group” (as such terms are
used in Sections 13(d) and 14(d) of the Exchange Act) becomes, directly or
indirectly, the ultimate Beneficial Owner of 50% or more of the voting power
of
the Voting Stock of the surviving or transferee Person.
4
“Consolidated
Cash Flow”
means,
with respect to any specified Person for any period, the Consolidated Net Income
of such Person for such period plus,
without
duplication: (a) provision for taxes based on income or profits of such Person
and its Restricted Subsidiaries for such period, to the extent that such
provision for taxes was deducted in computing such Consolidated Net Income;
plus
(b)
Fixed Charges of such Person and its Restricted Subsidiaries for such period,
to
the extent that any such Fixed Charges were deducted in computing such
Consolidated Net Income; plus
(c)
depreciation, amortization (including amortization of goodwill and other
intangibles but excluding amortization of prepaid cash expenses that were paid
in a prior period) and other non-cash expenses (excluding any special charges
and additional restructuring charges referred to in clauses (d) and (e) without
giving effect to the provisos, and any such non-cash expense to the extent
that
it represents an accrual of or reserve for cash expenses in any future period
or
amortization of a prepaid cash expense that was paid in a prior period) of
such
Person and its Restricted Subsidiaries for such period to the extent that such
depreciation, amortization and other non-cash expenses were deducted in
computing such Consolidated Net Income; plus
(d)
special charges included on the face of the Company’s consolidated statement of
operations for its fiscal years ended September 30, 2002 and 2003 furnished
to
Holders as provided under Section
4.03
and, in
the case of fiscal 2003, additional restructuring charges related to markdown
monies included as a reduction of net sales, to the extent such special charges
and additional restructuring charges were deducted in computing Consolidated
Net
Income for such period; provided
that the
maximum aggregate amount of such special charges and additional restructuring
charges for the fiscal year ended September 30, 2003 shall not exceed $42.0
million; plus
(e)
special charges related to the acquisition of Remington incurred during any
period after June 30, 2003, and prior to September 30, 2005, and included on
the
face of the Company’s consolidated statement of operations furnished to Holders
as provided under Section
4.03
to the
extent such special charges were deducted in computing Consolidated Net Income
for such period; provided
that the
maximum aggregate amount of such special charges shall not exceed $35.0 million;
minus
(f)
non-cash items increasing such Consolidated Net Income for such period, other
than the accrual of revenue consistent with past practice, in
each
case, on a consolidated basis and determined in accordance with
GAAP.
Notwithstanding
the preceding, the provision for taxes based on the income or profits of, and
the depreciation and amortization and other non-cash expenses of, a Restricted
Subsidiary of the Company shall be added to Consolidated Net Income to compute
Consolidated Cash Flow of the Company (A) in the same proportion that the Net
Income of such Restricted Subsidiary was added to compute such Consolidated
Net
Income of the Company and (B) only to the extent that a corresponding amount
would be permitted at the date of determination to be dividended or distributed
to the Company by such Restricted Subsidiary without prior governmental approval
(that has not been obtained), and without direct or indirect restriction
pursuant to the terms of its charter and all agreements, instruments, judgments,
decrees, orders, statutes, rules and governmental regulations applicable to
that
Subsidiary or its stockholders.
5
“Consolidated
Net Income”
means,
with respect to any specified Person for any period, the aggregate of the Net
Income of such Person and its Subsidiaries for such period, on a consolidated
basis, determined in accordance with GAAP; provided
that:
(a) the
Net
Income (but not loss) of any Person that is not a Restricted Subsidiary or
that
is accounted for by the equity method of accounting shall be included only
to
the extent of the amount of dividends or distributions paid in cash to the
specified Person or a Restricted Subsidiary thereof;
(b) the
Net
Income of any Restricted Subsidiary shall be excluded to the extent that the
declaration or payment of dividends or similar distributions by that Restricted
Subsidiary of that Net Income is not at the date of determination permitted
without any prior governmental approval (that has not been obtained) or,
directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its
equityholders;
(c) the
Net
Income of any Person acquired during the specified period for any period prior
to the date of such acquisition shall be excluded;
(d) the
cumulative effect of a change in accounting principles shall be excluded;
and
(e) notwithstanding
clause (a) above, the Net Income (but not loss) of any Unrestricted Subsidiary
shall be excluded, whether or not distributed to the specified Person or one
of
its Subsidiaries.
“Consolidated
Net Tangible Assets”
of
any
Person means, as of any date, the amount which, in accordance with GAAP, would
be set forth under the caption “Total Assets” (or any like caption) on a
consolidated balance sheet of such Person and its Restricted Subsidiaries,
as of
the end of the most recently ended fiscal quarter for which internal financial
statements are available, less (a) all intangible assets, including, without
limitation, goodwill, organization costs, patents, trademarks, copyrights,
franchises, and research and development costs and (b) current
liabilities.
“Continuing
Directors”
means,
as of any date of determination, any member of the Board of Directors of the
Company who (a) was a member of such Board of Directors on the date of this
Indenture; or (b) was nominated for election or elected to such Board of
Directors with the approval of a majority of the Continuing Directors who were
members of such Board at the time of such nomination or election.
6
“Corporate
Trust Office of the Trustee”
shall
be at the address of the Trustee specified in Section 12.02 hereof or such
other
address as to which the Trustee may give notice to the Company.
“Credit
Agreement”
means
that certain Credit Agreement, dated as of the date of this Indenture, by and
among the Company, Goldman Sachs Credit Partners L.P., as Administrative Agent,
and the lenders named therein and other financial institutions and other parties
thereto, including any related notes, Guarantees, collateral documents,
instruments and agreements executed in connection therewith, and in each case
as
amended, modified, renewed, refunded, replaced or refinanced from time to time,
regardless of whether such amendment, modification, renewal, refunding,
replacement or refinancing is with the same financial institutions or
otherwise.
“Credit
Facilities”
means,
one or more debt facilities (including, without limitation, the Credit
Agreement) or commercial paper facilities, in each case with banks or other
institutional lenders providing for revolving credit loans, term loans,
receivables financing (including through the sale of receivables to such lenders
or to special purpose entities formed to borrow from such lenders against such
receivables) or letters of credit, in each case, as amended, restated, modified,
renewed, refunded, replaced or refinanced in whole or in part from time to
time.
“Custodian”
means
the Trustee, as custodian with respect to the Notes in global form, or any
successor entity thereto.
“Default”
means
any event that is, or with the passage of time or the giving of notice or both
would be, an Event of Default.
“Depositary”
means,
with respect to the Notes issuable or issued in whole or in part in global
form,
the Person specified in Section 2.03 hereof as the Depositary with respect
to
the Notes, and any and all successors thereto appointed as depositary hereunder
and having become such pursuant to the applicable provision of this
Indenture.
“Designated
Senior Debt”
means:
(a) any
Indebtedness outstanding under the Credit Agreement; and
7
(b) after
payment in full of all Obligations under the Credit Agreement, any other Senior
Debt permitted under this Indenture the principal amount of which is $50.0
million or more and that has been designated by the Company as “Designated
Senior Debt.”
“Disqualified
Stock”
means
any Capital Stock that, by its terms (or by the terms of any security into
which
it is convertible, or for which it is exchangeable, in each case at the option
of the holder thereof), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise,
or
redeemable at the option of the holder thereof, in whole or in part, on or
prior
to the date that is one year after the date on which the Notes mature, except
to
the extent such Capital Stock is solely redeemable with, or solely exchangeable
for, any Equity Interests of the Company that are not Disqualified Stock.
Notwithstanding the preceding sentence, any Capital Stock that would constitute
Disqualified Stock solely because the holders thereof have the right to require
the Company to repurchase such Capital Stock upon the occurrence of a change
of
control or an asset sale shall not constitute Disqualified Stock if the terms
of
such Capital Stock provide that the Company may not repurchase or redeem any
such Capital Stock pursuant to such provisions unless such repurchase or
redemption complies with Section 4.07. The term “Disqualified Stock” shall also
include any options, warrants or other rights that are convertible into
Disqualified Stock or that are redeemable at the option of the holder, or
required to be redeemed, prior to the date that is one year after the date
on
which the Notes mature.
“Domestic
Subsidiary”
means
any Restricted Subsidiary of the Company other than a Restricted Subsidiary
that
is (a) a “controlled foreign corporation” under Section 957 of the Internal
Revenue Code or (b) a Subsidiary of any such controlled foreign
corporation.
“Equity
Interests”
means
Capital Stock and all warrants, options or other rights to acquire Capital
Stock
(but excluding any debt security that is convertible into, or exchangeable
for,
Capital Stock).
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
“Exchange
Offer”
means
the exchange offer for the Notes, pursuant to the Offering Circular and Consent
Solicitation Statement, dated March 16, 2007.
“Existing
Indebtedness”
means
the aggregate principal amount of Indebtedness of the Company and its
Subsidiaries (other than Indebtedness under the Credit Agreement) in existence
on the date of the Existing Indenture after giving effect to the application
of
the proceeds of Indebtedness under the Credit Agreement borrowed on the date
of
the Existing Indenture, until such amounts are repaid.
8
“Existing
Indenture”
means
the Indenture dated as of September 30, 2003, among the Company, the
subsidiaries of the Company party thereto as guarantors and U.S. Bank National
Association, as trustee, governing the Company’s outstanding 8 1/2% Senior
Subordinated Notes due 2013.
“fair
market value”
means
the price that would be paid in an arm’s-length transaction between an informed
and willing seller under no compulsion to sell and an informed and willing
buyer
under no compulsion to buy, as determined in good faith by the Board of
Directors, whose determination shall be conclusive if evidenced by a resolution
of the Board of Directors.
“Fixed
Charge Coverage Ratio”
means,
with respect to any specified Person for any period, the ratio of the
Consolidated Cash Flow of such Person for such period to the Fixed Charges
of
such Person for such period. In the event that the specified Person or any
of
its Subsidiaries incurs, assumes, Guarantees, repays, repurchases or redeems
any
Indebtedness or issues, repurchases or redeems preferred stock subsequent to
the
commencement of the period for which the Fixed Charge Coverage Ratio is being
calculated and on or prior to the date on which the event for which the
calculation of the Fixed Charge Coverage Ratio is made (the “Calculation
Date”),
then
the Fixed Charge Coverage Ratio shall be calculated giving pro
forma
effect
to such incurrence, assumption, Guarantee, repayment, repurchase or redemption
of Indebtedness, or such issuance, repurchase or redemption of preferred stock,
and the use of the proceeds therefrom as if the same had occurred at the
beginning of the applicable four-quarter reference period.
In
addition, for purposes of calculating the Fixed Charge Coverage Ratio,
acquisitions and dispositions of business entities or property and assets
constituting a division or line of business of any Person that have been made
by
the specified Person or any of its Restricted Subsidiaries, including through
mergers or consolidations and including any related financing transactions,
during the four-quarter reference period or subsequent to such reference period
and on or prior to the Calculation Date shall be given pro
forma
effect
as if they had occurred on the first day of the four-quarter reference period
and Consolidated Cash Flow for such reference period shall be calculated on
a
pro
forma
basis in
accordance with Regulation S-X under the Securities Act, but without giving
effect to clause (c) of the proviso set forth in the definition of Consolidated
Net Income; (b) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, shall be excluded; (c) the
Fixed Charges attributable to discontinued operations, as determined in
accordance with GAAP shall be excluded, but only to the extent that the
obligations giving rise to such Fixed Charges shall not be obligations of the
specified Person or any of its Subsidiaries following the Calculation Date;
and
(d) consolidated interest expense attributable to interest on any Indebtedness
(whether existing or being incurred) computed on a pro
forma
basis
and bearing a floating interest rate shall be computed as if the rate in effect
on the Calculation Date (taking into account any interest rate option, swap,
cap
or similar agreement applicable to such Indebtedness if such agreement has
a
remaining term in excess of 12 months or, if shorter, at least equal to the
remaining term of such Indebtedness) had been the applicable rate for the entire
period.
9
“Fixed
Charges”
means,
with respect to any specified Person for any period, the sum, without
duplication, of (a) the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued, including,
without limitation, amortization of debt issuance costs and original issue
discount, non-cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments associated with
Capital Lease Obligations, commissions, discounts and other fees and charges
incurred in respect of letter of credit or bankers’ acceptance financings, and
net of the effect of all payments made, received or accrued in connection with
Hedging Obligations; plus
(b) the
consolidated interest of such Person and its Restricted Subsidiaries that was
capitalized during such period; plus
(c) any
interest expense on Indebtedness of another Person that is Guaranteed by such
Person or one of its Restricted Subsidiaries or secured by a Lien on assets
of
such Person or one of its Restricted Subsidiaries, whether or not such Guarantee
or Lien is called upon; plus
(d) the
product of (i) all dividends, whether paid or accrued and whether or not in
cash, on any series of Disqualified Stock or preferred stock of such Person
or
any of its Restricted Subsidiaries, other than (A) dividends on Equity Interests
payable solely in Equity Interests of the Company (other than Disqualified
Stock) or (B) dividends to the Company or a Restricted Subsidiary of the
Company, times (ii) a fraction, the numerator of which is one and the
denominator of which is one minus the then current combined federal, state
and
local statutory tax rate of such Person, expressed as a decimal, in each case,
on a consolidated basis and in accordance with GAAP; provided
that
Fixed Charges shall not include any interest expense of, or dividends paid
by,
VARTA to VARTA AG to the extent that the Company or a Restricted Subsidiary
of
the Company receives interest or dividends in cash from VARTA AG in connection
with the VARTA Joint Venture Agreement as in effect on the date of this
Indenture.
“Foreign
Subsidiary”
means
any Restricted Subsidiary of the Company other than a Domestic
Subsidiary.
“GAAP”
means
generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute
of
Certified Public Accountants, the opinions and pronouncements of the Public
Company Accounting Oversight Board and in the statements and pronouncements
of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the date of this Indenture.
“Global
Note Legend”
means
the legend set forth in Section 2.06(f), which is required to be placed on
all
Global Notes issued under this Indenture.
“Global
Notes”
means
a
permanent global Note in the form of Exhibit A attached hereto that bears the
Global Note Legend and that has the “Schedule of Exchanges of Interests in the
Global Note” attached thereto, and that is deposited with or on behalf of and
registered in the name of the Depositary.
10
“Government
Securities”
means
direct obligations of, or obligations guaranteed by, the United States of
America for the payment of which guarantee or obligations the full faith and
credit of the United States is pledged.
“Guarantee”
means,
as to any Person, a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or
indirect, in any manner including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness of another Person.
“Guarantors”
means:
(a) each
direct or indirect Domestic Subsidiary of the Company on the date of this
Indenture; and
(b) any
other
subsidiary that executes a Note Guarantee in accordance with the provisions
of
this Indenture;
and
their
respective successors and assigns until released from their obligations under
their Note Guarantees and this Indenture in accordance with the terms of this
Indenture.
“Hedging
Obligations”
means,
with respect to any specified Person, the obligations of such Person under
(a)
interest rate swap agreements, interest rate cap agreements, interest rate
collar agreements and other agreements or arrangements designed for the purpose
of fixing, hedging or swapping interest rate risk; (b) commodity swap
agreements, commodity option agreements, forward contracts and other agreements
or arrangements designed for the purpose of fixing, hedging or swapping
commodity price risk; and (c) foreign exchange contracts, currency swap
agreements and other agreements or arrangements designed for the purpose of
fixing, hedging or swapping foreign currency exchange rate risk.
“Holder”
means
a
Person in whose name a Note is registered.
“incur”
means,
with respect to any Indebtedness, to incur, create, issue, assume, Guarantee
or
otherwise become directly or indirectly liable for or with respect to, or become
responsible for, the payment of, contingently or otherwise, such Indebtedness;
provided
that (a)
any Indebtedness of a Person existing at the time such Person becomes a
Restricted Subsidiary of the Company shall be deemed to be incurred by such
Restricted Subsidiary at the time it becomes a Restricted Subsidiary of the
Company; and (b) neither the accrual of interest nor the accretion of original
issue discount nor the payment of interest in the form of additional
Indebtedness with the same terms and the payment of dividends on Disqualified
Stock in the form of additional shares of the same class of Disqualified Stock
(to the extent provided for when the Indebtedness or Disqualified Stock on
which
such interest or dividend is paid was originally issued) shall be considered
an
incurrence of Indebtedness; provided
that in
each case the amount thereof is for all other purposes included in the Fixed
Charges and Indebtedness of the Company or its Restricted Subsidiary as
accrued.
11
“Indebtedness”
means,
with respect to any, specified Person, any indebtedness of such Person, whether
or not contingent:
(a) in
respect of borrowed money;
(b) evidenced
by bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof), but excluding obligations with
respect to letters of credit (including trade letters of credit) securing
obligations entered into in the ordinary course of business of such Person
to
the extent such letters of credit are not drawn upon or, if drawn upon, to
the
extent such drawing is reimbursed no later than the fifth Business Day following
receipt by such Person of a demand for reimbursement);
(c) in
respect of banker’s acceptances;
(d) in
respect of Capital Lease Obligations and Attributable Debt;
(e) in
respect of the balance deferred and unpaid of the purchase price of any
property, except any such balance that constitutes an accrued expense or trade
payable;
(f) representing
Hedging Obligations, other than Hedging Obligations that are incurred in the
ordinary course of business for the purpose of fixing, hedging or swapping
interest rate, commodity price or foreign currency exchange rate risk (or to
reverse or amend any such agreements previously made for such purposes), and
not
for speculative purposes, and that do not increase the Indebtedness of the
obligor outstanding at any time other than as a result of fluctuations in
interest rates, commodity prices or foreign currency exchange rates or by reason
of fees, indemnities and compensation payable thereunder; or
(g) representing
Disqualified Stock valued at the greater of its voluntary or involuntary maximum
fixed repurchase price plus accrued dividends;
12
if
and to
the extent that any of the preceding items (other than Hedging Obligations)
would appear as liability upon a balance sheet of the specified Person prepared
in accordance with GAAP. In addition, the term “Indebtedness” includes (x) all
Indebtedness of others secured by a Lien on any asset of the specified Person
(whether or not such Indebtedness is assumed by the specified Person),
provided
that the
amount of such Indebtedness shall be the lesser of (A) the fair market value
of
such asset at such date of determination and (B) the amount of such
Indebtedness, and (y) to the extent not otherwise included, the Guarantee by
the
specified Person of any Indebtedness of any other Person. For purposes hereof,
the “maximum fixed repurchase price” of any Disqualified Stock which does not
have a fixed repurchase price shall be calculated in accordance with the terms
of such Disqualified Stock as if such Disqualified Stock were purchased on
any
date on which Indebtedness shall be required to be determined pursuant to this
Indenture, and if such price is based upon, or measured by, the fair market
value of such Disqualified Stock, such fair market value shall be determined
in
good faith by the Board of Directors of the issuer of such Disqualified
Stock.
The
amount of any Indebtedness outstanding as of any date shall be the outstanding
balance at such date of all unconditional obligations as described above and,
with respect to contingent obligations, the maximum liability upon the
occurrence of the contingency giving rise to the obligation, and shall
be:
|
(A)
|
the
accreted value thereof, in the case of any Indebtedness issued with
original issue discount; and
|
|
(B)
|
the
principal amount thereof, together with any interest thereon that
is more
than 30 days past due, in the case of any other
Indebtedness;
|
provided
that
Indebtedness shall not include:
(1) any
liability for federal, state, local or other taxes;
(2) performance,
surety or appeal bonds provided in the ordinary course of business;
or
(3) agreements
providing for indemnification, adjustment of purchase price or similar
obligations, or Guarantees or letters of credit, surety bonds or performance
bonds securing any obligations of the Company or any of its Restricted
Subsidiaries pursuant to such agreements, in any case incurred in connection
with the disposition of any business, assets or Restricted Subsidiary (other
than Guarantees of Indebtedness incurred by any Person acquiring all or any
portion of such business, assets or Restricted Subsidiary for the purpose of
financing such acquisition), so long as the principal amount does not exceed
the
gross proceeds actually received by the Company or any Restricted Subsidiary
in
connection with such disposition.
13
“Indenture”
means
this Indenture, as amended or supplemented from time to time.
“Indirect
Participant”
means
a
Person who holds a beneficial interest in a Global Note through a
Participant.
“Interest
Payment Date”
means
April 2 and October 2 of each year to Stated Maturity.
“Interest
Period”
means
the period commencing on and including an Interest Payment Date and ending
on
and including the day immediately preceding the next succeeding Interest Payment
Date.
“Investments”
means,
with respect to any Person, all direct or indirect investments by such Person
in
other Persons (including Affiliates) in the forms of loans or other extensions
of credit (including Guarantees, but excluding advances to customers or
suppliers in the ordinary course of business that are, in conformity with GAAP,
recorded as accounts receivable, prepaid expenses or deposits on the balance
sheet of the Company or its Restricted Subsidiaries and endorsements for
collection or deposit arising in the ordinary course of business), advances
(excluding commission, travel, payroll and similar advances to officers and
employees made consistent with past practices), capital contributions (by means
of any transfer of cash or other property to others or any payment for property
or services for the account or use of others), purchases or other acquisitions
for consideration of Indebtedness, Equity Interests or other securities,
together with all items that are or would be classified as investments on a
balance sheet prepared in accordance with GAAP.
If
the
Company or any Restricted Subsidiary of the Company sells or otherwise disposes
of any Equity Interests of any direct or indirect Restricted Subsidiary of
the
Company such that, after giving effect to any such sale or disposition, such
Person is no longer a Restricted Subsidiary of the Company, the Company shall
be
deemed to have made an Investment on the date of any such sale or disposition
equal to the fair market value of the Investment in such Restricted Subsidiary
not sold or disposed of in an amount determined as provided in Section 4.07.
The
acquisition by the Company or any Restricted Subsidiary of the Company of a
Person that holds an Investment in a third Person shall be deemed to be an
Investment by the Company or such Restricted Subsidiary in such third Person
only if such Investment was made in contemplation of, or in connection with,
the
acquisition of such Person by the Company or such Restricted Subsidiary and
the
amount of any such Investment shall be determined as provided in the final
paragraph of Section 4.07.
“Legal
Holiday”
means
a
Saturday, a Sunday or a day on which commercial banks in The City of New York
or
at a place of payment are authorized or required by law, regulation or executive
order to remain closed. If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the next succeeding day that
is
not a Legal Holiday, and no interest on such payment shall accrue for the
intervening period.
14
“Lien”
means,
with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind in respect of such asset, whether or not filed,
recorded or otherwise perfected under applicable law, including any conditional
sale or other title retention agreement, any lease in the nature thereof, any
option or other agreement to sell or give a security interest in and any filing
of or agreement to give any financing statement under the Uniform Commercial
Code (or equivalent statutes) of any jurisdiction.
“Market
Disruption Event”
means
the occurrence or existence for more than one continuous half hour period in
the
aggregate on any scheduled Trading Day for the Company’s common stock of any
suspension or limitation imposed on trading (by reason of movements in price
exceeding limits permitted by the New York Stock Exchange or otherwise) in
the
Company’s common stock or in any options, contracts or future contracts relating
to such common stock, and such suspension or limitation occurs or exists at
any
time before 1:00 p.m. (New York City time) on such day.
“Maturity”
means,
with respect to any Indebtedness, the date on which any principal of such
Indebtedness becomes due and payable as therein or herein provided, whether
at
the Stated Maturity with respect to such principal or by declaration of
acceleration, call for redemption or purchase or otherwise.
“Minimum
Equity Condition”
means
(i) for Interest Periods commencing on April 2, 2007, October 2, 2007, April
2,
2008 and October 2, 2008, the closing price of the common stock of the Company
as reported on the New York Stock Exchange for each of the 10 consecutive
Trading Days prior to the applicable Interest Election Date shall be greater
than $3.00, (ii) for Interest Periods commencing on April 2, 2009 and October
2,
2009, the closing price of the common stock of the Company as reported on the
New York Stock Exchange for each of the 10 consecutive Trading Days prior to
the
applicable Interest Election Date shall be greater than $4.00, and (iii) for
the
Interest Period commencing on April 2, 2010, the closing price of the common
stock of the Company as reported on the New York Stock Exchange for each of
the
10 consecutive Trading Days prior to the applicable Interest Election Date
shall
be greater than $5.00. The closing prices in each case shall be adjusted
proportionately upward or downward after the date of initial issuance of the
Notes to reflect any stock split, stock dividend or recapitalization which
shall
increase or decrease the number of shares of Company common stock issued and
outstanding.
“Moody’s”
means
Moody’s Investors Service, Inc. or any successor to the rating agency business
thereof.
15
“Net
Income”
means,
with respect to any specified Person, the net income (loss) of such Person,
determined in accordance with GAAP and before any reduction in respect of
preferred stock dividends, excluding, however, (a) any gain or loss, together
with any related provision for taxes on such gain or loss, realized in
connection with (i) any sale of assets outside the ordinary course of business
of such Person; or (ii) the disposition of any securities by such Person or
any
of its Restricted Subsidiaries or the extinguishment of any Indebtedness of
such
Person or any of its Restricted Subsidiaries; and (b) any extraordinary gain
or
loss, together with any related provision for taxes on such extraordinary gain
or loss.
“Net
Proceeds”
means
the aggregate cash proceeds, including payments in respect of deferred payment
obligations (to the extent corresponding to the principal, but not the interest
component, thereof) received by the Company or any of its Restricted
Subsidiaries in respect of any Asset Sale (including, without limitation, any
cash received upon the sale or other disposition of any non-cash consideration
received in any Asset Sale), net of (a) the direct costs relating to such Asset
Sale, including, without limitation, legal, accounting and investment banking
fees, and sales commissions, and any relocation expenses incurred as a result
thereof; (b) taxes paid or payable as a result thereof, in each case, after
taking into account any available tax credits or deductions arising therefrom
and any tax sharing arrangements in connection therewith; (c) amounts required
to be applied to the repayment of Indebtedness or other liabilities, secured
by
a Lien on the asset or assets that were the subject of such Asset Sale, or
required to be paid as a result of such sale; and (d) any reserve for adjustment
in respect of the sale price of such asset or assets established in accordance
with GAAP.
“Note
Guarantee”
means
the Guarantee by each Guarantor of the Company’s payment obligations under this
Indenture and on the Notes, executed pursuant to this Indenture.
“Notes”
means
the Variable Rate Toggle Senior Subordinated Notes due 2013 of the Company
issued pursuant to the Exchange Offer and any Additional Notes. The Notes and
any Additional Notes shall be treated as a single class for all purposes under
this Indenture.
“Notice
of Election”
means a
written notice of election of the Form of Interest Payment for any Interest
Period in substantially the form attached as Exhibit B hereto.
“Obligations”
means
any principal, interest, penalties, fees, indemnifications, reimbursements,
damages and other liabilities payable under the documentation governing any
Indebtedness.
“Officer”
means,
with respect to any Person, the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial
Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary
or any Vice-President of such Person.
16
“Officers’
Certificate”
means
a
certificate signed on behalf of the Company by two Officers of the Company,
one
of whom must be the principal executive officer, the principal financial
officer, the treasurer, or the principal accounting officer of the Company,
that
meets the requirements of Section 12.05 hereof.
“Opinion
of Counsel”
means
an opinion from legal counsel that meets the requirements of Section 12.05
hereof. The counsel may be an employee of or counsel to the Company, any
subsidiary of the Company or the Trustee.
“Participant”
means,
with respect to the Depositary, Euroclear or Clearstream, a Person who has
an
account with the Depositary, Euroclear or Clearstream, respectively (and, with
respect to The Depository Trust Company, shall include Euroclear and
Clearstream).
“Permitted
Business”
means
any business conducted or proposed to be conducted by the Company and its
Restricted Subsidiaries on the date of this Indenture and other businesses
similar or reasonably related, ancillary or incidental thereto or reasonable
extensions thereof.
“Permitted
Investments”
means:
(a) any
Investment in the Company or in a Restricted Subsidiary of the
Company;
(b) any
Investment in Cash Equivalents;
(c) any
Investment by the Company or any Restricted Subsidiary of the Company in a
Person, if as a result of such Investment:
(i) such
Person becomes a Restricted Subsidiary of the Company; or
(ii) such
Person is merged, consolidated or amalgamated with or into, or transfers or
conveys substantially all of its assets to, or is liquidated into, the Company
or a Restricted Subsidiary of the Company;
(d) any
Investment made as a result of the receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in compliance with Section
4.10;
(e) Investments
to the extent acquired in exchange for the issuance of Equity Interests (other
than Disqualified Stock) of the Company;
17
(f) Hedging
Obligations that are incurred in the ordinary course of business for the purpose
of fixing, hedging or swapping interest rate, commodity price or foreign
currency exchange rate risk (or to reverse or amend any such agreements
previously made for such purposes), and not for speculative purposes, and that
do not increase the Indebtedness of the obligor outstanding at any time other
than as a result of fluctuations in interest rates, commodity prices or foreign
currency exchange rates or by reason of fees, indemnities and compensation
payable thereunder;
(g) stock,
obligations or securities received in satisfaction of judgments;
(h) Investments
in securities of trade debtors or customers received pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency of
such
trade creditors or customers or in good faith settlement of delinquent
obligations of such trade debtors or customers or in compromise or resolution
of
litigation, arbitration or other disputes with Persons who are not Affiliates;
and
(i) other
Investments in any Person that is not an Affiliate of the Company (other than
a
Restricted Subsidiary) having an aggregate fair market value (measured on the
date each such Investment was made and without giving effect to subsequent
changes in value), when taken together with all other Investments made pursuant
to this clause (i) since the date of the Existing Indenture, not to exceed
$15.0
million.
“Permitted
Junior Securities”
means
(a) Equity Interests in the Company or any Guarantor or any other business
entity provided for by a plan of reorganization; and (b) debt securities of
the
Company or any Guarantor or any other business entity provided for by a plan
of
reorganization that are subordinated to the payment of all Senior Debt and
any
debt securities issued in exchange for Senior Debt to substantially the same
extent as, or to a greater extent than, the Notes and the Note Guarantees are
subordinated to Senior Debt under this Indenture.
“Permitted
Liens”
means:
(a) Liens
on
the assets of the Company and any Guarantor securing Senior Debt that was
permitted by the terms of this Indenture to be incurred;
(b) Liens
in
favor of the Company or any Restricted Subsidiary;
(c) Liens
on
property of a Person existing at the time such Person is merged with or into
or
consolidated with the Company or any Restricted Subsidiary of the Company;
provided
that
such Liens were in existence prior to the contemplation of such merger or
consolidation and do not extend to any assets other than those of the Person
merged into or consolidated with the Company or the Restricted
Subsidiary;
18
(d) Liens
on
property existing at the time of acquisition thereof by the Company or any
Restricted Subsidiary of the Company, provided
that
such Liens were in existence prior to the contemplation of such acquisition
and
do not extend to any property other than the property so acquired by the Company
or the Restricted Subsidiary;
(e) Liens
existing on the date of this Indenture; provided,
however,
that
Liens existing prior to the date of this Indenture that continue in effect
shall
have been permitted under the Existing Indenture; and
(f) Liens
incurred in the ordinary course of business of the Company or any Restricted
Subsidiary of the Company with respect to obligations that do not exceed $5.0
million at any one time outstanding.
“Permitted
Refinancing Indebtedness”
means
any Indebtedness of the Company or any of its Restricted Subsidiaries issued
in
exchange for, or the net proceeds of which are used to extend, refinance, renew,
replace, defease or refund other Indebtedness of the Company or any of its
Restricted Subsidiaries (other than intercompany Indebtedness); provided
that:
(a) the
principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount (or accreted
value, if applicable) of the Indebtedness so extended, refinanced, renewed,
replaced, defeased or refunded (plus all accrued interest thereon and the amount
of any reasonably determined premium necessary to accomplish such refinancing
and such reasonable expenses incurred in connection therewith);
(b) such
Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and has a Weighted Average Life to Maturity equal to
or
greater than the Weighted Average Life to Maturity of, the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded;
(c) if
the
Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded
is subordinated in right of payment to the Notes or the Note Guarantees, such
Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and is subordinated in right of payment to, the Notes
on
terms at least as favorable to the Holders of Notes as those contained in the
documentation governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded;
(d) if
the
Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded
is pari
passu
in right
of payment with the Notes or any Note Guarantees, such Permitted Refinancing
Indebtedness is pari
passu
with, or
subordinated in right of payment to, the Notes or such Note Guarantees;
and
19
(e) such
Indebtedness is incurred either by the Company or by the Restricted Subsidiary
who is the obligor on the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded.
“Person”
means
any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability
company or government or other entity.
“preferred
stock”
means,
with respect to any Person, any Capital Stock of such Person that has
preferential rights to any other Capital Stock of such Person with respect
to
dividends or redemption upon liquidation.
“Record
Date”
for
the
interest payable on any Interest Payment Date means March 15 or September 15
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date.
“Remington”
means
Remington Products Company, L.L.C.
“Replacement
Assets”
means
(a) non-current assets that shall be used or useful in a Permitted Business
or
(b) all or substantially all of the assets of a Permitted Business or a majority
of the Voting Stock of any Person engaged in a Permitted Business that shall
become on the date of acquisition thereof a Restricted Subsidiary of the
Company.
“Representative”
means
the Trustee, agent or representative for any Senior Debt.
“Responsible
Officer”
when
used with respect to the Trustee, means any officer within the Corporate Trust
Administration of the Trustee (or any successor group of the Trustee) or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter
is
referred because of his knowledge of and familiarity with the particular subject
and who shall have direct responsibility for the administration of this
Indenture.
“Restricted
Investment”
means
an Investment other than a Permitted Investment.
20
“Restricted
Subsidiary”
of a
Person means any Subsidiary of the referent Person that is not an Unrestricted
Subsidiary.
“S&P”
means
Standard and Poor’s Rating Services or any successor to the rating agency
business thereof and its successors.
“SEC”
means
the Securities and Exchange Commission.
“Securities
Act”
means
the Securities Act of 1933, as amended.
“Senior
Debt”
means:
(a) all
Indebtedness of the Company or any Guarantor outstanding under Credit Facilities
and all Hedging Obligations with respect thereto;
(b) any
other
Indebtedness of the Company or any Guarantor permitted to be incurred under
the
terms of this Indenture, unless the instrument under which such Indebtedness
is
incurred expressly provides that it is on a parity with or subordinated in
right
of payment to the Notes or any Note Guarantee; and
(c) all
Obligations with respect to the items listed in the preceding clauses (a) and
(b).
Notwithstanding
anything to the contrary in the preceding paragraph, Senior Debt shall not
include:
(i) any
liability for federal, state, local or other taxes owed or owing by the Company
or any Guarantor;
(ii) any
Indebtedness of the Company or any Guarantor to any of their Subsidiaries or
other Affiliates;
(iii) any
trade
payables;
(iv) the
portion of any Indebtedness that is incurred in violation of this
Indenture;
21
(v) any
Indebtedness of the Company or any Guarantor that, when incurred, was without
recourse to the Company or such Guarantor;
(vi) any
repurchase, redemption or other obligation in respect of Disqualified Stock;
(vii) the
Company’s 7 3/8% Senior Subordinated Notes due 2015; or
(viii) the
Company’s 8 1/2% Senior Subordinated Notes due 2013.
“Significant
Subsidiary”
means
any Subsidiary that would constitute a “significant subsidiary” within the
meaning of Article 1 of Regulation S-X of the Securities Act.
“Stated
Maturity”
means,
with respect to any installment of interest or principal on any series of
Indebtedness, the date on which such payment of interest or principal was
scheduled to be paid in the original documentation governing such Indebtedness,
and shall not include any contingent obligations to repay, redeem or repurchase
any such interest or principal prior to the date originally scheduled for the
payment thereof.
“Subsidiary”
means,
with respect to any specified Person: (a) any corporation, association or other
business entity of which more than 50% of the total voting power of shares
of
Capital Stock entitled (without regard to the occurrence of any contingency)
to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by such Person or one or more
of
the other Subsidiaries of that Person (or a combination thereof); and any
partnership (i) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (ii) the only general
partners of which are such Person or one or more Subsidiaries of such Person
(or
any combination thereof).
“TIA”
means
the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb) as in
effect on the date on which this Indenture is qualified under the
TIA.
“Trading
Day”
means
any day on which (i) there is no Market Disruption Event and (ii) the New York
Stock Exchange is open for trading, or, if the Company’s common stock is not
listed on the New York Stock Exchange, any day on which the principal national
securities exchange on which the Company’s common stock is listed is open for
trading, or, if the Company’s common stock is not listed on a national
securities exchange, any Business Day. A “Trading Day” only includes those days
that have a scheduled closing time of 4:00 p.m. (New York City time) or the
then
standard closing time for regular trading on the relevant exchange or trading
system.
22
“Trustee”
means
the party named as such in the preamble to this Indenture until a successor
replaces it in accordance with this Indenture and thereafter means the successor
serving hereunder.
“Unrestricted
Subsidiary”
means
any Subsidiary of the Company that is designated by the Board of Directors
of
the Company as an Unrestricted Subsidiary pursuant to a resolution of the Board
of Directors in compliance with Section 4.16 and any Subsidiary of such
Subsidiary.
“U.S.
Person”
means a
U.S. person as defined in Rule 902(o) under the Securities Act.
“VARTA”
means
Varta Geratebatterie GmbH and its successors or assignees.
“VARTA
Joint Venture Agreement”
means
the agreement among VARTA AG, the Company and ROV German Limited GmbH dated
July
28, 2002, as amended.
“Voting
Stock”
of any
Person as of any date means the Capital Stock of such Person that is at the
time
entitled to vote in the election of the Board of Directors of such
Person.
“Weighted
Average Life to Maturity”
means,
when applied to any Indebtedness at any date, the number of years obtained
by
dividing: (a) the sum of the products 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 shall
elapse between such date and the making of such payment; by (b) the then
outstanding principal amount of such Indebtedness.
“Wholly
Owned Restricted Subsidiary”
of any
specified Person means a Restricted Subsidiary of such Person all of the
outstanding Capital Stock or other ownership interests of which (other than
directors’ qualifying shares or Investments by foreign nationals mandated by
applicable law) shall at the time be owned by such Person or by one or more
Wholly Owned Restricted Subsidiaries of such Person and one or more Wholly
Owned
Restricted Subsidiaries of such Person.
23
Section
1.02 Other
Definitions.
|
Term
|
Defined
in Section
|
|
|
4.11
|
||
|
“Asset
Sale Offer”
|
4.10
|
|
|
“Authentication
Order”
|
2.02
|
|
|
“Cash
Interest”
|
Exhibit
A
|
|
|
“Change
of Control Offer”
|
4.14
|
|
|
“Change
of Control Payment Date”
|
4.14
|
|
|
“Company”
|
Preamble
|
|
|
“Covenant
Defeasance”
|
8.03
|
|
|
“CPDI
Regulations”
|
2.17
|
|
|
“Event
of Default”
|
6.01
|
|
|
“Excess
Proceeds”
|
4.10
|
|
|
“Fixed
Charge Coverage Ratio Test”
|
4.01
|
|
|
“Form
of Interest Payment”
|
Exhibit
A
|
|
|
“Issue
Date”
|
Exhibit
A
|
|
|
“Legal
Defeasance”
|
8.02
|
|
|
“Offer
Amount”
|
3.09
|
|
|
“Offer
Period”
|
3.09
|
|
|
“Paying
Agent”
|
2.03
|
|
|
“Payment
Blockage Notice”
|
10.03
|
|
|
“Permitted
Debt”
|
4.09(b)
|
|
|
“PIK
Interest”
|
Exhibit
A
|
|
|
“PIK
Payment”
|
Exhibit
A
|
|
|
“Purchase
Date”
|
3.09
|
|
|
“Registrar”
|
2.03
|
|
|
“Repurchase
Offer”
|
3.09
|
|
|
“Restricted
Payments”
|
4.07
|
|
|
“Scheduled
Rate”
|
Exhibit
A
|
Section
1.03 Incorporation
by Reference of Trust Indenture Act.
The
mandatory provisions of the TIA that are required to be a part of and govern
indentures qualified under the TIA are incorporated by reference in and are
a
part of this Indenture, whether or not this Indenture is so qualified. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture.
The
following TIA terms used in this Indenture have the following
meanings:
“indenture
securities”
means
the Notes;
“indenture
security Holder”
means
a
Holder of a Note;
“indenture
to be qualified”
means
this Indenture;
24
All
other
terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by SEC rule under the TIA have the
meanings so assigned to them.
Section
1.04 Rules
of
Construction.
Unless
the context otherwise requires:
|
(a)
|
a
term has the meaning assigned to
it;
|
|
(b)
|
“or”
is not exclusive;
|
|
(c)
|
“including”
or “include” means including or include without
limitation;
|
|
(d)
|
words
in the singular include the plural and words in the plural include
the
singular;
|
|
(e)
|
the
words “herein,” “hereof” and “hereunder” and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section, clause or other
subdivision;
|
|
(f)
|
“$,”
“U.S. Dollars” and “United States Dollars” each refer to United States
dollars, or such other money of the United States that at the time
of
payment is legal tender for payment of public and private
debts;
|
|
(g)
|
provisions
apply to successive events and
transactions;
|
|
(h)
|
references
to sections of or rules under the Securities Act shall be deemed
to
include substitute, replacement or successor sections or rules adopted
by
the SEC from time to time;
|
|
(i)
|
unless
the context otherwise requires, any reference to an “Article” or a
“Section” refers to an Article or a Section, as the case may be, of this
Indenture; and
|
|
(j)
|
all
accounting terms not otherwise defined herein have the meanings assigned
to them in accordance with GAAP.
|
25
ARTICLE
II
THE
NOTES
Section
2.01 Form
and Dating.
(a)
General.
The
Notes and the Trustee’s certificate of authentication shall be substantially in
the form of Exhibit A hereto. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage. Each Note shall
be
dated the date of its authentication. The Company will issue Notes in
registered, global form and in denominations of $1.00 and integral multiples
of
$1.00 in excess thereof.
The
terms
and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture and the Company, the Guarantors and the Trustee,
by their execution and delivery of this Indenture, expressly agree to such
terms
and provisions and to be bound thereby. However, to the extent any provision
of
any Note conflicts with this Indenture, this Indenture shall govern and be
controlling. Notwithstanding anything herein to the contrary, the Company’s 7
3/8% Senior Subordinated Notes due 2015 and the Company’s 8 1/2% Senior
Subordinated Notes due 2013 shall be pari
passu
in right
of payment with the Notes.
(b) Global
Notes.
Notes
issued in global form shall be substantially in the form of Exhibit A attached
hereto (including the Global Note Legend thereon and the “Schedule of Exchanges
of Interests in the Global Note” attached thereto). Notes issued in definitive
form shall be substantially in the form of Exhibit A attached hereto (but
without the Global Note Legend thereon and without the “Schedule of Exchanges of
Interests in the Global Note” attached thereto). Each Global Note shall
represent such of the outstanding Notes as shall be specified therein and each
shall provide that it shall represent the aggregate principal amount of
outstanding Notes from time to time endorsed thereon and that the aggregate
principal amount of outstanding Notes represented thereby may from time to
time
be reduced or increased, as appropriate, to reflect exchanges and redemptions.
Any endorsement of a Global Note to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding Notes represented
thereby shall be made by the Trustee, in accordance with instructions given
by
the Holder thereof as required by Section 2.06 hereof.
Section
2.02 Execution
and Authentication.
One
Officer shall sign the Notes for the Company by manual or facsimile
signature.
If
an
Officer whose signature is on a Note no longer holds that office at the time
a
Note is authenticated, the Note shall nevertheless be valid.
A
Note
shall not be valid until authenticated by the manual signature of the Trustee.
The signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.
26
The
aggregate principal amount of Notes which may be authenticated and delivered
under this Indenture is $350.0 million plus any additional principal amount
of
Notes which may be issued in connection with any PIK Payment.
The
Trustee shall, upon a written order of the Company signed by one Officer (an
“Authentication
Order”),
authenticate Notes for original issue up to the aggregate principal amount
authorized pursuant to this Indenture.
The
Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Notes. An authenticating agent may authenticate Notes whenever
the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has
the
same rights as an Agent to deal with Holders or an Affiliate of the
Company.
Section
2.03 Registrar
and Paying Agent.
The
Company shall maintain an office or agency where Notes may be presented for
registration of transfer or for exchange (“Registrar”)
and an
office or agency where Notes may be presented for payment (“Paying
Agent”).
The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more additional
paying agents. The term “Registrar” includes any co-registrar and the term
“Paying Agent” includes any additional paying agent. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company shall
promptly notify the Trustee in writing of the name and address of any Agent
not
a party to this Indenture. If the Company fails to appoint or maintain another
entity as Registrar or Paying Agent, the Trustee shall act as such. The Company
or any of its Subsidiaries may act as Paying Agent or Registrar.
The
Company initially appoints The Depository Trust Company to act as Depositary
with respect to the Global Notes.
The
Company initially appoints the Trustee to act as the Registrar and Paying Agent
and to act as Custodian with respect to the Global Notes.
Section
2.04 Paying
Agent to Hold Money in Trust.
The
Company shall require each Paying Agent other than the Trustee to agree in
writing that the Paying Agent shall hold in trust for the benefit of Holders
or
the Trustee all money held by the Paying Agent for the payment of principal,
premium, if any, or interest on the Notes, and shall notify the Trustee of
any
default by the Company in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all money held by
it to
the Trustee. The Company at any time may require a Paying Agent to pay all
money
held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent
(if other than the Company or a Subsidiary thereof) shall have no further
liability for the money. If the Company or a Subsidiary thereof acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit
of
the Holders all money held by it as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to the Company, the Trustee shall serve
as
Paying Agent for the Notes.
27
Section
2.05 Holder
Lists.
The
Trustee shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of all Holders
and
shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar,
the Company shall furnish to the Trustee at least seven Business Days before
each Interest Payment Date and at such other times as the Trustee may request
in
writing, a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of the Holders of Notes and the Company
shall
otherwise comply with TIA § 312(a).
Section
2.06 Transfer
and Exchange. (a)
Transfer
and Exchange of Global Notes.
A
Global Note may not be transferred as a whole except by the Depositary to a
nominee of the Depositary, by a nominee of the Depositary to the Depositary
or
to another nominee of the Depositary, by the Depositary or any such nominee
to a
successor Depositary or a nominee of such successor Depositary. All Global
Notes
shall be exchanged by the Company for Certificated Notes if (i) the Company
delivers to the Trustee notice from the Depositary that it is unwilling or
unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Company within 120 days after the date of
such notice from the Depositary or (ii) the Company in its sole discretion
determines that the Global Notes (in whole but not in part) should be exchanged
for Certificated Notes and delivers a written notice to such effect to the
Trustee; or (iii)
there shall have occurred and be continuing a Default or Event of Default with
respect to the Notes. Upon the occurrence of any of the preceding events in
(i),
(ii) or (iii) above, Certificated Notes shall be issued in such names as the
Depositary shall instruct the Trustee. Global Notes also may be exchanged or
replaced, in whole or in part, as provided in Sections 2.07, 2.10 and 2.11
hereof. Every Note authenticated and delivered in exchange for, or in lieu
of, a
Global Note or any portion thereof, pursuant to this Section 2.06 or Section
2.07, 2.10 or 2.11 hereof, shall be authenticated and delivered in the form
of,
and shall be, a Global Note. A Global Note may not be exchanged for another
Note
other than as provided in this Section 2.06.
(b) Transfer
and Exchange of Beneficial Interests in the Global Notes.
The
transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depositary, in accordance with this Indenture and the
Applicable Procedures. Transfers of beneficial interests in the Global Notes
also shall require compliance with either subparagraph (i) or (ii) below, as
applicable, as well as one or more of the other following subparagraphs, as
applicable:
(i) Transfer
of Beneficial Interests in the Same Global Note.
Beneficial interests in any Global Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in a Global Note. No
written orders or instructions shall be required to be delivered to the
Registrar to effect the transfers described in this Section
2.06(b)(i).
28
(ii) All
Other Transfers and Exchanges of Beneficial Interests in Global
Notes.
In
connection with all transfers and exchanges of beneficial interests that are
not
subject to Section
2.06(b)(i)
above,
the transferor of such beneficial interest shall deliver to the Registrar either
(A) a written order from a Participant or an Indirect Participant given to
the
Depositary in accordance with the Applicable Procedures directing the Depositary
to credit or cause to be credited a beneficial interest in the Global Note
in an
amount equal to the beneficial interest to be transferred or exchanged and
instructions given in accordance with the Applicable Procedures containing
information regarding the Participant account to be credited with such increase
or (B) a written order from a Participant or an Indirect Participant given
to
the Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Certificated Note in an amount equal to
the
beneficial interest to be transferred or exchanged and instructions given by
the
Depositary to the Registrar containing information regarding the Person in
whose
name such Certificated Note shall be registered to effect the transfer or
exchange referred to in (A) above. Upon satisfaction of all of the requirements
for transfer or exchange of beneficial interests in Global Notes contained
in
this Indenture and the Notes or otherwise applicable under the Securities Act,
the Trustee shall adjust the principal amount of the relevant Global Note(s)
pursuant to Section
2.06(g)
hereof.
(c) Transfer
or Exchange of Beneficial Interests for Certificated Notes.
If any
Holder of a beneficial interest in a Global Note proposes to exchange such
beneficial interest for a Certificated Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a Certificated
Note, then, upon satisfaction of the conditions set forth in Section
2.06(b)(ii)
hereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section
2.06(g)
hereof,
and the Company shall execute and the Trustee shall authenticate and deliver
to
the Person designated in the instructions a Certificated Note in the appropriate
principal amount. Any Certificated Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c) shall be registered in such name
or
names and in such authorized denomination or denominations as the Holder of
such
beneficial interest shall instruct the Registrar through instructions from
the
Depositary and the Participant or Indirect Participant. The Trustee shall
deliver such Certificated Notes to the Persons in whose names such Notes are
so
registered.
(d) Transfer
and Exchange of Certificated Notes for Beneficial Interests.
A
Holder of a Certificated Note may exchange such Note for a beneficial interest
in a Global Note or transfer such Certificated Notes to a Person who takes
delivery thereof in the form of a beneficial interest in a Global Note at any
time. Upon receipt of a request for such an exchange or transfer, the Trustee
shall cancel the applicable Certificated Note and increase or cause to be
increased the aggregate principal amount of one of the Global Notes pursuant
to
Section
2.06(g).
If any
such exchange or transfer from a Certificated Note to a beneficial interest
is
effected at a time when a Global Note has not yet been issued, the Company
shall
issue and, upon receipt of an Authentication Order in accordance with Section
2.02 hereof, the Trustee shall authenticate one or more Global Notes in an
aggregate principal amount equal to the principal amount of Certificated Notes
so transferred.
29
(e) Transfer
and Exchange of Certificated Notes for Certificated Notes.
A
Holder of Certificated Notes may transfer such Notes to a Person who takes
delivery thereof in the form of a Certificated Note. Upon receipt of a request
to register such a transfer, the Registrar shall register the Certificated
Notes
pursuant to the instructions from the Holder thereof. Prior
to
such registration of transfer or exchange, the requesting Holder shall present
or surrender to the Registrar the Certificated Notes duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Registrar duly executed by such Holder or by his attorney, duly authorized
in
writing.
(f) Global
Note Legend.
Each
Global Note shall bear a legend in substantially the following form:
“THIS
GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING
THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT
THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT
TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.12 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.”
(g) Cancellation
and/or Adjustment of Global Notes.
At such
time as all beneficial interests in a particular Global Note have been exchanged
for Certificated Notes or a particular Global Note has been redeemed,
repurchased or canceled in whole and not in part, each such Global Note shall
be
returned to or retained and canceled by the Trustee in accordance with Section
2.12 hereof. At any time prior to such cancellation, if any beneficial interest
in a Global Note is exchanged for or transferred to a Person who shall take
delivery thereof in the form of a beneficial interest in another Global Note
or
for Certificated Notes, the principal amount of Notes represented by such Global
Note shall be reduced accordingly and an endorsement shall be made on such
Global Note by the Trustee or by the Depositary at the direction of the Trustee
to reflect such reduction; and if the beneficial interest is being exchanged
for
or transferred to a Person who shall take delivery thereof in the form of a
beneficial interest in another Global Note, such other Global Note shall be
increased accordingly and an endorsement shall be made on such Global Note
by
the Trustee or by the Depositary at the direction of the Trustee to reflect
such
increase.
(h) General
Provisions Relating to Transfers and Exchanges.
(i)
To
permit registrations of transfers and exchanges, the Company shall execute
and
the Trustee shall authenticate Global Notes and Certificated Notes upon the
Company’s order or at the Registrar’s request.
30
(ii) No
service charge shall be made to a holder of a beneficial interest in a Global
Note or to a Holder of a Certificated Note for any registration of transfer
or
exchange, but the Company may require payment of a sum sufficient to cover
any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer taxes or similar governmental charge payable
upon
exchange or transfer pursuant to Sections 2.11, 3.06, 3.09, 4.10, 4.14 and
9.05
hereof).
(iii) The
Registrar shall not be required to register the transfer of or exchange any
Note
selected for redemption in whole or in part, except the unredeemed portion
of
any Note being redeemed in part.
(iv) All
Global Notes and Certificated Notes issued upon any registration of transfer
or
exchange of Global Notes or Certificated Notes shall be the valid and legally
binding obligations of the Company, evidencing the same debt, and entitled
to
the same benefits under this Indenture, as the Global Notes or Certificated
Notes surrendered upon such registration of transfer or exchange.
(v) The
Company shall not be required (A) to issue, to register the transfer of or
to
exchange any Notes during a period beginning at the opening of business 15
days
before the day of any selection of Notes for redemption under Section 3.02
hereof and ending at the close of business on the day of selection, (B) to
register the transfer of or to exchange any Note so selected for redemption
in
whole or in part, except the unredeemed portion of any Note being redeemed
in
part or (C) to register the transfer of or to exchange a Note between a record
date and the next succeeding Interest Payment Date.
(vi) Prior
to
due presentment for the registration of a transfer of any Note, the Trustee,
any
Agent and the Company may deem and treat the Person in whose name any Note
is
registered as the absolute owner of such Note for the purpose of receiving
payment of principal of and interest on such Notes and for all other purposes,
and none of the Trustee, any Agent or the Company shall be affected by notice
to
the contrary.
(vii) The
Trustee shall authenticate Global Notes and Certificated Notes in accordance
with Section 2.02 hereof.
(viii) All
certifications, certificates and Opinions of Counsel required to be submitted
to
the Registrar pursuant to this Section 2.06 to effect a registration of transfer
or exchange may be submitted by facsimile.
Section
2.07 Replacement
Notes.
If any
mutilated Note is surrendered to the Trustee or the Company and the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of
any
Note, the Company shall issue and the Trustee, upon receipt of an Authentication
Order, shall authenticate a replacement Note if the Trustee’s requirements are
met. If required by the Trustee or the Company, an indemnity bond must be
supplied by the Holder that is sufficient in the judgment of the Trustee and
the
Company to protect the Company, the Trustee, any Agent and any authenticating
agent from any loss that any of them may suffer if a Note is replaced. The
Company may charge for its expenses in replacing a Note.
31
Every
replacement Note issued pursuant to this Section 2.07 is an additional
obligation of the Company and shall be entitled to all of the benefits of this
Indenture equally and proportionately with all other Notes duly issued
hereunder.
Section
2.08 Outstanding
Notes.
The
Notes outstanding at any time are all the Notes authenticated by the Trustee
except for those canceled by it, those delivered to it for cancellation, those
reductions in the interest in a Global Note effected by the Trustee in
accordance with this Indenture, and those described in this Section as not
outstanding. Except as set forth in Section 2.09 hereof, a Note does not cease
to be outstanding because the Company or an Affiliate of the Company holds
the
Note; however, Notes held by the Company or a Subsidiary of the Company shall
not be deemed to be outstanding for purposes of Section 3.07(b)
hereof.
If
a Note
is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Note is held
by
a bona fide purchaser or protected purchaser.
If
the
principal amount of any Note is considered paid under Section 4.01 hereof,
it
ceases to be outstanding and interest on it ceases to accrue.
If
the
Paying Agent (other than the Company, a Subsidiary or an Affiliate of any of
the
foregoing) holds, on a redemption date or maturity date, money sufficient to
pay
Notes payable on that date in full, then on and after that date such Notes
shall
be deemed to be no longer outstanding and shall cease to accrue
interest.
Section
2.09 Treasury
Notes.
In
determining whether the Holders of the required principal amount of the Notes
have concurred in any direction, waiver or consent, Notes owned by the Company,
any direct or indirect Subsidiary of the Company or any Affiliate of the Company
shall be considered as though not outstanding, except that for the purposes
of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that the Trustee knows are so owned
shall be so disregarded. Notes so owned which have been pledged in good faith
shall not be disregarded if the pledgee establishes to the satisfaction of
the
Trustee the pledgee’s right to deliver any such direction, waiver or consent
with respect to the Notes and that the pledgee is not the Company or any obligor
upon the Notes or any Affiliate of the Company or of such other
obligor.
Section
2.10 Certificated
Notes.
(a)
A Global
Note deposited with the Depositary or other custodian for the Depositary
pursuant to Section 2.01 shall be transferred to the beneficial owners thereof
in the form of certificated Notes only if such transfer complies with Section
2.06 and (i) the Depositary notifies the Company that it is unwilling or unable
to continue as the Depositary for such Global Note, or if at any time the
Depositary ceases to be a “clearing agency” registered under the Exchange Act
and a successor depositary is not appointed by the Company within 90 days of
the
earlier of such notice or the Company becoming aware of such cessation, or
(ii)
the Company, at its option, executes and delivers to the Trustee a notice that
such Global Note be so transferable, registrable and exchangeable, or (iii)
a
Default or an Event of Default has occurred and is continuing with respect
to
the Notes and the Registrar has received a request for such transfer from either
the Depositary or a Person with a beneficial interest in such Notes or (iv)
the
issuance of such certificated Notes is necessary in order for a Holder or
beneficial owner to present its Note or Notes to a Paying Agent in order to
avoid any tax that is imposed on or with respect to a payment made to such
Holder or beneficial owner and the Holder or beneficial owner (through the
Depositary) so certifies to the Company and the Trustee. Notice of any such
transfer shall be given by the Company in accordance with the provisions of
Section 12.02.
32
(b) Any
Global Note that is transferable to the beneficial owners thereof in the form
of
certificated Notes pursuant to this Section 2.10 shall be surrendered by the
Depositary to the Transfer Agent, to be so transferred, in whole or from time
to
time in part, without charge, and the Trustee shall authenticate and deliver,
upon such transfer of each portion of such Global Note, an equal aggregate
principal amount of Notes of authorized denominations in the form of
certificated Notes.
(c) In
connection with the exchange of an entire Global Note for certificated Notes
pursuant to this Section 2.10, such Global Note shall be deemed to be
surrendered to the Trustee for cancellation, and the Company shall execute,
and
the Trustee shall authenticate and deliver, to each beneficial owner identified
by the Depositary in exchange for its beneficial interest in such Global Note,
an equal aggregate principal amount of certificated Notes. In the event that
such certificated Notes are not issued to each beneficial owner promptly after
the Registrar has received a request from the Depositary or (through the
Depositary) a beneficial owner to issue such certificated Notes, the Company
expressly acknowledges, with respect to the right of any Holder to pursue a
remedy pursuant to Article VI hereof, the right of any beneficial owner of
Notes
to pursue such remedy with respect to the portion of the Global Note that
represents such beneficial owner’s Notes as if such certificated Notes had been
issued.
(d) Any
portion of a Global Note transferred or exchanged pursuant to this Section
2.10
shall be executed, authenticated and delivered only in registered form in
denominations of $1.00 and any integral multiple thereof and registered in
such
names as the Depositary shall direct. Subject to the foregoing, a Global Note
is
not exchangeable except for a Global Note of like denomination to be registered
in the name of the Depositary or its nominee. In the event that a Global Note
becomes exchangeable for certificated Notes, payment of principal, premium,
if
any, and interest on the certificated Notes will be payable, and the transfer
of
the certificated Notes will be registrable, at the office or agency of the
Company maintained for such purposes in accordance with Section
2.03.
33
(e) In
the
event of the occurrence of any of the events specified in Section 2.10(a),
the
Company will promptly make available to the Trustee a reasonable supply of
certificated Notes in definitive, fully registered form without interest
coupons.
Section
2.11 Temporary
Notes.
Until
certificates representing Notes are ready for delivery, the Company may prepare
and the Trustee, upon receipt of an Authentication Order, shall authenticate
temporary Notes. Temporary Notes shall be substantially in the form of
certificated Notes but may have variations that the Company considers
appropriate for temporary Notes and as shall be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate definitive Notes in exchange for temporary Notes. Holders
of
temporary Notes shall be entitled to all of the benefits of this
Indenture.
Section
2.12 Cancellation.
The
Company at any time may deliver Notes to the Trustee for cancellation. The
Registrar and Paying Agent shall forward to the Trustee any Notes surrendered
to
them for registration of transfer, exchange or payment. The Trustee and no
one
else shall cancel all Notes surrendered for registration of transfer, exchange,
payment, replacement or cancellation and shall dispose of such canceled Notes
in
its customary manner (subject to record retention requirements of the Exchange
Act). Subject to Section 2.07, the Company may not issue new Notes to replace
Notes that it has paid or that have been delivered to the Trustee for
cancellation.
Section
2.13 Defaulted
Interest.
If the
Company defaults in a payment of interest on the Notes, it shall pay the
defaulted interest in any lawful manner plus, to the extent lawful, interest
payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.01 hereof. The Company shall notify the Trustee in writing
of
the amount of defaulted interest proposed to be paid on each Note and the date
of the proposed payment. The Company shall fix or cause to be fixed each such
special record date and payment date, provided
that no
such special record date shall be less than 10 days prior to the related payment
date for such defaulted interest. At least 15 days before the special record
date, the Company (or, upon the written request of the Company, the Trustee
in
the name and at the expense of the Company) shall mail or cause to be mailed
to
Holders a notice that states the special record date, the related payment date
and the amount of such interest to be paid.
Section
2.14 CUSIP
and ISIN Numbers.
The
Company in issuing the Notes may use “CUSIP” and “ISIN” numbers (if then
generally in use, and, if so, the Trustee shall use “CUSIP” and “ISIN” numbers
in notices of redemption as a convenience to Holders; provided
that any
such notice may state that no representation is made as to the correctness
of
such numbers either as printed on the Notes or as contained in any notice of
redemption and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall not be affected
by
any defect in or omission of such numbers). The Company shall promptly notify
the Trustee of any change in the “CUSIP” or “ISIN” numbers.
Section
2.15 Deposit
of Moneys.
By or
before 12:00 p.m. (noon) Eastern Time on each due date of the principal,
premium, if any, and interest on any Notes, the Company shall deposit with
the
Paying Agent money in immediately available funds sufficient to pay such
principal, premium, if any, and interest so becoming due on the due date for
payment under the Notes and (unless the Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to
act.
34
Section
2.16 Computation
of Interest.
Interest on the Notes shall be computed on the basis of a 360-day year of twelve
30-day months.
Section
2.17 Characterization
of Notes for U.S. Federal Income Tax Purposes.
The
Company shall agree and, by acceptance of the Notes pursuant to the Exchange
Offer, each Holder shall be deemed to agree, to (in the absence of an
administrative determination or judicial ruling to the contrary), treat the
Notes for U.S. federal income tax purposes as indebtedness that is subject
to
the Treasury regulations governing contingent payment debt instruments (the
“CPDI
Regulations”),
and to
be bound by the Company’s application of the CPDI Regulations to the Notes.
ARTICLE
III
REDEMPTION
AND PREPAYMENT
Section
3.01 Notices
to Trustee.
If the
Company elects to redeem Notes pursuant to Section 3.07 hereof, it shall furnish
to the Trustee, at least 30 days but not more than 60 days before a redemption
date, an Officers’ Certificate setting forth (a) the clause of this Indenture
pursuant to which the redemption shall occur, (b) the redemption date, (c)
the
principal amount of Notes to be redeemed and (d) the redemption
price.
Section
3.02 Selection
of Notes to Be Redeemed.
If less
than all of the Notes are to be redeemed at any time, selection of Notes for
redemption shall be made by the Trustee in compliance with the requirements
of
the principal national securities exchange, if any, on which the Notes are
listed, or, if the Notes are not so listed, on a pro
rata
basis,
by lot or by such method as the Trustee shall deem fair and appropriate. In
the
event of partial redemption by lot, the particular Notes to be redeemed shall
be
selected, unless otherwise provided herein, not less than 30 nor more than
60
days prior to the redemption date by the Trustee from the outstanding Notes
not
previously called for redemption.
The
Trustee shall promptly notify the Company in writing of the Notes selected
for
redemption and, in the case of any Note selected for partial redemption, the
principal amount thereof to be redeemed. Except
as
provided in the preceding sentence, the provisions of this Indenture that apply
to Notes called for redemption also apply to portions of Notes called for
redemption.
Section
3.03 Notice
of Redemption.
Subject
to Section 3.09 hereof, at least 30 days but not more than 60 days before a
redemption date, the Company shall mail or cause to be mailed, by first class
mail, a notice of redemption to each Holder whose Notes are to be redeemed
at
its registered address.
35
The
notice shall identify the Notes to be redeemed and shall state:
(a) the
redemption date;
(b) the
redemption price;
(c) if
any
Note is being redeemed in part, the portion of the principal amount of such
Note
to be redeemed and that, after the redemption date upon surrender of such Note,
a new Note or Notes in principal amount equal to the unredeemed portion of
the
original Note shall be issued in the name of the Holder thereof upon
cancellation of the original Note;
(d) the
name
and address of the Paying Agent;
(e) that
Notes called for redemption must be surrendered to the Paying Agent to collect
the redemption price and become due on the date fixed for
redemption;
(f) that,
unless the Company defaults in making such redemption payment, interest on
Notes
called for redemption ceases to accrue on and after the redemption
date;
(g) the
paragraph of the Notes and/or Section of this Indenture pursuant to which the
Notes called for redemption are being redeemed; and
(h) that
no
representation is made as to the correctness or accuracy of the CUSIP number,
if
any, listed in such notice or printed on the Notes.
At
the
Company’s request, the Trustee shall give the notice of redemption in the
Company’s name and at its expense; provided,
however,
that
the Company shall have delivered to the Trustee, at least 45 days prior to
the
redemption date, an Officers’ Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph. The notice, if mailed in the manner provided herein
shall be presumed to have been given, whether or not the Holder receives such
notice.
Section
3.04 Effect
of Notice of Redemption.
Once
notice of redemption is mailed in accordance with Section 3.03 hereof, Notes
called for redemption become irrevocably due and payable on the redemption
date
at the redemption price. A notice of redemption may not be
conditional.
Section
3.05 Deposit
of Redemption Price.
Not
later than one Business Day prior to the redemption date, the Company shall
deposit with the Trustee or with the Paying Agent money sufficient to pay the
redemption price of and accrued and unpaid interest on all Notes to be redeemed
on that date. The Trustee or the Paying Agent shall promptly return to the
Company any money deposited with the Trustee or the Paying Agent by the Company
in excess of the amounts necessary to pay the redemption price of, and accrued
and unpaid interest on, all Notes to be redeemed.
36
If
the
Company complies with the preceding paragraph of this Section 3.05, on and
after
the redemption date, interest shall cease to accrue on the Notes or the portions
of Notes called for redemption. If a Note is redeemed on or after a record
date
but on or prior to the related Interest Payment Date, then any accrued and
unpaid interest shall be paid to the Person in whose name such Note was
registered at the close of business on such record date. If any Note called
for
redemption shall not be so paid upon surrender for redemption because of the
failure of the Company to comply with the preceding paragraph, interest shall
accrue on the unpaid principal, from the redemption date until such principal
is
paid, and to the extent permitted by applicable law on any interest accrued
through the date of redemption but not paid on such unpaid principal, in each
case at the rate provided in the Notes and in Section 4.01 hereof.
Section
3.06 Notes
Redeemed in Part.
Upon
surrender of a Note that is redeemed in part, the Company shall issue and,
upon
the Company’s written request, the Trustee shall authenticate for the Holder at
the expense of the Company a new Note equal in principal amount to the
unredeemed portion of the Note surrendered.
Section
3.07 Optional
Redemption.
(a) At
any
time on or prior to September 30, 2007, the Company may redeem all or a part
of
the Notes, from time to time, upon not less than 30 nor more than 60 days
notice, at the redemption price (expressed as a percentage of principal amount)
of 110% plus accrued and unpaid interest, if any, to the applicable redemption
date.
(b) In
addition, at any time after September 30, 2007, the Company may redeem all
or a
part of the Notes, from time to time, upon not less than 30 nor more than 60
days notice, at the redemption prices (expressed as percentages of principal
amount) set forth below plus accrued and unpaid interest, if any, to the
applicable redemption date, if redeemed during the twelve-month period beginning
on October 1 of the years indicated below:
|
Year
|
Percentage
|
||||
|
2007
|
109
|
%
|
|
||
|
2008
|
102
|
%
|
|
||
|
2009
|
101
|
%
|
|
||
|
2010
and thereafter
|
100
|
%
|
|
||
(c) Any
redemption pursuant to this Section 3.07 shall be made pursuant to Section
3.01
through 3.06 hereof.
37
Section
3.08 Mandatory
Redemption.
The
Company is not required to make mandatory redemption or sinking fund payments
with respect to the Notes.
Section
3.09 Offer
to Purchase.
In the
event that, pursuant to Sections 4.10 and 4.14 hereof, the Company shall be
required to commence an offer to all Holders to purchase Notes (a “Repurchase
Offer”),
it
shall follow the procedures specified below.
The
Repurchase Offer shall remain open for a period of 20 Business Days following
its commencement and no longer, except to the extent that a longer period is
required by applicable law (the “Offer
Period”).
No
later than five Business Days after the termination of the Offer Period (the
“Purchase
Date”),
the
Company shall purchase the principal amount of Notes required to be purchased
pursuant to Section 4.10 or 4.14 hereof (the “Offer
Amount”)
or, if
less than the Offer Amount has been tendered, all Notes tendered in response
to
the Repurchase Offer. Payment for any Notes so purchased shall be made in the
same manner as Cash Interest payments are made.
If
the
Purchase Date is on or after an interest Record Date and on or before the
related Interest Payment Date, any accrued and unpaid interest shall be paid
to
the Person in whose name a Note is registered at the close of business on such
Record Date, and no additional interest shall be payable to Holders who tender
Notes pursuant to the Repurchase Offer.
Upon
the
commencement of a Repurchase Offer, the Company shall send, by first class
mail,
a notice to the Trustee and each of the Holders, with a copy to the Trustee.
The
notice shall contain all instructions and materials necessary to enable such
Holders to tender Notes pursuant to the Repurchase Offer. The Repurchase Offer
shall be made to all Holders. The notice, which shall govern the terms of the
Repurchase Offer, shall state:
(a) that
the
Repurchase Offer is being made pursuant to this Section 3.09 and Section 4.10
or
4.14 hereof and the length of time the Repurchase Offer shall remain
open;
(b) the
Offer
Amount, the purchase price and the Purchase Date;
(c) that
any
Note not tendered or accepted for payment shall continue to accrue
interest;
(d) that,
unless the Company defaults in making such payment, any Note accepted for
payment pursuant to the Repurchase Offer shall cease to accrue interest on
and
after the Purchase Date;
38
(e) that
Holders electing to have a Note purchased pursuant to a Repurchase Offer may
only elect to have all of such Note purchased or a portion of such Note in
denominations of $1.00 or an integral multiple thereof;
(f) that
Holders electing to have a Note purchased pursuant to any Repurchase Offer
shall
be required to surrender the Note, with the form entitled “Option of Holder to
Elect Purchase” on the reverse of the Note completed, or transfer by book-entry
transfer, to the Company, the Depositary, if appointed by the Company, or a
Paying Agent at the address specified in the notice at least three Business
Days
before the Purchase Date;
(g) that
Holders shall be entitled to withdraw their election if the Company, the
Depositary or the Paying Agent, as the case may be, receives, not later than
the
expiration of the Offer Period, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the Note
the Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Note purchased;
(h) that,
if
the aggregate principal amount of Notes surrendered by Holders exceeds the
Offer
Amount required pursuant to Section 4.10, the Company shall select the Notes
to
be purchased pursuant to the terms of Section 3.02 (with such adjustments as
may
be deemed appropriate by the Trustee so that only Notes in denominations of
not
less than $1.00 shall be purchased); and
(i) that
Holders whose Notes were purchased only in part shall be issued new Notes equal
in principal amount to the unpurchased portion of the Notes surrendered (or
transferred by book-entry transfer); provided
that
such new Notes will be in a principal amount of $1.00 or an integral multiple
thereof.
On
or
before the Purchase Date, the Company shall, to the extent lawful, accept for
payment, on a pro
rata
basis to
the extent necessary, the Offer Amount of Notes or portions thereof tendered
pursuant to the Repurchase Offer; or if less than the Offer Amount has been
tendered, all Notes tendered, and shall deliver to the Trustee an Officers’
Certificate stating that such Notes or portions thereof were accepted for
payment by the Company in accordance with the terms of this Section 3.09. The
Company, the Depositary or the Paying Agent, as the case may be, shall promptly
(but in any case not later than five days after the Purchase Date) mail or
deliver to each tendering Holder an amount equal to the purchase price of the
Notes tendered by such Holder and accepted by the Company for purchase, and
the
Company shall promptly issue a new Note, and the Trustee, upon written request
from the Company shall authenticate and mail or deliver such new Note to such
Holder, in a principal amount equal to any unpurchased portion of the Note
surrendered; provided
that
such new Note will be in a principal amount of $1.00 or an integral multiple
thereof. Any Note not so accepted shall be promptly mailed or delivered by
the
Company to the Holder thereof. The Company shall publicly announce the results
of the Repurchase Offer on the Purchase Date.
39
Other
than as specifically provided in this Section 3.09, any purchase pursuant to
this Section 3.09 shall be made pursuant to Sections 3.01 through 3.06
hereof.
ARTICLE
IV
COVENANTS
Section
4.01 Payment
of Notes.
The
Company shall pay or cause to be paid the principal of, premium, if any, and
interest on the Notes on the dates and in the manner provided in the Notes
and
in this Indenture. Principal, premium, if any, and Cash Interest shall be
considered paid on the date due if the Paying Agent, if a Person other than
the
Company, a Subsidiary or affiliate thereof, holds as of 12:00 p.m. (noon)
Eastern Time on the due date money deposited by the Company in immediately
available funds and designated for and sufficient, to pay all principal,
premium, if any, and accrued and unpaid interest then due. PIK Interest shall
be
considered paid on the due date if the Company had previously delivered a valid
Notice of Election for PIK Interest for the corresponding Interest Period and
any applicable Additional Notes have been issued.
If
on any
Interest Election Date, the Exchange Act filings for the Company’s most recently
completed fiscal quarter to which such filings relate demonstrate that the
Fixed
Charge Coverage Ratio for the Company’s most recently ended four full fiscal
quarters ending on such fiscal quarter is above 2.0 to 1.0 (the “Fixed
Charge Coverage Ratio Test”),
the
Company shall notify the Trustee on such Interest Election Date and the
applicable interest rate shall be 1% per annum in excess of the Scheduled Rate
for the next Interest Period. In addition, the Company shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law)
on
overdue principal at the rate equal to 1% per annum in excess of the then
applicable interest rate on the Notes to the extent lawful; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace period) at the same rate to the extent lawful.
Section
4.02 Maintenance
of Office or Agency.
The
Company shall maintain an office or agency (which may be an office of the
Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes
may be surrendered for registration of transfer or for exchange and where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served. The Company shall give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required,
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at
the
Corporate Trust Office of the Trustee.
The
Company may also from time to time designate one or more other offices or
agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided,
however,
that no
such designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or
agency.
40
The
Company hereby designates the Corporate Trust Office of the Trustee as one
such
office or agency of the Company in accordance with Section 2.03.
Section
4.03 Reports.
(a)
Whether
or not required by the SEC, so long as any Notes are outstanding, the Company
shall prepare and furnish to the Holders of Notes with a copy to the Trustee,
within the time periods specified in the SEC’s rules and regulations, (i) all
quarterly and annual financial information that would be required to be
contained in a filing with the SEC on Forms 10-Q and 10-K if the Company were
required to file such Forms, including a “Management’s Discussion and Analysis
of Financial Condition and Results of Operations” and, with respect to the
annual information only, a report on the annual financial statements by the
Company’s certified independent accountants; and (ii) all current reports that
would be required to be filed with the SEC on Form 8-K if the Company were
required to file such reports. In addition, whether or not required by the
SEC,
the Company shall file a copy of all of the information and reports referred
to
in clauses (i) and (ii) above with the SEC for public availability within the
time periods specified in the SEC’s rules and regulations (unless the SEC shall
not accept such a filing) and make such information available to securities
analysts and prospective investors upon request. In addition, the Company and
the Guarantors have agreed that, for so long as any Notes remain outstanding,
they shall furnish to the Holders and to prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.
(b) If
the
Company has designated any of its Subsidiaries as Unrestricted Subsidiaries,
then the quarterly and annual financial information required by paragraph (a)
above shall include a reasonably detailed presentation, either on the face
of
the financial statements or in the footnotes thereto, and in “Management’s
Discussion and Analysis of Financial Condition and Results of Operations,” of
the financial condition and results of operations of the Company and its
Restricted Subsidiaries separate from the financial condition and results of
operations of the Unrestricted Subsidiaries of the Company.
Section
4.04 Compliance
Certificate.
(a) The
Company and each Guarantor (to the extent that such Guarantor is so required
under the TIA) shall deliver to the Trustee, within 90 days after the end of
each fiscal year, an Officers’ Certificate stating that, to his or her knowledge
the Company has kept, observed, performed and fulfilled its obligations under
this Indenture and is not in default in the performance or observance of any
of
the, terms, provisions and conditions of this Indenture (or, if a Default or
Event of Default shall have occurred, describing all such Defaults or Events
of
Default of which he or she may have knowledge and what action the Company is
taking or proposes to take with respect thereto) and that to his or her
knowledge no event has occurred and is continuing by reason of which payments
on
account of the principal of or interest, if any, on the Notes is prohibited
or
if such event has occurred, a description of the event and what action the
Company is taking or proposes to take with respect thereto. The Company may
deliver an Officer’s Certificate on behalf of any Guarantor.
41
(b) So
long
as not contrary to the then current recommendations of the American Institute
of
Certified Public Accountants, the year-end financial statements delivered
pursuant to Section 4.03(a) above shall be accompanied by a written statement
of
the Company’s independent public accountants (who shall be a firm of established
national reputation) that in making the examination necessary for certification
of such financial statements, nothing has come to their attention that would
lead them to believe that the Company has violated Article IV or Article V
hereof or, if any such violation has occurred, specifying the nature and period
of existence thereof, it being understood that such accountants shall not be
liable directly or indirectly to any Person for any failure to obtain knowledge
of any such violation.
(c) The
Company shall, so long as any of the Notes are outstanding, deliver to the
Trustee, forthwith, but in no event later than five Business Days, upon any
Officer becoming aware of any Default or Event of Default, an Officers’
Certificate specifying such Default or Event of Default and what action the
Company is taking or proposes to take with respect thereto.
Section
4.05 Taxes.
The
Company, shall pay, and shall cause each of its Subsidiaries to pay, prior
to
delinquency, all material taxes, assessments, and governmental levies except
such as are contested in good faith and by appropriate proceedings or where
the
failure to effect such payment is not adverse in any material respect to the
Holders of the Notes.
Section
4.06 Stay,
Extension and Usury Laws.
Each of
the Company and the Guarantors covenants (to the extent that it is permitted
by
applicable law) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, that
may
affect the obligations of the Company and each of the Guarantors and the
performance of this Indenture by the Company and each of the Guarantors; and
each of the Company and the Guarantors (to the extent that it is permitted
by
applicable law) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
Section
4.07 Restricted
Payments.
(a) The
Company shall not, and shall not permit any of its Restricted Subsidiaries
to,
directly or indirectly:
(i) declare
or pay any dividend or make any other payment or distribution on account of
the
Company’s or any of its Restricted Subsidiaries’ Equity Interests (including,
without limitation, any payment in connection with any merger or consolidation
involving the Company or any of its Restricted Subsidiaries) or to the direct
or
indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity
Interests in their capacity as such (other than dividends, payments or
distributions payable in Equity Interests (other than Disqualified Stock) of
the
Company or to the Company or a Restricted Subsidiary);
42
(ii) purchase,
redeem or otherwise acquire or retire for value (including, without limitation,
in connection with any merger or consolidation involving the Company) any Equity
Interests of the Company or any Restricted Subsidiary of the Company held by
Persons other than the Company or any of its Restricted Subsidiaries, other
than
the purchase, redemption or acquisition or retirement for value all of the
Equity Interests in VARTA not held by the Company or any of its Restricted
Subsidiaries pursuant to, and in accordance with the terms of, the VARTA Joint
Venture Agreement as in effect on the date of this Indenture to the extent
the
cash purchase price does not exceed €1.0 million;
(iii) make
any
payment on or with respect to, or purchase, redeem, defease or otherwise acquire
or retire for value any Indebtedness that is subordinated to the Notes or the
Note Guarantees, except a payment of interest or principal on or after the
Stated Maturity thereof; or
(iv) make
any
Restricted Investment (all such payments and other actions set forth in clauses
(i) through (iv) above being collectively referred to as “Restricted
Payments”),
unless,
at the time of and after giving effect to such Restricted Payment:
(A) no
Default or Event of Default shall have occurred and be continuing or would
occur
as a consequence thereof; and
(B) the
Company would, at the time of such Restricted Payment and after giving
pro
forma
effect
thereto as if such Restricted Payment had been made at the beginning of the
applicable four-quarter period, have been permitted to incur at least $1.00
of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in Section 4.09; and
(C) such
Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Company and its Restricted Subsidiaries after the date
of
this Indenture (excluding Restricted Payments permitted by clauses (ii), (iii)
(iv) (to the extent such dividends are paid to the Company or any of its
Restricted Subsidiaries) and (v) of Section 4.07(b)), is less than the sum,
without duplication, of:
(1) 50%
of
the Consolidated Net Income of the Company for the period (taken as one
accounting period) from the beginning of the first fiscal quarter commencing
from September 30, 2003 to the end of the Company’s most recently ended fiscal
quarter for which internal financial statements are available at the time of
such Restricted Payment (or, if such Consolidated Net Income for such period
is
a deficit, less 100% of such deficit); plus
43
(2) 100%
of
the aggregate net cash proceeds received by the Company since September 30,
2003
as a contribution to its common equity capital or from the issue or sale of
Equity Interests of the Company (other than Disqualified Stock) or from the
issue or sale of convertible or exchangeable Disqualified Stock or convertible
or exchangeable debt securities of the Company that have been converted into
or
exchanged for such Equity Interests (other than Equity Interests (or
Disqualified Stock or debt securities) sold to a Subsidiary of the Company);
plus
(3) with
respect to Restricted Investments made by the Company and its Restricted
Subsidiaries after the date of this Indenture, an amount equal to the net
reduction in Investments (other than reductions in Permitted Investments) in
any
Person resulting from repayments of loans or advances, or other transfers of
assets, in each case to the Company or any Restricted Subsidiary or from the
net
cash proceeds from the sale of any such Investment (except, in each case, to
the
extent any such payment or proceeds are included in the calculation of
Consolidated Net Income, from the release of any Guarantee (except to the extent
any amounts are paid under such Guarantee) or from redesignations of
Unrestricted Subsidiaries as Restricted Subsidiaries, not to exceed, in each
case, the amount of Investments previously made by the Company or any Restricted
Subsidiary in such Person or Unrestricted Subsidiary; plus
(4) $20.0
million.
(b) So
long
as no Default has occurred and is continuing or would be caused thereby, the
preceding clauses of this Section 4.07 shall not prohibit:
(i) the
payment of any dividend within 60 days after the date of declaration thereof,
if
at said date of declaration such payment would have complied with this
Indenture;
(ii) the
redemption, repurchase, retirement, defeasance or other acquisition of any
subordinated Indebtedness of the Company or any Guarantor or of any Equity
Interests of the Company or any Guarantor in exchange for, or out of the net
cash proceeds of a contribution to the common equity of the Company or a
substantially concurrent sale (other than to a Subsidiary of the Company) of
Equity Interests of the Company (other than Disqualified Stock); provided
that the
amount of any such net cash proceeds that are utilized for any such redemption,
repurchase, retirement, defeasance or other acquisition shall be excluded from
clause (C)(2) of Section 4.07(a);
44
(iii) the
defeasance, redemption, repurchase or other acquisition of subordinated
Indebtedness of the Company or any Guarantor with the net cash proceeds from
an
incurrence of Permitted Refinancing Indebtedness;
(iv) the
payment of any dividend by a Restricted Subsidiary of the Company to the holders
of its common Equity Interests on a pro
rata
basis;
(v) Investments
acquired as a capital contribution to, or in exchange for, or out of the net
cash proceeds of a substantially concurrent offering of, Equity Interests (other
than Disqualified Stock) of the Company; provided
that the
amount of any such net cash proceeds that are utilized for any such acquisition
or exchange shall be excluded from clause (C)(2) of Section
4.07(a);
(vi) the
repurchase of Capital Stock deemed to occur upon the exercise of options or
warrants if such Capital Stock represents all or a portion of the exercise
price
thereof;
(vii) the
repurchase, redemption or other acquisition or retirement for value of any
Equity Interests of the Company held by any employee, former employee, director
or former director of the Company (or any of its Restricted Subsidiaries) upon
the death, disability or termination of employment of any of the foregoing
pursuant to the terms of any employee equity subscription agreement, stock
option agreement or similar agreement; provided
that the
aggregate price paid for all such repurchased, redeemed, acquired or retired
Equity Interests in any fiscal year shall not exceed the sum of (x) $3.0 million
and (y) the amount of Restricted Payments permitted but not made pursuant to
this clause (vii) in the immediately preceding fiscal year; or
(viii) the
repurchase, redemption or other acquisition or retirement for value of any
Equity Interests of any Restricted Subsidiary of the Company from the minority
stockholders (or other holders of minority interest, however designated) of
such
Restricted Subsidiary, for fair market value; provided
that the
aggregate price paid for all such repurchased, redeemed, acquired or retired
Equity Interests shall not exceed $15.0 million.
The
amount of all Restricted Payments (other than cash) shall be the fair market
value on the date of the Restricted Payment of the asset(s) or securities
proposed to be transferred or issued to or by the Company or such Subsidiary,
as
the case may be, pursuant to the Restricted Payment. The fair market value
of
any assets or securities that are required to be valued pursuant to this Section
4.07 shall be determined by the Board of Directors of the Company whose
resolution with respect thereto shall be delivered to the Trustee. Not later
than the date of making any Restricted Payment, the Company shall deliver to
the
Trustee an Officers’ Certificate stating that such Restricted Payment is
permitted and setting forth the basis upon which the calculations required
by
this Section 4.07 were computed, together with a copy of any fairness opinion
or
appraisal required by this Indenture.
45
Section
4.08 Dividend
and Other Payment Restrictions Affecting Restricted Subsidiaries.
The
Company shall not, and shall not permit any of its Restricted Subsidiaries
to,
directly or indirectly, create or permit to exist or become effective any
consensual encumbrance or restriction on the ability of any Restricted
Subsidiary to:
(a) pay
dividends or make any other distributions on its Capital Stock (or with respect
to any other interest or participation in, or measured by, its profits) to
the
Company or any of its Restricted Subsidiaries or pay any liabilities owed to
the
Company or any of its Restricted Subsidiaries;
(b) make
loans or advances to the Company or any of its Restricted Subsidiaries;
or
(c) transfer
any of its properties or assets to the Company or any of its Restricted
Subsidiaries.
However,
the preceding restrictions shall not apply to encumbrances or restrictions
existing under, by reason of, or with respect to:
(i) the
Credit Agreement, Existing Indebtedness or any other agreements in effect on
the
date of the Existing Indenture and any amendments, modifications, restatements,
renewals, extensions, supplements, refundings, replacements or refinancings
thereof, provided
that the
encumbrances and restrictions in any such amendments, modifications,
restatements, renewals, extensions, supplements, refundings, replacement or
refinancings are no more restrictive, taken as a whole, than those in effect
on
the date of the Existing Indenture;
(ii) applicable
law, rule, regulation or order;
(iii) any
Person or the property or assets of a Person acquired by the Company or any
of
its Restricted Subsidiaries existing at the time of such acquisition and not
incurred in connection with or in contemplation of such acquisition, which
encumbrance or restriction is not applicable to any Person or the properties
or
assets of any Person, other than the Person, or the property or assets of such
Person, so acquired and any amendments, modifications, restatements, renewals,
extensions, supplements, refundings, replacements or refinancings thereof,
provided
that the
encumbrances and restrictions in any such amendments, modifications,
restatements, renewals, extensions, supplements, refundings, replacement or
refinancings are no more restrictive, taken as a whole, than those contained
in
the Credit Agreement, Existing Indebtedness or such other agreements as in
effect on the date of the acquisition;
46
(iv) in
the
case of clause (c) of the first paragraph of this Section 4.08:
(A) provisions
that restrict in a customary manner the subletting, assignment or transfer
of
any property or asset that is a lease, license, conveyance or contract or
similar property or asset,
(B) restrictions
existing by virtue of any transfer of, agreement to transfer, option or right
with respect to, or Lien on, any property or assets of the Company or any
Restricted Subsidiary not otherwise prohibited by this Indenture,
or
(C) restrictions
arising or agreed to in the ordinary course of business, not relating to any
Indebtedness, and that do not, individually or in the aggregate, detract from
the value of property or assets of the Company or any Restricted Subsidiary
in
any manner material to the Company or any Restricted Subsidiary;
(v) provisions
with respect to the disposition or distribution of assets or property in joint
venture agreements and other similar agreements entered into in the ordinary
course of business;
(vi) any
agreement for the sale or other disposition of all or substantially all of
the
capital stock of, or property and assets of, a Restricted Subsidiary that
restricts distributions by that Restricted Subsidiary pending such sale or
other
disposition; and
(vii) Indebtedness
of a Foreign Subsidiary permitted to be incurred under this Indenture;
provided
that (A)
such encumbrances or restrictions are ordinary and customary with respect to
the
type of Indebtedness being incurred and (B) such encumbrances or restrictions
will not affect the Company’s ability to make principal and interest payments on
the Notes, as determined in good faith by the Board of Directors of the
Company.
Section
4.09 Incurrence
of Indebtedness and Issuance of Preferred Stock.
47
(a) The
Company shall not, and shall not permit any of its Restricted Subsidiaries
to,
directly or indirectly, incur any Indebtedness (including Acquired Debt), and
the Company shall not permit any of its Restricted Subsidiaries to issue any
preferred stock; provided,
however,
that
the Company or any Guarantor of the Company may incur Indebtedness, if the
Fixed
Charge Coverage Ratio for the Company’s most recently ended four full fiscal
quarters for which internal financial statements are available immediately
preceding the date on which such additional Indebtedness is incurred would
have
been at least 2.0 to 1, determined on a pro
forma
basis
(including a pro
forma
application of the net proceeds therefrom), as if the additional Indebtedness
had been incurred at the beginning of such four quarter period.
(b) So
long
as no Default shall have occurred and be continuing or would be caused thereby,
Section 4.09(a) shall not prohibit the incurrence of any of the following items
of Indebtedness (collectively, “Permitted
Debt”):
(i) the
incurrence by (A) the Company or any Foreign Subsidiary of the Company of
Indebtedness under Credit Facilities (and the incurrence by the Guarantors
of
Guarantees thereof) in an aggregate principal amount at any one time
outstanding, without duplication, pursuant to this clause (i) (with letters
of
credit being deemed to have a principal amount equal to the maximum potential
liability of the Company and its Restricted Subsidiaries thereunder) not to
exceed $1.6 billion, less the aggregate amount of all Net Proceeds of Asset
Sales applied by the Company or any Restricted Subsidiary to permanently repay
any such Indebtedness (and, in the case of any revolving credit Indebtedness,
to
effect a corresponding commitment reduction thereunder) pursuant to Section
4.10
provided,
that
the aggregate principal amount of Indebtedness of all Foreign Subsidiaries
of
the Company incurred pursuant to this clause (i) shall not exceed €60.0 million
and (B) Foreign Subsidiaries of Guarantees of other Foreign Subsidiaries’
Indebtedness under Credit Facilities;
(ii) the
incurrence of Existing Indebtedness;
(iii)
the
incurrence by the Company and the Guarantors of Indebtedness represented by
the
Notes (including any Notes issued as PIK Interest) and the related Note
Guarantees to be issued on the date of this Indenture;
(iv) the
incurrence by the Company or any Guarantor of Indebtedness represented by
Capital Lease Obligations, mortgage financings or purchase money obligations,
in
each case, incurred for the purpose of financing all or any part of the purchase
price or cost of construction or improvement of property, plant or equipment
used in the business of the Company or such Guarantor, in an aggregate principal
amount, including all Permitted Refinancing Indebtedness incurred to refund,
refinance or replace any Indebtedness incurred pursuant to this clause (iv),
not
to exceed $30.0 million at any time outstanding;
48
(v) the
incurrence by the Company or any Restricted Subsidiary of the Company of
Permitted Refinancing Indebtedness in exchange for, or the net proceeds of
which
are used to refund, refinance or replace Indebtedness (other than intercompany
Indebtedness) that was permitted by this Indenture to be incurred under Section
4.09(a) or clauses (ii) (other than Indebtedness incurred in connection with
the
acquisition of Remington), (iii), (iv), (v), or (viii) of this Section
4.09(b);
(vi) the
incurrence by the Company or any of its Restricted Subsidiaries of intercompany
Indebtedness owing to and held by the Company or any of its Restricted
Subsidiaries; provided,
however,
that:
(x) if
the
Company or any Guarantor is the obligor on such Indebtedness, such Indebtedness
must be unsecured and expressly subordinated to the prior payment in full in
cash of all Obligations with respect to the Notes, in the case of the Company,
or the Note Guarantee, in the case of a Guarantor;
(y) Indebtedness
owed to the Company or any Guarantor must be evidenced by an unsubordinated
promissory note, unless the obligor under such Indebtedness is the Company
or a
Guarantor; and
(z) (A)
any
subsequent issuance or transfer of Equity Interests that results in any such
Indebtedness being held by a Person other than the Company or a Restricted
Subsidiary thereof and (B) any sale or other transfer of any such Indebtedness
to a Person that is not either the Company or a Restricted Subsidiary thereof,
shall be deemed, in each case, to constitute an incurrence of such Indebtedness
by the Company or such Restricted Subsidiary, as the case may be, that was
not
permitted by this clause (vi);
(vii) the
Guarantee by the Company or any Guarantors of Indebtedness of the Company or
a
Restricted Subsidiary of the Company that was permitted to be incurred by
another provision of this Section 4.09;
(viii) the
incurrence by the Company or any Guarantor of additional Indebtedness in an
aggregate principal amount (or accreted value, as applicable) at any time
outstanding, including all Permitted Refinancing Indebtedness incurred to
refund, refinance or replace any Indebtedness incurred pursuant to this clause
(viii), not to exceed $50.0 million;
(ix) the
incurrence of Indebtedness by the Company or, any Restricted Subsidiary of
the
Company 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
such Indebtedness is extinguished within five Business Days of incurrence;
and
49
(x) the
incurrence of Indebtedness by a Foreign Subsidiary in an aggregate principal
amount for all Foreign Subsidiaries at any one time outstanding pursuant to
this
clause (x) not to exceed 10% of Consolidated Net Tangible Assets of the Company;
provided
that
after giving effect to the incurrence of any such Indebtedness, the Company
would be permitted to incur at least $1.00 of additional Indebtedness pursuant
to the Fixed Charge Coverage Ratio test set forth in Section
4.09(a).
(c) For
purposes of determining compliance with this Section 4.09, in the event that
any
proposed Indebtedness meets the criteria of more than one of the categories
of
Permitted Debt described in clauses (i) through (x) of Section 4.09(b) above,
or
is entitled to be incurred pursuant to Section 4.09(a), the Company shall be
permitted to classify at the time of its incurrence such item of Indebtedness
in
any manner that complies with this Section 4.09. Indebtedness under Credit
Facilities outstanding on the date on which Notes are first issued under this
Indenture shall be deemed to have been incurred on such date in reliance on
the
exception provided by clause (i) of Section 4.09(b). In addition, any
Indebtedness originally classified as incurred pursuant to clauses (i) through
(x) of Section 4.09(b) may later be reclassified by the Company such that it
shall be deemed as having been incurred pursuant to another of such clauses
to
the extent that such reclassified Indebtedness could be incurred pursuant to
such new clause at the time of such reclassification.
(d) Notwithstanding
any other provision of this Section 4.09, (a) the maximum amount of Indebtedness
that may be incurred pursuant to this Section 4.09 shall not be deemed to be
exceeded, with respect to any outstanding Indebtedness due solely to the result
of fluctuations in the exchange rates of currencies and (b) Indebtedness
incurred under any letters of credit (the amount of such Indebtedness being
deemed to have a principal amount equal to the maximum potential liability
of
the Company and its Restricted Subsidiaries thereunder), including letters
of
credit under the Credit Agreement, that were outstanding on the date of this
Indenture or were first issued thereafter at a time when no Default had occurred
and was continuing shall be permitted to be incurred in reliance on the
exception provided by clause (viii) of the definition of Permitted Debt to
the
extent the aggregate principal amount of such Indebtedness at any time
outstanding does not exceed $50.0 million.
Section
4.10 Asset
Sales.
(a)
The
Company shall not, and shall not permit any of its Restricted Subsidiaries
to,
consummate an Asset Sale unless:
(i) the
Company (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the fair market
value of the assets or Equity Interests issued or sold or otherwise disposed
of;
50
(ii) such
fair
market value is determined by the Company’s Board of Directors and evidenced by
a resolution of the Board of Directors set forth in an Officers’ Certificate
delivered to the Trustee; and
(iii) at
least
75% of the consideration therefor received by the Company or such Restricted
Subsidiary is in the form of cash or Replacement Assets or a combination of
both. For purposes of this clause, each of the following shall be deemed to
be
cash:
(A) any
liabilities (as shown on the Company’s, or such Restricted Subsidiary’s most
recent balance sheet), of the Company or any Restricted Subsidiary (other than
contingent liabilities, Indebtedness that is by its terms subordinated to the
Notes or any Note Guarantee and liabilities to the extent owed to the Company
or
any Affiliate of the Company) that are assumed by the transferee of any such
assets pursuant to a written novation agreement that releases the Company or
such Restricted Subsidiary from further liability; and
(B) any
securities, notes or other obligations received by the Company or any such
Restricted Subsidiary from such transferee that are converted by the Company
or
such Restricted Subsidiary into cash (to the extent of the cash received in
that
conversion) within 90 days of the applicable Asset Sale.
(b) Within
360 days after the receipt of any Net Proceeds from an Asset Sale, the Company
may apply such Net Proceeds at its option:
(i) to
repay
Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness,
to
correspondingly reduce commitments with respect thereto; or
(ii) to
purchase Replacement Assets or make a capital expenditure in or that is used
or
useful in a Permitted Business.
Pending
the final application of any such Net Proceeds, the Company may temporarily
reduce revolving credit borrowings or otherwise invest such Net Proceeds in
any
manner that is not prohibited by this Indenture.
(c) Any
Net
Proceeds from Asset Sales that are not applied or invested as provided in the
preceding paragraph shall constitute “Excess
Proceeds.”
Within
10 days after the aggregate amount of Excess Proceeds exceeds $10.0 million,
the
Company shall make an offer (an “Asset
Sale Offer”)
to all
Holders of Notes and all holders of other Indebtedness that is pari
passu
with the
Notes or any Note Guarantee containing provisions similar to those set forth
in
this Indenture with respect to offers to purchase with the proceeds of sales
of
assets, to purchase the maximum principal amount of Notes and such other
pari
passu
Indebtedness that may be purchased out of the Excess Proceeds. The offer price
in any Asset Sale Offer shall be equal to 100% of the principal amount of the
Notes and such other pari
passu
Indebtedness plus accrued and unpaid interest to the date of purchase, and
shall
be payable in cash. If any Excess Proceeds remain after consummation of an
Asset
Sale Offer, the Company may use such Excess Proceeds for any purpose not
otherwise prohibited by this Indenture. If the aggregate principal amount of
Notes and such other pari
passu
Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess
Proceeds, the Trustee will select the Notes and the agent for such other
pari
passu
Indebtedness will select such other pari
passu
Indebtedness to be purchased on a pro
rata
basis
(with such adjustments for authorized denominations) based on the principal
amount of Notes and such other pari
passu
Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount
of
Excess Proceeds shall be reset at zero.
51
(d) Any
Asset
Sale Offer shall be made in accordance with Section 3.09. The Company shall
comply with the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with each repurchase of Notes pursuant
to an Asset Sale Offer. To the extent that the provisions of any securities
laws
or regulations conflict with this Section 4.10 or Section 3.09, the Company
shall comply with the applicable securities laws and regulations and shall
not
be deemed to have breached its obligations under this Section 4.10 or Section
3.09 by virtue of such compliance.
Section
4.11 Transactions
with Affiliates.
(a)
The
Company shall not, and shall not permit any of its Restricted Subsidiaries
to,
make any payment to, or sell, lease, transfer or otherwise dispose of any of
its
properties or assets to, or purchase any property or assets from, or enter
into,
make, amend, renew or extend any transaction, contract, agreement,
understanding, loan, advance or Guarantee with, or for the benefit of, any
Affiliate (each, an “Affiliate Transaction”), unless:
(i) such
Affiliate Transaction is on terms that are no less favorable to the Company
or
the relevant Restricted Subsidiary than those that would have been obtained
in a
comparable arm’s-length transaction by the Company or such Restricted Subsidiary
with a Person that is not an Affiliate of the Company; and
(ii) the
Company delivers to the Trustee:
(A) with
respect to any Affiliate Transaction or series of related Affiliate Transactions
involving aggregate consideration in excess of $5.0 million, a resolution of
the
Board of Directors of the Company set forth in an Officers’ Certificate
certifying that such Affiliate Transaction or series of related Affiliate
Transactions complies with this Section 4.11 and that such Affiliate Transaction
or series of related Affiliate Transactions has been approved by a majority
of
the disinterested members of the Board of Directors of the Company;
and
52
(B) with
respect to any Affiliate Transaction or series of related Affiliate Transactions
involving aggregate consideration in excess of $15.0 million, an opinion as
to
the fairness to the Company or such Restricted Subsidiary of such Affiliate
Transaction or series of related Affiliate Transactions from a financial point
of view issued by an independent accounting, appraisal or investment banking
firm of national standing.
(b) The
following items shall not be deemed to be Affiliate Transactions and, therefore,
shall not be subject to Section 4.11(a):
(i) transactions
between or among the Company and/or its Restricted Subsidiaries;
(ii) payment
of reasonable and customary fees and compensation to, and reasonable and
customary indemnification arrangements and similar payments on behalf of,
directors of the Company;
(iii) Restricted
Payments that are permitted by the Existing Indenture;
(iv) any
sale
of Capital Stock (other than Disqualified Stock) of the Company;
(v) loans
and
advances to officers and employees of the Company or any of its Restricted
Subsidiaries for bona fide business purposes in the ordinary course of business
consistent with past practice;
(vi) any
employment, consulting, service or termination agreement, or reasonable and
customary indemnification arrangements, entered into by the Company or any
of
its Restricted Subsidiaries, with officers and employees of the Company or
any
of its Restricted Subsidiaries and the payment of compensation to officers
and
employees of the Company or any of its Restricted Subsidiaries (including
amounts paid pursuant to employee benefit plans, employee stock option or
similar plans), in each case in the ordinary course of business and consistent
with past practice; and
(vii) any
agreements or arrangements in effect on the date of this Indenture, or any
amendment, modification, or supplement thereto or any replacement thereof,
as
long as such agreement or arrangement, as so amended, modified, supplemented
or
replaced, taken as a whole, is not more disadvantageous to the Company and
its
Restricted Subsidiaries than the original agreement as in effect on the date
of
the Existing Indenture, as determined in good faith by the Company’s Board of
Directors, and any transactions contemplated by any of the foregoing agreements
or arrangements.
53
Section
4.12 Liens.
The
Company shall not, and shall not permit any of its Restricted Subsidiaries
to,
create, incur, assume or otherwise cause or suffer to exist or become effective
any Lien of any kind securing Indebtedness (other than Permitted Liens) upon
any
of their property or assets, now owned or hereafter acquired, unless all
payments due under this Indenture and the Notes are secured on an equal and
ratable basis with the obligations so secured until such time as such
obligations are no longer secured by a Lien.
Section
4.13 Corporate
Existence.
Subject
to Article V hereof, the Company shall do or cause to be done all things
reasonably necessary to preserve and keep in full force and effect (a) its
corporate existence, and the corporate, partnership or other existence of each
of its subsidiaries, in accordance with the respective organizational documents
(as the same may be amended from time to time) of the Company or any such
subsidiary and (b) the material rights (charter and statutory), licenses and
franchises of the Company and its subsidiaries; provided,
however,
that
the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any of its
subsidiaries, if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company
and
its subsidiaries, taken as a whole, and that the loss thereof is not adverse
in
any material respect to the Holders of the Notes.
Section
4.14 Offer
to Repurchase upon Change of Control.
(a) At
any
time on or prior to September 30, 2007, if a Change of Control occurs, each
Holder of Notes shall have the right pursuant to a Change of Control Offer
to
require the Company to repurchase all or any part (equal to $1.00 or an integral
multiple thereof) of such Holder’s Notes at an offer price in cash (expressed as
a percentage of principal amount) of 110% plus accrued and unpaid interest,
if
any, to the Change of Control Payment Date.
(b) In
addition, at any time after September 30, 2007, if a Change of Control occurs,
each Holder of Notes shall have the right to require the Company to repurchase
all or any part (equal to $1.00 or an integral multiple thereof) of such
Holder’s Notes pursuant to the offer described below (the “Change
of Control Offer”)
at an
offer price in cash (expressed as percentages of principal amount) set forth
below plus accrued and unpaid interest, if any, to the Change of Control Payment
Date, if purchased during the twelve-month period beginning on October 1 of
the
years indicated below:
|
Year
|
Percentage
|
||||
|
2007
|
109
|
%
|
|
||
|
2008
|
102
|
%
|
|
||
|
2009
|
101
|
%
|
|
||
|
2010
and thereafter
|
100
|
%
|
|
||
(c) Within
30
days following any Change of Control, the Company shall mail a notice to each
Holder describing the transaction or transactions that constitute the Change
of
Control and which shall be no earlier than 30 days and no later than 60 days
from the date such notice is mailed (the “Change
of Control Payment Date”)
and
stating that the Change of Control Offer is being made pursuant to this Section
4.14 and that all Notes properly tendered pursuant to the Change of Control
Offer will be accepted for payment.
54
(d) Any
Change of Control Offer shall be made in accordance with Section 3.09. The
Company shall comply with the requirements of Rule 14e-1 under the Exchange
Act
and any other securities laws and regulations thereunder to the extent such
laws
and regulations are applicable in connection with the repurchase of the Notes
as
a result of a Change of Control. To the extent that the provisions of any
securities laws or regulations conflict with this Section 4.14, the Company
shall comply with the applicable securities laws and regulations and shall
not
be deemed to have breached its obligations under this Section 4.14 by virtue
of
such compliance.
(e) Prior
to
complying with this Section 4.14, but in any event within 30 days following
a
Change of Control, the Company shall either repay all outstanding Senior Debt
or
obtain the requisite consents, if any, under all agreements governing
outstanding Senior Debt to permit the repurchase of Notes required by this
Section 4.14.
(f) Clause
(b) of this Section 4.14 shall be applicable regardless of whether any other
Sections of this Indenture are applicable. Except as described above with
respect to a Change of Control, this Indenture does not contain provisions
that
permit the Holders of the Notes to require that the Company repurchase or redeem
the Notes in the event of a takeover, recapitalization or similar
transaction.
(g) The
Company shall not be required to make a Change of Control Offer upon a Change
of
Control if a third party makes the Change of Control Offer in the manner, at
the
times and otherwise in compliance with the requirements set forth in this
Indenture applicable to a Change of Control Offer made by the Company and
purchases all Notes validly tendered and not withdrawn under such Change of
Control Offer.
Section
4.15 Limitation
on Senior Subordinated Debt.
The
Company shall not incur any Indebtedness that is subordinate or junior in right
of payment to any Senior Debt of the Company unless it is pari
passu
or
subordinate in right of payment to the Notes to the same extent. No Guarantor
shall incur any Indebtedness that is subordinate or junior in right of payment
to the Senior Debt of such Guarantor unless it is pari
passu
or
subordinate in right of payment to such Guarantor’s Note Guarantee to the same
extent.
Section
4.16 Designation
of Restricted and Unrestricted Subsidiaries.
(a)
The
Board of Directors of the Company may designate any Restricted Subsidiary of
the
Company to be an Unrestricted Subsidiary; provided
that:
(i) any
Guarantee by the Company or any Restricted Subsidiary of any Indebtedness of
the
Subsidiary being so designated shall be deemed to be an incurrence of
Indebtedness by the Company or such Restricted Subsidiary (or both, if
applicable) at the time of such designation, and such incurrence of Indebtedness
would be permitted under Section 4.09;
55
(ii) the
aggregate fair market value of all outstanding Investments owned by the Company
and its Restricted Subsidiaries in the Subsidiary being so designated (including
any Guarantee by the Company or any Restricted Subsidiary of any Indebtedness
of
such Subsidiary) shall be deemed to be a Restricted Investment made as of the
time of such designation and that such Investment would be permitted under
Section 4.07;
(iii) such
Subsidiary does not own any Equity Interests of, or hold any Liens on any
Property of, the Company or any Restricted Subsidiary;
(iv) the
Subsidiary being so designated:
(A) is
not
party to any agreement, contract, arrangement or understanding with the Company
or any Restricted Subsidiary of the Company unless the terms of any such
agreement, contract, arrangement or understanding are no less favorable to
the
Company or such Restricted Subsidiary than those that might be obtained at
the
time from Persons who are not Affiliates of the Company;
(B) is
a
Person with respect to which neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation (x) to subscribe for
additional Equity Interests or (y) to maintain or preserve such Person’s
financial condition or to cause such Person to achieve any specified levels
of
operating results;
(C) has
not
Guaranteed or otherwise directly or indirectly provided credit support for
any
Indebtedness of the Company or any of its Restricted Subsidiaries, except to
the
extent such Guarantee or credit support would be released upon such designation;
and
(D) has
at
least one director on its Board of Directors that is not a director or officer
of the Company or any of its Restricted Subsidiaries and has at least one
executive officer that is not a director or officer of the Company or any of
its
Restricted Subsidiaries; and
(v) no
Default or Event of Default would be in existence following such
designation.
56
(b) Any
designation of a Restricted Subsidiary of the Company as an Unrestricted
Subsidiary shall be evidenced to the Trustee by filing with the Trustee a
certified copy of the resolution of the Board of Directors giving effect to
such
designation and an Officers’ Certificate certifying that such designation
complied with the preceding conditions and was permitted by this Indenture.
If,
at any time, any Unrestricted Subsidiary would fail to meet any of the preceding
requirements described in clause (iv) above, it shall thereafter cease to be
an
Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness,
Investments, or Liens on the property, of such Subsidiary shall be deemed to
be
incurred by a Restricted Subsidiary of the Company as of such date and, if
such
Indebtedness, Investments or Liens are not permitted to be incurred as of such
date under this Indenture, the Company shall be in default under this
Indenture.
(c) The
Board
of Directors of the Company may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided
that:
(i) such
designation shall be deemed to be an incurrence of Indebtedness by a Restricted
Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation shall only be permitted if such Indebtedness
is
permitted under Section 4.09, calculated on a pro
forma
basis as
if such designation had occurred at the beginning of the four-quarter reference
period;
(ii) all
outstanding Investments owned by such Unrestricted Subsidiary shall be deemed
to
be made as of the time of such designation and such Investments shall only
be
permitted if such Investments would be permitted under Section
4.07;
(iii) all
Liens
upon property or assets of such Unrestricted Subsidiary existing at the time
of
such designation would be permitted under Section 4.12; and
(iv) no
Default or Event of Default would be in existence following such
designation.
Section
4.17 Payments
for Consent.
The
Company shall not, and shall not permit any of its Restricted Subsidiaries
to,
directly or indirectly, pay or cause to be paid any consideration to or for
the
benefit of any Holder of Notes for or as an inducement to any consent, waiver
or
amendment of any of the terms or provisions of this Indenture or the Notes
unless such consideration is offered to be paid and is paid to all Holders
of
the Notes that consent, waive or agree to amend in the time frame set forth
in
the solicitation documents relating to such consent, waiver or
agreement.
Section
4.18 Business
Activities.
The
Company shall not, and shall not permit any of its Restricted Subsidiaries
to,
engage in any business other than Permitted Businesses, except to such extent
as
would not be material to the Company and its Restricted Subsidiaries taken
as a
whole.
57
Section
4.19 Limitation
on Issuances and Sales of Equity Interests in Restricted
Subsidiaries.
The
Company shall not transfer, convey, sell, lease or otherwise dispose of, and
shall not permit any of its Restricted Subsidiaries to, issue, transfer, convey,
sell, lease or otherwise dispose of any Equity Interests in any Restricted
Subsidiary of the Company to any Person (other than the Company or a Restricted
Subsidiary of the Company or, if necessary, shares of its Capital Stock
constituting directors’ qualifying shares or issuances of shares of Capital
Stock of foreign Restricted Subsidiaries to foreign nationals, to the extent
required by applicable law), except:
(a) if,
immediately after giving effect to such issuance, transfer, conveyance, sale,
lease or other disposition, such Restricted Subsidiary would no longer
constitute a Restricted Subsidiary and any Investment in such Person remaining
after giving effect to such issuance or sale would have been permitted to be
made under Section 4.07 if made on the date of such issuance or sale and the
cash Net Proceeds from such transfer, conveyance, sale, lease or other;
disposition are applied in accordance with Section 4.10; or
(b) other
sales of Capital Stock of a Restricted Subsidiary by the Company or a Restricted
Subsidiary, provided
that the
Company or such Restricted Subsidiary complies with Section 4.10.
Section
4.20 Additional
Note Guarantees.
(a)
If the
Company or any of its Restricted Subsidiaries acquires or creates another
Domestic Subsidiary on or after the date of this Indenture, then that newly
acquired or created Domestic Subsidiary must become a Guarantor and execute
a
supplemental indenture and deliver an Opinion of Counsel to the
Trustee.
(b) The
Company shall not permit any of its Restricted Subsidiaries, directly or
indirectly, to Guarantee or pledge any assets to secure the payment of any
other
Indebtedness of the Company or any Restricted Subsidiary thereof, other than
Foreign Subsidiaries, unless such Restricted Subsidiary is a Guarantor or
simultaneously executes and delivers a supplemental indenture providing for
the
Guarantee of the payment of the Notes by such Restricted Subsidiary, which
Guarantee shall be senior to or pari
passu
with
such Subsidiary’s Guarantee of such other Indebtedness unless such other
Indebtedness is Senior Debt, in which case the Guarantee of the Notes may be
subordinated to the Guarantee of such Senior Debt to the same extent as the
Notes are subordinated to such Senior Debt. The form of the Note Guarantee
is
attached as Exhibit C hereto.
(c) A
Guarantor may not sell or otherwise dispose of all or substantially all of
its
assets to, or consolidate with or merge with or into (whether or not such
Guarantor is the surviving Person), another Person, other than the Company
or
another Guarantor, unless:
(i) immediately
after giving effect to that transaction, no Default or Event of Default exists;
and
58
(ii) either:
(A) the
Person acquiring the property in any such sale or disposition or the Person
formed by or surviving any such consolidation or merger (if other than the
Guarantor) is a corporation organized or existing under the laws of the United
States, any state thereof or the District of Columbia and assumes all the
obligations of that Guarantor under this Indenture and its Note Guarantee
pursuant to a supplemental indenture satisfactory to the Trustee;
or
(B) such
sale
or other disposition or consolidation or merger complies with Section
4.10.
(d) The
Note
Guarantee of a Guarantor will be released:
(i) in
connection with any sale or other disposition of all of the Capital Stock of
a
Guarantor to a Person that is not (either before or after giving effect to
such
transaction) an Affiliate of the Company, if the sale of all such Capital Stock
of that Guarantor complies with Section 4.10;
(ii) if
the
Company properly designates any Restricted Subsidiary that is a Guarantor as
an
Unrestricted Subsidiary under this Indenture; or
(iii) solely
in
the case of a Note Guarantee created pursuant to Section 4.20(a), upon the
release or discharge of the Guarantee which resulted in the creation of such
Note Guarantee pursuant to this Section 4.20, except a discharge or release
by
or as a result of payment under such Guarantee.
ARTICLE
V
SUCCESSORS
Section
5.01 Merger,
Consolidation or Sale of Assets.
(a)
The
Company shall not, directly or indirectly consolidate or merge with or into
another Person (whether or not the Company is the surviving corporation) or
sell, assign, transfer, convey or otherwise dispose of all or substantially
all
of the properties and assets of the Company and its Restricted Subsidiaries,
taken as a whole, in one or more related transactions, to another Person or
Persons, unless:
(i) either:
(A) the Company is the surviving corporation; or (B) the Person formed by or
surviving any such consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, conveyance or other disposition shall
have been made (x) is a corporation organized or existing under the laws of
the
United States, any state thereof or the District of Columbia and (y) assumes
all
the obligations of the Company under the Notes and this Indenture pursuant
to
agreements reasonably satisfactory to the Trustee;
59
(ii) immediately
after giving effect to such transaction no Default or Event of Default
exists;
(iii) immediately
after giving effect to such transaction on a pro
forma
basis,
the Company or the Person formed by or surviving any such consolidation or
merger (if other than the Company), or to which such sale, assignment, transfer,
conveyance or other disposition shall have been made, shall, on the date of
such
transaction after giving pro
forma
effect
thereto and any related financing transactions as if the same had occurred
at
the beginning of the applicable four-quarter period, be permitted to incur
at
least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in Section 4.09(a);
(iv) each
Guarantor, unless such Guarantor is the Person with which the Company has
entered into a transaction under this Section 5.01, shall have by amendment
to
its Note Guarantee confirmed that its Note Guarantee shall apply to the
obligations of the Company or the surviving Person in accordance with the Notes
and this Indenture; and
(v) the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders will not recognize income, gain or loss for U.S. federal income
tax purposes as a result of such transaction and, will be subject to U.S.
federal income tax on the same amounts, in the same manner and at the same
times
as would have been the case if such transaction had not occurred.
(b) Neither
the Company nor any Restricted Subsidiary may, directly or indirectly, lease
all
or substantially all of its properties or assets, in one or more related
transactions, to any other Person. Clause (iii) above of this Section 5.01
shall
not apply to any merger, consolidation or sale, assignment, transfer, lease,
conveyance or other disposition of assets between or among the Company and
any
of its Restricted Subsidiaries.
Section
5.02 Successor
Corporation Substituted.
Upon
any consolidation or merger, or any sale, assignment, transfer, conveyance
or
other disposition of all or substantially all of the assets of the Company
in
accordance with Section 5.01 hereof, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such
sale,
assignment, transfer, conveyance or other disposition is made shall succeed
to,
and be substituted for (so that from and after the date of such consolidation,
merger, sale, conveyance or other disposition, the provisions of this Indenture
referring to the “Company” shall refer instead to the successor corporation and
not to the Company), and may exercise every right and power of the Company
under
this Indenture with the same effect as if such successor Person had been named
as the Company herein; provided,
however,
that
the predecessor Company shall not be relieved from the obligation to pay the
principal of and interest on the Notes except in the case of a sale of all
of
the Company’s assets that meets the requirements of Section 5.01
hereof.
60
ARTICLE
VI
DEFAULTS
AND REMEDIES
Section
6.01 Events
of Default.
Each of
the following is an “Event
of Default”:
(i) default
for 30 days in the payment when due of interest on the Notes whether or not
prohibited by Article X of this Indenture;
(ii) default
in payment when due (whether at maturity, upon acceleration, redemption or
otherwise) of the principal of, or premium, if any, on the Notes, whether or
not
prohibited by Article X of this Indenture;
(iii) failure
by the Company or any of its Restricted Subsidiaries to comply with Section
4.10, Section 4.14, Section 4.20(c) or Section 5.01;
(iv) failure
by the Company or any of its Restricted Subsidiaries for 60 days after written
notice by the Trustee or Holders representing 25% or more of the aggregate
principal amount of Notes outstanding to comply with any of the other agreements
in this Indenture;
(v) default
under any, mortgage, indenture or instrument under which there may be issued
or
by which there may be secured or evidenced any Indebtedness for money borrowed
by the Company or any of its Restricted Subsidiaries (or the payment of which
is
Guaranteed by the Company or any of its Restricted Subsidiaries) whether such
Indebtedness or Guarantee now exists, or is created after the date of this
Indenture, if that default:
(A) is
caused
by a failure to make any payment when due at the final maturity of such
Indebtedness (a “Payment
Default”);
or
61
(B) results
in the acceleration of such Indebtedness prior to its express
maturity
and,
in
each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been
a
Payment Default or the maturity of which has been so accelerated, aggregates
$10.0 million or more;
(vi) failure
by the Company or any of its Restricted Subsidiaries to pay final judgments
(to
the extent such judgments are not paid or covered by insurance provided by
a
carrier that has acknowledged coverage in writing and has the ability to
perform) aggregating in excess of $10.0 million, which judgments are not paid,
discharged or stayed for a period of 60 days;
(vii) except
as
permitted by this Indenture, any Note Guarantee shall be held in any judicial
proceeding to be unenforceable or invalid or shall cease for any reason to
be in
full force and effect or any Guarantor, or any Person acting on behalf of any
Guarantor, shall deny or disaffirm its obligations under its Note Guarantee;
and
(viii) the
Company or any of its Restricted Subsidiaries that is a Significant Subsidiary
(or any group of Restricted Subsidiaries that together would constitute a
Significant Subsidiary of the Company), pursuant to or within the meaning of
Bankruptcy Law:
(A) commences
a voluntary case;
(B) consents
to the entry of an order for relief against it in an involuntary
case;
(C) makes
a
general assignment for the benefit of its creditors; or
(D) generally
is not paying its debts as they become due; and
(ix) a
court
of competent jurisdiction enters an order or decree under any Bankruptcy Law
that:
(A) is
for
relief against the Company or any of its Restricted Subsidiaries that is a
Significant Subsidiary (or any group of Restricted Subsidiaries that together
would constitute a Significant Subsidiary of the Company), in an involuntary
case;
62
(B) appoints
a custodian of the Company or any of its Restricted Subsidiaries that is a
Significant Subsidiary (or any group of Restricted Subsidiaries that together
would constitute a Significant Subsidiary of the Company) or for all or
substantially all of the property of the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary (or any group of Restricted
Subsidiaries that together would constitute a Significant Subsidiary of the
Company); or
(C) orders
the liquidation of the Company or any of its Restricted Subsidiaries that is
a
Significant Subsidiary (or any group of Restricted Subsidiaries that together
would constitute a Significant Subsidiary of the Company);
and
the
order or decree remains undismissed or unstayed and in effect for 60 consecutive
days.
Section
6.02 Acceleration.
In the
case of an Event of Default specified in clause (viii) or (ix) of Section 6.01
with respect to the Company, any Guarantor or any Significant Subsidiary (or
any
group of Restricted Subsidiaries that together would constitute a Significant
Subsidiary of the Company), all outstanding Notes will become due and payable
immediately without further action or notice. If any other Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Notes may declare all the Notes to
be
due and payable immediately by notice in writing to the Company specifying
the
Event of Default.
In
the
event of a declaration of acceleration of the Notes because an Event of Default
has occurred and is continuing as a result of the acceleration of any
Indebtedness described in clause (v) of Section 6.01 hereof, the declaration
of
acceleration of the Notes shall be automatically annulled if the holders of
any
Indebtedness described in clause (v) of Section 6.01 hereof have rescinded
the
declaration of acceleration in respect of the Indebtedness if:
(i) the
annulment of the acceleration of Notes would not conflict with any judgment
or
decree of a court of competent jurisdiction; and
(ii) all
existing Events of Default, except nonpayment of principal or interest on the
Notes that became due solely because of the acceleration of the Notes, have
been
cured or waived.
63
In
the
case of any Event of Default occurring by reason of any willful action or
inaction taken or not taken by or on behalf of the Company with the intention
of
avoiding payment of the premium that the Company would have had to pay if the
Company then had elected to redeem the Notes pursuant to Section 3.07 hereof,
an
equivalent premium shall also become and be immediately due and payable to
the
extent permitted by law upon the acceleration of the Notes.
Section
6.03 Other
Remedies.
If an
Event of Default occurs and is continuing, the Trustee may pursue any available
remedy to collect the payment of principal, premium, if any, and interest,
if
any, on the Notes or to enforce the performance of any provision of the Notes
or
this Indenture.
The
Trustee may maintain a proceeding even if it does not possess any of the Notes
or does not produce any of them in the proceeding. A delay or omission by the
Trustee or any Holder of a Note in exercising any right or remedy accruing
upon
an Event of Default shall not impair the right or remedy or constitute a waiver
of or acquiescence in the Event of Default. All remedies are cumulative to
the
extent permitted by law.
Section
6.04 Waiver
of Past Defaults.
Holders
of a majority in aggregate principal amount of the then outstanding Notes by
notice to the Trustee may on behalf of the Holders of all of the Notes waive
any
existing Default or Event of Default and its consequences hereunder (including
rescinding any related acceleration of the payment of the Notes), except a
continuing Default or Event of Default (and any related acceleration of the
payment of the Notes) in the payment of the principal of, premium or interest
on, the Notes. The Company shall deliver to the Trustee an Officers’ Certificate
stating that the requisite percentage of Holders have consented to such waiver
and attaching copies of such consents. In case of any such waiver, the Company,
the Trustee and the Holders shall be restored to their former positions and
rights hereunder and under the Notes, respectively. This Section 6.04 shall
be
in lieu of Section 316(a)(1)(B) of the TIA and such Section 316(a)(1)(B) of
the
TIA is hereby expressly excluded from this Indenture and the Notes, as permitted
by the TIA. Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent
or
other Default or impair any right consequent thereon.
Section
6.05 Control
by Majority.
Subject
to Section 2.09, holders of a majority in principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising
any
trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, that may involve the
Trustee in personal liability or that the Trustee determines in good faith
may
be unduly prejudicial to the rights of Holders of Notes not joining in the
giving of such direction, and the Trustee shall have the right to decline to
follow any such direction, if the Trustee, being advised by counsel, determines
that such action so directed may not be lawfully taken or if the Trustee, in
good faith shall by a Responsible Officer, determine that the proceedings so
directed may involve the Trustee in personal liability; provided
that the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction. In the event the Trustee takes any action
or
follows any direction pursuant to this Indenture, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against any loss
or
expense caused by taking such action or following such direction. This Section
6.05 shall be in lieu of Section 316(a)(1)(A) of the TIA, and such Section
316(a)(1)(A) of the TIA is hereby expressly excluded from this Indenture and
the
Notes, as permitted by the TIA.
64
Section
6.06 Limitation
on Suits.
A
Holder of a Note may not pursue a remedy with respect to this Indenture, the
Notes or, the Note Guarantees unless:
(a) the
Holder of a Note gives to the Trustee written notice of a continuing Event
of
Default;
(b) the
Holders of at least 25% in aggregate principal amount of the then outstanding
Notes make a written request to the Trustee to pursue the remedy;
(c) such
Holder of a Note or Holders of Notes offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability or
expense;
(d) the
Trustee does not comply with the request within 60 days after receipt of the
request and the offer and, if requested, the provision of indemnity;
and
(e) during
such 60-day period the Holders of a majority in principal amount of the then
outstanding Notes do not give the Trustee a direction inconsistent with the
request.
A
Holder
of a Note may not use this Indenture to prejudice the rights of another Holder
of a Note or to obtain a preference or priority over another Holder of a
Note.
Section
6.07 Rights
of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
of a Note to receive payment of principal, premium, if any, and interest on
the
Note, on or after the respective due dates expressed in the Note (including
in
connection with an offer to purchase), or to bring suit for the enforcement
of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
Section
6.08 Collection
Suit by Trustee.
If an
Event of Default specified in Section 6.01 occurs and is continuing, the Trustee
is authorized to recover judgment in its own name and as trustee of an express
trust against the Company for the whole amount of principal of, premium, if
any,
and interest remaining unpaid on the Notes and interest on overdue principal
and, to the extent lawful, interest and such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
65
Section
6.09 Trustee
May File Proofs of Claim.
The
Trustee is authorized to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and the Holders of the
Notes allowed in any judicial proceedings relative to the Company or any
Guarantor (or any other obligor upon the Notes), its creditors or its property
and shall be entitled and empowered to collect, receive and distribute any
money
or other securities or property payable or deliverable on any such claims and
any custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay
to
the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other
amounts due the Trustee under Section 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a Lien on, and shall
be
paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained shall be deemed to authorize the Trustee
to
authorize or consent to or accept or adopt on behalf of any Holder any plan
of
reorganization, arrangement, adjustment or composition affecting the Notes
or
the rights of any Holder, or to authorize the Trustee to vote in respect of
the
claim of any Holder in any such proceeding.
Section
6.10 Priorities.
If the
Trustee collects any money or property pursuant to this Article, it shall pay
out the money in the following order:
First:
to the
Trustee, its agents and attorneys for amounts due under Section 7.07 hereof,
including payment of all compensation, expense and liabilities incurred, and
all
advances made, by the Trustee and the costs and expenses of
collection;
Second:
to
Holders of Notes for amounts due and unpaid on the Notes for principal, premium,
if any, and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal, premium,
if
any, and interest, respectively; and
Third:
to the
Company or to such party as a court of competent jurisdiction shall
direct.
The
Trustee may fix a record date and payment date for any payment to Holders of
Notes pursuant to this Section 6.10.
Section
6.11 Undertaking
for Costs.
In any
suit for the enforcement of any right or remedy under this Indenture or in
any
suit against the Trustee for any action taken or omitted by it as a Trustee,
a
court in its discretion may require the filing by any party litigant in the
suit
of an undertaking to pay the costs of the suit, and the court in its discretion
may assess reasonable costs, including reasonable attorneys’ fees, against any
party litigant in the suit, having due regard to the merits and good faith
of
the claims or defenses made by the party litigant. This Section does not apply
to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section
6.07
hereof, or a suit by Holders of more than 10% in principal amount of the then
outstanding Notes.
66
Section
6.12 Restoration
of Rights and Remedies.
If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or
to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, any Subsidiary Guarantor, the Trustee and the Holders
shall be restored severally and respectively to their former positions hereunder
and thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
Section
6.13 Rights
and Remedies Cumulative.
Except
as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes in Section 2.07, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to
be
exclusive of any other right or remedy, and every right and remedy shall, to
the
extent permitted by law, be cumulative and in addition to every other right
and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section
6.14 Delay
or Omission Not Waiver.
No
delay or omission of the Trustee or of any Holder of any Note to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article VI or by law to the
Trustee or to the Holders may be exercised from time to time, and as often
as
may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
Section
6.15 Record
Date.
The
Company may set a record date for purposes of determining the identity of
Holders entitled to vote or to consent to any action by vote or consent
authorized or permitted by Sections 6.04, 6.05 and 9.02. Unless the Company
provides otherwise, such record date shall be the later of 30 days prior to
the
first solicitation of such consent or the date of the most recent list of
Holders furnished to the Trustee pursuant to Section 2.05 prior to such
solicitation.
ARTICLE
VII
TRUSTEE
Section
7.01 Duties
of Trustee.
(a)
If an
Event of Default has occurred and is continuing, the Trustee shall exercise
such
of the rights and powers vested in it by this Indenture, and use the same degree
of care and skill in its exercise, as a prudent person would exercise or use
under the circumstances in the conduct of its own affairs.
67
(b) Except
during the continuance of an Event of Default:
(i) the
duties of the Trustee shall be determined solely by this Indenture and the
Trustee need perform only those duties that are specifically set forth in this
Indenture and no others, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(ii) in
the
absence of bad faith on its part, the Trustee may conclusively rely, as to
the
truth of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and conforming to the
form required of this Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the accuracy
of mathematical calculations or other facts purported to be stated
therein).
(c) The
Trustee may not be relieved from, liabilities for its own negligent action,
its
own negligent failure to act, or its own willful misconduct, except
that:
(i) this
paragraph does not limit the effect of paragraph (b) of this
Section;
(ii) the
Trustee shall not be liable for any error of judgment made in good faith by
a
Responsible Officer, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the
Trustee shall not be liable with respect to any action it takes or omits to
take
in good faith in accordance with a direction received by it pursuant to Section
6.05 hereof.
(d) Whether
or not therein expressly so provided, every provision of this Indenture that
in
any way relates to the Trustee is subject to paragraphs (a), (b), and (c) of
this Section.
(e) No
provision of this Indenture shall require the Trustee to expend or risk its
own
funds or incur any liability. The Trustee shall be under no obligation to
exercise any of its rights and powers under this Indenture at the request of
any
Holders, unless such Holder shall have offered to the Trustee security and
indemnity satisfactory to it against any loss, liability or
expense.
68
(f) The
Trustee shall not be liable for interest on any money received by it except
as
the Trustee may agree in writing with the Company. Money or assets held in
trust
by the Trustee need not be segregated from other funds or assets except to
the
extent required by law.
Section
7.02 Rights
of Trustee.
(a)
The
Trustee may conclusively rely upon any document (whether in its original or
facsimile form) believed by it to be genuine and to have been signed or
presented by the proper Person. The Trustee need not investigate any fact or
matter stated in the document.
(b) Before
the Trustee acts or refrains from acting, it may consult with counsel and may
require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith
in
reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee may
consult with counsel and the advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection from liability in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(c) The
Trustee may act through its attorneys and agents and shall not be responsible
for the misconduct or negligence of any agent or attorney appointed with due
care.
(d) The
Trustee shall not be liable for any action it takes or omits to take in good
faith that it believes to be authorized or within the rights or powers conferred
upon it by this Indenture.
(e) Unless
otherwise specifically provided in this Indenture, any demand, request,
direction or notice from the Company shall be sufficient if signed by an Officer
of the Company.
(f) The
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders
unless such Holders shall have offered to the Trustee reasonable security or
indemnity satisfactory to it against the costs, expenses and liabilities that
might be incurred by it in compliance with such request or
direction.
(g) The
Trustee shall not be deemed to have knowledge of any Default or Event of Default
except (i) any Event of Default occurring pursuant to Section 6.01 or (ii)
any
Event of Default of which the Trustee shall have received written notification
or otherwise obtained actual knowledge.
Section
7.03 Individual
Rights of Trustee.
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Company or any Affiliate of the Company
with the same rights it would have if it were not Trustee. However, in the
event
that the Trustee acquires any conflicting interest that would require the
Trustee to resign, it must eliminate such conflict within 90 days, apply to
the
SEC for permission to continue as trustee or resign. Any Agent may do the same
with like rights and duties. The Trustee is also subject to Sections 7.10 and
7.11 hereof.
69
Section
7.04 Trustee’s
Disclaimer.
The
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture or the Notes, it shall not be accountable
for the Company’s use of the proceeds from the Notes or any money paid to the
Company or upon the Company’s direction under any provision of this Indenture,
it shall not be responsible for the use or application of any money received
by
any Paying Agent other than the Trustee, and it shall not be responsible for
any
statement or recital herein or any statement in the Notes or any other document
in connection with the sale of the Notes or pursuant to this Indenture other
than its certificate of authentication.
Section
7.05 Notice
of Defaults.
If a
Default or Event of Default occurs and is continuing and if it is known to
the
Trustee, the Trustee shall mail to the Holders of the Notes a notice of the
Default or Event of Default within 90 days after it occurs. Except in the case
of a Default or Event of Default in payment of principal of, premium, if any,
or
interest on any Note, the Trustee may withhold the notice if and so long as
a
Responsible Officer or a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the Holders of
the
Notes.
Section
7.06 Reports
by Trustee to the Holders of the Notes.
Within
60 days after each May 15 beginning with the May 15 following the date the
Notes
were first issued, and for so long as Notes remain outstanding, the Trustee
shall mail to the Holders of the Notes a brief report dated as of such reporting
date that complies with TIA § 313(a) (but if no event described in TIA § 313(a)
has occurred within the twelve months preceding the reporting date, no report
need be transmitted). The Trustee also shall comply with TIA § 313(b)(2). The
Trustee shall also transmit by mail all reports as required by TIA §
313(c).
A
copy of
each report at the time of its mailing to the Holders of the Notes shall be
mailed to the Company and filed with the SEC and each stock exchange on which
the Notes are listed in accordance with TIA § 313(d). The Company shall promptly
notify the Trustee when the Notes are listed on any securities exchange or
of
any delisting thereof.
Section
7.07 Compensation
and Indemnity.
The
Company shall pay to the Trustee from time to time reasonable compensation
for
its acceptance of this Indenture and services hereunder. The Trustee’s
compensation shall not be limited by any law on compensation of a trustee of
an
express trust. The Company shall reimburse the Trustee promptly upon request
for
all reasonable disbursements, advances and expenses incurred or made by it
in
addition to the compensation for its services. Such expenses shall include
the
reasonable compensation, disbursements and expenses of the Trustee’s agents and
counsel and any taxes or other expenses incurred by a trust created pursuant
to
Section 8.04 hereof.
70
The
Company shall indemnify the Trustee and its agents against any and all losses,
liabilities, claims, damages or expenses (including compensation, fees,
disbursements and expenses of Trustee’s agents and counsel) incurred by it
arising out of or in connection with the acceptance or administration of its
duties under this Indenture, including the costs and expenses of enforcing
this
Indenture against the Company (including this Section 7.07) and defending itself
against any claim (whether asserted by the Company or any Holder or any other
person) or liability in connection with the exercise or performance of any
of
its powers or duties hereunder, except to the extent any such loss, liability
or
expense is judicially determined to have been caused by to its own negligence
or
bad faith. The Trustee shall notify the Company promptly of any claim for which
it may seek indemnity. Failure by the Trustee to so notify the Company shall
not
relieve the Company of its obligations hereunder. The Company shall defend
the
claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses
of
such counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld.
The
obligations of the Company under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture.
To
secure
the Company’s payment obligations in this Section 7.07, the Trustee shall have a
Lien prior to the Notes on all money or property held or collected by the
Trustee. Such Lien shall survive the satisfaction and discharge of this
Indenture. The Trustee’s right to receive payment of any amounts due under this
Section 7.07 shall not be subordinated to any other liability or Indebtedness
of
the Company.
When
the
Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(viii) or (ix) hereof occurs, the expenses and the compensation
for the services (including the fees and expenses of its agents and counsel)
are
intended to constitute expenses of administration under any Bankruptcy
Law.
The
Trustee shall comply with the provisions of TIA § 313(b)(2) to the extent
applicable.
Section
7.08 Replacement
of Trustee.
A
resignation or removal of the Trustee and appointment of a successor Trustee
shall become effective only upon the successor Trustee’s acceptance of
appointment as provided in this Section 7.08.
The
Trustee may resign in writing at any time and be discharged from the trust
hereby created by so notifying the Company. The Holders of a majority in
principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Company in writing. The Company may remove the
Trustee if:
(a) the
Trustee fails to comply with Section 7.10 hereof;
71
(b) the
Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered
with respect to the Trustee under any Bankruptcy Law;
(c) a
custodian or public officer takes charge of the Trustee or its property;
or
(d) the
Trustee becomes incapable of acting.
If
the
Trustee resigns or is removed or if a vacancy exists in the office of Trustee
for any reason, the Company shall promptly appoint a successor Trustee. Within
one year after the successor Trustee takes office, the Holders of a majority
in
principal amount of the then outstanding Notes may appoint a successor Trustee
to replace the successor Trustee appointed by the Company.
If
a
successor Trustee does not take office within 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company, or the Holders of
Notes of at least 10% in principal amount of the then outstanding Notes may
petition at the expense of the Company any court of competent jurisdiction
for
the appointment of a successor Trustee.
If
the
Trustee, after written request by any Holder of a Note who has been a Holder
of
a Note for at least six months, fails to comply with Section 7.10, such Holder
of a Note may petition any court of competent jurisdiction for the removal
of
the Trustee and the appointment of a successor Trustee.
A
successor Trustee shall deliver a written acceptance of its appointment to
the
retiring Trustee and to the Company. Thereupon, the resignation or removal
of
the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture.
The
successor Trustee shall mail a notice of its succession to Holders of the Notes.
The retiring Trustee shall promptly transfer all property held by it as Trustee
to the successor Trustee, provided all sums owing to the Trustee hereunder
have
been paid and subject to the Lien provided for in Section 7.07 hereof.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the
Company’s obligations under Section 7.07 hereof shall continue for the benefit
of the retiring Trustee.
Section
7.09 Successor
Trustee by Merger, Etc. If
the
Trustee consolidates, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation, the successor
corporation without any further act shall be the successor Trustee.
72
Section
7.10 Eligibility;
Disqualification.
There
shall at all times be a Trustee hereunder that is a corporation organized and
doing business under the laws of the United States of America or of any state
thereof that is authorized under such laws to exercise corporate trustee power,
that is subject to supervision or examination by federal or state authorities
and that has a combined capital and surplus of at least $50 million as set
forth
in its most recent published annual report of condition.
This
Indenture shall always have a Trustee who satisfies the requirements of TIA
§§
310(a)(1), (2) and (5). The Trustee is subject to TIA § 310(b); provided,
however,
that
there shall be excluded from the operation of TIA § 310(b)(1) any indenture or
indentures under which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding, if the
requirements for such exclusion set forth in TIA § 310(b)(1) are
met.
Section
7.11 Preferential
Collection of Claims Against Company.
The
Trustee is subject to TIA § 311(a), excluding any creditor relationship listed
in TIA § 311(b). A Trustee who has resigned or been removed shall be subject to
TIA § 311(a) to the extent indicated therein. The Trustee hereby waives any
right to set off any claim that it may have against the Company in any capacity
(other than as Trustee and Paying Agent) against any of the assets of the
Company held by the Trustee; provided,
however,
that if
the Trustee is or becomes a lender of any other Indebtedness permitted hereunder
to be pari
passu
with the
Notes, then such waiver shall not apply to the extent of such
Indebtedness.
ARTICLE
VIII
LEGAL
DEFEASANCE AND COVENANT DEFEASANCE; SATISFACTION AND
DISCHARGE
Section
8.01 Option
to Effect Legal Defeasance or Covenant Defeasance.
The
Company may, at the option of its Board of Directors evidenced by a resolution
set forth in an Officers’ Certificate, at any time, elect to have either Section
8.02 or Section 8.03 hereof be applied to all outstanding Notes upon compliance
with the conditions set forth below in this Article VIII.
Section
8.02 Legal
Defeasance and Discharge.
Upon
the Company’s exercise under Section 8.01 hereof of the option applicable to
this Section 8.01, the Company shall, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, be deemed to have been discharged
from its obligations with respect to all outstanding Notes and all obligations
of the Guarantors shall be deemed to have been discharged with respect to their
obligations under the Note Guarantees on the date the conditions set forth
below
are satisfied (hereinafter, “Legal
Defeasance”).
For
this purpose, Legal Defeasance means that the Company and the Guarantors shall
be deemed to have paid and discharged the entire Indebtedness represented by
the
outstanding Notes and Note Guarantees, respectively, which shall thereafter
be
deemed to be “outstanding” only for the purposes of Section 8.08 hereof and the
other Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all its other obligations under such Notes and this Indenture (and
the
Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following clauses, which
shall survive until otherwise terminated or discharged hereunder: (a) the rights
of Holders of outstanding Notes to receive solely from the trust fund described
in Section 8.04 hereof, and as more fully set forth in such Section, payments
in
respect of the principal of, premium, if any, and interest on such Notes when
such payments are due, (b) the Company’s obligations with respect to such Notes
under Article II and Section 4.02 hereof, (c) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and the Company’s obligations in
connection therewith and (d) this Article VIII. Subject to compliance with
this
Article VIII, the Company may exercise its option under this Section 8.02
notwithstanding the prior exercise of its option under Section 8.03
hereof.
73
Section
8.03 Covenant
Defeasance.
Upon
the Company’s exercise under Section 8.01 hereof of the option applicable to
this Section 8.03, the Company and each of the Guarantors shall, subject to
the
satisfaction of the conditions set forth in Section 8.04 hereof, be released
from their respective obligations under the covenants set forth in Sections
4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18, 4.19
and
4.20, hereof with respect to the outstanding Notes on and after the date the
conditions set forth in Section 8.04 are satisfied (hereinafter, “Covenant
Defeasance”),
and
the Notes shall thereafter be deemed not “outstanding” for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed “outstanding” for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to
the
outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any
such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section
6.01
hereof, but, except as specified above, the remainder of this Indenture and
such
Notes shall be unaffected thereby. In addition, upon the Company’s exercise
under Section 8.01 hereof of the option applicable to this Section 8.03, subject
to the satisfaction of the conditions set forth in Section 8.04 hereof, clauses
(i) through (iii) of Section 6.01 and clauses (v) through (vii) of Section
6.01
hereof shall cease to operate and not constitute Events of Default.
Section
8.04 Conditions
to Legal Defeasance or Covenant Defeasance.
The
following shall be the conditions to the application of either Section 8.02,
or
8.03 hereof to the outstanding Notes:
In
order
to exercise either Legal Defeasance or Covenant Defeasance:
(a) the
Company shall irrevocably deposit with the Trustee, in trust, for the benefit
of
the Holders of the Notes, cash in U.S. dollars, non callable Government
Securities, or a combination thereof, in such amounts as shall be sufficient,
in
the opinion of a nationally recognized firm of independent public accountants,
to pay the principal of, premium, if any, and interest on the outstanding Notes
on the Stated Maturity or on the applicable redemption date, as the case may
be,
and the Company shall specify whether the Notes are being defeased to maturity
or to a particular redemption date;
74
(b) in
the
case of an election under Section 8.02 hereof, the Company shall have delivered
to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee
confirming that (i) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling or (ii) since the date of this
Indenture, there has been a change in the applicable U.S. federal income tax
law, in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of the outstanding Notes shall not
recognize income, gain or loss for U.S. federal income tax purposes as a result
of such Legal Defeasance and shall be subject to U.S. federal income tax on
the
same amounts, in the same manner and at the same times as would have been the
case if such Legal Defeasance had not occurred;
(c) in
the
case of an election under Section 8.03 hereof, the Company shall have delivered
to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee
confirming that the Holders of the outstanding Notes shall not recognize income,
gain or loss for U.S. federal income tax purposes as a result of such Covenant
Defeasance and shall be subject to U.S. federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(d) no
Default or Event of Default shall have occurred and be continuing either (i)
in
the case of Covenant Defeasance or Legal Defeasance, on the date of such
deposit, or (ii) in the case of Legal Defeasance, insofar as an Event of Default
set forth in Section 6.01(viii) shall have occurred and be continuing, at any
time in the period ending on the 123rd
day
after the date of deposit;
(e) such
Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under any material agreement or instrument
(other than this Indenture) to which the Company or any of its Subsidiaries
is a
party or by which the Company or any of its Subsidiaries is bound;
(f) the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that, (i) assuming no intervening bankruptcy of the Company or any Guarantor
between the date of deposit and the 123rd
day
following the deposit and assuming that no Holder is an “insider” of the Company
under applicable bankruptcy law, after the 123rd
day
following the deposit, the trust funds shall not be subject to the effect of
Section 547 of the United States Bankruptcy Code or Section 15 of the New York
Debtor and Creditor Law and (ii) the creation of the defeasance trust does
not
violate the Investment Company Act of 1940;
(g) the
Company shall have delivered to the Trustee an Officers’ Certificate stating
that the deposit was not made by the Company with the intent of preferring
the
Holders of Notes over any other creditors of the Company with the intent of
defeating, hindering, delaying or defrauding any other creditors of the Company
or others;
75
(h) if
the
Notes are to be redeemed prior to their Stated Maturity, the Company shall
have
delivered to the Trustee irrevocable instructions to redeem all of the Notes
on
the specified redemption date; and
(i) the
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent, including,
without limitation, the conditions set forth in this Section 8.04, provided
for
or relating to the Legal Defeasance or the Covenant Defeasance have been
complied with.
Section
8.05 Satisfaction
and Discharge of Indenture.
This
Indenture shall be discharged and shall cease to be of further effect as to
all
Notes issued hereunder when:
(i) either:
(A) all
Notes
that have been authenticated (except lost, stolen or destroyed Notes that have
been replaced or paid and Notes for whose payment money has theretofore been
deposited in trust and thereafter repaid to the Company) have been delivered
to
the Trustee for cancellation; or
(B) all
Notes
that have not been delivered to the Trustee for cancellation have become due
and
payable by reason of the making of a notice of redemption or otherwise or will
become due and payable within one year and the Company or any Guarantor has
irrevocably deposited or caused to be deposited with the Trustee as trust funds
in trust solely for the benefit of the Holders, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such amounts
as
will be sufficient without consideration of any reinvestment of interest, to
pay
and discharge the entire indebtedness on the Notes not delivered to the Trustee
for cancellation for principal, premium, if any, and accrued interest to the
date of maturity or redemption;
(ii) no
Default or Event of Default shall have occurred and be continuing on the date
of
such deposit or shall occur as a result of such deposit and such deposit will
not result in a breach or violation of, or constitute a default under, any
other
instrument to which the Company or any Guarantor is a party or by which the
Company or any Guarantor is bound;
(iii) the
Company or any Guarantor has paid or caused to be paid all sums payable by
it
under this Indenture; and
76
(iv) the
Company has delivered irrevocable instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of the Notes at
maturity or the redemption date, as the case may be.
In
addition, the Company must deliver an Officers’ Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction
and
discharge have been satisfied.
Section
8.06 Survival
of Certain Obligations.
Notwithstanding Sections 8.02, 8.03 and 8.05, any obligations of the Company
and
the Guarantors in Sections 2.03 through 2.16 (excluding Sections 2.08 and 2.14),
6.07, 7.07, 7.08, and 8.07 through 8.11 shall survive until the Notes have
been
paid in full. Thereafter, any obligations of the Company and the Guarantors
in
Sections 7.07, 8.07, 8.08 and 8.10 shall survive such satisfaction and
discharge. Nothing contained in this Article VIII shall abrogate any of the
obligations or duties of the Trustee under this Indenture.
Section
8.07 Acknowledgment
of Discharge by Trustee.
After
the conditions of Section 8.02, 8.03 or 8.05 have been satisfied, the Trustee
upon written request shall acknowledge in writing the discharge of all of the
Company’s obligations under this Indenture except for those surviving
obligations specified in this Article VIII.
Section
8.08 Deposited
Money and Cash Equivalents to Be Held in Trust; Other Miscellaneous
Provisions.
Subject
to Section 8.09 hereof, all money and non-callable Cash Equivalents (including
the proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 8.08, the “Trustee”)
pursuant to Section 8.04 hereof in respect of the outstanding Notes shall be
held in trust and applied by the Trustee, in accordance with the provisions
of
such Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as Paying Agent) as the Trustee
may
determine, to the Holders of such Notes of all sums due and to become due
thereon in respect of principal, premium, if any, and interest, but such money
need not be segregated from other funds except to the extent required by
law.
The
Company shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the cash or non-callable Cash Equivalents
deposited pursuant to Section 8.04(a) hereof or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the outstanding Notes.
Anything
in this Article VIII to the contrary notwithstanding, the Trustee shall deliver
or pay to the Company from time to time upon the request of the Company any
money or non-callable Cash Equivalents held by it as provided in Section 8.04
hereof which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the
Trustee (which may be the opinion delivered under Section 8.04 hereof), are
in
excess of the amount thereof that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.
77
Section
8.09 Repayment
to Company.
Subject
to any applicable abandoned property law, any money deposited with the Trustee
or any Paying Agent, or then held by the Company, in trust for the payment
of
the principal of, premium, if any, and interest on any Note and remaining
unclaimed for two years after such principal, and premium, if any, and interest
has become due and payable shall be paid to the Company on its request or (if
then held by the Company) shall be discharged from such trust; and the Holder
of
such Note shall thereafter, as a secured creditor, look only to the Company
for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided,
however,
that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in
the
New York Times and The Wall Street Journal (national edition), notice that
such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such notification or publication,
any
unclaimed balance of such money then remaining shall be repaid to the
Company.
Section
8.10 Indemnity
for Government Securities.
The
Company shall pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against deposited U.S. Government Obligations
or
the principal and interest, if any, received on such U.S. Government
Obligations.
Section
8.11 Reinstatement.
If the
Trustee or Paying Agent is unable to apply any United States dollars or
non-callable Government Securities in accordance with Section 8.02 or 8.03
hereof, as the case may be, by reason of any order or judgment of any court
or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company’s obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant
to
Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent
is
permitted to apply all such money in accordance with Section 8.02 or 8.03
hereof, as the case may be; provided,
however,
that,
if the Company makes any payment of principal of, premium, if any, or interest
on any Note following the reinstatement of its obligations, the Company shall
be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money held by the Trustee or Paying Agent.
ARTICLE
IX
AMENDMENT,
SUPPLEMENT AND WAIVER
Section
9.01 Without
Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, without the consent of any
Holder of Notes, the Company, the Guarantors and the Trustee may amend or
supplement this Indenture, or the Notes or the Note Guarantees:
(a) to
cure
any ambiguity, defect, error or inconsistency;
(b) to
provide for uncertificated Notes in addition to or in place of certificated
Notes;
78
(c) to
provide for the assumption of the Company’s or any Guarantor’s obligations to
Holders of Notes in the case of a merger or consolidation or sale of all or
substantially all of the assets of the Company or of such
Guarantor;
(d) to
make
any change that would provide any additional rights or benefits to the Holders
of Notes or that does not adversely affect the legal rights under this Indenture
of any such Holder;
(e) to
comply
with requirements of the SEC in order to effect or maintain the qualification
of
this Indenture under the Trust Indenture Act;
(f) to
comply
with the requirements of Section 4.20;
(g) to
evidence and provide for the acceptance of appointment by a successor Trustee;
or
(h) to
provide for the issuance of Additional Notes in accordance with this
Indenture.
Upon
the
request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental Indenture, and
upon receipt by the Trustee of the documents described in Section 7.02(b) hereof
stating that such amended or supplemental Indenture complies with this Section
9.01, the Trustee shall join with the Company in the execution of any amended
or
supplemental Indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations that may be
therein contained, but the Trustee shall not be obligated to enter into such
amended or supplemental Indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
Section
9.02 With
Consent of Holders of Notes.
Except
as provided below in this Section 9.02, this Indenture (including Sections
3.09,
4.10 and 4.14 hereof), the Notes or the Note Guarantees may be amended or
supplemented with the consent of the Holders of at least a majority in principal
amount of the Notes then outstanding (including, without limitation, consents
obtained in connection with a purchase of, or tender offer or exchange offer
for, Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default
or Event of Default or compliance with any provision of this Indenture or the
Notes may be waived with the consent of the Holders of a majority in principal
amount of the then outstanding Notes (including, without limitation, consents
obtained in connection with a tender offer or exchange offer for, Notes).
Without the consent of the Holders of at least 75% in principal amount of the
Notes then outstanding voting as a single class (including, without limitation,
consents obtained in connection with a purchase of, or tender offer or exchange
offer for, the Notes), an amendment or waiver may not amend or modify any of
the
provisions of this Indenture or the related definitions affecting the
subordination or ranking of the Notes or any Note Guarantee in any manner
adverse to the holders of the Notes or any Note Guarantee. Section 2.08 hereof
shall determine which Notes are considered to be “outstanding” for purposes of
this Section 9.02.
79
Upon
the
request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental Indenture, and
upon the filing with the Trustee of evidence satisfactory to the Trustee of
the
consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee
of
the documents described in Section 7.02(b) hereof stating that any such amended
or supplemental Indenture complies with this Section 9.02, the Trustee shall
join with the Company in the execution of such amended or supplemental Indenture
unless such amended or supplemental Indenture directly affects the Trustee’s own
rights, duties or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion, but shall not be obligated to, enter into
such amended or supplemental Indenture.
It
shall
not be necessary for the consent of the Holders of Notes under this Section
9.02
to approve the particular form of any proposed amendment or waiver, but it
shall
be sufficient if such consent approves the substance thereof.
After
an
amendment, supplement or waiver under this Section 9.02 becomes effective,
the
Company shall mail to the Holders of Notes affected thereby a notice briefly
describing the amendment, supplement or waiver. Any failure of the Company
to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such amended or supplemental Indenture or
waiver.
Subject
to Sections 6.04 and 6.07 hereof, the Holders of a majority in aggregate
principal amount of the Notes then outstanding voting as a single class may
waive compliance in a particular instance by the Company with any provision
of
this Indenture or the Notes. However, without the consent of each Holder
affected, an amendment or waiver under this Section 9.02 may not (with respect
to any Notes held by a non-consenting Holder):
(a) reduce
the principal amount of Notes whose Holders must consent to an amendment,
supplement or waiver;
(b) reduce
the principal of or change the fixed maturity of any Note or alter the
provisions, or waive any payment, with respect to the redemption of the
Notes;
(c) reduce
the rate of or change the time for payment of interest on any Note;
(d) waive
a
Default or Event of Default in the payment of principal of or premium, if any,
or interest on the Notes (except a rescission of acceleration of the Notes
by
the Holders of at least a majority in aggregate principal amount of the Notes
and a waiver of the payment default that resulted from such
acceleration);
80
(e) make
any
Note payable in money other than U.S. dollars;
(f) make
any
change in the provisions of this Indenture relating to waivers of past Defaults
or the rights of Holders of Notes to receive payments of principal of, or
interest or premium, if any, on the Notes;
(g) release
any Guarantor from any of its obligations under its Note Guarantee of these
Notes or this Indenture, except in accordance with the terms of this
Indenture;
(h) impair
the right to institute suit for the enforcement of any payment on or with
respect to the Notes or the Note Guarantees;
(i) amend,
change or modify the obligation of the Company to make and consummate an Asset
Sale Offer with respect to any Asset Sale in accordance with Section 4.10 after
the obligation to make such an Asset Sale Offer has arisen, or the obligation
of
the Company to make and consummate a Change of Control Offer in the event of
a
Change of Control in accordance with Section 4.14 after such Change of Control
has occurred, including, in each case, amending, changing or modifying any
definition relating thereto;
(j) except
as
otherwise permitted under Section 5.01 and Article XI, consent to the assignment
or transfer by the Company or any Guarantor of any of their rights or
obligations under this Indenture; or
(k) make
any
change in Section 6.04 or 6.07 hereof or in the foregoing amendment and waiver
provisions.
Section
9.03 Compliance
with Trust Indenture Act.
Every
amendment or supplement to this Indenture or the Notes shall be set forth in
a
amended or supplemental Indenture that complies with the TIA as then in
effect.
Section
9.04 Revocation
and Effect of Consents.
Until
an amendment, supplement or waiver becomes effective, a consent to it by a
Holder of a Note is a continuing consent by such Holder of a Note and every
subsequent Holder of a Note or portion of a Note that evidences the same debt
as
the consenting Holder’s Note, even if notation of the consent is not made on any
Note. However, any such Holder of a Note or subsequent Holder of a Note may
revoke the consent as to its Note if the Trustee receives written notice of
revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
81
Section
9.05 Notation
on or Exchange of Notes.
The
Trustee may place an appropriate notation about an amendment, supplement or
waiver on any Note thereafter authenticated. The Company in exchange for all
Notes may issue and the Trustee shall, upon receipt of an Authentication Order,
authenticate new Notes that reflect the amendment, supplement or
waiver.
Failure
to make the appropriate notation or issue a new Note shall not affect the
validity and effect of such amendment, supplement or waiver.
Section
9.06 Trustee
to Sign Amendments, Etc. The
Trustee shall sign any amended or supplemental indenture or Note authorized
pursuant to this Article IX if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Company
may not sign an amendment or supplemental indenture or Note until the Board
of
Directors approves it. In executing any amended or supplemental indenture or
Note, the Trustee shall be entitled to receive and (subject to Section 7.01
hereof) shall be fully protected in relying upon, in addition to the documents
required by Section 11.04 hereof, an Officer’s Certificate and an Opinion of
Counsel stating that the execution of such amended or supplemental indenture
is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, execute any such amendment, supplement or waiver which affects
the
Trustee’s rights, duties or immunities under this Indenture or otherwise. In
signing any amendment, supplement or waiver, the Trustee shall be entitled
to
receive an indemnity reasonably satisfactory to it.
ARTICLE
X
SUBORDINATION
Section
10.01 Agreement
to Subordinate.
The
Company agrees, and each Holder by accepting a Note agrees, that the
Indebtedness evidenced by the Notes is subordinated in right of payment, to
the
extent and in the manner provided in this Article X, to the prior payment in
full in cash or Cash Equivalents of all Senior Debt (whether outstanding on
the
date of this Indenture or hereafter created, incurred, assumed or guaranteed),
and that the subordination is for the benefit of the holders of Senior
Debt.
Section
10.02 Liquidation;
Dissolution; Bankruptcy.
The
holders of Senior Debt of the Company shall be entitled to receive payment
in
full in cash or Cash Equivalents of all Obligations due in respect of Senior
Debt of the Company (including interest after the commencement of any bankruptcy
proceeding at the rate specified in the applicable Senior Debt of the Company
whether or not an allowed claim) before the Holders of Notes shall be entitled
to receive any payment with respect to the Notes (except that Holders of Notes
may receive and retain Permitted Junior Securities and payments made from the
trust pursuant to Article VIII hereof), in the event of any distribution to
creditors of the Company in connection with (a) any liquidation or dissolution
of the Company; (b) any bankruptcy, reorganization, insolvency, receivership
or
similar proceeding relating to the Company or its property; (c) any assignment
by the Company for the benefit of its creditors; or (d) any marshaling of the
Company’s assets and liabilities.
82
Section
10.03 Default
on Designated Senior Debt.
The
Company shall not make any payment in respect of the Notes (except in Permitted
Junior Securities or from the trust pursuant to Article VIII hereof)
if:
(a) a
payment
default on Designated Senior Debt of the Company occurs and is continuing;
or
(b) any
other
default (a “nonpayment default”) occurs and is continuing on any series of
Designated Senior Debt of the Company that permits holders of that series of
Designated Senior Debt of the Company to accelerate its maturity and the Trustee
receives a written notice of such default (a “Payment
Blockage Notice”)
from
the Company or (i) with respect to Designated Senior Debt incurred pursuant
to
the Credit Agreement, the agent for the lenders thereunder and (ii) with respect
to any other Designated Senior Debt, the holders of such Designated Senior
Debt.
(c) Payments
on the Notes may and shall be resumed:
(i) in
the
case of a payment default on Designated Senior Debt of the Company, upon the
date on which such default is cured or waived; and
(ii) in
case
of a nonpayment default of the Company, the earlier of the date on which such
default is cured or waived or 179 days after the date on which the applicable
Payment Blockage Notice is received, unless the maturity of such Designated
Senior Debt of the Company has been accelerated.
(d) No
new
Payment Blockage Notice may be delivered unless and until:
(i) 360
days
have elapsed since the delivery of the immediately prior Payment Blockage
Notice; and
(ii) all
scheduled payments of principal, interest and premium, if any, on the Notes
that
have come due have been paid in full in cash.
(e) No
nonpayment default that existed or was continuing on the date of delivery of
any
Payment Blockage Notice to the Trustee shall be, or be made, the basis for
a
subsequent Payment Blockage Notice.
83
Section
10.04 Acceleration
of Securities.
If
payment of the Notes is accelerated because of an Event of Default, the Company
shall promptly notify holders of Senior Debt of the acceleration.
Section
10.05 When
Distribution Must Be Paid Over.
In the
event that the Trustee or any Holder receives any payment of any Obligations
with respect to the Notes (except in Permitted Junior Securities or from the
trust pursuant to Article VIII hereof) at a time when the payment is prohibited
by this Article and the Trustee or such Holder, as applicable, has actual
knowledge that such payment is prohibited by Article X hereof, such payment
shall be held by the Trustee or such Holder, as applicable, in trust for the
benefit of the holders of the Senior Debt of the Company, upon written request
of the holders of the Senior Debt of the Company shall be paid forthwith over
and delivered, to the holders of Senior Debt as their interests may appear
or
their proper Representative, for application to the payment of all Obligations
with respect to Senior Debt remaining unpaid to the extent necessary to pay
such
Obligations in full in accordance with their terms, after giving effect to
any
concurrent payment or distribution to or for the holders of Senior
Debt.
With
respect to the holders of Senior Debt, the Trustee undertakes to perform only
such obligations on the part of the Trustee as are specifically set forth in
this Article X, and no implied covenants or obligations with respect to the
holders of Senior Debt shall be read into this Indenture against the Trustee.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Debt, and shall not be liable to any such holders if the Trustee shall
pay over or distribute to or on behalf of Holders or the Company or any other
Person money or assets to which any holders of Senior Debt shall be entitled
by
virtue of this Article X, except if such payment is made as a result of the
willful misconduct or gross negligence of the Trustee.
Section
10.06 Notice
by the Company.
The
Company shall promptly notify the Trustee and the Paying Agent in writing of
any
facts known to the Company that would cause a payment of any Obligations with
respect to the Notes to violate this Article X, but failure to give such notice
shall not affect the subordination of the Notes to the Senior Debt as provided
in this Article X.
Section
10.07 Subrogation.
After
all Senior Debt is paid in full and until the Notes are paid in full, Holders
of
Notes shall be subrogated (equally and ratably with all other Indebtedness
pari
passu
with the
Notes) to the rights of holders of Senior Debt to receive distributions
applicable to Senior Debt to the extent that distributions otherwise payable
to
the Holders of Notes have been applied to the payment of Senior Debt. A
distribution made under this Article X to holders of Senior Debt that otherwise
would have been made to Holders of Notes is not, as between the Company and
Holders, a payment by the Company on the Notes.
Section
10.08 Relative
Rights.
This
Article X defines the relative rights of Holders of Notes and holders of Senior
Debt. Nothing in this Indenture shall:
(a) impair,
as between, the Company and Holders of Notes, the obligation of the Company,
which is absolute and unconditional, to pay principal of and interest on the
Notes in accordance with their terms;
84
(b) affect
the relative rights of Holders of Notes and creditors of the Company other
than
their rights in relation to holders of Senior Debt; or
(c) prevent
the Trustee or any Holder of Notes from exercising its available remedies upon
a
Default or Event of Default, subject to the rights of holders and owners of
Senior Debt to receive distributions and payments otherwise payable to Holders
of Notes.
If
the
Company fails because of this Article X to pay principal of or interest on
a
Note on the due date, the failure is still a Default or Event of
Default.
Section
10.09 Subordination
May Not Be Impaired by the Company.
No
right of any holder of Senior Debt to enforce the subordination of the
Indebtedness evidenced by the Notes shall be impaired by any act or failure
to
act by the Company or any Holder or by the failure of the Company or any Holder
to comply with this Indenture.
Section
10.10 Distribution
or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of Senior
Debt, the distribution may be made and the notice given to their
Representative.
Upon
any
payment or distribution of assets of the Company referred to in this Article
X,
the Trustee and the Holders of Notes shall be entitled to rely upon any order
or
decree made by any court of competent jurisdiction or upon any certificate
of
such Representative or of the liquidating trustee or agent or other Person
making any distribution to the Trustee or to the Holders of Notes for the
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt and other Indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid
or
distributed thereon and all other facts pertinent thereto or to this Article
X.
Section
10.11 Rights
of Trustee and Paying Agent.
Notwithstanding this Article X or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts that
would prohibit the making of any payment or distribution by the Trustee, and
the
Trustee and the Paying Agent may continue to make payments on the Notes, unless
the Trustee shall have received at its Corporate Trust Office at least five
Business Days prior to the date of such payment written notice of facts that
would cause the payment of any Obligations with respect to the Notes to violate
this Article X. Only the Company or a Representative may give the notice.
Nothing in this Article X shall impair the claims of, or payments to, the
Trustee under or pursuant to Section 7.07 hereof.
The
Trustee in its individual or any other capacity may hold Senior Debt with the
same rights it would have if it were not Trustee. Any Agent may do the same
with
like rights.
Section
10.12 Authorization
to Effect Subordination.
Each
Holder of Notes, by the Holder’s acceptance thereof, authorizes and directs the
Trustee on such Holder’s behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article X,
and
appoints the Trustee to act as such Holder’s attorney-in-fact for any and all
such purposes. If the Trustee does not file a proper proof of claim or proof
of
debt in the form required in any proceeding referred to in Section 6.09 hereof
before the expiration of the time to file such claim, the lenders under the
Credit Agreement are hereby authorized to file an appropriate claim for and
on
behalf of the Holders of the Notes; provided
that, in
the event the Trustee files a proper proof of claim prior to expiration, the
Trustee’s proof of claim shall supersede that of the lenders under the Credit
Agreement in respect of the Holders of the Notes.
85
ARTICLE
XI
NOTE
GUARANTEES
Section
11.01 Guarantee.
Subject
to this Article XI each of the Guarantors hereby, jointly and severally,
unconditionally guarantees to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns, irrespective
of the validity and enforceability of this Indenture, the Notes or the
obligations of the Company hereunder or thereunder, that:
(a) (i)
the
principal of and interest on the Notes will be promptly paid in full when due,
whether at maturity, by acceleration, redemption or otherwise, and interest
on
the overdue principal of and interest on the Notes, if any, if lawful (subject
in all cases to any applicable grace period provided herein), and all other
obligations of the Company to the Holders or the Trustee hereunder or thereunder
will be promptly paid in full or performed, all in accordance with the terms
hereof and thereof; and (ii) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that same will be
promptly paid in full when due or performed in accordance with the terms of
the
extension or renewal, whether at Stated Maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any performance so
guaranteed for whatever reason, the Guarantors shall be jointly and severally
obligated to pay the same immediately. Each Guarantor agrees that this is a
guarantee of payment and not a guarantee of collection.
(b) The
Guarantors hereby agree that their obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or
this
Indenture, the absence of any action to enforce the same, any waiver or consent
by any Holder of the Notes with respect to this Indenture, the recovery of
any
judgment against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge
or
defense of a Guarantor. Subject to Section 6.06 hereof and to the extent
permitted by applicable law, each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event
of
insolvency or bankruptcy of the Company, any right to require a proceeding
first
against the Company, protest, notice and all demands whatsoever and covenant
that this Note Guarantee shall not be discharged except by complete performance
of the obligations contained in the Notes and this Indenture.
86
(c) If
any
Holder or the Trustee is required by any court or otherwise to return to the
Company, the Guarantors or any custodian, trustee, liquidator or other similar
official acting in relation to either the Company or the Guarantors, any amount
paid by either to the Trustee or such Holder, this Note Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and
effect.
(d) Each
Guarantor agrees that it shall not be entitled to any right of subrogation
in
relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby. Each Guarantor further
agrees that, as between the Guarantors, on the one hand, and the Holders and
the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article VI hereof for the purposes
of
this Note Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby,
and (y) in the event of any declaration of acceleration of such obligations
as
provided in Article VI hereof, such obligations (whether or not due and payable)
shall forthwith become due and payable by the Guarantors for the purpose of
this
Note Guarantee. The Guarantors shall have the right to seek contribution from
any non-paying Guarantor so long as the exercise of such right does not impair
the rights of the Holders under the Note Guarantee.
Section
11.02 Subordination
of Note Guarantee.
The
Obligations of each Guarantor under its Note Guarantee pursuant to this Article
XI shall be subordinated to the Guarantee of any Senior Debt of such Guarantor
on the same basis as the Notes are subordinated to Senior Debt of the Company.
For the purposes of the foregoing sentence, the Trustee and the Holders shall
have the right to receive and/or retain payments by any of the Guarantors only
at such times as they may receive and/or retain payments in respect of the
Notes
pursuant to this Indenture, including Article X hereof.
Section
11.03 Limitation
on Guarantor Liability.
Each
Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that
it
is the intention of all such parties that the Note Guarantee of such Guarantor
not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy
Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer
Act
or any similar federal or state law to the extent applicable to any Note
Guarantee. To effectuate the foregoing intention, the Trustee, the Holders
and
the Guarantors hereby irrevocably agree that the obligations of such Guarantor
shall, after giving effect to such maximum amount and all other contingent
and
fixed liabilities of such Guarantor that are relevant under such laws, and
after
giving effect to any collections from, rights to receive contribution from
or
payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article XI, result in the
obligations of such Guarantor under its Note Guarantee not constituting a
fraudulent transfer or conveyance.
Section
11.04 Execution
and Delivery of Note Guarantee.
To
evidence its Note Guarantee set forth in Section 11.01, each Guarantor hereby
agrees that a notation of such Note Guarantee substantially in the form included
in Exhibit C attached hereto shall be endorsed by an Officer of such Guarantor
on each Note authenticated and delivered by the Trustee and that this Indenture
shall be executed on behalf of such Guarantor by its President or one of its
Vice Presidents.
87
Each
Guarantor hereby agrees that its Note Guarantee set forth in Section 11.01
shall
remain in full force and effect notwithstanding any failure to endorse on each
Note a notation of such Note Guarantee.
If
an
Officer whose signature is on this Indenture or on the Note Guarantee no longer
holds that office at the time the Trustee authenticates the Note on which a
Note
Guarantee is endorsed, the Note Guarantee shall be valid
nevertheless.
The
delivery of any Note by the Trustee, after the authentication thereof hereunder,
shall constitute due delivery of the Note Guarantee set forth in this Indenture
on behalf of the Guarantors.
Section
11.05 Releases
Following Sale of Assets.
Any
Guarantor shall be released and relieved of any obligations under its Note
Guarantee, (a) in connection with any sale of all of the Capital Stock of that
Guarantor (including by way of merger or consolidation) to a Person that is
not
(either before or after giving effect to such transaction) an Affiliate of
the
Company, if the sale of all of such Capital Stock of that Guarantor complies
with Section 4.10 hereof, including the application of the Net Proceeds
therefrom; (b) if the Company designated such Subsidiary Guarantor as an
Unrestricted Subsidiary in accordance with this Indenture; or (c) solely in
the
case of a Note Guarantee created pursuant to Section 4.20(a), upon the release
or discharge of the Guarantee which resulted in the creation of such Note
Guarantee pursuant to Section 4.20, except a discharge or release by or as
a
result of payment under such Guarantee.
Any
Guarantor not released from its obligations under its Note Guarantee shall
remain liable for the full amount of principal of and interest on the Notes
and
for the other obligations of any Guarantor under this Indenture as provided
in
this Article XI.
Section
11.06 Additional
Guarantors.
The
Company covenants and agrees that it shall cause any Person which becomes
obligated to become a Guarantor, pursuant to the terms of Section 4.20, to
execute a supplemental indenture substantially in the form of Exhibit D hereto
and any other documentation requested by the Trustee satisfactory in form to
the
Trustee in accordance with Section 4.20 pursuant to which such Restricted
Subsidiary shall guarantee the obligations of the Company under the Notes and
this Indenture in accordance with this Article XI with the same effect and
to
the same extent as if such Person had been named herein as a Subsidiary
Guarantor.
Section
11.07 Notation
Not Required.
Neither
the Company nor the Guarantors shall be required to make a notation on the
Notes
to reflect any Note Guarantee or any release, termination or discharge
thereof.
Section
11.08 Successors
and Assigns.
This
Article XI shall be binding upon the Guarantors and each of their successors
and
assigns and shall inure to the benefit of the successors and assigns of the
Trustee and the Holders and, in the event of any transfer or assignment of
rights by any Holder or the Trustee, the rights and privileges conferred upon
that party in this Indenture and in the Notes shall automatically extend to
and
be vested in such transferee or assigns, all subject to the terms and conditions
of this Indenture.
88
Except
as
set forth in Article IV and V hereof, and notwithstanding the provisions of
this
Section, nothing contained in this Indenture shall prevent any consolidation
or
merger of a Guarantor with or into the Company or another Guarantor, or will
prevent the sale or conveyance of the property of a Guarantor as an entirety
or
substantially as an entirety to the Company or another Guarantor.
Section
11.09 No
Waiver.
Neither
a failure nor a delay on the part of either the Trustee or the Holders in
exercising any right, power or privilege under this Article XI shall operate
as
a waiver thereof, nor shall a single or partial exercise thereof preclude any
other or further exercise of any right, power or privilege. The rights, remedies
and benefits of the Trustee and the Holders herein expressly specified are
cumulative and are not exclusive of any other rights, remedies or benefits
which
either may have under this Article XI at law, in equity, by statute or
otherwise.
Section
11.10 Modification.
No
modification, amendment or waiver of any provision of this Article XI, nor
the
consent to any departure by the Guarantor therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Trustee, and
then such waiver or consent shall be effective only in the specific instance
and
for the purpose for which given. No notice to or demand on the Guarantor in
any
case shall entitle the Guarantor to any other or further notice or demand in
the
same, similar or other circumstance.
ARTICLE
XII
MISCELLANEOUS
Section
12.01 Trust
Indenture Act Controls.
This
Indenture is subject to the provisions of the TIA that are required to be a
part
of this Indenture, and shall, to the extent applicable, be governed by such
provisions. If any provision of this Indenture modifies any TIA provision that
may be so modified, such TIA provision shall be deemed to apply to this
Indenture as so modified. If any provision of this Indenture excludes any TIA
provision that may be so excluded, such TIA provision shall be excluded from
this Indenture.
The
provisions of TIA §§ 310 through 317 that impose duties on any Person (including
the provisions automatically deemed included unless expressly excluded by this
Indenture) are a part of and govern this Indenture, whether or not physically
contained herein.
Section
12.02 Notices.
Any
notice or communication by the Company, any Guarantor or the Trustee to the
others is duly given if in writing and delivered in Person or mailed by first
class mail (registered or certified, return receipt requested), telex,
telecopier or overnight air courier guaranteeing next day delivery, to the
others’ address.
89
If
to the
Company and/or any Guarantor:
Spectrum
Brands, Inc.
Six
Concourse Parkway, Suite 3300
Atlanta,
Georgia 30328
Facsimile:
770-829-6298
Attention:
General Counsel
with
a
copy to:
Skadden,
Arps, Slate, Meagher & Flom LLP
One
Beacon Street
Boston,
Massachusetts 02108-3194
Facsimile:
617-305-4822
Attention:
Margaret A. Brown, Esq.
If
to the
Trustee:
Wells
Fargo Bank, N.A.
Corporate
Trust Services
6th
Street and Marquette Avenue
MAC
N-9303-120
Minneapolis,
MN 55479
Facsimile:
612-667-9825
Attention:
Spectrum Brands Administrator
The
Company, any Guarantor or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or
communications.
All
notices and communications (other than those sent to Holders) shall be deemed
to
have been duly given: (i) at the time delivered by hand, if personally
delivered; (ii) five Business Days after being deposited in the mail, postage
prepaid, if mailed; (iii) when answered back, (iv) if telexed; when receipt
acknowledged, if telecopied; and (v) the next Business Day after timely delivery
to the courier, if sent by overnight air courier guaranteeing next day
delivery.
Any
notice or communication to a Holder shall be mailed by first class mail,
certified or registered, return receipt requested, or by overnight air courier
guaranteeing next day delivery to its address shown on the register kept by
the
Registrar. Any notice or communication shall also be so mailed to any Person
described in TIA § 313(c), to the extent required by the TIA. Failure to mail a
notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders.
If
a
notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives
it.
90
If
the
Company mails a notice or communication to Holders, it shall mail a copy to
the
Trustee and each Agent at the same time.
Section
12.03 Communication
by Holders of Notes with Other Holders of Notes.
Holders
may communicate pursuant to TIA § 312(b) with other Holders with respect to
their rights under this Indenture or the Notes. The Company, the Trustee, the
Registrar and anyone else shall have the protection of TIA §
312(c).
Section
12.04 Certificate
and Opinion as to Conditions Precedent.
Upon
any request or application by the Company to the Trustee to take any action
under this Indenture (other than under Section 2.02 hereof unless required
by
the TIA), the Company shall furnish to the Trustee:
(a) an
Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 12.05 hereof)
stating that, in the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture relating to the proposed
action have been satisfied;
(b) an
Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 12.05 hereof) stating
that, in the opinion of such counsel, all such conditions precedent and
covenants have been satisfied; and
(c) where
applicable, a certificate or opinion by an independent certified public
accountant satisfactory to the Trustee that complies with TIA §
314(c).
Section
12.05 Statements
Required in Certificate or Opinion.
Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than a certificate provided pursuant
to
TIA § 314(a)(4)) shall comply with the provisions of TIA § 314(e) and shall
include:
(a) a
statement that the Person making such certificate or opinion has read such
covenant or condition;
(b) a
brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based;
(c)
a
statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
satisfied; and
91
(d) a
statement as to whether or not, in the opinion of such Person, such condition
or
covenant has been satisfied.
Section
12.06 Rules
by Trustee and Agents.
The
Trustee may make reasonable rules for action by or at a meeting of Holders.
The
Registrar or Paying Agent may make reasonable rules and set reasonable
requirements for its functions.
Section
12.07 No
Personal Liability of Directors, Officers, Employees and
Stockholders.
No
director, officer, employee, agent, manager, member, incorporator, stockholder
or other equityholder of the Company or any Guarantor, as such, shall have
any
liability for any obligations of the Company or the Guarantors under the Notes,
the Note Guarantees, this Indenture or for any claim based on, in respect of,
or
by reason of, such obligations or their creation. Each Holder of Notes by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes. Such waiver may not
be
effective to waive liabilities under the federal securities laws.
Section
12.08 Governing
Law.
THE
INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE
THIS
INDENTURE, THE NOTES AND THE NOTE GUARANTEES.
Section
12.09 No
Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or debt
agreement of the Company or its Subsidiaries or of any other Person. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
All agreements of each Guarantor in this Indenture shall bind its
successors.
Section
12.10 Successors.
All agreements of the Company in this Indenture and the Notes shall bind its
successors. All agreements of the Trustee in this Indenture shall bind its
successors. All agreements of each Guarantor in this Indenture shall bind its
successors.
Section
12.11 Severability.
In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
Section
12.12 Counterpart
Originals.
The parties may sign any number of copies of this Indenture. Each signed copy
shall be an original, but all of them together represent the same
agreement.
Section
12.13 Table
of Contents, Headings, Etc.The
Table
of Contents, Cross-Reference Table and Headings of the Articles and Sections
of
this Indenture have been inserted for convenience of reference only, are not
to
be considered a part of this Indenture and shall in no way modify or restrict
any of the terms or provisions hereof.
[Remainder
of Page Left Blank; Signature Pages Follow]
92
IN
WITNESS WHEREOF, the parties have executed this Indenture as of the date first
written above.
|
SPECTRUM
BRANDS, INC.
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name:
Randall
J. Steward
|
||
|
Title:
Executive Vice President and Chief
Financial Officer
|
||
|
TETRA
HOLDING (US), INC.
|
||
| |
|
|
| By: | /s/ James T. Lucke | |
|
Name:
James T. Lucke
|
||
|
Title:
Assistant
Secretary
|
||
|
ROV
HOLDING, INC.
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name:
Randall J. Steward
|
||
|
Title:
Vice
President
|
||
|
ROVCAL,
INC.
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name:
Randall J. Steward
|
||
|
Title:
Vice
President and Treasurer
|
||
|
UNITED INDUSTRIES CORPORATION
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name:
Randall
J. Steward
|
||
|
Title:
Executive
Vice President, Treasurer and Chief
Financial Officer
|
||
93
|
SCHULTZ
COMPANY
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name:
Randall
J. Steward
|
||
|
Title:
Vice President, Treasurer and Chief
Financial Officer
|
||
|
SPECTRUM
NEPTUNE US HOLDCO CORPORATION
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name:
Randall
J. Steward
|
||
|
Title:
Vice
President, Treasurer and Chief
Financial Officer
|
||
|
UNITED
PET GROUP, INC.
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name:
Randall
J. Steward
|
||
|
Title:
Vice
President, Treasurer and Chief
Financial Officer
|
||
|
DB
ONLINE, LLC
By:
United Pet Group, Inc., Its Sole Member
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name:
Randall
J. Steward
|
||
|
Title:
Vice
President, Treasurer and Chief
Financial Officer
|
||
|
SOUTHERN
CALIFORNIA FOAM, INC.
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name:
Randall
J. Steward
|
||
|
Title:
Vice
President, Treasurer and Chief
Financial Officer
|
||
94
| AQUARIA, INC. | ||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name:
Randall
J. Steward
|
||
|
Title:
Vice
President, Treasurer and Chief
Financial Officer
|
||
|
AQUARIUM
SYSTEMS, INC.
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name:
Randall
J. Steward
|
||
|
Title:
Vice
President, Treasurer and Chief
Financial Officer
|
||
|
PERFECTO
MANUFACTURING, INC.
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name:
Randall
J. Steward
|
||
|
Title:
Vice
President, Treasurer and Chief
Financial Officer
|
||
|
WELLS
FARGO BANK, N.A., as trustee
|
||
| |
|
|
| By: | /s/ Jane Y. Schweiger | |
|
Name:
Jane Y. Schweiger
|
||
|
Title:
Vice President
|
||
95
EXHIBIT
A
[Face
of Note]
[THIS
GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING
THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF; AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT
THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT
TO SECTION 2.06 OF THE INDENTURE; (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.12 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.]
|
No.
____
|
**$___________**
|
CUSIP:
84762L AB1
ISIN:
S84762LAB18
SPECTRUM
BRANDS, INC.
Variable
Rate Toggle Senior Subordinated Notes Due 2013
Spectrum
Brands, Inc. (the “Company”),
for
value received, promises to pay to CEDE & Co., or its registered assigns,
the principal sum of $[Amount
of Note],
_________ Dollars or such other amount as indicated on the Schedule of Exchanges
of Interests in the Global Notes attached hereto on October 2,
2013.
Interest
Payment Dates: April 2 and October 2 of each year, starting on October 2,
2007.
Record
Dates: March 15 and September 15.
Reference
is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect
as
if set forth at this place.
IN
WITNESS WHEREOF, the Company has caused this Note to be signed manually or
by
facsimile by its duly authorized officers.
|
SPECTRUM
BRANDS, INC.
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
(Trustee’s
Certificate of Authentication)
This
is
one of the Variable
Rate Toggle Senior Subordinated Notes Due 2013 referred
to in the within-mentioned Indenture.
Dated:
WELLS
FARGO BANK, N.A.
as
Trustee
By:
Authorized
Signatory
A-2
[Reverse
Side of Note]
SPECTRUM
BRANDS, INC.
Variable
Rate Toggle Senior Subordinated Notes Due 2013
Capitalized
terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.
1. Interest.
The
Company promises to pay interest on the principal amount and premium, if any,
of
this Note, at its option, (i) entirely in cash (“Cash
Interest”)
or (ii)
subject to the Minimum Equity Condition, entirely by increasing the principal
amount of the outstanding Notes (“PIK
Interest,”
and
together with Cash Interest, “Forms
of Interest Payment”
and each
individually, a “Form
of Interest Payment”).
With
respect to any Interest Period, interest shall accrue on the Notes at the
Scheduled Rate per annum for the then current Form of Interest Payment from
the
date Notes were first issued pursuant to the Exchange Offer (the “Issue
Date”)
until
Maturity. The Company shall pay interest semi-annually
on April 2 and October 2 of each year, or if any such day is not a Business
Day,
on the next succeeding Business Day (each an “Interest
Payment Date”).
Interest on the Notes shall accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from the Issue Date;
provided
that if
there is no existing Default in the payment of interest, and if this Note is
authenticated between a Record Date referred to on the face hereof and the
next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided further
that the
first Interest Payment Date shall be October 2, 2007. If
on any
Interest Election Date, the Exchange Act filings for the Company’s most recently
completed fiscal quarter to which such filings relate demonstrate that the
Fixed
Charge Coverage Ratio for the Company’s most recently ended four full fiscal
quarters ending on such fiscal quarter is above 2.0 to 1.0 (the“Fixed
Charge Coverage Ratio Test”),
the
Company shall notify the Trustee on such Interest Election Date and the
applicable interest rate shall be 1% per annum in excess of the Scheduled Rate
for the next Interest Period.
The
following is the schedule of Cash Interest rates (the “Scheduled
Cash Interest Rates”):
|
Interest
Period
|
Percentage
|
||||
|
Date
of this Indenture through April 1, 2007
|
11.00
|
%
|
|
||
|
April
2, 2007 through October 1, 2007
|
11.25
|
%
|
|
||
|
October
2, 2007 through April 1, 2008
|
11.50
|
%
|
|
||
|
April
2, 2008 through October 1, 2008
|
12.00
|
%
|
|
||
|
October
2, 2008 through April 1, 2009
|
12.50
|
%
|
|
||
|
April
2, 2009 through October 1, 2009
|
12.75
|
%
|
|
||
|
October
2, 2009 through April 1, 2010
|
13.50
|
%
|
|
||
|
April
2, 2010 through October 1, 2010
|
13.75
|
%
|
|
||
|
October
2, 2010 through April 1, 2011
|
14.00
|
%
|
|
||
|
April
2, 2011 through October 1, 2011
|
14.25
|
%
|
|
||
|
October
2, 2011 through April 1, 2012
|
14.50
|
%
|
|
||
|
April
2, 2012 through October 1, 2012
|
14.75
|
%
|
|
||
|
October
2, 2012 through April 1, 2013
|
15.00
|
%
|
|
||
|
April
2, 2013 through October 1, 2013
|
15.25
|
%
|
|
||
A-3
The
following is the schedule of PIK Interest rates (together with the Scheduled
Cash Interest Rates, the “Scheduled
Rates” and
each
individually, a “Scheduled
Rate”):
|
Interest
Period
|
Percentage
|
||||
|
Date
of this Indenture through April 1, 2007
|
11.50
|
%
|
|
||
|
April
2, 2007 through October 1, 2007
|
11.75
|
%
|
|
||
|
October
2, 2007 through April 1, 2008
|
12.00
|
%
|
|
||
|
April
2, 2008 through October 1, 2008
|
12.50
|
%
|
|
||
|
October
2, 2008 through April 1, 2009
|
13.00
|
%
|
|
||
|
April
2, 2009 through October 1, 2009
|
13.25
|
%
|
|
||
|
October
2, 2009 through April 1, 2010
|
14.00
|
%
|
|
||
|
April
2, 2010 through October 1, 2010
|
14.25
|
%
|
|
||
In
addition, the Company shall pay interest (including post-petition interest
in
any proceeding under any Bankruptcy Law) on overdue principal and premium,
if
any, from time to time on demand at a rate that is 1% per annum in excess of
the
rate then in effect; it shall pay interest (including post-petition interest
in
any proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace periods) from time to time on demand
at
the same rate to the extent lawful. Interest shall be computed on the basis
of a
360-day year of twelve 30-day months.
To
elect
the Form of Interest Payment with respect to each Interest Period, the Company
will give the Trustee irrevocable Notice of Election on the second Trading Day
preceding the first day of the applicable Interest Period (the “Interest
Election Date”).
The
Trustee will promptly deliver a corresponding notice to the Holders.
Notwithstanding anything herein to the contrary, the initial interest payment
shall be a Cash Interest payment and any interest payments after October 1,
2010
shall also be in Cash Interest payments. In the absence of an election for
any
Interest Period, interest on the Notes shall be payable entirely as a Cash
Interest payment.
2. Method
of Payment.
The
Company shall pay interest on the Notes (except defaulted interest) to the
Persons who are registered Holders of Notes at the close of business on the
Record Date immediately preceding the Interest Payment Date, even if such Notes
are canceled after such Record Date and on or before such Interest Payment
Date,
except as provided in Section 2.13 of the Indenture with respect to defaulted
interest. The Notes shall be payable as to principal, premium, if any, and
Cash
Interest at the office or agency of the Company, or, at the option of the
Company, payment of Cash Interest may be made by check mailed to the Holders
at
their addresses set forth in the register of Holders, and provided
that
payment by wire transfer of immediately available funds shall be required with
respect to principal of, and Cash Interest and premium on, all Global Notes
and
all other Notes the Holders of which shall have provided wire transfer
instructions to the Company or the Paying Agent. Such payment shall be in such
coin or currency of the United States of America as at the time of payment
is
legal tender for payment of public and private debts.
A-4
PIK
Interest shall be payable by increasing the principal amount of the outstanding
Notes by an amount equal to the amount of PIK Interest for the applicable
interest period (a “PIK
Payment”).
Following an increase in the principal amount of the outstanding Notes as a
result of a PIK Payment, the Notes will accrue interest on such increased
principal amount from and after the related interest payment date of such PIK
Payment. The Company will not issue Notes in principal amount of less than
$1.00. In the event that PIK Interest due to any Holder on an Interest Payment
Date is not a round dollar amount, any fractional PIK Interest, if $ 0.50 or
more, will be rounded up to the nearest dollar or, if $ 0.49 or less, will
be
rounded down to the nearest dollar. In connection with the payment of PIK
Interest, the Company is entitled, without the consent of the Holders, to
increase the outstanding principal amount of the Global Notes representing
the
Notes. References herein and in the Indenture to the “principal amount” of the
Notes include any increase in the principal amount of the outstanding Notes
as a
result of a PIK Payment.
3. Paying
Agent and Registrar.
Initially, Wells Fargo Bank, N.A., the Trustee under the Indenture, shall act
as
Paying Agent and Registrar. The Company may change any Paying Agent or Registrar
without notice to any Holder. The Company or any of its Subsidiaries may act
in
any such capacity.
4. Indenture.
The
Company issued the Notes under an Indenture dated as of [ ], 2007 (the
“Indenture”)
among
the Company, the Guarantors and the Trustee. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939, as amended. The Notes are subject to all
such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. To the extent any provision of this Note conflicts
with
the express provisions of the Indenture, the provisions of the Indenture shall
govern and be controlling.
5. Guarantees.
Subject
to Article XI of the Indenture, the Notes will be guaranteed, jointly and
severally, by all of the Domestic Subsidiaries of the Company.
6. Optional
Redemption.
(a) At
any
time on or prior to September 30, 2007, the Company may redeem all or a part
of
the Notes, from time to time, upon not less than 30 nor more than 60 days
notice, at the redemption price (expressed as a percentage of principal amount)
of 110% plus accrued and unpaid interest, if any, to the applicable redemption
date.
A-5
(b) In
addition, at any time after September 30, 2007, the Company may redeem all
or a
part of the Notes, from time to time, upon not less than 30 nor more than 60
days notice, at the redemption prices (expressed as percentages of principal
amount) set forth below plus accrued and unpaid interest, if any, to the
applicable redemption date, if redeemed during the twelve-month period beginning
on October 1 of the years indicated below:
|
Year
|
Percentage
|
|||
|
2007
|
109
|
%
|
||
|
2008
|
102
|
%
|
||
|
2009
|
101
|
%
|
||
|
2010
and thereafter
|
100
|
%
|
||
7. Repurchase
at Option of Holder.
(a) At
any
time on or prior to September 30, 2007, if a Change of Control occurs, each
Holder of Notes shall have the right pursuant to the offer described below
(the
“Change
of Control Offer”)
to
require the Company to repurchase all or any part (equal to $1.00 or an integral
multiple thereof) of such Holder’s Notes at an offer price in cash (expressed as
a percentage of principal amount) of 110% plus accrued and unpaid interest,
if
any, to the Change of Control Payment Date.
(b) In
addition, at any time after September 30, 2007, if a Change of Control occurs,
each Holder of Notes shall have the right pursuant to a Change of Control Offer
to require the Company to repurchase all or any part of such Holder’s Notes at
an offer price in cash (expressed as percentages of principal amount) set forth
below plus accrued and unpaid interest, if any, to the Change of Control Payment
Date, if purchased during the twelve-month period beginning on October 2 of
the
years indicated below:
|
Year
|
Percentage
|
|||
|
2007
|
109
|
%
|
||
|
2008
|
102
|
%
|
||
|
2009
|
101
|
%
|
||
|
2010
and thereafter
|
100
|
%
|
||
(c) Within
30
days following any Change of Control, the Company shall mail a notice to each
Holder describing the transaction or transactions that constitute the Change
of
Control and which shall be no earlier than 30 days and no later than 60 days
from the date such notice is mailed (the “Change
of Control Payment Date”),
pursuant to the procedures required by the Indenture and described in such
notice.
8. Asset
Sale Offers.
Within
360 days after the receipt of any Net Proceeds from an Asset Sale, the Company
may apply such Net Proceeds at its option: (i) to repay Senior Debt and, if
the
Senior Debt being repaid is revolving credit Indebtedness, to correspondingly
reduce commitments with respect thereto; or (ii) to purchase Replacement Assets
or make a capital expenditure in or that is used or useful in a Permitted
Business. Pending the final applications of any such Net Proceeds, the Company
may temporarily reduce revolving credit borrowings or otherwise invest such
Net
Proceeds in any manner that is not prohibited by the Indenture. Any Net Proceeds
from Asset Sales that are not applied or invested as provided in the preceding
paragraph will constitute “Excess Proceeds.” Within 10 days after the aggregate
amount of Excess Proceeds exceeds $10.0 million, the Company will make an offer
(an “Asset
Sale Offer”)
to all
Holders of Notes and all holders of other Indebtedness that is pari
passu
with the
Notes or any Note Guarantee containing provisions similar to those set forth
in
the Indenture with respect to offers to purchase with the proceeds of sales
of
assets to purchase the maximum principal amount of Notes and such other
pari
passu
Indebtedness that may be purchased out of the Excess Proceeds at an offer price
in cash equal to 100% of the principal amount thereof of the Notes and such
other pari
passu
Indebtedness plus accrued and unpaid interest to the date of purchase, and
will
be payable in cash. If any Excess Proceeds remain after consummation of an
Asset
Sale Offer, the Company may use such Excess Proceeds for any purpose not
otherwise prohibited by the Indenture. If the aggregate principal amount of
Notes and such other pari
passu
Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess
Proceeds, the Trustee will select Notes and the agent for such other
pari
passu
Indebtedness will such other pari
passu
Indebedness to be purchased on a pro
rata
basis
(with such adjustments for authorized denominations) based on the principal
amount of Notes and such other pari
passu
Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount
of
Excess Proceeds shall be reset at zero.
A-6
9. Selection
and Notice of Redemption.
If less
than all of the Notes are to be redeemed or purchased in an offer to purchase
at
any time, the Trustee shall select the Notes to be redeemed or purchased among
the Holders in compliance with the requirements of the principal national
securities exchange, if any, on which the Notes are listed, or, if the Notes
are
not so listed, on a pro
rata
basis,
by lot or in accordance with any other method the Trustee shall deem fair and
appropriate. At least 30 days but not more than 60 days before a redemption
date, the Company shall mail or cause to be mailed, by first class mail, a
notice of redemption to each Holder whose Notes are to be redeemed at its
registered address. The notice shall identify the Notes to be redeemed and
shall
state: (i) the redemption date; (ii) the redemption price; (iii) if any Note
is
being redeemed in part, the portion of the principal amount of such Note to
be
redeemed and that, after the redemption date upon surrender of such Note, a
new
Note or Notes in principal amount equal to the unredeemed portion of the
original Note shall be issued in the name of the Holder thereof upon
cancellation of the original Note; (iv) the name and address of the Paying
Agent; (v) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price and become due on the date fixed for
redemption; (vi) that, unless the Company defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and after
the redemption date; (vii) the paragraph of the Notes and/or Section of the
Indenture pursuant to which the Notes called for redemption are being redeemed;
and (viii) that no representation is made as to the correctness or accuracy
of
the CUSIP number, if any, listed in such notice or printed on the
Notes.
10. Denominations,
Transfer, Exchange.
The
Notes are in registered form without coupons in denominations of $1.00 or
integral multiples thereof. The transfer of Notes may be registered and Notes
may be exchanged as provided in the Indenture. The Registrar and the Trustee
may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company need not
exchange or register the transfer of any Note or portion of a Note selected
for
redemption, except for the unredeemed portion of any Note being redeemed in
part. Also, the Company need not exchange or register the transfer of any Notes
for a period of 15 days before a selection of Notes to be redeemed or during
the
period between a record date and the corresponding Interest Payment
Date.
A-7
11. Persons
Deemed Owners.
The
registered Holder of a Note will be treated as its owner for all
purposes.
12. Amendment,
Supplement and Waiver.
Subject
to certain exceptions, the Indenture, the Note Guarantees, or the Notes may
be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the then outstanding Notes voting as a single class,
and
any existing default or compliance with any provision of the Indenture, the
Note
Guarantees, or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes, if any, voting
as a
single class. Without the consent of the Holders of at least 75% in principal
amount of the Notes then outstanding voting as a single class (including,
without limitation, consents obtained in connection with a purchase of, or
tender offer or exchange offer for, the Notes), an amendment or waiver may
not
amend or modify any, of the provisions of the Indenture or the related
definitions affecting the subordination or ranking of the Notes or any Note
Guarantee in any manner adverse to the holders of the Notes or any Note
Guarantee. Without the consent of any Holder of a Note, the Indenture, the
Note
Guarantees, or the Notes may be amended or supplemented to cure any ambiguity,
defect or inconsistency, to provide for uncertificated Notes in addition to
or
in place of certificated Notes, to provide for the assumption of the Company’s
obligations to Holders of the Notes in case of a merger or consolidation or
sale
of all or substantially all of the assets of the Company, to make any change
that would provide any additional rights or benefits to the Holders of the
Notes
or that does not adversely affect the legal rights under the Indenture of any
such Holder, to comply with the requirements of the SEC in order to effect
or
maintain the qualification of the Indenture under the Trust Indenture Act or
to
allow any Subsidiary to guarantee the Notes, to provide for the issuance of
Additional Notes in accordance with the Indenture, or to allow any Guarantor
to
execute a supplemental indenture to the Indenture with respect to the
Notes.
13. Defaults
and Remedies.
In the
case of an Event of Default arising from certain events of bankruptcy or
insolvency, with respect to the Company or any of its Restricted Subsidiaries
that is a Significant Subsidiary, all outstanding Notes will become due and
payable immediately without further action or notice. If any other Event of
Default occurs and is continuing, the Trustee or the Holders of at least 25%
in
principal amount of the Notes may declare all the Notes to be due and payable
immediately by notice in writing to the Company specifying the Event of Default.
Holders of the Notes may not enforce the Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations, Holders of a majority
in principal amount of the then outstanding Notes may direct the Trustee in
its
exercise of any trust or power. The Trustee may withhold from Holders of the
Notes notice of any continuing Default or Event of Default (except a Default
or
Event of Default relating to the payment of principal, premium, if any, or
interest) if it determines that withholding notice is in their interest. The
Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of
the
Notes waive any existing Default or Event of Default and its consequences under
the Indenture except a continuing Default or Event of Default in the payment
of
interest or premium, if any, on, or the principal of, the Notes.
A-8
In
the
case of any Event of Default occurring by reason of any willful action or
inaction taken or not taken by or on behalf of the Company with the intention
of
avoiding payment of the premium that the Company would have had to pay if the
Company then had elected to redeem the Notes pursuant to Section 3.07 of the
Indenture concerning optional redemption, an equivalent premium shall also
become and be immediately due and payable to the extent permitted by law upon
the acceleration of the Notes.
14. Trustee
Dealings with Company.
The
Trustee, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or its Affiliates, and
may
otherwise deal with the Company or its Affiliates, as if it were not the
Trustee.
15. Subordination.
The
Company agrees, and each Holder by accepting a Note agrees, that the
Indebtedness evidenced by the Notes is subordinated in right of payment, to
the
extent and in the manner provided in Article X of the Indenture, to the prior
payment in full in cash or Cash Equivalents of all Senior Debt (whether
outstanding on the date of the Indenture or hereafter created, incurred, assumed
or guaranteed), and that the subordination is for the benefit of the holders
of
Senior Debt.
16. No
Recourse Against Others.
No
past, present or future director, officer, employee, incorporator, stockholder
or agent of the Company or any Guarantor, as such, shall have any liability
for
any obligations of the Company or any Guarantor under the Notes, any Note
Guarantees, the Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder of the Notes by accepting
a
Note waives and releases all such liability. The waiver and release are part
of
the consideration for issuance of the Notes. Such waiver may not be effective
to
waive liabilities under the federal securities laws.
17. Authentication.
This
Note shall not be valid until authenticated by the manual signature of the
Trustee or an authenticating agent.
18. CUSIP
Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Company has caused CUSIP numbers to be printed
on
the Notes and the Trustee may use CUSIP numbers in notices of redemption as
a
convenience to Holders. No representation is made as to the accuracy of such
numbers either as printed on the Notes or as contained in any, notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.
A-9
19. The
Company shall furnish to any Holder upon written request, and without charge
a
copy of the Indenture. Requests may be made to:
If
to the
Company and/or any Guarantor:
Spectrum
Brands, Inc.
Six
Concourse Parkway, Suite 3300
Atlanta,
Georgia 30328
Facsimile:
(770) 829-6298
Attention:
General Counsel
with
a
copy to:
Skadden,
Arps, Slate, Meagher & Flom LLP
One
Beacon Street
Boston,
Massachusetts 02108-3194
Facsimile:
617-305-4822
Attention:
Margaret A. Brown, Esq.
A-10
ASSIGNMENT
FORM
To
assign
this Note, fill in the form below: (I) or (we) assign and transfer this Note
to
|
|
|
|
(Insert
Assignee’s Legal Name)
|
|
|
|
|
|
(Insert
Assignee’s Social Security Number or Taxpayer Identification
Number.)
|
|
|
|
|
|
|
|
|
(Print
or Type Assignee’s Name, Address and Zip
Code)
|
|
and
irrevocably appoint
_______________________________________________________________________________
to
transfer this Note on the books of the Company. The agent may substitute
another to act for him.
|
|
Date:__________
|
|
|
Your
Signature:
(Sign
exactly as your name appears on the face of this Note)
|
|
|
Signature
Guarantee.*
|
|
* Participant
is recognized Signature Guarantee Medallion Program (or other signature
guarantor
acceptable to the Trustee).
|
A-11
OPTION
OF HOLDER TO ELECT PURCHASE
If
you
want to elect to have this Note purchased by the Company pursuant to Section
4.10 or 4.14 of the Indenture, check the box below:
|
G
Section
4.10
|
G
Section
4.14
|
If
you
want to elect to have only part of the Note purchased by the Company pursuant
to
Section 4.10 or Section 4.14 of the Indenture, state the amount you elect to
have purchased: $________
|
Date:
__________
|
|
|
Your
Signature:
(Sign
exactly as your name appears on the face of this Note)
|
|
|
Signature
Guarantee.*
|
Tax
Identification No:
|
|
|
|
|
* Participant
is recognized Signature Guarantee Medallion Program (or other signature
guarantor
acceptable to the Trustee).
|
|
A-12
SCHEDULE
OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The
following exchanges of a part of this Global Note for an interest in another
Global Note or of another Global Note for an interest in this Global Note,
have
been made:
|
Date
of Exchange
|
Amount
of Decrease in Principal
of
this Global Note
|
Amount
of Increase in Principal
of
this Global Note
|
Principal
Amount of this Global Note Following such decrease (or
increase)
|
Signature
of Authorized Officer of Trustee or
Note
Custodian
|
||||
A-13
EXHIBIT
B
FORM
OF NOTICE OF ELECTION
[insert
date]
Wells
Fargo Bank, N.A.
Corporate
Trust Services
6th
Street and Marquette Avenue
MAC
N-9303-120
Minneapolis,
MN 55479
Facsimile:
612-667-9825
Attention:
Spectrum Brands Administrator
Ladies
and Gentlemen:
The
undersigned, SPECTRUM BRANDS, INC., a Wisconsin corporation (the “Company”),
refers
to the Indenture, dated as of ___, 2007, among the Company, the Guarantors
and
Wells Fargo Bank, N.A., as trustee (“Trustee”).
Pursuant to the terms of the Indenture and the Notes, the Company hereby gives
you, as Trustee, irrevocable notice that the Company requests the following
Form
of Interest Payment for the Interest Period specified below:
(i) Form
of
Interest Payment: [Cash Interest][PIK Interest]
(ii) Interest
Period beginning on: _____________________.
| Very truly yours, | ||
|
SPECTRUM
BRANDS, INC.
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
B-1
EXHIBIT
C
FORM
OF NOTATION OF GUARANTEE
For
value
received, each Guarantor (which term includes any successor Person under the
Indenture) has, jointly and severally, unconditionally guaranteed, to the extent
set forth in the Indenture and subject to the provisions in the Indenture dated
as of [ ], 2007 (the “Indenture”)
among
Spectrum Brands, Inc. (the “Company”),
the
Guarantors named therein and Wells Fargo Bank, N.A., as trustee (the
“Trustee”),
(a)
the due and punctual payment of the principal of, premium, if any, and interest
on the Notes (as defined in the Indenture), whether at maturity, by
acceleration, redemption or otherwise, the due and punctual payment of interest
on overdue principal and premium, and, to the extent permitted by law, interest,
and the due and punctual performance of all other obligations of the Company
to
the Holders or the Trustee all in accordance with the terms of the Indenture
and
(b) in case of any extension of time of payment or renewal of any Notes or
any
of such other obligations, that the same shall be promptly paid in full when
due
or performed in accordance with the terms of the extension or renewal, whether
at Stated Maturity, by acceleration or otherwise. The obligations of the
Guarantors to the Holders of Notes and to the Trustee pursuant to the Note
Guarantee and, the Indenture are expressly set forth in Article XI of the
Indenture and reference is hereby made to the Indenture for the precise terms
of
the Note Guarantee. Each Holder of a Note, by accepting the same, (a) agrees
to
and shall be bound by such provisions, (b) authorizes and directs the Trustee,
on behalf of such Holder, to take such action as may be necessary or appropriate
to effectuate the subordination as provided in the Indenture and (c) appoints
the Trustee attorney-in fact of such Holder for such purpose; provided,
however,
that
the Indebtedness evidenced by this Note Guarantee shall cease to be so
subordinated and subject in right of payment upon any defeasance of this Note
in
accordance with the provisions of the Indenture. Capitalized terms used herein
but not otherwise defined shall have the meanings assigned to them in the
Indenture.
C-1
IN
WITNESS HEREOF, the Guarantors have caused this Notation of Guarantee to be
executed by a duly authorized officer.
| [Name of Guarantor] | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
C-2
EXHIBIT
D
FORM
OF SUPPLEMENTAL INDENTURE
TO
BE DELIVERED BY SUBSEQUENT GUARANTORS
Supplemental
Indenture (this “Supplemental
Indenture”),
dated
as of ____________, among _______________ (the “Guaranteeing
Subsidiary”),
Spectrum Brands, Inc., a Wisconsin Corporation (the “Company”),
the
Guarantors (as defined in the Indenture referred to herein) and Wells Fargo
Bank, N.A., as Trustee (the “Trustee”).
WITNESSETH
WHEREAS,
the Company and the Guarantors have heretofore executed and delivered to the
Trustee an indenture (the “Indenture”),
dated
as of [ ], 2007 providing for the issuance of an unlimited aggregate principal
amount of Variable Rate Toggle Senior Subordinated Notes Due 2013 (the
“Notes”);
WHEREAS,
the Indenture provides that under certain circumstances the Guaranteeing
Subsidiary shall execute and deliver to the Trustee a supplemental indenture
pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee
all of the Company’s obligations under the Notes and the Indenture on the terms
and conditions set forth herein (the “Note
Guarantee”);
and
WHEREAS,
pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute
and deliver this Supplemental Indenture.
NOW
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guaranteeing
Subsidiary and the Trustee mutually covenant and agree for the equal and ratable
benefit of the Holders of the Notes as follows:
1. Capitalized
Terms.
Capitalized terms used herein without definition shall have the meanings
assigned to them in the Indenture.
D-1
2. Agreement
to Guarantee.
The
Guaranteeing Subsidiary hereby agrees as follows:
(a) Along
with all other Guarantors, to jointly and severally Guarantee to each Holder
of
a Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of
the
Indenture, the Notes or the obligations of the Company hereunder or thereunder,
that:
|
(i)
|
the
principal of and interest on the Notes shall be promptly paid in
full when
due, whether at maturity, by acceleration, redemption or otherwise,
and
interest on the overdue principal of and interest on the Notes, if
any, if
lawful (subject in all cases to any applicable grace period provided
in
the Indenture), and all other obligations of the Company to the Holders
or
the Trustee hereunder or thereunder shall be promptly paid in full
or
performed, all in accordance with the terms hereof and thereof;
and
|
|
(ii)
|
in
case of any extension of time of payment or renewal of any Notes
or any of
such other obligations, the same shall be promptly paid in full when
due
or performed in accordance with the terms of the extension or renewal,
whether at Stated Maturity, by acceleration or otherwise. Failing
payment
when due of any amount so guaranteed or any performance so guaranteed
for
whatever reason, the Guarantors shall be jointly and severally obligated
to pay the same immediately.
|
(b) The
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or the Indenture, the absence of
any
action to enforce the same, any waiver or consent by any Holder of the Notes
with respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance
that might otherwise constitute a legal or equitable discharge or defense of
a
guarantor.
(c) Subject
to Section 6.06 of the Indenture and to the extent permitted by applicable
law,
each Guarantor hereby waives: diligence presentment, demand of payment, filing
of claims with a court in the event of insolvency or bankruptcy of the Company,
any right to require a proceeding first against the Company, protest, notice
and
all demands whatsoever.
(d) Subject
to Section 6.06 of the Indenture and to the extent permitted by applicable
law,
this Note Guarantee shall not be discharged except by complete performance
of
the obligations contained in the Notes and the Indenture.
(e) If
any
Holder or the Trustee is required by any court or otherwise to return to the
Company, the Guarantors, or any custodian, trustee, liquidator or other similar
official acting in relation to either the Company or the Guarantors, any amount
paid by either to the Trustee or such Holder, this Note Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and
effect.
D-2
(f) The
Guaranteeing Subsidiary shall not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby.
(g) As
between the Guarantors, on the one hand, and the Holders and the Trustee, on
the
other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article VI of the Indenture for the purposes of
this
Note Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby,
and (y) in the event of any declaration of acceleration of such obligations
as
provided in Article VI of the Indenture, such obligations (whether or not due
and payable) shall forthwith become due and payable by the Guarantors for the
purpose of this Note Guarantee.
(h) The
Guarantors shall have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights
of
the Holders under the Note Guarantee.
(j) Pursuant
to Section 11.03 of the Indenture, after giving effect to any maximum amount
and
any other contingent and fixed liabilities of the Guarantor that are relevant
under any applicable Bankruptcy Law, the Uniform Fraudulent Conveyance Act,
the
Uniform Fraudulent Transfer Act or any similar federal or state law to the
extent applicable, and after giving effect to any collections from, rights
to
receive contribution from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under Article
XI
of the Indenture, the Trustee, the Holders and the Guarantor irrevocably agree
that the obligation of such Guarantor shall result in the obligations of such
Guarantor under its Note Guarantee not constituting a fraudulent transfer or
conveyance.
3. Subordination.
The
Obligations of the Guaranteeing Subsidiary under its Note Guarantee pursuant
to
this Supplemental Indenture shall be junior and subordinated to the Senior
Debt
of the Guaranteeing Subsidiary on the same basis as the Notes are junior and
subordinated to the Senior Debt of the Company. For the purposes of the
foregoing sentence, the Trustee and the Holders shall have the right to receive
and/or retain payments by the Guaranteeing Subsidiary only at such time as
they
may receive and/or retain payments in respect of the Notes pursuant to the
Indenture, including Article X thereof.
4. Execution
and Delivery.
Each
Guaranteeing Subsidiary agrees that the Note Guarantees shall remain in full
force and effect notwithstanding any failure to endorse on each Note a notation
of such Note Guarantee.
D-3
5. Guaranteeing
Subsidiary May Consolidate, Etc., on Certain Terms.
Except
as otherwise provided in Section 11.05 of the Indenture; a Guarantor may not
sell or otherwise dispose of all or substantially all of its assets, or
consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person) another Person unless:
(a) immediately
after giving effect to such transaction, no Default or Event of Default exists;
and
(b) either:
(i) the
Person acquiring the property in any such sale or disposition or the Person
formed by or surviving any such consolidation or merger is a corporation,
organized or existing under (i) the laws of the United States, any state thereof
or the District of Columbia or (ii) the laws of the same jurisdiction as that
Guarantor and, in each case, assumes all the obligations of that Guarantor
under
the Indenture, its Note Guarantee pursuant to a supplemental indenture
satisfactory to the Trustee; or
(ii) in
the
case of a Subsidiary Guarantor, such sale or other disposition (A) complies
with
Section 4.10 of the Indenture, including the application of the Net Proceeds
therefrom and (B) is to a Person that is not a Restricted Subsidiary of the
Company.
In
case
of any such consolidation, merger, sale or conveyance and upon the assumption
by
the successor Person, by supplemental indenture, executed and delivered to
the
Trustee and satisfactory in form to the Trustee, of the Note Guarantee endorsed
upon the Notes and the due and punctual performance of all of the obligations
and conditions of the Indenture to be performed by a Guarantor, such successor
Person shall succeed to and be substituted for a Guarantor with the same effect
as if it had been named herein as a Guarantor. Such successor Person thereupon
may cause to be signed any or all of the Note Guarantees to be endorsed upon
all
of the Notes issuable hereunder which theretofore shall not have been signed
by
the Company and delivered to the Trustee. All the Note Guarantees so issued
shall in all respects have the same legal rank and benefit under the Indenture
as the Note Guarantees theretofore and thereafter issued in accordance with
the
terms of the Indenture as though all of such Note Guarantees had been issued
at
the date of the execution hereof.
Except
as
set forth in Articles IV and V of the Indenture, and notwithstanding clauses
(a)
and (b) above, nothing contained in the Indenture or in any of the Notes shall
prevent any consolidation or merger of a Guarantor with or into the Company
or
another Guarantor, or shall prevent any sale or conveyance of the property
of a
Guarantor as an entirety or substantially as an entirety to the Company or
another Guarantor.
D-4
6. Releases.
(a) Any
Guarantor shall be released and relieved of any obligations under its Note
Guarantee, (i) in connection with any sale or other disposition of all or
substantially all of the assets of that Guarantor (including by way of merger
or
consolidation) to a Person that is not (either before or after giving effect
to
such transaction) a Restricted Subsidiary of the Company, if the sale or other
disposition of all or substantially all of the assets of that Guarantor complies
with Section 4.10 of the Indenture, including the application of the Net
Proceeds therefrom; (ii) in connection with any sale of all of the Capital
Stock
of a Guarantor to a Person that is not (either before or after giving effect
to
such transaction) a Restricted Subsidiary of the Company, if the sale of all
such Capital Stock of that Guarantor complies with Section 4.10 of the
Indenture, including the application of the Net Proceeds therefrom; (iii) if
the
Company designates any Restricted Subsidiary that is a Guarantor as an
Unrestricted Subsidiary in accordance with the terms hereof; or (iv) in
connection with any sale of Capital Stock of a Guarantor to a Person that
results in the Guarantor no longer being a Subsidiary of the Company, if the
sale of such Capital Stock of that Guarantor complies with Section 4.10,
including the application of the Net Proceeds therefrom. Upon delivery by the
Company to the Trustee of an Officers’ Certificate and an Opinion of Counsel to
the effect that such sale or other disposition was made by the Company in
accordance with the provisions of the Indenture, including without limitation
Section 4.10 hereof, the Trustee shall execute any documents reasonably required
in order to evidence the release of any Guarantor from its obligations under
its
Note Guarantee.
(b) Any
Guarantor not released from its obligations under its Note Guarantee shall
remain liable for the full amount of principal of and interest on the Notes
and
for the other obligations of any Guarantor under the Indenture as provided
in
Article X of the Indenture.
7. No
Recourse Against Others.
No
past, present or future director, officer, employee, incorporator, stockholder
or agent of the Guaranteeing Subsidiary, as such, shall have any liability
for
any obligations of the Company or any Guaranteeing Subsidiary under the Notes,
any Note Guarantees, the Indenture or this Supplemental Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases
all
such liability. The waiver and release are part of the consideration for
issuance of the Notes. Such waiver may not be effective to waive liabilities
under the federal securities laws.
8. NEW
YORK LAW TO GOVERN.
THE
INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE
THIS
SUPPLEMENTAL INDENTURE.
9. Counterparts.
The
parties may sign any number of copies of this Supplemental Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
D-5
10. Effect
of Headings.
The
Section headings herein are for convenience only and shall not affect the
construction hereof.
11. Trustee.
The
Trustee shall not be responsible in any manner whatsoever for or in respect
of
the validity or sufficiency of this Supplemental Indenture or for or in respect
of the recitals contained herein, all of which recitals are made solely by
the
Guaranteeing Subsidiary and the Company.
D-6
IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture
to
be duly executed and attested, all as of the date first above
written.
Dated:
_____________
| [Guaranteeing Subsidiary] | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
| [Name of Guarantor] | ||
| |
|
|
| By: | ||
|
Name:
|
||
| Title: | ||
| SPECTRUM BRANDS, INC. | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
| WELLS FARGO BANK, N.A., AS TRUSTEE | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
D-7
SCHEDULE
I
GUARANTORS
|
Tetra
Holding (US), Inc.
|
|
ROV
Holding, Inc.
|
|
ROVCAL,
Inc.
|
|
United Industries Corporation
|
|
Schultz
Company
|
|
Spectrum
Neptune US Holdco Corporation
|
|
United
Pet Group, Inc.
|
|
DB
Online, LLC
|
|
Southern
California Foam, Inc.
|
|
Aquaria,
Inc.
|
|
Aquarium
Systems, Inc.
|
|
Perfecto
Manufacturing, Inc.
|
Sch-I
SPECTRUM
BRANDS, INC.
8
1/2% SENIOR SUBORDINATED NOTES DUE 2013
FIFTH
SUPPLEMENTAL INDENTURE
Dated
as of March 29, 2007
to
INDENTURE
Dated
as of September 30, 2003
U.S.
BANK
NATIONAL
ASSOCIATION,
as
Trustee
FIFTH
SUPPLEMENTAL INDENTURE
FIFTH
SUPPLEMENTAL INDENTURE (this “Fifth Supplemental
Indenture”),
dated
as of March 29, 2007 among Spectrum Brands, Inc., a Wisconsin corporation
(formerly, Rayovac Corporation) (the “Company”),
the
Guarantors (as defined in the Indenture referred to herein) and U.S. Bank
National Association, as Trustee (the “Trustee”).
WITNESSETH
WHEREAS,
the Company and the Guarantors have heretofore executed and delivered to the
Trustee an indenture, dated as of September 30, 2003, as supplemented by the
Supplemental Indenture dated as of October 24, 2003, the Second Supplemental
Indenture dated as of January 20, 2005, the Third Supplemental Indenture dated
as of February 7, 2005 and the Fourth Supplemental Indenture dated as of May
3,
2005 (the “Indenture”),
providing for the issuance of the Company’s 8 1/2% Senior Subordinated Notes due
2013 (the “Notes”);
and
WHEREAS,
the Company has offered to exchange the Notes for new Variable Rate Toggle
Senior Subordinated Notes due 2013 (the “Offer”)
and
have solicited the consents of the Holders to certain amendments to the
provisions of the Indenture and a waiver of certain alleged or existing
defaults, pursuant to the Offering Circular and Consent Solicitation Statement,
dated March 16, 2007 (the “Offering
Circular”);
and
WHEREAS,
pursuant to Section 9.02 of the Indenture, the Trustee is authorized to execute
and deliver this Fifth Supplemental Indenture;
NOW,
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Company, the
Guarantors and the Trustee mutually covenant and agree for the equal and ratable
benefit of the Holders of the Notes as follows:
1. Capitalized
Terms.
Capitalized terms used herein without definition shall have the meanings
assigned to them in the Indenture.
2. Amendments.
Subject
to paragraph
9
hereof,
the Indenture is hereby amended as follows:
| (a) |
Section
4.03, the covenant entitled “Reports,” shall be amended in its entirety to
read “SECTION 4.03. Intentionally
Omitted.”;
|
| (b) |
Section
4.04, the covenant entitled “Compliance Certificate,” shall be amended in
its entirety to read “SECTION 4.04. Intentionally
Omitted.”;
|
|
(c)
|
Section
4.05, the covenant entitled “Taxes,” shall be amended in its entirety to
read “SECTION 4.05. Intentionally
Omitted.”;
|
| (d) |
Section
4.06, the covenant entitled “Stay, Extension and Usury Laws,” shall be
amended in its entirety to read “SECTION 4.06. Intentionally
Omitted.”;
|
| (e) |
Section
4.07, the covenant entitled “Restricted Payments,” shall be amended in its
entirety to read “SECTION 4.07. Intentionally
Omitted.”;
|
| (f) |
Section
4.08, the covenant entitled “Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries,” shall be amended in its entirety to
read “SECTION 4.08. Intentionally Omitted.”
;
|
| (g) |
Section
4.09, the covenant entitled “Incurrence of Indebtedness and Issuance of
Preferred Stock,” shall be amended in its entirety to read “SECTION 4.09.
Intentionally Omitted.”;
|
| (h) |
Section
4.10, the covenant entitled “Asset Sales,” shall be amended in its
entirety to read “SECTION 4.10. Intentionally
Omitted.”;
|
| (i) |
Section
4.11, the covenant entitled “Transactions with Affiliates,” shall be
amended in its entirety to read “SECTION 4.11. Intentionally
Omitted.”;
|
| (j) |
Section
4.12, the covenant entitled “Liens,” shall be amended in its entirety to
read “SECTION 4.12. Intentionally
Omitted.”;
|
| (k) |
Section
4.13, the covenant entitled “Corporate Existence,” shall be amended in its
entirety to read “SECTION 4.13. Intentionally
Omitted.”;
|
| (l) |
Section
4.14, the covenant entitled “Offer to Repurchase Upon Change of Control,”
shall be amended in its entirety to read “SECTION 4.14. Intentionally
Omitted.”;
|
| (m) |
Section
4.15, the covenant entitled “Limitation on Senior Subordinated Debt,”
shall be amended in its entirety to read “SECTION 4.15. Intentionally
Omitted.”;
|
| (n) |
Section
4.16, the covenant entitled “Designation of Restricted and Unrestricted
Subsidiaries,” shall be amended in its entirety to read “SECTION 4.16.
Intentionally Omitted.”;
|
2
|
(o)
|
Section
4.17, the covenant entitled “Payments for Consent,” shall be amended in
its entirety to read “SECTION 4.17. Intentionally
Omitted.”;
|
| (p) |
Section
4.18, the covenant entitled “Business Activities,” shall be amended in its
entirety to read “SECTION 4.18. Intentionally
Omitted.”;
|
| (q) |
Section
4.19, the covenant entitled “Limitation on Issuances and Sales of Equity
Interests in Restricted Subsidiaries,” shall be amended in its entirety to
read “SECTION 4.19. Intentionally
Omitted.”;
|
| (r) |
Section
4.20, the covenant entitled “Additional Note Guarantees,” shall be
amended
in
its entirety to read “SECTION 4.20. Intentionally
Omitted.”;
|
| (s) |
Section
5.01, entitled
“Merger, Consolidation, or Sale of Assets,” shall
be amended
in
its entirety to read “SECTION 5.01 Intentionally Omitted.”;
|
| (t) |
Section
5.02, entitled “Successor Corporation Substituted,” shall be amended in
its entirety to read “SECTION 5.02. Intentionally Omitted.”;
and
|
| (u) |
Subsections
(v) and (vi) of Section 6.01 relating to “Events of Default,” shall be
amended in their entirety to read “(v) Intentionally Omitted” and “(vi)
Intentionally Omitted.”
|
Nothing
in this Supplemental Indenture shall be deemed to delete any provision from
the
Indenture to the extent that it is required or deemed to be included by
operation of the TIA.
3. Waiver.
Subject
to paragraph
9
hereof,
to the fullest extent permitted by the Indenture, any Alleged Default (as
defined in the Offering Circular) is hereby waived.
4. GOVERNING
LAW.
THE
INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE
THIS
FIFTH SUPPLEMENTAL INDENTURE BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES
OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
5. Severability.
In case
any provision of this Fifth Supplemental Indenture shall be invalid, illegal
or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
3
6. Counterparts.
The
parties may sign any number of copies of this Supplemental Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement. Delivery of an executed counterpart of a signature page to this
Supplemental Indenture by facsimile or electronic PDF shall be effective as
delivery of a manually executed counterpart of this Supplemental
Indenture.
7. No
Modification.
Except
as expressly waived, amended or supplemented hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Fifth Supplemental Indenture
shall form a part of the Indenture for all purposes, and every Holder shall
be
bound hereby and entitled to the benefits hereof.
8. Effect
of Headings.
The
Section headings herein are for convenience only and shall not affect the
construction hereof.
9. Effectiveness.
This
Fifth Supplemental Indenture shall become effective on and as of the date and
time that the counterparts hereto shall have been executed and delivered by
each
of the parties hereto (the “Effective
Time”).
On or
after the Effective Time, on the earliest date that Exchange Consideration
(as
defined in the Offering Circular) has been issued pursuant to the Offer, the
Fifth Supplemental Indenture will become operative as of the date
hereof.
10.
Trustee.
The
Trustee shall not be responsible in any manner whatsoever for or in respect
of
the validity or sufficiency of this Fifth Supplemental Indenture or for or
in
respect of the recitals contained herein, all of which recitals are made solely
by the Guarantors and the Company.
[Remainder
of this Page Intentionally Left Blank]
4
IN
WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
| TETRA HOLDING (US), INC. | ||
| |
|
|
| By: | /s/ James T. Lucke | |
|
Name:
James T. Lucke
|
||
| Title: Assistant Secretary | ||
| ROV HOLDING, INC. | ||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name:
Randall
J. Steward
|
||
| Title: Vice President | ||
| ROVCAL, INC. | ||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name:
Randall
J. Steward
|
||
| Title: Vice President and Treasurer | ||
|
UNITED
INDUSTRIES CORPORATION
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name:
Randall
J. Steward
|
||
|
Title:
Executive
Vice President, Treasurer and
Chief
Financial Officer
|
||
|
SCHULTZ
COMPANY
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name:
Randall
J. Steward
|
||
|
Title:
Vice
President, Treasurer and Chief
Financial
Officer
|
||
|
SPECTRUM
NEPTUNE US HOLDCO CORPORATION
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name:
Randall
J. Steward
|
||
|
Title: Vice
President, Treasurer and Chief
Financial
Officer
|
||
[Signature
Page to Fifth Supplemental
Indenture]
|
UNITED
PET GROUP, INC.
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name:
Randall
J. Steward
|
||
|
Title:
Vice
President, Treasurer and Chief
Financial
Officer
|
||
|
DB
ONLINE, LLC
|
||
|
By:
United Pet Group, Inc., Its Sole Member
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name:
Randall
J. Steward
|
||
|
Title:
Vice
President, Treasurer and Chief
Financial
Officer
|
||
|
SOUTHERN
CALIFORNIA FOAM, INC.
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name:
Randall
J. Steward
|
||
|
Title:
Vice
President, Treasurer and Chief
Financial
Officer
|
||
|
AQUARIA,
INC.
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name:
Randall
J. Steward
|
||
|
Title:
Vice
President, Treasurer and Chief
Financial
Office
|
||
|
AQUARIUM
SYSTEMS, INC.
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name:
Randall
J. Steward
|
||
|
Title:
Vice
President, Treasurer and Chief
Financial
Office
|
||
|
PERFECTO
MANUFACTURING, INC.
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name:
Randall
J. Steward
|
||
|
Title:
Vice
President, Treasurer and Chief
Financial
Office
|
||
[Signature
Page to Fifth Supplemental
Indenture]
|
SPECTRUM
BRANDS, INC.
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name:
Randall
J. Steward
|
||
|
Title:
Executive
Vice President and Chief
Financial
Officer
|
||
|
U.S.
BANK NATIONAL ASSOCIATION, AS
TRUSTEE
|
||
| |
|
|
| By: | /s/ Richard Proksoch | |
|
Name:
Richard Prokosch
|
||
|
Title:
Vice
President
|
||
[Signature
Page to Fifth Supplemental
Indenture]
EXECUTION
COPY
CREDIT
AGREEMENT
dated
as
of March 30,
2007,
among
SPECTRUM
BRANDS, INC.,
as
the
Borrower,
GOLDMAN
SACHS CREDIT PARTNERS L.P.,
as
the
Administrative Agent, the Collateral Agent and the Syndication
Agent
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
the
Deposit Agent,
BANK
OF
AMERICA, N.A.,
as
an LC
Issuer
and
the
Lenders Party Hereto
GOLDMAN
SACHS CREDIT PARTNERS L.P.
and
BANC
OF
AMERICA SECURITIES LLC,
as
Joint
Lead Arrangers and Joint Bookrunners
TABLE
OF CONTENTS
|
Section
|
Page
|
|
|
ARTICLE
I
|
||
|
DEFINITIONS
AND ACCOUNTING TERMS
|
||
|
Section
1.01. Defined Terms
|
1
|
|
|
Section
1.02. Other Interpretive Provisions
|
34
|
|
|
Section
1.03. Accounting Terms
|
34
|
|
|
Section
1.04. Rounding
|
35
|
|
|
Section
1.05. Times of Day
|
35
|
|
|
Section
1.06. Currency Equivalents Generally
|
35
|
|
|
Section
1.07. Designation as Senior Debt
|
35
|
|
|
ARTICLE
II
|
||
|
THE
COMMITMENTS AND CREDIT EXTENSIONS
|
||
|
Section
2.01. The Loans
|
35
|
|
|
Section
2.02. Borrowings, Conversions and Continuations of Loans
|
36
|
|
|
Section
2.03. LC Facility; Letters of Credit
|
38
|
|
|
Section
2.04. Prepayments
|
46
|
|
|
Section
2.05. Termination or Reduction of Commitments
|
49
|
|
|
Section
2.06. Repayment of Loans
|
50
|
|
|
Section
2.07. Interest
|
50
|
i
|
Section
2.08. Fees
|
51
|
|
|
Section
2.09. Computation of Interest and Fees
|
52
|
|
|
Section
2.10. Evidence of Indebtedness
|
52
|
|
|
Section
2.11. Payments Generally; Administrative Agent’s Clawback
|
52
|
|
|
Section
2.12. Sharing of Payments by Lenders
|
54
|
|
|
ARTICLE
III
|
||
|
TAXES,
YIELD PROTECTION AND ILLEGALITY
|
||
|
Section
3.01. Taxes
|
55
|
|
|
Section
3.02. Illegality
|
58
|
|
|
Section
3.03. Inability to Determine Rates
|
59
|
|
|
Section
3.04. Increased Costs; Reserves on Eurocurrency Rate Loans
|
59
|
|
|
Section
3.05. Compensation for Losses
|
60
|
|
|
Section
3.06. Mitigation Obligations; Replacement of Lenders
|
61
|
|
|
Section
3.07. Survival
|
61
|
|
|
ARTICLE
IV
|
||
|
CONDITIONS
PRECEDENT TO EFFECTIVENESS
|
||
|
ARTICLE
V
|
||
|
REPRESENTATIONS
AND WARRANTIES
|
||
|
Section
5.01. Existence, Qualification and Power; Compliance with
Laws
|
64
|
|
|
Section
5.02. Authorization; No Contravention
|
65
|
ii
|
Section
5.03. Governmental Authorization; Other Consents
|
65
|
|
|
Section
5.04. Binding Effect
|
65
|
|
|
Section
5.05. Financial Statements; No Material Adverse Effect
|
66
|
|
|
Section
5.06. Litigation
|
66
|
|
|
Section
5.07. No Default
|
66
|
|
|
Section
5.08. Ownership of Property
|
66
|
|
|
Section
5.09. Environmental Compliance
|
67
|
|
|
Section
5.10. Insurance
|
67
|
|
|
Section
5.11. Taxes
|
68
|
|
|
Section
5.12. ERISA Compliance
|
68
|
|
|
Section
5.13. Subsidiaries; Equity Interests
|
69
|
|
|
Section
5.14. Margin Regulations; Investment Company Act
|
69
|
|
|
Section
5.15. Disclosure
|
69
|
|
|
Section
5.16. Intellectual Property; Licenses, Etc
|
69
|
|
|
Section
5.17. Solvency
|
70
|
|
|
Section
5.18. Senior Debt Status
|
70
|
|
|
ARTICLE
VI
|
||
|
AFFIRMATIVE
COVENANTS
|
||
|
Section
6.01. Financial Statements
|
70
|
|
|
Section
6.02. Certificates; Other Information
|
71
|
|
|
Section
6.03. Notices
|
72
|
iii
|
Section
6.04. Nonpublic Information
|
73
|
|
|
Section
6.05. Payment of Obligations
|
73
|
|
|
Section
6.06. Preservation of Existence, Etc
|
73
|
|
|
Section
6.07. Maintenance of Properties
|
74
|
|
|
Section
6.08. Maintenance of Insurance
|
74
|
|
|
Section
6.09. Compliance with Laws
|
74
|
|
|
Section
6.10. Books and Records
|
74
|
|
|
Section
6.11. Inspection Rights
|
74
|
|
|
Section
6.12. Use of Proceeds
|
75
|
|
|
Section
6.13. Information Regarding Collateral; Additional
Subsidiaries
|
75
|
|
|
Section
6.14. Compliance with Environmental Laws
|
75
|
|
|
Section
6.15. Further Assurances
|
76
|
|
|
Section
6.16. Interest Rate Hedging
|
76
|
|
|
Section
6.17. Ratings
|
76
|
|
|
Section
6.18. Certain Post-Closing Collateral Obligations
|
76
|
|
|
ARTICLE
VII
|
||
|
NEGATIVE
COVENANTS
|
||
|
Section
7.01. Liens
|
77
|
|
|
Section
7.02. Indebtedness
|
79
|
|
|
Section
7.03. Investments
|
81
|
|
|
Section
7.04. Fundamental Changes
|
83
|
iv
|
Section
7.05. Dispositions
|
84
|
|
|
Section
7.06. Restricted Payments
|
85
|
|
|
Section
7.07. Change in Nature of Business
|
86
|
|
|
Section
7.08. Transactions with Affiliates
|
86
|
|
|
Section
7.09. Burdensome Agreements
|
86
|
|
|
Section
7.10. Use of Proceeds
|
87
|
|
|
Section
7.11. Senior Secured Leverage Ratio
|
87
|
|
|
Section
7.12. Capital Expenditures
|
87
|
|
|
Section
7.13. Amendment of Certain Documents
|
88
|
|
|
Section
7.14. Accounting Changes
|
88
|
|
|
Section
7.15. Prepayments, Etc. of Indebtedness
|
88
|
|
|
Section
7.16. Speculative Transactions
|
88
|
|
|
Section
7.17. Senior Debt Status
|
88
|
|
|
ARTICLE
VIII
|
||
|
EVENTS
OF DEFAULT AND REMEDIES
|
||
|
Section
8.01. Events of Default
|
89
|
|
|
Section
8.02. Remedies Upon Event of Default
|
91
|
|
|
ARTICLE
IX
|
||
|
ADMINISTRATIVE
AGENT
|
||
|
Section
9.01. Appointment of Agents
|
91
|
v
|
Section
9.02. Powers and Duties
|
92
|
|
|
Section
9.03. General Immunity
|
92
|
|
|
Section
9.04. Agents Entitled to Act as Lender
|
93
|
|
|
Section
9.05. Lenders’ Representations, Warranties and
Acknowledgments
|
94
|
|
|
Section
9.06. Right to Indemnity
|
94
|
|
|
Section
9.07. Successor Agents
|
95
|
|
|
Section
9.08. Collateral Documents
|
95
|
|
|
Section
9.09. No Arranger Duties
|
96
|
|
|
ARTICLE
X
|
||
|
MISCELLANEOUS
|
||
|
Section
10.01. Amendments, Waivers, Etc
|
96
|
|
|
Section
10.02. Notices and Other Communications; Facsimile Copies
|
98
|
|
|
Section
10.03. No Waiver; Cumulative Remedies
|
100
|
|
|
Section
10.04. Expenses; Indemnity; Damage Waiver
|
101
|
|
|
Section
10.05. Payments Set Aside
|
102
|
|
|
Section
10.06. Successors and Assigns
|
102
|
|
|
Section
10.07. Confidentiality
|
106
|
|
|
Section
10.08. Right of Setoff
|
107
|
|
|
Section
10.09. Counterparts; Effectiveness; Integration
|
107
|
|
|
Section
10.10. Survival of Representations and Warranties
|
107
|
|
|
Section
10.11. Severability
|
107
|
vi
|
Section
10.12. Replacement of Lenders
|
108
|
|
|
Section
10.13. Governing Law; Jurisdiction; Etc
|
108
|
|
|
Section
10.14. WAIVER OF JURY TRIAL
|
109
|
|
|
Section
10.15. Patriot Act
|
110
|
|
|
Section
10.16. Concerning the Permitted ABL Facility
|
110
|
vii
SCHEDULES
|
2.01
|
Commitments,
LC Deposits and Applicable Percentages
|
||
|
2.03
|
Existing
Letters of Credit
|
||
|
5.06
|
Litigation
|
||
|
5.08(b)
|
Owned
Real Property
|
||
|
5.08(c)
|
Leased
Real Property
|
||
|
5.09
|
Environmental
Matters
|
||
|
5.13
|
Subsidiaries;
Other Equity Interests
|
||
|
5.16
|
Intellectual
Property Claims
|
||
|
7.01(b)
|
Existing
Permitted Liens
|
||
|
7.02(h)
|
Existing
Permitted Indebtedness
|
||
|
7.03(f)
|
Existing
Permitted Investments
|
||
|
7.05
|
Certain
Dispositions
|
||
|
7.08
|
Certain
Transactions with Affiliates
|
||
|
7.09
|
Certain
Existing Restrictions
|
||
|
10.02
|
Administrative
Agent’s Office, Certain Addresses for
Notices
|
EXHIBITS
|
A
|
Form
of Assignment and Assumption
|
||
|
B
|
Form
of Committed Loan Notice
|
||
|
C
|
Form
of Compliance Certificate
|
||
|
D
|
Form
of Guarantee and Collateral Agreement
|
||
|
Form
of ABL Facility Intercreditor Agreement
|
|||
|
F
|
Subordination
Terms of Certain Intercompany
Indebtedness
|
viii
CREDIT
AGREEMENT
This
CREDIT AGREEMENT (this “Agreement”)
is
entered into as of March 30, 2007, among Spectrum Brands, Inc., a Wisconsin
corporation (the “Borrower”),
each
lender from time to time party hereto (each, a “Lender”),
Goldman Sachs Credit Partners L.P. (“GSCP”),
as
the Administrative Agent, the Collateral Agent and the Syndication Agent,
Wachovia Bank, National Association, as the Deposit Agent, and Bank of America,
N.A., as an LC Issuer.
The
parties hereto covenant and agree as follows:
ARTICLE
I
DEFINITIONS
AND ACCOUNTING TERMS
Section
1.01. Defined
Terms.
As used
in this Agreement, the following terms shall have the meanings set forth
below:
“2013
New Indenture”
means
the Indenture, dated as of March 30, 2007, among the Borrower, the guarantors
named therein and Wells Fargo Bank, N.A. as trustee.
“2013
New Notes”
means
the Variable Rate Toggle Pay-in-Kind Senior Subordinated Notes due 2013 issued
pursuant to the 2013 New Indenture in connection with the Exchange
Offer.
“2013
Original Indenture” means
the
Indenture, dated as of September 30, 2003, among the Borrower, the guarantors
named therein and U.S. Bank National Association, as trustee, as heretofore
supplemented.
“2013
Original Notes”
means
the 8-1/2% Senior Subordinated Notes of the Borrower due 2013, issued pursuant
to the 2013 Original Indenture.
“2013
Supplemental Indenture”
means
the Supplemental Indenture to the 2013 Original Indenture, dated as of March
30,
2007, among the Borrower, the guarantors named therein and the U.S. Bank
National Association, as trustee, entered into in connection with the Exchange
Offer, and any other Supplemental Indenture to the 2013 Original Indenture
executed in connection with the Exchange Offer.
“2015
Indenture”
means
the Indenture, dated as of February 7, 2005, among the Borrower, the
guarantors named therein and U.S. Bank National Association, as
trustee.
“2015
Notes”
means
the 7-3/8% Senior Subordinated Notes of the Borrower due 2015, issued pursuant
to the 2015 Indenture.
“ABL
Collateral”
has
the
meaning specified in the ABL Intercreditor Agreement.
“ABL
Intercreditor Agreement”
means
an intercreditor agreement substantially in the form of Exhibit
E
hereto,
with such modifications thereto as may be agreed to (a) by the Administrative
Agent, if, in the judgment of the Administrative Agent, such modifications
would
not be adverse to the interests of the Lenders in any material respect, or
(b)
the Required Lenders.
1
“Acceptable
Bank”
has
the
meaning specified in the definition of “Cash Equivalents”.
“Acquisition”
means
any transaction or series of related transactions by the Borrower or its
Subsidiaries for the purpose of, or resulting directly or indirectly in, (a)
the
acquisition of all or substantially all of the assets of a Person, or of any
business or division of a Person, (b) the acquisition of more than 50% of the
capital stock, partnership interests, membership interests or equity of any
Person, or otherwise causing any Person to become a Subsidiary or (c) a merger
or consolidation or any other combination with another Person (other than a
Person that is a Subsidiary).
“Administrative
Agent”
means
GSCP, in its capacity as the administrative agent under this Agreement, or
any
successor administrative agent.
“Administrative
Agent’s Office”
means
the Administrative Agent’s address and, as appropriate, account set forth on
Schedule 10.02,
or such
other address or account as the Administrative Agent may from time to time
notify to the Borrower and the Lenders.
“Administrative
Questionnaire”
means
an Administrative Questionnaire in a form supplied by the Administrative
Agent.
“Affiliate”
means,
with respect to any Person, another Person that directly, or indirectly through
one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.
“Agents”
means,
collectively, the Administrative Agent, the Collateral Agent, the Deposit Agent
and the Syndication Agent.
“Agreement”
means
this Credit Agreement.
“Applicable
Percentage”
means
(a) in respect of the Dollar Term B Facility, with respect to any
Dollar Term B Lender at any time, the percentage (carried out to the ninth
decimal place) of the Dollar Term B Facility represented by (i) on or
prior to the Closing Date, such Dollar Term B Lender’s Dollar Term B
Commitment at such time and (ii) thereafter, the aggregate principal amount
of such Dollar Term B Lender’s Dollar Term B Loans at such time, (b)
in respect of the Dollar Term B II Facility, with respect to any Dollar Term
B
II Lender at any time, the percentage (carried out to the ninth decimal place)
of the Dollar Term B II Facility represented by (i) on or prior to the
Closing Date, such Dollar Term B II Lender’s Dollar Term B II Commitment at such
time and (ii) thereafter, the aggregate principal amount of such Dollar
Term B II Lender’s Dollar Term B II Loans at such time, (c) in respect of the
Euro Term Facility, with respect to any Euro Term Lender at any time, the
percentage (carried out to the ninth decimal place) of the Euro Term Facility
represented by (i) on or prior to the Closing Date, such Euro Term Lender’s
Euro Term Commitment at such time and (ii) thereafter, the aggregate
principal amount of such Euro Term Lender’s Euro Term Loans at such time
and (d) in respect of the LC Facility, with respect to any LC Lender at any
time, the percentage (carried out to the ninth decimal place) of the LC Facility
represented by (i) on or prior to the Closing Date, such LC Lender’s LC
Commitment at such time and (ii) thereafter, such LC Lender’s LC Deposit at
such time (and if the LC Deposits have been returned to the LC Lenders or
applied to reimburse LC Disbursements, the Applicable Percentage in respect
of
the LC Facility shall be determined based upon the LC Deposits most recently
in
effect, giving effect to any assignments). The initial Applicable Percentage
of
each Lender in respect of each Facility is set forth opposite the name of such
Lender on Schedule 2.01
or in
the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable.
2
“Applicable
Rate”
means
(a) in the case of Dollar Term Loans, (i) 4.00% per annum with respect to
Eurodollar Rate Loans and (ii) 3.00% per annum with respect to Base Rate
Loans and (b) in the case of Euro Term Loans, 4.50% per annum.
“Approved
Electronic Communications”
means
any notice, communication, information, document or other material that any
Loan
Party provides to the Administrative Agent pursuant to any Loan Document or
the
transactions contemplated therein that is distributed to the Lenders and the
LC
Issuers by means of electronic communications pursuant to Section
10.02(b).
“Arrangers”
means
GSCP and Banc of America Securities LLC, in their capacities as joint lead
arrangers and joint bookrunners for the Facilities.
“Assignment
and Assumption”
means
an assignment and assumption entered into by a Lender and an Eligible Assignee
(with the consent of any party whose consent is required under Section 10.06(d)),
and
accepted by the Administrative Agent, substantially in the form of Exhibit
A
or any
other form approved by the Administrative Agent.
“Assignment
Effective Date”
has
the
meaning specified in Section
10.06(c).
“Attributable
Indebtedness”
means,
on any date, (a) in respect of any Capitalized Lease of any Person, the
capitalized amount of the remaining lease thereof that would appear on a balance
sheet of such Person prepared as of such date in accordance with GAAP, (b)
in
respect of any Synthetic Lease Obligation, the capitalized amount of the
remaining lease or similar payments under the relevant lease or other applicable
agreement or instrument that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP if such lease or other
agreement or instrument were accounted for as a Capitalized Lease and (c) all
Synthetic Debt of such Person as of such date.
“Average
Dollar Equivalent”
means,
as of any date of determination in relation to any Indebtedness outstanding
on
such date denominated in a currency other than Dollars, the amount of Dollars
that could be purchased with an amount of such currency equal to the amount
of
such Indebtedness using the average of the foreign exchange spot rates of
JPMorgan Chase Bank, N.A., or another commercial bank reasonably satisfactory
to
the Administrative Agent, on the last Business Day of each of the 12 calendar
months preceding such date.
“Base
Rate”
means,
for any day, a fluctuating rate per annum equal to the higher of (a) the Federal
Funds Rate in effect on such day plus 1/2 of 1% and (b) the Prime Rate in effect
on such day. Any change in the Base Rate due to a change in the Federal Funds
Rate or the Prime Rate shall be effective on the effective day of such change
in
the Federal Funds Rate or the Prime Rate, respectively.
3
“Base
Rate Loan”
means
a
Loan that bears interest based on the Base Rate.
“Borrower”
has
the
meaning specified in the introductory paragraph hereto.
“Borrowing”
means
a
Dollar Term B Borrowing, a Dollar Term B II Borrowing or a Euro Term
Borrowing, as the context may require.
“Business
Day”
means
any day other than (a) a Saturday, Sunday or other day on which commercial
banks
in New York are authorized to close under the Laws of New York or are in fact
closed in the state where the Administrative Agent’s Office is located, (b) if
such day relates to a Eurocurrency Rate Loan, a day on which banks are not
open
for general business in London and (c) if such day relates to a Eurocurrency
Rate Loan denominated other than in Euro, a day on which banks are not open
for
general business in the principal financial center of the country of that
currency or, if such day relates to a Eurocurrency Rate Loan denominated in
Euros, any day that is not a TARGET Day.
“Capital
Expenditures”
means,
with respect to any Person for any period, all expenditures that, in accordance
with GAAP, would be required to be capitalized and shown on the consolidated
balance sheet of the Borrower, but excluding expenditures made with Net Cash
Proceeds of Dispositions that are reinvested as provided in Section 2.04(b)(ii)
or in
connection with the replacement, substitution, restoration or trade-in of assets
to the extent financed (a) from insurance proceeds (or other similar recoveries)
paid on account of the loss of or damage to the assets being replaced or
restored, (b) with awards of compensation arising from the taking by eminent
domain or condemnation of the assets being replaced or (c) with a credit by
the
seller of such assets for assets being contemporaneously traded in.
“Capitalized
Leases”
means
all leases that have been or should be, in accordance with GAAP, recorded as
capitalized leases.
“Cash
Collateral Account”
means
a
blocked deposit account of the Borrower at a commercial bank that is in the
name
of the Administrative Agent and under the sole dominion and control of the
Administrative Agent and in which the Administrative Agent has a perfected
security interest, all in a manner reasonably satisfactory to the Administrative
Agent.
“Cash
Equivalents”
means
any of the following types of Investments:
(a) readily
marketable obligations issued or directly and fully guaranteed or insured by
the
United States of America, an OECD Member, any member of the European Economic
Union or any agency or instrumentality thereof having maturities of not more
than 365 days from the date of acquisition thereof; provided
that the
full faith and credit of the United States of America, such OECD Member or
such
member of the European Economic Union is pledged in support
thereof;
(b) time
deposits with, or insured certificates of deposit or bankers’ acceptances of,
any commercial bank that (each such bank, an “Acceptable
Bank”)
(i)
(A) is a Lender, (B) is organized under the laws of the United States of
America, any state thereof or the District of Columbia or is the principal
banking subsidiary of a bank holding company organized under the laws of the
United States of America, any state thereof or the District of Columbia, and
is
a member of the Federal Reserve System or (C) is a member of the applicable
central bank of any OECD Member or any member of the European Economic Union,
(ii) issues (or the parent of which issues) commercial paper rated as described
in clause (c) of this definition and (iii) has combined capital and surplus
of at least $250,000,000 (or the equivalent in the applicable currency), in
each
case with maturities of not more than 365 days from the date of acquisition
thereof;
4
(c) commercial
paper issued by any Person organized under the laws of any state of the United
States of America or the District of Columbia, any member state of the European
Economic Union or any OECD Member or any Acceptable Bank and rated at least
“Prime-1” (or the then equivalent grade) by Moody’s or Fitch or at least
“A-1” (or the then equivalent grade) by S&P, or guaranteed by any
industrial company with long-term unsecured debt rating (at the time of
investment) of at least Aa by Moody’s or Fitch or at least AA by S&P, in
each case with maturities of not more than 365 days from the date of acquisition
thereof;
(d) investments,
classified in accordance with GAAP as current assets of the Borrower or any
of
its Subsidiaries, in money market investment programs that are administered
by
financial institutions that have the highest rating obtainable from either
Moody’s or S&P, and the portfolios of which are limited solely to
investments of the character, quality and maturity described in clauses (a),
(b) and (c) of this definition;
(e) repurchase
agreements with any Lender or any primary dealer maturing within 365 days from
the date of investment that are fully collateralized by investment instruments
that would otherwise be Cash Equivalents; provided
that the
terms of such repurchase agreements comply with the guidelines set forth in
the
Federal Financial Institutions Examination Council Supervisory Policy —
Repurchase Agreements of Depository Institutions With Securities Dealers and
Others, as adopted by the Comptroller of the Currency on October 31,
1985;
(f) sterling
bills of exchange eligible for rediscount at the Bank of England and accepted
by
an Acceptable Bank (or their dematerialized equivalents);
(g) any
other
debt security approved by the Required Lenders; and
(h) any
investment made by a Foreign Subsidiary in its jurisdiction of organization
that
is of character, credit quality and maturity similar to one of the investments
described in clauses (a) through (f) above.
“Casualty
Event”
means
any casualty or other insured damage to, or any taking under any power of
eminent domain or condemnation or similar proceeding of, any assets of the
Borrower or any of its Subsidiaries.
“CERCLA”
means
the Comprehensive Environmental Response, Compensation, and Liability Act of
1980, as amended.
5
“CERCLIS”
means
the Comprehensive Environmental Response, Compensation, and Liability
Information System maintained by the U.S. Environmental Protection
Agency.
“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, (b) any change in any Law 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.
“Change
of Control” means,
an
event or series of events by which:
(a) any
“person” or “group” (as such terms are used in Sections 13(d) and
14(d)
of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of
such
person or its subsidiaries, and any Person acting in its capacity as trustee,
agent or other fiduciary or administrator of any such plan) other than THLee
or
any group of which THLee is a member becomes the “beneficial owner” (as defined
in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except
that
a person or group shall be deemed to have “beneficial ownership” of all
securities that such person or group has the right to acquire (such right,
an
“option
right”),
whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of 40% or more of either the aggregate ordinary
voting power or the aggregate equity value represented by the issued and
outstanding Equity Interests of the Borrower;
(b) during
any period of 12 consecutive months, a majority of the members of the board
of
directors or other equivalent governing body of the Borrower ceases to be
composed of individuals (i) who were members of that board or equivalent
governing body on the first day of such period, (ii) whose election or
nomination to that board or equivalent governing body was approved by
individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing
body or (iii) whose election or nomination to that board or other equivalent
governing body was approved by individuals referred to in clauses (i) and (ii)
above constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body (excluding, in the case
of
clauses (ii) and (iii), any individual whose initial nomination for, or
assumption of office as, a member of that board or equivalent governing body
occurs as a result of an actual or threatened solicitation of proxies or
consents for the election or removal of one or more directors by any person
or
group other than a solicitation for the election of one or more directors by
or
on behalf of the board of directors), or
(c) the
occurrence of a “Change of Control” (or a similar event, however denominated)
under, and as defined in, any Indenture or any agreement, instrument or document
governing or evidencing any Material Indebtedness of the Borrower that
refinanced Indebtedness under any Indenture (in each case, after giving effect
to any applicable grace period).
“Class”
refers
(a) when used in reference to any Loan or Borrowing, to whether such Loan,
or
the Loans comprising such Borrowing, are Dollar Term B Loans, Dollar Term B
II Loans or Euro Term Loans, (b) when used in reference to any Commitment,
to
whether such Commitment is a Dollar Term B Commitment, a Dollar Term B II
Commitment, a Euro Term Commitment or an LC Commitment and (c) when used in
reference to any Lender, to whether such Lender is a Dollar Term B Lender,
a Dollar Term B II Lender, a Euro Term Lender or an LC Lender.
6
“Closing
Date”
means
the first date on which all of the conditions precedent set forth in
Article IV
are
satisfied or waived in accordance with Section 10.01.
“Code”
means
the Internal Revenue Code of 1986, as amended from time to time.
“Collateral”
means
all of the “Collateral”, “Mortgaged Property” and terms of similar import
referred to in the Collateral Documents and intended under the terms of the
Collateral Documents to be subject to Liens in favor of the Collateral Agent
for
the benefit of the Secured Parties.
“Collateral
Agent”
means
GSCP, in its capacity as the collateral agent under the Guarantee and Collateral
Agreement and the other Collateral Documents, or any successor collateral
agent.
“Collateral
Documents”
means,
collectively, the Guarantee and Collateral Agreement, the Mortgages, the Foreign
Pledge Agreements, the deposit account or securities account control agreements
required to be entered into by this Agreement or the Guarantee and Collateral
Agreement and each other document or agreement that creates or purports to
create a Lien in favor of the Collateral Agent, for the benefit of the Secured
Parties.
“Commitment”
means
a
Dollar Term B Commitment, a Dollar Term B II Commitment, a Euro Term
Commitment or an LC Commitment, as the context may require.
“Committed
Loan Notice”
means
a
notice of (a) a Borrowing, (b) a conversion of Dollar Term Loans from one
Type to the other or (c) a continuation of Eurocurrency Rate Loans, delivered
by
the Borrower pursuant to Section 2.02(a),
which
shall be substantially in the form of Exhibit B.
“Compliance
Certificate”
means
a
certificate substantially in the form of Exhibit C.
“Consolidated
Current Assets”
means,
as of any date of determination, the total assets of the Borrower and its
Subsidiaries on a consolidated basis that may properly be classified as current
assets in accordance with GAAP, excluding cash and Cash
Equivalents.
“Consolidated
Current Liabilities”
means,
as of any date of determination, the total liabilities of the Borrower and
its
Subsidiaries on a consolidated basis that may properly be classified as current
liabilities in accordance with GAAP, excluding the current portion of long-term
debt.
7
“Consolidated
EBITDA” means,
for any period, for the Borrower and its Subsidiaries on a consolidated basis,
an amount equal to Consolidated Net Income for such period plus
(a)
without duplication and to the extent deducted in calculating such Consolidated
Net Income, the sum of: (i) Consolidated Interest Expense for such period,
(ii)
the provision for Taxes payable by the Borrower and its Subsidiaries for such
period, (iii) depreciation and amortization expense for such period, (iv)
severance costs for such period, (v) Restructuring Charges and cash
extraordinary or cash non-recurring losses or charges incurred by the Borrower
and the Subsidiaries for such period, provided
that
such Restructuring Charges and such cash extraordinary and cash non-recurring
losses and charges shall not exceed, in the aggregate since the Closing Date,
an
amount (such amount being referred to as the “Permitted
Basket Amount”)
equal
to (A) $50,000,000 minus
(B) the
aggregate amount of cash payments not deducted as set forth in clause (b)(ii)
below in reliance on the proviso set forth at the end of such clause, (vi)
non-cash extraordinary or non-cash non-recurring losses or charges for such
period (and excluding any such non-cash losses and charges in respect of an
item
that was included in Consolidated Net Income in a prior period) and (vii) fees,
costs and expenses incurred by the Borrower and its Subsidiaries during the
fiscal year ended September 30, 2007 in connection with the Exchange Offer
and the other Transactions in an aggregate amount not to exceed $50,000,000
and
minus
(b) the sum of (i) without duplication and to the extent included in
calculating such Consolidated Net Income, extraordinary or non-recurring gains
for such period and (ii) all cash payments made during such period on account
of
non-cash losses and charges (other than any Restructuring Charges) that were
added to Consolidated EBITDA pursuant to clause (a)(vi) above in a prior period,
provided
that no
cash payment shall be required to be deducted pursuant to this clause (b)(ii)
to
the extent such payment does not exceed the Permitted Basket Amount as in effect
at the end of the period during which such payment was made (such Permitted
Basket Amount to be determined, for purposes of this calculation, without giving
effect to such payment); provided
that
(A) in the event the Borrower or its Subsidiaries shall have consummated an
Acquisition, the Consolidated EBITDA for any period during which such
Acquisition shall have been consummated shall be calculated on a pro forma
basis
(based on the historical financial statements of the Person acquired or the
assets of which were acquired) to give effect to such Acquisition (including
any
resulting increase or reduction in Indebtedness) as if such Acquisition had
occurred on the first day of such period and (B) in the event the Borrower
or
its Subsidiaries shall have consummated a Specified Disposition, the
Consolidated EBITDA for any period during which such Specified Disposition
shall
have been consummated shall be calculated on a pro forma basis (based on the
historical financial statements of the Borrower and its Subsidiaries) to give
effect to such Specified Disposition (including any resulting increase or
reduction in Indebtedness) as if such Specified Disposition had occurred on
the
first day of such period, in each case as reasonably determined by the Borrower.
The Compliance Certificate delivered for any period for which any adjustments
to
the Consolidated EBITDA set forth in clause (A) or (B) above shall have been
made shall include a computation of such adjustments in reasonable
detail.
“Consolidated
Interest Expense”
means,
for any period, the interest expense for the Borrower and its Subsidiaries
on a
consolidated basis for such period, determined in accordance with GAAP. In
the
event the Borrower or any Subsidiary shall have consummated an Acquisition
or a
Specified Disposition, the Consolidated Interest Expense for any period during
which such Acquisition or Specified Disposition shall have been consummated
shall be calculated on a pro forma basis to give effect to all increases or
decreases in Indebtedness directly related to such Acquisition or such Specified
Disposition as if such Acquisition or such Specified Disposition had occurred
on
the first day of such period, in each case as reasonably determined by the
Borrower. The Compliance Certificate delivered for any period for which any
adjustments to the Consolidated Interest Expense set forth in the preceding
sentence shall have been made shall include a computation of such adjustments
in
reasonable detail.
8
“Consolidated
Net Income”
means,
for any period, for the Borrower and its Subsidiaries on a consolidated basis,
the net income (or loss) of the Borrower and its Subsidiaries for such period,
provided
that
there shall be excluded (a) the net income of any Subsidiary to the extent
that
the declaration or payment of dividends or similar distributions by such
Subsidiary from such income is not at the time permitted by the terms of its
charter or by-laws or any judgment, decree, order or other Law, or any
agreement, indenture or other instrument that is binding on such Subsidiary
(other than any agreement, indenture or other instrument the breach of which
could not reasonably be expected to result in a Material Adverse Effect), (b)
the net income of any Person (other than the Borrower) in which any other Person
(other than the Borrower or a Wholly-Owned Subsidiary or any director holding
qualifying shares, or any Person holding shares due to native ownership
requirements, in accordance with applicable Law) has a joint interest, except
to
the extent of the amount of dividends or other distributions actually paid
by
such Person to the Borrower or a Wholly-Owned Subsidiary during such period
and
(c) any after-tax gains or losses attributable to any Specified Disposition
or
returned surplus assets of any Pension Plan.
“Consolidated
Secured Indebtedness”
means,
as of any date of determination, (a) the aggregate outstanding amount on such
date of Indebtedness (other than Indebtedness referred to in clause (f) of
the
definition of such term) of the Borrower and its Subsidiaries on a consolidated
basis that (i) is secured by Liens on assets of the Borrower or any of its
Subsidiaries or (ii) represents Attributable Indebtedness (other than Synthetic
Debt), minus
(or, if
negative, plus)
(b) the
amount (which may be negative) by which the Equivalent in Dollars of any such
Indebtedness denominated in a foreign currency exceeds the Average Dollar
Equivalent of such Indebtedness, minus
(c) the
lesser of (i) the aggregate amount of unrestricted cash and Cash Equivalents
owned by the Borrower and its Subsidiaries on such date and (ii)
$25,000,000.
“Consolidated
Working Capital”
means,
as at any date of determination, the excess of Consolidated Current Assets
over
Consolidated Current Liabilities.
“Consolidated
Working Capital Adjustment”
means,
for any period on a consolidated basis, the amount (which may be a negative
number) by which Consolidated Working Capital as of the beginning of such period
exceeds (or is less than) Consolidated Working Capital as of the end of such
period.
“Contractual
Obligation”
means,
as to any Person, any provision of any security issued by such Person or of
any
agreement, instrument or other undertaking to which such Person is a party
or by
which it or any of its property is bound, other than the Loan
Documents.
“Control”
means
the possession, directly or indirectly, of the power (a) to direct or cause
the
direction of the management or policies of a Person, whether through the ability
to exercise voting power, by contract or otherwise, or (b) to vote 10% or more
of the Equity Interests having ordinary voting power for the election of members
of the board of directors or equivalent governing body of such Person.
“Controlling”
and
“Controlled”
have
meanings correlative thereto.
9
“Credit
Extension”
means
the making of a Borrowing or the issuance, amendment, renewal or extension
of a
Letter of Credit.
“Debtor
Relief Laws” means
the
Bankruptcy Code of the United States, and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization or similar
debtor relief Laws of the United States or other applicable jurisdictions from
time to time in effect and affecting the rights of creditors
generally.
“Default”
means
any event or condition that constitutes an Event of Default or that, with the
giving of any notice, the passage of time or both, would constitute an Event
of
Default.
“Default
Rate”
means
(a) when used with respect to Obligations other than LC Lender Fees, an interest
rate per annum equal to (i) the Base Rate, plus
(ii) the
Applicable Rate applicable to Base Rate Loans, plus
(iii)
2.0% per annum; provided,
however,
that
with respect to a Eurocurrency Rate Loan, the Default Rate shall be an interest
rate per annum equal to the interest rate (including the Applicable Rate)
otherwise applicable to such Loan plus 2.0% per annum; and (b) when used with
respect to LC Lender Fees, the aggregate rate per annum at which LC Lender
Fees
shall otherwise accrue hereunder plus
2.0% per
annum.
“Deposit
Agent”
means
Wachovia Bank, National Association, in its capacity as the deposit agent for
the LC Facility under this Agreement, or any successor deposit
agent.
“Disposition”
or
“Dispose”
means,
with respect to any Person, the sale, transfer, or other disposition of any
assets by such Person, including any sale and leaseback transaction (but
excluding other license or lease arrangements entered into in the ordinary
course of business or that are customarily entered into by the companies in
the
same or similar line of business).
“Dollar”
and
“$”
mean
lawful money of the United States.
10
“Dollar
Term B Borrowing”
means
a
borrowing consisting of simultaneous Dollar Term B Loans of the same Type and,
in the case of Eurocurrency Rate Loans, having the same Interest Period made
by
the Dollar Term B Lenders pursuant to Section 2.01(a).
“Dollar
Term B Commitment”
means,
as to each Lender, its obligation, if any, to make Dollar Term B Loans to the
Borrower pursuant to Section 2.01(a)
in an
aggregate principal amount at any one time outstanding not to exceed the amount
set forth opposite such Lender’s name on Schedule 2.01
under
the caption “Dollar Term B Commitment” or opposite such caption in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable, as such amount may be adjusted from time to time in accordance
with this Agreement. The initial aggregate amount of the Lenders’ Dollar Term B
Commitments is $1,000,000,000.
“Dollar
Term B Facility”
means,
at any time, (a) on or prior to the Closing Date, the aggregate amount of the
Dollar Term B Commitments at such time and (b) thereafter, the aggregate
principal amount of the Dollar Term B Loans of all Dollar Term B Lenders
outstanding at such time.
“Dollar
Term B Lender”
means
any Lender that has a Dollar Term B Commitment or holds a Dollar Term B
Loan.
“Dollar
Term B Loan”
means
an advance made by any Dollar Term B Lender under the Dollar Term B
Facility.
“Dollar
Term B II Borrowing”
means a
borrowing consisting of simultaneous Dollar Term B II Loans of the same
Type
and, in the case of Eurocurrency Rate Loans, having the same Interest Period
made by the Dollar Term B II Lenders pursuant to Section 2.01(a).
“Dollar
Term B II Commitment”
means,
as to each Lender, its obligation, if any, to make Dollar Term B II Loans
to the
Borrower pursuant to Section 2.01(a) in an aggregate principal amount at
any one
time outstanding not to exceed the amount set forth opposite such Lender’s name
on Schedule 2.01 under the caption “Dollar Term B II Commitment” or opposite
such caption in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable, as such amount may be adjusted from
time
to time in accordance with this Agreement. The initial aggregate amount
of the
Lenders’ Dollar Term B II Commitments is $200,000,000.
“Dollar
Term B II Facility”
means,
at any time, (a) on or prior to the Closing Date, the aggregate amount
of the
Dollar Term B II Commitments at such time and (b) thereafter, the aggregate
principal amount of the Dollar Term B II Loans of all Dollar Term B II
Lenders
outstanding at such time.
“Dollar
Term B II Lender”
means
any Lender that has a Dollar Term B II Commitment or holds a Dollar Term
B II
Loan.
“Dollar
Term B II Loan”
means an
advance made by any Dollar Term B II Lender under the Dollar Term B II
Facility.
“Dollar
Term Facility”
means a
Dollar Term B Facility or a Dollar Term B II Facility, as the context may
require.
“Dollar
Term Lender”
means a
Dollar Term B Lender or a Dollar Term B II Lender, as the context may
require.
“Dollar
Term Loan”
means
a
Dollar Term B Loan or a Dollar Term B II Loan, as the context may
require.
“Domestic
Subsidiary”
means
any Subsidiary that is organized under the laws of any political subdivision
of
the United States.
“Dormant
Subsidiaries”
means
any Subsidiary so designated by the Borrower in a certificate to the
Administrative Agent as to the matters below, so long as, in the case of each
Subsidiary so designated, (a) such Subsidiary, taken together with all other
Subsidiaries so designated, does not have consolidated assets with a fair market
value in the aggregate in excess of 2.5% of the Total Assets and (b) such
Subsidiary transacts no business and has no operations other than activities
required to maintain its existence; provided
that no
Subsidiary may be a Dormant Subsidiary if the Borrower or any of its other
Subsidiaries provides any credit support thereto or is liable in any respect
for
the liabilities thereof greater in the aggregate than such Subsidiary’s fair
market value.
11
“Eligible
Assignee”
means
(a) any Lender, any Affiliate of any Lender and any Related Fund (any two or
more Related Funds being treated as a single Eligible Assignee for all purposes
hereof) and (b) any commercial bank, insurance company, investment or
mutual fund or other entity that is an “accredited investor” (as defined in
Regulation D under the Securities Act of 1933) and which extends credit or
buys loans; provided
that
neither the Borrower nor any Affiliate of the Borrower shall be an Eligible
Assignee.
“Environmental
Laws”
means
any and all Federal, state, local, and foreign statutes, laws, regulations,
codes, ordinances, rules, judgments, orders, decrees, permits, concessions,
grants, franchises, licenses, agreements or governmental restrictions relating
to pollution, the protection of the environment or natural resources, or the
presence, management or release into the environment of any pollutants,
including those related to hazardous substances or wastes, air emissions and
discharges to waste or public systems, or to health and safety
matters.
“Environmental
Liabilities”
means
all liabilities, obligations, damages, losses, claims, actions, suits,
judgments, orders, directives, fines, penalties, demands, investigations,
notices, notices of violation, fees, expenses and costs (including
administrative oversight costs, natural resource damages and the costs of any
investigation, study, sampling, testing, abatement, cleanup, removal,
remediation or other response action necessary to remove, remediate, clean
up or
abate any Hazardous Materials), whether contingent or otherwise, arising out
of
or relating to (a) compliance or non-compliance with any Environmental
Law, (b) the generation, use, handling, manufacture, possession, presence,
processing, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials or (d) the Release or
threatened Release of any Hazardous Materials into the environment.
“Environmental
Permit”
means
any permit, approval, identification number, license or other authorization
required under any Environmental Law.
“Equity
Interests”
means,
with respect to any Person, all of the shares of capital stock of (or other
ownership or profit interests in) such Person, all of the warrants, options
or
other rights for the purchase or acquisition from such Person of shares of
capital stock of (or other ownership or profit interests in) such Person, all
of
the securities convertible into or exchangeable for shares of capital stock
of
(or other ownership or profit interests in) such Person or warrants, rights
or
options for the purchase or acquisition from such Person of such shares (or
such
other interests), and all of the other ownership or profit interests in such
Person (including partnership, member or trust interests therein), whether
voting or nonvoting, and whether or not such shares, warrants, options, rights
or other interests are outstanding on any date of determination.
“Equity
Issuance”
means
the issuance by the Borrower or any of its Subsidiaries of any Equity Interests,
or the receipt by the Borrower or any of its Subsidiaries of any capital
contribution, other than (a) any such issuance of Equity Interests to, or
receipt of any such capital contribution from, the Borrower or any of its
Subsidiaries, (b) any such issuance of Equity Interests of the Borrower to
directors, officers and employees of the Borrower and its Subsidiaries in the
ordinary course of business pursuant to compensation or incentive plans of
the
Borrower or (c) any such issuance of Equity Interests as directors’ qualifying
shares.
12
“Equivalent”
in
Dollars of any foreign currency on any date means the equivalent in Dollars
of
such foreign currency determined by using the prevailing foreign exchange spot
rate of JPMorgan Chase Bank, N.A., or another commercial bank reasonably
acceptable to the Administrative Agent, and the “Equivalent” in any foreign
currency of Dollars on any date means the equivalent in such foreign currency
of
Dollars determined by using the prevailing foreign exchange spot rate of
JPMorgan Chase Bank, N.A., or such other commercial bank, for such
date.
“ERISA”
means
the Employee Retirement Income Security Act of 1974, as amended.
“ERISA
Affiliate”
means
any trade or business (whether or not incorporated) under common control with
the Borrower within the meaning of Section 414(b)
or
(c)
of the
Code (and Sections 414(m)
and
(o)
of the
Code for purposes of provisions relating to Section 412
of the
Code).
“ERISA
Event”
means
(a) a Reportable Event with respect to a Pension Plan; (b) the existence with
respect to any Pension Plan of an “accumulated funding deficiency” (as defined
in Section 412 of the Code or Section 302 of ERISA), and, whether or not waived,
the failure to make by its due date a required installment under Section 412(m)
of the Code with respect to any Pension Plan or the failure to make any required
contribution to a Multiemployer Plan; (c) a withdrawal by the Borrower or any
ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during
a plan year in which it was a substantial employer (as defined in
Section 4001(a)(2) of ERISA) or a cessation of operations that is treated
as such a withdrawal under Section 4062(e) of ERISA; (d) a complete or
partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer
Plan, or notification that a Multiemployer Plan is in reorganization or has
been
terminated, within the meaning of Title IV of ERISA; (e) the filing of a notice
of intent to terminate, the treatment of a Pension Plan amendment as a
termination under Sections 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan;
(f)
an event or condition which constitutes grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any
Pension Plan or Multiemployer Plan; (g) a determination that any Pension Plan
is, or is expected to be, in “at-risk” status (as defined in Section
303(i)(4)(A) of ERISA or Section 403(i)(4)(A) of the Code); (h) the application
for a minimum funding waiver with respect to a Pension Plan; (i) the imposition
of any liability under Title IV of ERISA, other than for PBGC premiums due
but
not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA
Affiliate; (j) the occurrence of a nonexempt prohibited transaction (within
the
meaning of Section 4975 of the Code or Section 406 of ERISA) which could result
in liability to the Borrower or any of its Subsidiaries or (k) any other event
similar to those described under (a) - (j) with respect to any Foreign
Plan.
“Euro”
and
“€”
means
the single currency of the participating members of the European
Union.
13
“Euro
Term Borrowing”
means
a
borrowing consisting of simultaneous Euro Term Loans having the same Interest
Period made by the Euro Term Lenders pursuant to Section 2.01(c).
“Euro
Term Commitment”
means,
as to each Lender, its obligation, if any, to make Euro Term Loans to the
Borrower pursuant to Section 2.01(c)
in an
aggregate principal amount at any one time outstanding not to exceed the amount
set forth opposite such Lender’s name on Schedule 2.01
under
the caption “Euro Term Commitment” or opposite such caption in the Assignment
and Assumption pursuant to which such Lender becomes a party hereto, as
applicable, as such amount may be adjusted from time to time in accordance
with
this Agreement. The initial aggregate amount of the Lenders’ Euro Term
Commitments is the Equivalent in Euros as of the Closing Date of $350,000,000
(€262,000,000).
“Euro
Term Facility”
means,
at any time, (a) on or prior to the Closing Date, the aggregate amount of the
Euro Term Commitments at such time and (b) thereafter, the aggregate principal
amount of the Euro Term Loans of all Euro Term Lenders outstanding at such
time.
“Euro
Term Lender”
means
any Lender that has a Euro Term Commitment or holds a Euro Term
Loan.
“Euro
Term Loan”
means
an advance made by any Euro Term Lender under the Euro Term
Facility.
“Eurocurrency
Rate”
means,
for any Interest Period, with respect to a Eurocurrency Rate Loan, the rate
per
annum (rounded upward, if necessary, to the next 1/100th of 1%) determined
by
the Administrative Agent as follows:
|
Eurocurrency
Rate =
|
Eurocurrency
Base Rate
1.00
- Eurocurrency Reserve
Percentage
|
“Eurocurrency
Base Rate”
means,
for such Interest Period, the rate per annum equal to the British Bankers
Association LIBOR Rate (“BBA
LIBOR”),
as
published by Reuters (or other commercially available source providing
quotations of BBA LIBOR as designated by the Administrative Agent from time
to
time) at approximately 11:00 a.m., London time, two Business Days prior to
the
commencement of such Interest Period, for deposits in Dollars or in Euros,
as
applicable (in each case, for delivery on the first day of such Interest Period)
with a term equivalent to such Interest Period. If such rate is not available
at
such time for any reason, then the “Eurocurrency Base Rate” for such Interest
Period shall be the rate per annum determined by the Administrative Agent to
be
the rate at which deposits in Dollars or in Euros, as applicable, for delivery
on the first day of such Interest Period in same day funds in the approximate
amount of the Eurocurrency Rate Loan being made, continued or converted by
JPMorgan Chase Bank, N.A. and with a term equivalent to such Interest Period
would be offered by the London Branch of JPMorgan Chase Bank, N.A. to major
banks in the London interbank eurocurrency market at their request at
approximately 11:00 a.m., London time, two Business Days prior to the first
day
of such Interest Period.
“Eurocurrency
Rate Loan”
means
a
Loan that bears interest at a rate based on the Eurocurrency Rate.
14
“Eurocurrency
Reserve Percentage”
means,
for any day during any Interest Period, the reserve percentage (expressed as
a
decimal, carried out to five decimal places) in effect on such day, whether
or
not applicable to any Lender, under regulations issued from time to time by
the
FRB for determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as “Eurocurrency liabilities”). The Eurocurrency
Rate for each outstanding Eurocurrency Rate Loan shall be adjusted automatically
as of the effective date of any change in the Eurocurrency Reserve
Percentage.
“Eurodollar
Rate Loan”
means
any Eurocurrency Rate Loan denominated in Dollars.
“Event
of Default”
has
the
meaning specified in Section 8.01.
“Excess
Cash Flow”
means,
for any period, the remainder of
(a) the
sum,
without duplication, of
(i) Consolidated
EBITDA for such period
plus
(ii) to
the
extent deducted or not added in calculating Consolidated EBITDA, the aggregate
amount of all extraordinary or non-recurring cash gains recognized by the
Borrower and its Subsidiaries for such period,
plus
(iii) the
Consolidated Working Capital Adjustment for such period (if a positive
number),
less
(b) the
sum,
without duplication, of
(i) cash
from
operations used by the Borrower and its Subsidiaries during such period to
make
repayments of the outstanding principal amount of the Loans pursuant to
Section 2.06,
scheduled principal repayments of any other long-term Indebtedness of the
Borrower and its Subsidiaries and the portion of any scheduled payments with
respect to Capital Leases allocable to principal, provided,
in each
case, that such Indebtedness is permanently reduced as a result
thereof,
plus
(ii) cash
from
operations used by the Borrower and its Subsidiaries during such period to
make
voluntary prepayments of the outstanding principal amount of the Loans pursuant
to Section 2.04(a),
voluntary principal prepayments of any other long-term Indebtedness of the
Borrower and its Subsidiaries and the portion of any voluntary prepayments
with
respect to Capital Leases allocable to principal, provided,
in each
case, that such Indebtedness is permanently reduced as a result
thereof,
15
plus
(iii) cash
from
operations used by the Borrower and its Subsidiaries during such period to
make
Capital Expenditures,
plus
(iv) all
Taxes
paid by the Borrower and its Subsidiaries during such period,
plus
(v) the
cash
component of Consolidated Interest Expense of the Borrower and its Subsidiaries
for such period,
plus
(vi) cash
from
operations used by the Borrower and its Subsidiaries during such period to
pay
Restricted Payments permitted under Section
7.06(d)
or
(e),
plus
(vii) to
the
extent added or not deducted in calculating Consolidated EBITDA, extraordinary
and non-recurring cash charges (including cash Restructuring Charges) for such
period,
plus
(viii) cash
expenses or charges incurred by the Borrower and its Subsidiaries during such
period in connection with or in contemplation of any Investment permitted under
Section 7.03,
issuance of Equity Interests permitted hereunder and issuance or incurrence
of
Indebtedness permitted under Section 7.02,
whether
or not consummated,
plus
(ix) to
the
extent added or not deducted in calculating Consolidated EBITDA, cash costs,
fees and expenses (including any applicable premium) incurred by the Borrower
and its Subsidiaries during such period in connection with the Transactions
or
exchanges, redemptions or refinancings of any Indebtedness that are permitted
by
this Agreement,
plus
(x) cash
from
operations used by the Borrower and its Subsidiaries during such period to
consummate a Permitted Acquisition,
16
plus
(xi) the
Consolidated Working Capital Adjustment for such period (if a negative number),
represented by the absolute amount thereof,
plus
(xii) cash
from
operations used by the Borrower and its Subsidiaries to make payments in
satisfaction of non-current liabilities, other than Indebtedness, during such
period.
“Exchange
Offer”
means
the exchange offer and the related solicitation of consents to certain
amendments and waivers consummated pursuant to the Exchange Offer
Circular.
“Exchange
Offer Circular”
means
the Offering Circular and Consent Solicitation Statement of the Borrower dated
March 16, 2007.
“Excluded
Taxes”
means,
with respect to any Agent, any Lender, any LC Issuer or any other recipient
of
any payment to be made by or on account of any obligation of the Borrower
hereunder, (a) Taxes imposed on or measured by its overall net income (however
denominated), and franchise Taxes imposed on it (in lieu of net income Taxes),
by the jurisdiction (or any political subdivision thereof) under the Laws of
which such recipient is organized or in which its principal office is located
or
in which it otherwise does business or, in the case of any Lender, in which
its
applicable Lending Office is located or in which it otherwise does business,
(b)
any branch profits taxes imposed by the United States, (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 10.12),
any
United States withholding tax with respect to the Borrower that is imposed
on
amounts payable to such Foreign Lender at the time such Foreign Lender becomes
a
party hereto (or designates a new Lending Office) or is attributable to such
Foreign Lender’s failure or inability (other than as a result of a Change in
Law) to comply with Section 3.01(f),
except
to the extent that such Foreign Lender (or its assignor, if any) was entitled,
at the time of designation of a new Lending Office (or assignment), to receive
additional amounts from the Borrower with respect to such Tax pursuant to
Section 3.01(a)
and (d)
in the case of a Lender that is not a Foreign Lender, other than an assignee
pursuant to a request by the Borrower under Section 10.12,
any Tax
that is imposed on amounts payable to such Lender at the time such Lender
becomes a party hereto (or designates a new Lending Office) or is attributable
to such Lender’s failure or inability (other than as a result of a Change in
Law) to comply with Section 3.01(f),
except
to the extent that such Lender (or its assignor, if any) was entitled at the
time of designation of a new Lending Office (or assignment), to receive
additional amounts from the Borrower with respect to such Tax pursuant to
Section 3.01(a).
“Existing
Credit Agreement”
means
the Fourth Amended and Restated Credit Agreement dated as of February 7, 2005,
among the Borrower, certain Subsidiaries of the Borrower party thereto, the
lenders party thereto, Bank of America, N.A., as administrative agent, and
the
other parties thereto, as heretofore amended.
17
“Existing
Letters of Credit”
means
the letters of credit set forth on Schedule 2.03.
“Facility”
means
the Dollar Term B Facility, the Dollar Term B II Facility, the Euro Term
Facility or the LC Facility, as the context may require.
“Facilities
Reduction Amount”
means,
as of any date of determination, the amount by which (a) the sum of (i) the
aggregate principal amount of Loans and the aggregate amount of LC Deposits,
in
each case, made on the Closing Date exceeds (b) the sum of (i) the
aggregate principal amount of Loans and the aggregate amount of LC Exposure
and
unused LC Commitments outstanding on such date plus
(ii) the aggregate principal amount of Loans prepaid on or prior to such
date pursuant to Section 2.04(b)(ii),
2.04(b)(iii),
2.04(b)(iv)
or
2.04(b)(viii).
“Federal
Funds Rate”
means,
for any day, the rate per annum (expressed, as a decimal, rounded upwards,
if
necessary, to the next higher 1/100 of 1%) equal to the weighted average of
the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published
by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided
that (a)
if such day is not a Business Day, the Federal Funds Rate for such day shall
be
such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for
such
day shall be the average rate charged to the Administrative Agent, in its
capacity as a Lender, on such day on such transactions as determined by the
Administrative Agent.
“Fee
Letters”
means
(a) the Fee Letter dated March 11, 2007, between the Borrower and the Arrangers,
(b) the Fee Letter dated March 30, 2007, between the Borrower and the
Administrative Agent and (c) the Fee Letter dated March 30, 2007, between the
Borrower and the Deposit Agent.
“Fitch”
means
Fitch Ratings and any successor thereto.
“Foreign
Government Scheme or Arrangement”
has
the
meaning specified in Section 5.12(c).
“Foreign
Lender”
means
any Lender that is organized under the laws of a jurisdiction other than the
United States, each State thereof and the District of Columbia.
“Foreign
Plan”
has
the
meaning specified in Section 5.12(c).
“Foreign
Pledge Agreement”
means
a
pledge or similar agreement with respect to the Equity Interests of a Foreign
Subsidiary that is governed by the Law of a jurisdiction other than the United
States, in form and substance reasonably satisfactory to the Administrative
Agent.
“Foreign
Subsidiary”
means
any Subsidiary that is not a Domestic Subsidiary.
18
“FRB”
means
the Board of Governors of the Federal Reserve System of the United
States.
“GAAP” means
generally accepted accounting principles in the United States set forth in
the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements
of
the Financial Accounting Standards Board or such other principles as may be
approved by a significant segment of the accounting profession in the United
States, which are applicable to the circumstances as of the date of
determination.
“Governmental
Authority”
means
the government of the United States or any other nation, or of any political
subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers
or
functions of or pertaining to government (including any supra-national bodies
such as the European Union or the European Central Bank).
“Guarantee”
means,
as to any Person, (a) any obligation, contingent or otherwise, of such Person
guaranteeing or having the economic effect of guaranteeing any Indebtedness
payable or performable by another Person (the “primary
obligor”)
in any
manner, whether directly or indirectly, and including any obligation of such
Person, direct or indirect, (i) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or other obligation, (ii)
to
purchase or lease property, securities or services for the purpose of assuring
the obligee in respect of such Indebtedness or other obligation of the payment
or performance of such Indebtedness or other obligation, (iii) to maintain
working capital, equity capital or any other financial statement condition
or
liquidity or level of income or cash flow of the primary obligor so as to enable
the primary obligor to pay such Indebtedness or other obligation or (iv) entered
into for the purpose of assuring in any other manner the obligee in respect
of
such Indebtedness or other obligation of the payment or performance thereof
or
to protect such obligee against loss in respect thereof (in whole or in part)
or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person (or any right, contingent or otherwise,
of
any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable
amount of the related primary obligation, or portion thereof, in respect of
which such Guarantee is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith. The term “Guarantee”
as
a
verb has a corresponding meaning.
“Guarantee
and Collateral Agreement”
means
the Guarantee and Collateral Agreement among the Borrower, the Subsidiary Loan
Parties and the Collateral Agent, substantially in the form of Exhibit
D
hereto.
“Guarantee
and Collateral Requirement”
means,
at any time, the requirement that:
(a) the
Collateral Agent shall have received from each Loan Party either (i) a
counterpart of the Guarantee and Collateral Agreement duly executed and
delivered on behalf of such Loan Party or (ii) in the case of any Person
that becomes a Loan Party after the Closing Date, a supplement to the Guarantee
and Collateral Agreement, in the form specified therein, duly executed and
delivered on behalf of such Loan Party;
19
(b) all
outstanding Equity Interests of each Subsidiary directly owned by any Loan
Party
shall have been pledged pursuant to the Guarantee and Collateral Agreement
(except that the Loan Parties shall not be required to pledge any Equity
Interests of any Dormant Subsidiary or more than 65% of the outstanding voting
Equity Interests of any Foreign Subsidiary) and the Collateral Agent shall
have
received certificates or other instruments representing all such Equity
Interests, together with undated stock powers or other instruments of transfer
with respect thereto endorsed in blank;
(c) all
Indebtedness of the Borrower and each Subsidiary that is owing to any Loan
Party
shall be evidenced by a promissory note and shall have been pledged pursuant
to
the Guarantee and Collateral Agreement, and the Collateral Agent shall have
received all such promissory notes, together with undated instruments of
transfer with respect thereto endorsed in blank;
(d) all
documents and instruments, including Uniform Commercial Code financing
statements and documents required by Law or reasonably requested by the
Collateral Agent to be filed, registered or recorded to create the Liens
intended to be created by the Guarantee and Collateral Agreement and perfect
such Liens to the extent required by, and with the priority required by, the
Guarantee and Collateral Agreement, shall have been filed, registered or
recorded or delivered to the Collateral Agent for filing, registration or
recording;
(e) the
Collateral Agent shall have received (i) counterparts of a Mortgage with respect
to each Mortgaged Property duly executed and delivered by the record owner
or
lessee, as the case may be, of such Mortgaged Property, (ii) a policy or
policies of title insurance issued by a nationally recognized title insurance
company insuring the Lien of each such Mortgage as a valid first Lien on the
Mortgaged Property described therein, free of any other Liens except as
permitted by Section 7.01,
together with such endorsements, coinsurance and reinsurance as the Collateral
Agent may reasonably request, and (iii) such surveys, abstracts,
appraisals, legal opinions and other documents as the Collateral Agent may
reasonably request with respect to any such Mortgage or Mortgaged
Property;
(f) with
respect to the pledge of Equity Interests in any Foreign Subsidiary required
to
be pledged under clause (b) above, the Collateral Agent shall have received
a
counterpart, duly executed and delivered by the applicable Loan Party, of such
Foreign Pledge Agreements that the Collateral Agent reasonably requests and
determines, based on the advice of counsel, to be required or advisable in
order
to create or perfect its security interest therein;
(g) with
respect to each deposit account maintained by any Loan Party (other than any
such account the average daily balance in which does not exceed at any time
$1,000,000 for any such account or $5,000,000 for all such accounts) and each
securities account maintained by any Loan Party (other than any such account
the
fair value of the securities or other investment property held in which does
not
exceed at any time $1,000,000 for any such account or $5,000,000 for all such
accounts), the Collateral Agent shall have received a counterpart, duly executed
and delivered by the applicable depositary, securities intermediary or other
financial institution, of a deposit account or securities account control
agreement that the Collateral Agent determines to be required or advisable
in
order to perfect its security interest therein; provided
that the
foregoing shall not require delivery of any such agreement with respect to
(i)
accounts maintained outside the United States or (ii) deposit accounts with
respect to which such a control agreement is prohibited under applicable Law
or
under agreements establishing such accounts (provided
that
such prohibitions in such agreements were not entered into in contemplation
of
the requirements set forth in this paragraph); and
20
(h) each
Loan
Party shall have obtained all consents and approvals required to be obtained
by
it in connection with the execution and delivery of all Collateral Documents
to
which it is a party, the performance of its obligations thereunder and the
granting by it of the Liens thereunder, in each case, other than any such
consents and approvals that could not reasonably be expected to be material
to
the interests of the Lenders under the Loan Documents.
The
foregoing definition shall not require the creation or perfection of pledges
of
or security interests in, or the obtaining of title insurance, surveys or
control agreements with respect to, particular assets if and for so long as,
in
the judgment of the Collateral Agent, the cost of creating or perfecting such
pledges or security interests in such assets or obtaining title insurance,
surveys or control agreements in respect of such assets shall be excessive
in
view of the benefits to be obtained by the Lenders therefrom. The Collateral
Agent may grant extensions of time for the delivery of consents and approvals
and the perfection of security interests in, or the obtaining of title insurance
or surveys with respect to, particular assets (including extensions beyond
the
Closing Date for the perfection of security interests in the assets of the
Loan
Parties on such date) where it determines that such delivery or perfection
cannot be accomplished without undue effort or expense by the time or times
at
which it would otherwise be required by this Agreement or the Collateral
Documents.
“Hazardous
Materials”
means
all radioactive substances, radioactive wastes, hazardous or toxic substances,
hazardous or toxic wastes, or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials, polychlorinated
biphenyls, radon gas, hazardous materials and all other substances or wastes
of
any nature prohibited, limited or regulated pursuant to any Environmental
Law.
“Indebtedness”
means,
as to any Person, without duplication, all of the following, each to the extent
treated as indebtedness or liabilities in accordance with GAAP:
(a) all
indebtedness of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements or other similar
instruments;
21
(b) the
maximum amount of all direct or contingent obligations of such Person arising
under letters of credit (whether standby or commercial), bankers’ acceptances,
bank guarantees, surety bonds and similar instruments;
(c) all
obligations of such Person to pay the deferred purchase price of property or
services (other than (i) trade accounts and accrued expenses payable in the
ordinary course of business and (ii) any purchase price adjustment, earnout
or
deferred payment of a similar nature incurred in connection with a Permitted
Acquisition or a Disposition, but only to the extent no payment is then owed
pursuant to such purchase price adjustment, earnout or deferred payment
obligation);
(d) indebtedness
(excluding prepaid interest thereon) secured by a Lien on property owned or
being purchased by such Person (including indebtedness arising under conditional
sales or other title retention agreements) in an amount up to the lesser of
the
amount of indebtedness so secured and the fair market value of the property
securing such indebtedness, whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse;
(e) all
Attributable Indebtedness;
(f) all
obligations of such Person to purchase, redeem, retire, defease or otherwise
make any cash payment (other than, in each case, at the sole option of such
Person or pursuant to exercise by any holder of common stock of such Person,
or
of options with respect to such common stock, of a right under any equity
incentive plan of such Person to require a repurchase thereof in connection
with
any Taxes payable by such holder as a result of vesting, or lapse of
restrictions on transfer, of such common stock or options, to the extent the
payment made in any such repurchase does not exceed the amount of Taxes so
payable) in respect of any Equity Interest in such Person or any other Person
or
any warrant, right or option to acquire such Equity Interest, valued, in the
case of a redeemable preferred interest, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends; and
(g) all
Guarantees of such Person in respect of any of the foregoing.
For
all
purposes hereof, the Indebtedness of any Person shall include the Indebtedness
of any partnership or joint venture (other than a joint venture that is itself
a
corporation or limited liability company) in which such Person is a general
partner or a joint venturer, unless such Indebtedness is expressly made
non-recourse to such Person.
“Indemnified
Liabilities”
means,
collectively, any and all liabilities (including Environmental Liabilities),
obligations, losses, damages, penalties, claims, actions, judgments, suits,
costs, expenses and disbursements of any kind or nature whatsoever (including
the reasonable out-of-pocket fees and expenses of consultants and fees and
disbursements of counsel for Indemnitees in connection with any investigative,
administrative or judicial proceeding or hearing commenced or threatened by
any
Person, whether or not any such Indemnitee shall be designated as a party or
a
potential party thereto, and any fees or expenses incurred by Indemnitees in
enforcing this indemnity), whether direct, indirect or consequential and whether
based on any Laws (including Securities Laws, commercial Laws and Environmental
Laws), on common law or equitable cause or on contract or otherwise, that may
be
imposed on, incurred by, or asserted against any such Indemnitee, in any manner
relating to or arising out of (a) this Agreement or the other Loan Documents
or
the transactions contemplated hereby or thereby (including the Lenders’ and the
LC Issuers’ agreement to make Credit Extensions or the use or intended use of
the proceeds thereof, or any enforcement of any of the Loan Documents (including
any sale of, collection from, or other realization upon any of the Collateral
or
the enforcement of any Guarantee of the Obligations)), (b) the commitment letter
(and the Fee Letters) delivered by any Agent or any Arranger to the Borrower
with respect to the transactions contemplated by this Agreement or (c) any
Environmental Liability or any Hazardous Materials relating to or arising from,
directly or indirectly, any past or present activity, operation, land ownership
or practice of the Borrower or any of its Subsidiaries.
22
“Indemnified
Taxes” means
Taxes arising from any payment hereunder or under any other Loan Document,
other
than Excluded Taxes.
“Indemnitees”
has
the
meaning specified in Section 10.04(b).
“Indentures”
means,
collectively, the 2013 New Indenture, the 2013 Original Indenture, as
supplemented by the 2013 Supplemental Indenture, and the
2015 Indenture.
“Information
Memorandum”
means
the Information Memorandum dated March 2007, used by the Arrangers in
connection with the syndication of the Facilities.
“Interest
Payment Date”
means
(a) as to any Loan other than a Base Rate Loan, the last day of each Interest
Period applicable to such Loan and the Term Maturity Date; provided,
however,
that if
any Interest Period for a Eurocurrency Rate Loan exceeds three months, the
respective dates that fall every three months after the beginning of such
Interest Period shall also be Interest Payment Dates; and (b) as to any Base
Rate Loan, the last Business Day of each March, June, September and December
and
the Term Maturity Date.
“Interest
Period”
means,
as to each Eurocurrency Rate Loan, the period commencing on the date such
Eurocurrency Rate Loan is disbursed or converted to or continued as a
Eurocurrency Rate Loan and ending on the date one, two, three or six months
thereafter, as selected by the Borrower in its Committed Loan Notice or, to
the
extent agreed to by all applicable Lenders, nine or twelve months thereafter;
provided
that:
(a) any
Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless (i) such Business
Day falls in another calendar month or (ii) such Business Day falls more than
365 days after the commencement of such Interest Period (or if such Interest
Period includes February 29, 366 days), in which case such Interest Period
shall
end on the next preceding Business Day;
(b) any
Interest Period that begins on the last Business Day of a calendar month (or
on
a day for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day of the
calendar month at the end of such Interest Period; and
23
(c) no
Interest Period shall extend beyond the Term Maturity Date.
“Internal
Control Event”
means
a
material fraud that involves management employees who have a significant role
in
the internal controls over financial reporting of the Borrower, in each case
as
described in the Securities Laws.
“Investment”
means,
as to any Person, any direct or indirect acquisition or investment by such
Person, whether by means of (a) the purchase or other acquisition of Equity
Interests of another Person, (b) a loan, advance or capital contribution to,
Guarantee or assumption of debt of, or purchase or other acquisition of any
other debt interest in, another Person, or (c) the purchase or other acquisition
(in one transaction or a series of transactions) of assets of another Person
that constitute a business unit or all or a substantial part of the business
of,
such Person. For purposes of covenant compliance, the amount of any Investment
shall be the amount actually invested, without adjustment for subsequent
increases or decreases in the value of such Investment.
“IP
Rights”
has
the
meaning specified in Section 5.16.
“IRB
Debt”
means
Indebtedness of the Borrower arising as a result of the issuance of tax-exempt
industrial revenue bonds or similar tax-exempt public financing.
“IRS”
means
the United States Internal Revenue Service.
“Laws”
means,
collectively, all international, foreign, Federal, state and local statutes,
treaties, rules, regulations, ordinances and codes, and all applicable
administrative orders and agreements with, any Governmental Authority, in each
case having the force of law.
“LC
Availability Period”
means
the period from and including the Closing Date to but excluding the earlier
of
the LC Maturity Date and the date of termination of the LC
Commitments.
“LC
Commitment” means,
as
to each Lender, its obligation, if any, to acquire participations in Letters
of
Credit pursuant to Section 2.03
not to
exceed the amount, expressed as an amount representing the maximum aggregate
permitted amount of such LC Lender’s LC Exposure hereunder, set forth opposite
such Lender’s name on Schedule 2.01
under
the caption “LC Commitment” or opposite such caption in the Assignment and
Acceptance pursuant to which such Lender becomes a party hereto, as applicable,
as such amount may be adjusted from time to time in accordance with this
Agreement. The initial aggregate amount of the Lenders’ LC Commitments is
$50,000,000.
“LC
Deposit”
means,
as to each LC Lender at any time, the amount actually on deposit in the LC
Deposit Account to the credit of such Lender’s Sub-Account at such time. The
initial amount of each LC Lender’s LC Deposit is set forth opposite such
Lender’s name on Schedule 2.01
under
the caption “LC Deposit” or opposite such caption in the Assignment and
Acceptance pursuant to which such Lender becomes a party hereto, as applicable.
The initial aggregate amount of the Lenders’ LC Deposits is
$50,000,000.
“LC
Deposit Account”
has
the
meaning specified in Section 2.03(m).
24
“LC
Deposit Return”
has
the
meaning specified in Section 2.03(p).
“LC
Disbursement”
means
any payment made by an LC Issuer pursuant to a Letter of Credit.
“LC
Exposure”
means,
at any time, the sum of (a) the aggregate undrawn amount of all outstanding
Letters of Credit at such time plus
(b) the aggregate amount of all LC Disbursements that have not yet been
reimbursed by or on behalf of the Borrower at such time. The LC Exposure of
any
LC Lender at any time shall be its Applicable Percentage of the total LC
Exposure at such time.
“LC
Facility”
means,
at any time, (a) on or prior to the Closing Date, the aggregate amount of the
LC
Commitments of all LC Lenders at such time and (b) thereafter, the aggregate
amount of the LC Deposits of all LC Lenders outstanding at such
time.
“LC
Issuer”
means
(a) Bank of America, N.A. and (b) each Lender or other financial institution
designated as an LC Issuer pursuant to Section 2.03(j),
in each
case in its capacity as an issuer of Letters of Credit hereunder. Each LC Issuer
may, in its discretion, arrange for one or more Letters of Credit to be issued
by Affiliates of such LC Issuer, in which case the term “LC Issuer” shall
include any such Affiliate with respect to Letters of Credit issued by such
Affiliate.
“LC
Lender”
means
any Lender that has an LC Deposit or an LC Exposure.
“LC
Lender Fees”
means
the fees payable by the Borrower to the LC Lenders as set forth in Section 2.03(p)
and the
participation fees payable by the Borrower to the LC Lenders as set forth in
Section 2.08(a).
“LC
Maturity Date”
means
the sixth anniversary of the Closing Date.
“Lender”
has
the
meaning specified in the introductory paragraph hereto.
“Lending
Office”
means,
as to any Term Lender, the office or offices of such Term Lender described
as
such in such Term Lender’s Administrative Questionnaire, or such other office or
offices as a Term Lender may from time to time notify the Borrower and the
Administrative Agent.
“Letter
of Credit”
means
any letter of credit issued and outstanding hereunder, including the Existing
Letters of Credit. All Letters of Credit shall be denominated in
Dollars.
“Lien”
means
any mortgage, pledge, hypothecation, encumbrance, lien (statutory or other),
charge, priority or other security interest or preferential arrangement in
the
nature of a security interest of any kind (including (a) any conditional sale
or
other title retention agreement, (b) any easement, right of way or other
encumbrance on title to real property (c) any financing lease having
substantially the same economic effect as any of the foregoing, but not
including the interest of a lessor under an operating lease).
“Loan”
means
an extension of credit in the form of a loan by a Lender to the Borrower under
Article
II,
and may
be a Dollar Term B Loan, a Dollar Term B II Loan or a Euro Term
Loan.
25
“Loan
Documents”
means,
collectively, this Agreement, the Guarantee and Collateral Agreement, the
Mortgages and the other Collateral Documents.
“Loan
Parties”
means,
collectively, the Borrower and the Subsidiary Loan Parties.
“Material
Adverse Effect”
means
(a) a material adverse change in, or a material adverse effect upon, the
operations, business, assets or financial condition of the Borrower and its
Subsidiaries, taken as a whole, or (b) a material impairment of the
legality, validity, binding effect or enforceability against any Loan Party
of
any Loan Document or of the rights and remedies, taken as a whole, of the
Administrative Agent, the Collateral Agent or any Lender under any Loan
Document, or of the ability of the Loan Parties, taken as a whole, to perform
their obligations under the Loan Documents.
“Material
Indebtedness”
means
any Indebtedness of the Borrower or any of its Subsidiaries having an aggregate
principal amount, including undrawn committed or available amounts, of at least
the Threshold Amount.
“Moody’s”
means
Moody’s Investors Service, Inc. and any successor thereto.
“Mortgage”
means
a
mortgage, deed of trust, assignment of leases and rents, leasehold mortgage
or
other security document creating or purporting to create a Lien on any Mortgaged
Property in favor of the Collateral Agent, for the benefit of the Secured
Parties. Each Mortgage shall be reasonably satisfactory in form and substance
to
the Collateral Agent.
“Mortgaged
Property”
means
(a) each parcel of real property and the improvements thereto owned by a Loan
Party that (i) constitutes a “mortgaged property” under the Existing Credit
Agreement and with respect to which a Mortgage is requested by the Collateral
Agent or (ii) has an estimated fair market value of $5,000,000 or more and
(b)
each leasehold interest in real property held by a Loan Party to the extent
such
leasehold interest is material to the business or operations of the Borrower
and
its Subsidiaries and could not readily be replaced on terms not materially
less
favorable to the lessee.
“Multiemployer
Plan”
means
any employee benefit plan of the type described in Section 4001(a)(3) of
ERISA to which the Borrower or any ERISA Affiliate makes or is obligated to
make
contributions.
“Net
Cash Proceeds”
means:
(a) with
respect to any Disposition by the Borrower or any of its Subsidiaries, the
excess, if any, of (i) the sum of cash and Cash Equivalents received in
connection with such transaction (including any cash or Cash Equivalents
received by way of deferred payment pursuant to, or by monetization of, a note
receivable or otherwise, but only as and when so received) over (ii) the sum
of
(A) the principal amount of any Indebtedness (x) that is secured by the Disposed
asset or (y) in the case of any Disposition by a Foreign Subsidiary, that is
owed by such Foreign Subsidiary and, in each case under clause (x) or (y),
that
is required to be repaid in connection with such transaction (other than
Indebtedness under the Loan Documents), together with any interest, premium
or
penalties required to be paid in connection therewith, (B) the direct costs
and expenses (including sales commissions and legal, accounting and investment
banking fees but excluding costs and expenses owed to any Affiliate of the
Borrower (other than THLee)) incurred by the Borrower or such Subsidiary in
connection with such transaction, (C) Taxes reasonably estimated to be actually
payable within one year of the date of such transaction (or receipt of a
deferred payment, as applicable) as a result of any gain recognized in
connection therewith, (D) any reserve for adjustment in respect of
(x) sale price of the Disposed assets established in accordance with GAAP
and (y) any liabilities associated with such asset and retained by the
Borrower or any of its Subsidiaries after such Disposition thereof, including
pension and other post-employment benefit liabilities and liabilities related
to
environmental matters or against any indemnifications obligations associated
with such transaction and (E) at any time when the Permitted ABL Facility shall
be in existence and the commitments thereunder shall be in effect, the aggregate
amount by which the “borrowing base” thereunder shall be reduced as a result of
such transaction;
26
(b) with
respect to any Casualty Event, the excess of (i) the sum of the cash and Cash
Equivalents received in connection with such event, including insurance proceeds
(other than proceeds of any business interruption insurance) over (ii) the
sum
of (A) the principal amount of Indebtedness that is secured by the applicable
asset and that is required to be repaid in connection with such event (other
than Indebtedness under the Loan Documents), together with any interest, premium
or penalties required to be paid in connection therewith, and (B) Taxes
reasonably estimated to be actually payable within one year of the date of
such
event as a result of any gain recognized in connection therewith;
and
(c) with
respect to the incurrence or issuance of any Indebtedness by the Borrower or
any
of its Subsidiaries or any Equity Issuance, the excess of (i) the sum of
the cash and Cash Equivalents received in connection with such transaction
over
(ii) the sales and underwriting discounts, fees and commissions and other
direct costs and expenses (including legal, accounting and investment banker
fees) incurred by the Borrower or such Subsidiary in connection
therewith.
“Non-Consenting
Lender”
has
the
meaning specified in Section
10.01.
“Nonpublic
Information”
means
information that has not been disseminated in a manner making it available
to
investors generally, within the meaning of Regulation FD promulgated under
the
Securities Laws.
“NPL”
means
the National Priorities List under CERCLA.
“Obligations”
has
the
meaning specified in the Guarantee and Collateral Agreement.
27
“OECD”
means
the Organization for Economic Cooperation and Development.
“OECD
Member”
means a
country that signed or ratified the Convention on the Organization for Economic
Cooperation and Development and is thus a member of OECD.
“Organization
Documents”
means
(a) with respect to any corporation, the certificate or articles of
incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction), (b) with respect to any limited
liability company, the certificate or articles of formation or organization
and
operating agreement and (c) with respect to any partnership, joint venture,
trust or other form of business entity, the partnership, joint venture or other
applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation
or
organization with the applicable Governmental Authority in the jurisdiction
of
its formation or organization and, if applicable, any certificate or articles
of
formation or organization of such entity.
“Other
Taxes”
means
all present or future stamp, documentary, excise, property, intangible, mortgage
recording or similar taxes, charges or similar levies arising from any payment
made hereunder or under any other Loan Document or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
“Overnight
Rate”
means,
with respect to any sum denominated in a foreign currency, the rate of interest
per annum determined by the Administrative Agent as the rate of interest at
which deposits in such foreign currency, in the approximate amount of such
sum
and having a term of one Business Day, would be offered to major banks in the
London interbank market at their request at approximately 1:00 p.m., London
time.
“PBGC”
means
the Pension Benefit Guaranty Corporation.
“Pension
Plan”
means
any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to
Title IV of ERISA and is sponsored or maintained by the Borrower or any ERISA
Affiliate, to which the Borrower or any ERISA Affiliate contributes or has
an
obligation to contribute or to which the Borrower or any ERISA Affiliate could
have liability under Section 4064 or 4069 of ERISA in the event such plan
has been or were to be terminated.
“Perfection
Certificate”
means
a
certificate in the form attached to the Guarantee and Collateral Agreement
or
any other form approved by the Collateral Agent.
“Permitted
ABL Facility”
has
the
meaning specified in Section 7.02(m).
“Permitted
Acquisition”
means
an Investment that is consummated in compliance with the requirements of
Section 7.03(h).
“Permitted
Liens”
has
the
meaning specified in Section 7.01.
“Person”
means
any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other
entity.
28
“Plan”
means
any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by the Borrower or, with respect to any such plan that is
subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
“Platform”
has
the
meaning specified in Section 6.04.
“Prime
Rate”
means
the rate of interest quoted in The Wall Street Journal, Money Rates Section
as
the Prime Rate (currently defined as the base rate on corporate loans posted
by
at least 75% of the nation’s 30 largest banks), as in effect from time to time.
The Prime Rate is a reference rate and does not necessarily represent the lowest
or best rate actually charged to any customer. Any Agent or any Lender may
make
commercial loans or other loans at rates of interest at, above or below the
Prime Rate.
“Qualified
Foreign Credit Facility”
means
a
term loan, revolving credit or overdraft facility provided by a Lender, an
Arranger, an Affiliate of any of the foregoing or any other financial
institution to any Foreign Subsidiary, which facility (a) is permitted under
Section 7.02
and (b)
is designated as a “Qualified Foreign Credit Facility” in a written notice by
the Borrower to the Administrative Agent, provided
that the
aggregate principal amount of all such Qualified Foreign Credit Facilities
in
effect at any time shall not exceed $25,000,000.
“Register”
has
the
meaning specified in Section 10.06(b).
“Registered
Public Accounting Firm”
has
the
meaning specified by the Securities Laws and shall be independent of the
Borrower, within the meaning of the Securities Laws.
“Related
Fund”
means,
with respect to any Lender that is an investment fund, any other investment
fund
that invests in commercial loans and that is managed or advised by the same
investment advisor as such Lender or by an Affiliate of such investment
advisor.
“Related
Parties”
means,
with respect to any Person, such Person’s Affiliates and the partners,
directors, officers, employees, agents and advisors of such Person and of such
Person’s Affiliates.
“Release”
means
any release, spill, emission, leaking, pumping, pouring, injection, escaping,
deposit, disposal, discharge, dispersal, dumping, leaching or migration of
any
Hazardous Material into the indoor or outdoor environment (including the
abandonment or disposal of any barrels, containers or other closed receptacles
containing any Hazardous Material), including the movement of any Hazardous
Material through the air, soil, surface water or groundwater.
“Reportable
Event”
means
any of the events set forth in Section 4043(c) of ERISA, other than events
for which the 30-day notice period has been waived.
29
“Required
Dollar Term B Lenders”
means,
as of any date of determination, Dollar Term B Lenders holding more than 50%
of
the aggregate principal amount of the Dollar Term B Loans outstanding on such
date.
“Required
Dollar Term B II Lenders”
means,
as of any date of determination, Dollar Term B II Lenders holding more than
50%
of the aggregate principal amount of the Dollar Term B II Loans outstanding
on
such date.
“Required
Euro Term Lenders”
means,
as of any date of determination, Euro Term Lenders holding more than 50% of
the
aggregate principal amount of Euro Term Loans outstanding on such
date.
“Required
LC Lenders”
means,
as of any date of determination, LC Lenders holding LC Exposures and unused
LC
Commitments representing more than 50% of the sum of (a) the aggregate LC
Exposure outstanding on such date and (b) the aggregate unused LC Commitments
in
effect on such date.
“Required
Lenders”
means,
as of any date of determination, Lenders holding more than 50% of the sum of
(a)
the aggregate principal amount of the Loans outstanding on such date, (b) the
aggregate LC Exposure outstanding on such date and (c) the aggregate unused
Commitments in effect on such date.
“Required
Term Lenders”
means,
as of any date of determination, Term Lenders holding more than 50% of the
aggregate principal amount of the Loans outstanding on such date.
“Responsible
Officer”
means,
in the case of the Borrower or any other Loan Party, the chairman or vice
chairman, chief executive officer, president, chief financial officer, general
counsel, secretary, treasurer or assistant treasurer (or such other officer
as
may be reasonably acceptable to the Administrative Agent) of the Borrower or
such Loan Party. Any document delivered hereunder that is signed by a
Responsible Officer of a Loan Party shall be conclusively presumed to have
been
authorized by all necessary corporate, partnership and/or other action on the
part of such Loan Party, and such Responsible Officer shall be conclusively
presumed to have acted on behalf of such Loan Party.
“Restricted
Payment”
means
any dividend or other distribution with respect to any capital stock or other
Equity Interest of any Person or any of its Subsidiaries, or any payment,
including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, defeasance, acquisition, cancellation or termination
of
any such capital stock or other Equity Interest, or on account of any return
of
capital to any Person’s stockholders, partners or members (or the equivalent of
any thereof).
“Restructuring
Charges”
means
all cash and noncash charges related to the integration of an acquisition or
non-recurring charges related to a non-recurring restructuring of operations
of
the Borrower and its Subsidiaries appearing on the consolidated statement of
operations of the Borrower and its Subsidiaries prepared in accordance with
GAAP.
“S&P”
means
Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies,
Inc., and any successor thereto.
“Sarbanes-Oxley”
means
the Sarbanes-Oxley Act of 2002.
“SEC”
means
the Securities and Exchange Commission, or any Governmental Authority succeeding
to any of its principal functions.
30
“Secured
Parties”
has
the
meaning specified in the Guarantee and Collateral Agreement.
“Securities
Laws”
means
the Securities Act of 1933, the Securities Exchange Act of 1934, the
Sarbanes-Oxley and, in each case, the rules and regulations of the SEC
promulgated thereunder, and the applicable accounting and auditing principles,
rules, standards and practices promulgated, approved or incorporated by the
SEC
or the Public Company Accounting Oversight Board, as each of the foregoing
may
be amended and in effect on any applicable date under this
Agreement.
“Senior
Secured Leverage Ratio”
means,
as of any date of determination, the ratio of (a) Consolidated Secured
Indebtedness as of such date to (b) Consolidated EBITDA for the period of the
four consecutive fiscal quarters of the Borrower ended on or most recently
prior
to such date.
“Solvent”
and
“Solvency”
mean,
with respect to any Person on any date of determination, that on such date
(a) the fair value of the assets of such Person is greater than the total
amount of liabilities, including contingent liabilities, of such Person,
(b) the present fair salable value of the assets of such Person is not less
than the amount that will be required to pay the probable liability of such
Person on its debts and other liabilities as they become absolute and matured,
(c) such Person does not intend to, and does not believe that it will,
incur debts or other liabilities beyond such Person’s ability to pay such debts
and liabilities as they mature and (d) such Person is not engaged in
business or a transaction, and is not about to engage in business or a
transaction, for which such Person’s assets would constitute an unreasonably
small capital. The amount of contingent liabilities at any time shall be
computed as the amount that, in the light of all the facts and circumstances
existing at such time, represents the amount that could reasonably be expected
to become an actual or matured liability.
“Specified
Disposition”
means
any Disposition referred to in Section
7.05(g)
or
7.05(h).
“Sub-Account”
has
the
meaning specified in Section 2.03(s).
“Subordinated
Notes” means
the
2013 New Notes, the 2013 Original Notes and the 2015 Notes.
“Subsidiary”
of
a
Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the shares of securities
or other interests having ordinary voting power for the election of directors
or
other governing body (other than securities or interests having such power
only
by reason of the happening of a contingency) are at the time beneficially owned,
or the management of which is otherwise controlled, directly, or indirectly
through one or more intermediaries, or both, by such Person (including, for
the
avoidance of doubt, a company, corporation or partnership which is a “dependent
enterprise” (abhängiges
Unternehmen)
of such
Person within the meaning of Section 17 of the German Stock Corporation Act
(Aktiengesetz),
or
which is a “subsidiary” (Tochterunternehmen)
within
the meaning of Section 290 of the German Commercial Code (Handelsgesetzbuch)
of such
Person, or where such Person has the power to direct the management and the
policies of such entity whether through the ownership of share capital, contract
or otherwise). Unless otherwise specified, all references herein to a
“Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of
the Borrower.
31
“Subsidiary
Loan Parties”
means
any Subsidiary of the Borrower that is not a Foreign Subsidiary or a Dormant
Subsidiary and that is a party to the Guarantee and Collateral
Agreement.
“Swap
Contract”
means
(a) any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options,
forward commodity contracts, equity or equity index swaps or options, bond
or
bond price or bond index swaps or options or forward bond or forward bond price
or forward bond index transactions, interest rate options, forward foreign
exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions,
currency options, spot contracts, or any other similar transactions or any
combination of any of the foregoing (including any options to enter into any
of
the foregoing), whether or not any such transaction is governed by or subject
to
any master agreement, and (b) any and all transactions of any kind, and the
related confirmations, that are subject to the terms and conditions of, or
governed by, any form of master agreement published by the International Swaps
and Derivatives Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement (any such master agreement, together
with any related schedules, a “Master
Agreement”),
including any such obligations or liabilities under any Master
Agreement.
“Swap
Termination Value”
means,
in respect of any one or more Swap Contracts, after taking into account the
effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been
closed out and termination value(s) determined in accordance therewith, such
termination value(s), and (b) for any date prior to the date referenced in
clause (a), the amount(s) determined as the mark-to-market value(s) for such
Swap Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap Contracts
(which may include a Lender or any Affiliate of a Lender).
“Syndication
Agent”
means
GSCP, in its capacity as the syndication agent for the Facilities.
“Synthetic
Debt”
means,
with respect to any Person, all obligations of such Person in respect of
transactions entered into by such Person that are intended to function primarily
as a borrowing of funds (including any minority interest transactions that
function primarily as a borrowing) but are not otherwise included in the
definition of Indebtedness or as a liability on the consolidated balance sheet
of such Person and its Subsidiaries in accordance with GAAP.
“Synthetic
Lease Obligation”
means
the monetary obligation of a Person under (a) a so-called synthetic, off-balance
sheet or tax retention lease or (b) an agreement for the use or possession
of
property (including sale and leaseback transactions), in each case, creating
obligations that do not appear on the balance sheet of such Person but which,
upon the application of any Debtor Relief Laws to such Person, would be
characterized as the indebtedness of such Person (without regard to accounting
treatment).
32
“TARGET
Day”
means
any day on which the Trans-European Automated Real-time Gross settlement Express
Transfer payment system is open for the settlement of payments in
Euro.
“Taxes”
means
all present or future taxes, levies, imposts, duties, deductions, withholdings,
assessments, fees or other charges imposed by any Governmental Authority,
including any interest, additions to tax or penalties applicable
thereto.
“Term
Facilities”
means,
collectively, the Dollar Term B Facility, the Dollar Term B II Facility and
the Euro Term Facility.
“Term
Lender”
means
a
Dollar Term B Lender, a Dollar Term B II Lender or a Euro Term
Lender.
“Term
Maturity Date”
means
the sixth anniversary of the Closing Date.
“THLee”
means
Thomas H. Lee Partners, L.P. and its Affiliates.
“Threshold
Amount”
means
$15,000,000.
“Total
Assets”
means,
as of any day, the total consolidated assets of the Borrower and its
Subsidiaries, as shown on the most recent balance sheet delivered pursuant
to
Section 6.01.
“Transactions”
means,
collectively, (a) the Exchange Offer, (b) the execution, delivery and
performance of the 2013 Supplemental Indenture and the issuance of the 2013
New
Notes, (c) the execution, delivery and performance by the Loan Parties of
this Agreement and the other Loan Documents, the borrowing of the Loans and
the
use of the proceeds thereof, the obtaining of the Letters of Credit and the
creation and perfection of Liens granted under the Collateral Documents and
(d) the prepayment of loans, and termination of commitments, under the
Existing Credit Agreement.
“Type”
means,
with respect to a Dollar Term Loan, its character as a Base Rate Loan or a
Eurodollar Rate Loan.
“Unfunded
Pension Liability”
means
the excess of a Pension Plan’s benefit liabilities under
Section 4001(a)(16) of ERISA over the current value of that Pension Plan’s
assets, determined in accordance with the assumptions used for funding the
Pension Plan pursuant to Section 412 of the Code for the applicable plan
year.
“United
States”
and
“U.S.”
mean
the United States of America.
“Wachovia”
means
Wachovia Bank, National Association.
33
“Wholly-Owned
Subsidiary”
means
any Person in which, other than director’s qualifying shares or similar shares
owned by other Persons due to native ownership requirements, 100% of the capital
stock or other equity interests of each class is owned beneficially and of
record by the Borrower or by one or more other wholly-owned Subsidiaries of
the
Borrower; provided,
however,
that,
as such defined term is used in the definition of the term Consolidated Net
Income, the foregoing percentage shall be deemed to be replaced with
80%.
Section
1.02. Other
Interpretive Provisions. With
reference to this Agreement and each other Loan Document, unless otherwise
specified herein or in such other Loan Document:
(a) The
definitions of terms herein shall apply equally to the singular and plural
forms
of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The words
“include,”
“includes”
and
“including”
shall
be deemed to be followed by the phrase “without
limitation.”
The
word “will”
shall
be construed to have the same meaning and effect as the word “shall.”
Unless
the context requires otherwise, (i) any definition of or reference to any
agreement, instrument or other document (including any Organization Document)
shall be construed as referring to such agreement, instrument or other document
as from time to time amended, supplemented or otherwise modified (subject to
any
restrictions on such amendments, supplements or modifications set forth herein
or in any other Loan Document), (ii) any reference herein to any Person shall
be
construed to include such Person’s successors and assigns, (iii) the words
“herein,”
“hereof”
and
“hereunder,”
and
words of similar import when used in any Loan Document, shall be construed
to
refer to such Loan Document in its entirety and not to any particular provision
thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits
and Schedules shall be construed to refer to Articles and Sections of, and
Exhibits and Schedules to, the Loan Document in which such references appear,
(v) any reference to any law shall include all statutory and regulatory
provisions consolidating, amending replacing or interpreting such law and any
reference to any law or regulation shall, unless otherwise specified, refer
to
such law or regulation as amended, modified or supplemented from time to time
and (vi) the words “asset”
and
“property”
shall
be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
(b) In
the
computation of periods of time from a specified date to a later specified date,
the word “from”
means
“from
and including;”
the
words “to”
and
“until”
each
mean “to
but excluding;”
and
the word “through”
means
“to
and including.”
(c) Article
and Section headings herein and in the other Loan Documents are included for
convenience of reference only and shall not affect the interpretation of this
Agreement or any other Loan Document.
Section
1.03. Accounting
Terms.
(a) Generally.
All
accounting terms not specifically or completely defined herein shall be
construed in conformity with, and all financial data (including financial ratios
and other financial calculations) required to be submitted pursuant to this
Agreement shall be prepared in conformity with, GAAP, as in effect from time
to
time, applied on a consistent basis in a manner consistent with that used in
preparing the audited consolidated financial statements of the Borrower and
its
Subsidiaries for the fiscal year ended September 30, 2006, except as
otherwise specifically prescribed herein.
34
(b) Changes
in GAAP.
If at
any time any change in GAAP would affect the computation of any financial ratio
or requirement set forth in any Loan Document, and either the Borrower or the
Required Lenders shall so request, the Administrative Agent, the Lenders and
the
Borrower shall negotiate in good faith to amend such ratio or requirement to
preserve the original intent thereof in light of such change in GAAP (subject
to
the approval of the Required Lenders); provided
that,
until so amended, (i) such ratio or requirement shall continue to be computed
in
accordance with GAAP prior to such change therein and (ii) the Borrower
shall provide to the Administrative Agent and the Lenders financial statements
and other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio
or
requirement made before and after giving effect to such change in
GAAP.
Section
1.04. Rounding.
Any
financial ratios required to be maintained by the Borrower pursuant to this
Agreement shall be calculated by dividing the appropriate component by the
other
component, carrying the result to one place more than the number of places
by
which such ratio is expressed herein and rounding the result up or down to
the
nearest number (with a rounding-up if there is no nearest number).
Section
1.05. Times
of Day.
Unless
otherwise specified, all references herein to times of day shall be references
to Eastern time (daylight or standard, as applicable).
Section
1.06. Currency
Equivalents Generally.
Unless
otherwise set forth herein, any amount specified in this Agreement in Dollars
shall include the Equivalent in Dollars of such amount in any foreign currency
and if any amount described in this Agreement is comprised of amounts in Dollars
and amounts in one or more foreign currencies, the Equivalent in Dollars of
such
foreign currency amounts shall be used to determine the total.
Section
1.07. Designation
as Senior Debt.
The
Loans and other Obligations hereunder are hereby designated as “Senior Debt” and
as “Designated Senior Debt” under, and for purposes of, each of the Indentures,
and are further given all such other designations (including designations as
“senior debt” and “designated senior debt”) as shall be required under the terms
of any other subordinated Indebtedness of the Company or any of the Subsidiary
Loan Parties in order that the Lenders may have and exercise any payment
blockage or other remedies available or potentially available to holders of
senior Indebtedness under the terms of such subordinated
Indebtedness.
ARTICLE
II
THE
COMMITMENTS AND CREDIT EXTENSIONS
Section
2.01. The
Loans.
(a) The
Dollar Term B Borrowings.
Subject
to the terms and conditions set forth herein, each Dollar Term B Lender
severally agrees to make a single loan to the Borrower on the Closing Date
in a
principal amount not to exceed such Dollar Term B Lender’s Dollar Term B
Commitment. The Dollar Term B Loans shall be made by the Dollar Term B Lenders
in accordance with their respective Dollar Term B Commitments and shall be
denominated in Dollars. Amounts borrowed under this Section 2.01(a)
and
repaid or prepaid may not be reborrowed. Dollar Term B Loans may be Base
Rate
Loans or Eurocurrency Rate Loans, as further provided herein.
35
(b)
The
Dollar Term B II Borrowings.
Subject
to the terms and conditions set forth herein, each Dollar Term B II Lender
severally agrees to make a single loan to the Borrower on the Closing Date
in a
principal amount not to exceed such Dollar Term B II Lender’s Dollar Term B II
Commitment. The Dollar Term B II Loans shall be made by the Dollar Term B
II
Lenders in accordance with their respective Dollar Term B II Commitments
and
shall be denominated in Dollars. Amounts borrowed under this Section 2.01(b)
and
repaid or prepaid may not be reborrowed. Dollar Term B II Loans may be Base
Rate
Loans or Eurocurrency Rate Loans, as further provided
herein.
(c) The
Euro Term Borrowings.
Subject
to the terms and conditions set forth herein, each Euro Term Lender severally
agrees to make a single loan to the Borrower on the Closing Date in a principal
amount not to exceed such Euro Term Lender’s Euro Term Commitment. The Euro Term
Loans shall be made by the Euro Term Lenders in accordance with their respective
Euro Term Commitments and shall be denominated in Euros. Amounts borrowed under
this Section 2.01(c)
and
repaid or prepaid may not be reborrowed. Euro Term Loans shall be Eurocurrency
Rate Loans.
Section
2.02. Borrowings,
Conversions and Continuations of Loans.
(a) Each
Dollar Term Borrowing and each Euro Term Borrowing, each conversion of Dollar
Term Loans from one Type to the other and each continuation of Eurocurrency
Rate
Loans shall be made upon the Borrower’s irrevocable notice to the Administrative
Agent, which may be given by telephone. Each such notice must be received by
the
Administrative Agent not later than (i) 1:00 p.m. three Business Days prior
to
the requested date of any Borrowing of, conversion to or continuation of
Eurodollar Rate Loans, (ii) 1:00 p.m. three Business Days prior to the requested
date of any Borrowing or continuation of Euro Term Loans and (iii) 1:00 p.m.
on
the requested date of any Borrowing of or conversion to Base Rate Loans. Each
telephonic notice by the Borrower pursuant to this Section 2.02(a)
must be
confirmed promptly by delivery to the Administrative Agent of a written
Committed Loan Notice, appropriately completed and signed by a Responsible
Officer of the Borrower. Each conversion to or continuation of Eurodollar Rate
Loans shall be in a principal amount of $2,500,000 or a whole multiple of
$500,000 in excess thereof, each continuation of Eurocurrency Rate Loans in
Euros shall be in a principal amount of €500,000
or a
whole multiple of €100,000
in
excess thereof, and each conversion to Base Rate Loans shall be in a principal
amount of $500,000 or a whole multiple of $100,000 in excess thereof;
provided,
however,
that in
the event the Borrowing of any Class is not a whole multiple of the multiple
thresholds set forth above, then the foregoing multiple thresholds shall not
be
applicable in circumstances where compliance therewith cannot be accomplished
as
a result thereof. Each telephonic request and each Committed Loan Notice shall
specify (i) whether the Borrower is requesting a Dollar Term B Borrowing, a
Dollar Term B II Borrowing or a Euro Term Borrowing, a conversion of Dollar
Term
Loans from one Type to the other or a continuation of Eurocurrency Rate Loans,
(ii) the requested date of the Borrowing, conversion or continuation, as the
case may be, which date shall be a Business Day, (iii) the principal amount
and Class of Loans to be borrowed, converted or continued, expressed in the
applicable currency, (iv) in the case of Dollar Term Loans, the Type of Loans
to
be borrowed or to which existing Dollar Term Loans are to be converted and
(v)
in the case of a Eurocurrency Rate Loan, the duration of the Interest Period
with respect thereto. In the case of Dollar Term Loans, if the Borrower fails
to
specify a Type of Loan in a Committed Loan Notice or if the Borrower fails
to
give a timely notice requesting a conversion or continuation thereof, then
the
applicable Dollar Term Loans shall be made as, or converted to, Base Rate Loans.
In the case of Loans denominated in Euros, such Loans shall always be
Eurocurrency Rate Loans, and if the Borrower fails to give a timely notice
requesting a continuation thereof, then the applicable Loans shall be continued
for an Interest Period of one month. Any such automatic conversion to Base
Rate
Loans or automatic continuation for an Interest Period of one month shall be
effective as of the last day of the Interest Period then in effect with respect
to the applicable Eurocurrency Rate Loans. If the Borrower requests a Borrowing
of, conversion to, or continuation of Eurocurrency Rate Loans in any such
Committed Loan Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of one month.
36
(b) Following
receipt of a Committed Loan Notice, the Administrative Agent shall promptly
notify each applicable Lender of its Applicable Percentage under the applicable
Facility of the applicable Dollar Term B Loans, Dollar Term B II Loans or
Euro Term Loans, and if no timely notice of a conversion or continuation is
provided by the Borrower, the Administrative Agent shall notify each applicable
Lender of the details of any automatic conversion to Base Rate Loans or
automatic continuation of an Interest Period of one month described in
Section 2.02(a).
Each
Lender shall make the amount of each Loan to be made by it hereunder available
to the Administrative Agent in immediately available funds at the Administrative
Agent’s Office not later than 1:00 p.m. on the Business Day specified in the
applicable Committed Loan Notice. Subject to the satisfaction of the applicable
conditions set forth in Article IV,
the
Administrative Agent shall make all funds so received available to the Borrower,
in like funds as received by the Administrative Agent, by wire transfer of
such
funds in accordance with instructions provided to the Administrative Agent
by
the Borrower, which instructions shall be reasonably acceptable to the
Administrative Agent.
(c) Except
as
otherwise provided herein, a Eurocurrency Rate Loan may be continued or
converted only on the last day of an Interest Period for such Eurocurrency
Rate
Loan. During the existence of an Event of Default, no Dollar Term Loans may
be
requested as, converted to or continued as Eurodollar Rate Loans, and no Euro
Term Loans may be requested or continued as Eurocurrency Rate Loans with an
Interest Period of longer than one month, in each case, without the consent
of
the Required Dollar Term B Lenders, Required Dollar Term B II Lenders or
Required Euro Term Lenders, as applicable.
(d) The
Administrative Agent shall promptly notify the Borrower and the applicable
Lenders of the interest rate applicable to any Interest Period for Eurocurrency
Rate Loans upon determination of such interest rate.
37
(e) After
giving effect to all Dollar Term Borrowings, all conversions of Dollar Term
Loans from one Type to the other and all continuations of Dollar Term Loans
as
Loans of the same Type, there shall be no more than 10 Interest Periods in
effect at any time in respect of the Dollar Term Facility. After giving effect
to all Euro Term Borrowings and all continuations of Euro Term Loans, there
shall be no more than five Interest Periods in effect at any time in respect
of
the Euro Term Facility.
Section
2.03. LC
Facility; Letters of Credit.
(a) General.
Subject
to the terms and conditions set forth herein, the Borrower may request any
LC
Issuer to issue Letters of Credit in Dollars for its own account or, so long
as
the Borrower is a joint and several co-applicant with respect thereto, for
the
account of any of the Subsidiaries, in a form reasonably acceptable to the
Administrative Agent and the applicable LC Issuer, at any time and from time
to
time during the LC Availability Period. In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions
of any form of letter of credit application or other agreement submitted by
the
Borrower to, or entered into by the Borrower with, an LC Issuer relating to
any
Letter of Credit, the terms and conditions of this Agreement shall control.
On
and after the Closing Date, each Existing Letter of Credit shall be deemed
to be
a Letter of Credit for all purposes hereof and shall be deemed to have been
issued hereunder on the Closing Date. The Borrower unconditionally and
irrevocably agrees that, in connection with any Letter of Credit issued for
the
account of any Subsidiary as provided in the first sentence of this paragraph,
it will be fully responsible for the reimbursement of LC Disbursements, the
payment of interest thereon and the payment of fees due under Section
2.08(a)
to the
same extent as if it were the sole account party in respect of such Letter
of
Credit (the Borrower hereby irrevocably waiving any defenses that might
otherwise be available to it as a guarantor of the obligations of any Subsidiary
that shall be an account party in respect of any such Letter of
Credit).
(b) Notice
of Issuance, Amendment, Renewal and Extension; Certain
Conditions.
To
request the issuance of a Letter of Credit (or the amendment, renewal or
extension of an outstanding Letter of Credit), the Borrower shall hand deliver
or send by facsimile (or transmit by electronic communication, if arrangements
for doing so have been approved by the applicable LC Issuer) to the applicable
LC Issuer and the Administrative Agent (reasonably in advance of the requested
date of issuance, amendment, renewal or extension) a notice requesting the
issuance of such Letter of Credit, or identifying the Letter of Credit to be
amended, renewed or extended, and specifying the date of issuance, amendment,
renewal or extension, as applicable (which shall be a Business Day), the date
on
which such Letter of Credit is to expire (which shall comply with Section 2.03(c)),
the
amount of such Letter of Credit, the name and address of the beneficiary
thereof, the account party for such Letter of Credit and such other information
as shall be necessary to enable the applicable LC Issuer to prepare, amend,
renew or extend such Letter of Credit. If requested by the applicable LC Issuer,
the Borrower also shall submit a letter of credit application on the applicable
LC Issuer’s standard form in connection with any request for a Letter of Credit.
A Letter of Credit shall be issued, amended, renewed or extended only if (and
upon issuance, amendment, renewal or extension of each Letter of Credit the
Borrower shall be deemed to represent and warrant that), after giving effect
to
such issuance, amendment, renewal or extension, the aggregate LC Exposures
will
not exceed the aggregate LC Commitments. Each LC Issuer agrees that it will
not
issue, renew, extend or increase the amount of any Letter of Credit without
first obtaining written confirmation from the Administrative Agent that such
action is then permitted under this Agreement (it being understood that the
deemed issuance on the Closing Date of the Existing Letters of Credit pursuant
to Section 2.03(a)
shall be
permitted). The obligation of each LC Issuer to issue, amend, renew or extend
any Letter of Credit shall be subject to the satisfaction of the following
conditions (and upon issuance, amendment, renewal or extension of each Letter
of
Credit the Borrower shall be deemed to represent and warrant that): (A) the
representations and warranties of the Borrower and each other Loan Party
contained in Article
V
or any
other Loan Document shall be true and correct in all material respects on and
as
of the date of such issuance, amendment, renewal or extension, except to the
extent that such representations and warranties specifically refer to an earlier
date, in which case they shall be true and correct in all material respects
as
of such earlier date; and (B) immediately after giving effect to such issuance,
amendment, renewal or extension, no Default shall have occurred and be
continuing. Notwithstanding anything to the contrary herein, Bank of America,
N.A., shall have no obligation to issue any Letter of Credit (other than the
deemed issuance of the Existing Letters of Credit on the Closing Date pursuant
to Section 2.03(a)),
or to
extend, increase, modify or amend any Letter of Credit.
38
(c) Expiration
Date.
Each
Letter of Credit shall expire at or prior to the close of business on the
earlier of (i) the date one year after the date of the issuance of such
Letter of Credit (or, in the case of any renewal or extension thereof, one
year
after such renewal or extension) and (ii) the date that is five Business
Days prior to the LC Maturity Date; provided
that any
Letter of Credit may contain customary automatic renewal provisions agreed
upon
by the Borrower and the applicable LC Issuer pursuant to which the expiration
date shall be automatically extended for a period of up to 12 months (but not
to
a date later than the date set forth in clause (ii) above), subject to a right
on the part of such LC Issuer to prevent any such renewal from occurring by
giving notice to the beneficiary by a specified time in advance of any such
renewal.
(d) Participations.
By the
issuance of a Letter of Credit (including the deemed issuance on the Closing
Date of the Existing Letters of Credit pursuant to Section
2.03(a)),
or an
amendment to a Letter of Credit increasing the amount thereof, and without
any
further action on the part of the applicable LC Issuer or the LC Lenders, such
LC Issuer hereby grants to each LC Lender, and each LC Lender hereby acquires
from such LC Issuer, a participation in such Letter of Credit equal to such
LC
Lender’s Applicable Percentage of the aggregate amount available to be drawn
under such Letter of Credit. In consideration and in furtherance of the
foregoing, each LC Lender hereby absolutely and unconditionally agrees that
if
an LC Issuer makes a LC Disbursement that is not reimbursed by the Borrower
on
the date due as provided in Section 2.03(e),
or is
required to refund any reimbursement payment in respect of a LC Disbursement
to
the Borrower for any reason, the applicable LC Issuer shall be reimbursed for
such LC Lender’s Applicable Percentage of the amount of such LC Disbursement
from such LC Lender’s LC Deposit as set forth in Section 2.03(e).
In the
event the LC Deposit Account is charged by the Deposit Agent to reimburse the
applicable LC Issuer for an unreimbursed LC Disbursement, the Borrower shall
pay
over to the Administrative Agent in reimbursement of the applicable LC
Disbursement an amount equal to the amount so charged, as provided in
Section 2.03(e),
and
such payment shall be remitted by the Administrative Agent to the Deposit Agent
for deposit in the LC Deposit Account, and shall be so deposited by the Deposit
Agent. Each LC Lender acknowledges and agrees that its obligation to acquire
and
fund participations in respect of Letters of Credit pursuant to this
Section 2.03(d)
is
unconditional and irrevocable and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or the return of the
LC
Deposits, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. Without limiting the foregoing,
each LC Lender irrevocably authorizes the Administrative Agent and the Deposit
Agent to apply amounts of its LC Deposit as provided in this Section 2.03.
39
(e) Reimbursement.
If an
LC Issuer shall make any LC Disbursement in respect of a Letter of Credit,
the
Borrower shall reimburse such LC Disbursement by paying to such LC Issuer an
amount equal to such LC Disbursement not later than 2:00 p.m. on (i) the
Business Day that the Borrower receives notice of such LC Disbursement, if
such
notice is received prior to 10:00 a.m. on the day of receipt, or (ii) the
Business Day immediately following the day that the Borrower receives notice
of
such LC Disbursement, if such notice is not received prior to such time on
the
day of receipt. If the Borrower fails to make any payment referred to in the
preceding sentence with respect to a Letter of Credit, the applicable LC Issuer
shall notify the Administrative Agent in accordance with Section
2.03(k),
and the
Administrative Agent shall in turn notify the Deposit Agent and each LC Lender
of the applicable LC Disbursement, the payment then due from the Borrower in
respect thereof and such LC Lender’s Applicable Percentage thereof, and the
Deposit Agent shall withdraw from the LC Deposit Account and remit to the
Administrative Agent the amount of such LC Disbursement, and, upon receipt
thereof, the Administrative Agent shall promptly pay to the applicable LC Issuer
each LC Lender’s Applicable Percentage of such LC Disbursement. Such LC Issuer
shall promptly notify the Administrative Agent and the Deposit Agent of any
amount subsequently received by it from the Borrower in respect of such LC
Disbursement, and shall remit to the Administrative Agent any such amount
promptly upon receipt thereof. Promptly following receipt by the Administrative
Agent of any such remittance or of any payment by the Borrower in respect of
such LC Disbursement, the Administrative Agent shall remit such payment to
the
Deposit Agent for deposit in the LC Deposit Account. The Borrower acknowledges
that each payment made pursuant to this Section 2.03(e)
in
respect of any LC Disbursement is required to be made for the benefit of the
distributees indicated in the immediately preceding sentence. Any payment made
from the LC Deposit Account, or from funds of the Administrative Agent, pursuant
to this Section 2.03(e)
to
reimburse an LC Issuer for any LC Disbursement shall not constitute a loan
and
shall not relieve the Borrower (or any other account party in respect of the
relevant Letter of Credit) of its obligation to reimburse such LC
Disbursement.
(f) Obligations
Absolute.
The
Borrower’s obligation to reimburse LC Disbursements as provided in Section 2.03(e)
shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability
of any Letter of Credit or this Agreement, or any term or provision therein,
(ii) any draft or other document presented under a Letter of Credit proving
to be forged, fraudulent or invalid in any respect or any statement therein
being untrue or inaccurate in any respect, (iii) payment by an LC Issuer
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 2.03(f),
constitute a legal or equitable discharge of, or provide a right of setoff
against, the Borrower’s obligations hereunder. None of the Administrative Agent,
the Deposit Agent, the LC Lenders or the LC Issuers, or any of their Related
Parties, shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice
or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation
of
technical terms or any consequence arising from causes beyond the control of
an
LC Issuer; provided
that the
foregoing shall not be construed to excuse any LC Issuer from liability to
the
Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are caused
by
such LC Issuer’s failure to exercise care when determining whether drafts and
other documents presented under a Letter of Credit comply with the terms
thereof. The parties hereto expressly agree that, in the absence of gross
negligence or wilful misconduct on the part of an LC Issuer, such LC Issuer
shall be deemed to have exercised care in each such determination. In
furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit,
the
applicable LC Issuer may 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.
40
(g) Disbursement
Procedures.
Each LC
Issuer shall, promptly following its receipt thereof, examine all documents
purporting to represent a demand for payment under a Letter of Credit issued
by
it. Such LC Issuer shall promptly notify the Administrative Agent and the
Borrower by telephone (confirmed by hand delivery or facsimile) of such demand
for payment and whether such LC Issuer has made or will make an LC Disbursement
thereunder; provided
that any
failure to give or delay in giving such notice shall not relieve the Borrower
of
its obligation to reimburse such LC Issuer and the LC Lenders with respect
to
any such LC Disbursement.
(h) Interim
Interest.
If an LC
Issuer shall make any LC Disbursement, then, unless the Borrower shall reimburse
such LC Disbursement in full on the date such LC Disbursement is made, the
unpaid amount thereof shall bear interest, for each day from and including
the
date such LC Disbursement is made to but excluding the date that the Borrower
reimburses such LC Disbursement, at a rate per annum (computed in accordance
with Section 2.07(a))
equal
to the rate then applicable to Base Rate Loans; provided
that, if
the Borrower fails to reimburse such LC Disbursement when due pursuant to
Section 2.03(e),
then
Section 2.07(b)
shall
apply. Interest accrued pursuant to this Section 2.03(h)
shall be
for the account of the applicable LC Issuer, except that interest accrued on
and
after the date of payment by any LC Lender pursuant to Section 2.03(e)
to
reimburse such LC Issuer shall be for the account of such LC Lender to the
extent of such payment.
(i) Termination
of an LC Issuer.
Any LC
Issuer may cease to be an LC Issuer at any time by written agreement among
the
Borrower, the Administrative Agent and such LC Issuer. The Administrative Agent
shall promptly notify the Deposit Agent and the LC Lenders of any such
termination of an LC Issuer. At the time any such termination shall become
effective, the Borrower shall pay all unpaid fees accrued for the account of
the
terminated LC Issuer pursuant to Section 2.08(a).
After
the termination of an LC Issuer hereunder, such LC Issuer shall remain a party
hereto and shall continue to have all the rights and obligations of an LC Issuer
under this Agreement with respect to Letters of Credit issued by it prior to
such termination, but shall not be required to issue additional Letters of
Credit.
41
(j) Additional
LC Issuers.
The
Borrower may, at any time and from time to time, with the consent of the
Administrative Agent (which consent shall not be unreasonably withheld or
delayed) and the designated Person, designate one or more additional Lenders
or
another financial institution to act as an LC Issuer under the terms of this
Agreement, and any Lender so designated shall become an LC Issuer
hereunder.
(k) LC
Issuer Reports.
Unless
otherwise agreed to by the Administrative Agent, each LC Issuer shall report
in
writing to the Administrative Agent (i) on or prior to each Business Day on
which such LC Issuer issues, amends, renews or extends any Letter of Credit,
the
date of such issuance, amendment, renewal or extension, and the aggregate face
amount of the Letters of Credit issued, amended, renewed or extended by it
and
outstanding after giving effect to such issuance, amendment, renewal or
extension (and whether the amount thereof shall have changed), (ii) on each
Business Day on which such LC Issuer makes any LC Disbursement, the date and
amount of such LC Disbursement, (iii) on any Business Day on which the Borrower
fails to reimburse an LC Disbursement required to be reimbursed to such LC
Issuer on such day, the date of such failure and the amount of such LC
Disbursement and (iv) on any other Business Day, such other information as
the
Administrative Agent shall reasonably request as to the Letters of Credit issued
by such LC Issuer and outstanding on such Business Day.
(l) Cash
Collateralization.
If any
Event of Default shall occur and be continuing, on the Business Day that the
Borrower receives notice from the Administrative Agent or the Required Lenders
(or, if the maturity of any Loans has been accelerated, the Required LC Lenders)
demanding the deposit of cash collateral pursuant to this Section 2.03(l),
the
Borrower shall deposit in an account designated by the Administrative Agent,
in
the name of the Administrative Agent and for the ratable benefit of the LC
Lenders, an amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid interest thereon; provided
that the
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or
other notice of any kind, upon the occurrence of any Event of Default with
respect to the Borrower described in Section 8.01(f).
Such
deposit shall be held by the Administrative Agent as collateral for the payment
and performance of the Obligations under this Agreement. The Administrative
Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal, over such account. Other than any interest earned on the
investment of such deposits, which investments shall be made at the option
and
sole discretion of the Administrative Agent and at the Borrower’s risk and
expense (provided
that
such cash collateral shall be invested solely in investments that provide for
preservation of capital), such deposits shall not bear interest. Interest or
profits, if any, on such investments shall accumulate in such account. Moneys
in
such account shall be applied by the Administrative Agent to reimburse the
LC
Issuers for LC Disbursements for which they have not been reimbursed and, to
the
extent not so applied, shall be held for the satisfaction of the reimbursement
obligations of the Borrower for the LC Exposure at such time or, if the maturity
of the Loans has been accelerated (but subject to the consent of the Required
LC
Lenders), be applied to satisfy other obligations of the Borrower under this
Agreement. If the Borrower is required to deposit cash collateral hereunder
as a
result of the occurrence of an Event of Default, such amount (to the extent
not
applied as aforesaid) shall be returned to the Borrower (i) within three
Business Days after all Events of Default have been cured or waived and (ii)
promptly upon the payment in full of all the Obligations and the reduction
of
the aggregate LC Exposure to zero.
42
(m) Establishment
of LC Deposit Account.
On or
prior to the Closing Date, the Deposit Agent shall establish a deposit account
(the “LC
Deposit Account”)
of the
Deposit Agent at Wachovia with the title “Goldman Sachs f/b/o Lenders for
Spectrum Brands 2007 Credit Agreement LC Deposit Account”. No Person (other than
the Deposit Agent) shall have the right to make any withdrawal from the LC
Deposit Account or to exercise any other right or power with respect thereto,
except as expressly provided in Section 2.03(o)
or
Section 10.06(e).
Without
limiting the generality of the foregoing, each party hereto acknowledges and
agrees that the LC Deposits are and will at all times be property of the LC
Lenders, and that no amount on deposit at any time in the LC Deposit Account
shall be the property of any of the Loan Parties, constitute Collateral under
the Loan Documents or otherwise be available in any manner to satisfy any
Obligations of any of the Loan Parties under the Loan Documents. Each LC Lender
agrees that its right, title and interest in and to the LC Deposit Account
shall
be limited to the right to require amounts in its Sub-Account to be applied
as
provided in Section 2.03(o)
and that
it will have no right to require the return of its LC Deposit other than as
expressly provided in Section 2.03(o)
(each LC
Lender hereby acknowledging (i) that its LC Deposit constitutes payment for
its
participations in Letters of Credit issued or to be issued hereunder, (ii)
that
its LC Deposit and any investments made therewith shall secure its obligations
to the LC Issuers hereunder (each LC Lender hereby granting to the Deposit
Agent, for the benefit of the LC Issuers, a security interest in its LC Deposit
and agreeing that the Deposit Agent, as holder of the LC Deposits and any
investments made therewith, will be acting, inter alia,
as
collateral agent for the LC Issuers) and (iii) that the LC Issuers will be
issuing, amending, renewing and extending Letters of Credit in reliance on
the
availability of such LC Lender’s LC Deposit to discharge such LC Lender’s
obligations in accordance with Section 2.03(e)
in
connection with any LC Disbursement thereunder). The funding of the LC Deposits
and the agreements with respect thereto set forth in this Agreement constitute
arrangements among the Administrative Agent, the Deposit Agent, the LC Issuers
and the LC Lenders with respect to the funding obligations of the LC Lenders
under this Agreement, and the LC Deposits do not constitute loans or extensions
of credit to any Loan Party. No Loan Party shall have any responsibility or
liability to the LC Lenders, the Administrative Agent, the Deposit Agent or
any
other Person in respect of the establishment, maintenance, administration or
misappropriation of the LC Deposit Account (or any Sub-Account) or with respect
to the investment of amounts held therein, including pursuant to Section 2.03(p)
below.
Wachovia hereby waives any right of setoff against the LC Deposits that it
may
have under applicable Law or otherwise with respect to amounts owed to it by
LC
Lenders (it being agreed that such waiver shall not reduce the rights of
Wachovia, in its capacity as an LC Issuer or otherwise, to apply or require
the
application of the LC Deposits in accordance with the provisions of this
Agreement).
(n) LC
Deposits in LC Deposit Account.
The
following amounts will be deposited in the LC Deposit Account at the following
times:
(i) On
the
Closing Date, each LC Lender shall deposit in the LC Deposit Account an amount
in Dollars equal to such LC Lender’s LC Commitment. Thereafter, the LC Deposits
shall be available, on the terms and subject to the conditions set forth
herein,
for application pursuant to Section 2.03(e)
to
reimburse such LC Lender’s Applicable Percentage of LC Disbursements that are
not reimbursed by the Borrower.
43
(ii) On
any
date prior to the LC Maturity Date on which the Administrative Agent receives
any reimbursement payment from the Borrower in respect of an LC Disbursement
with respect to which amounts were withdrawn from the LC Deposit Account to
reimburse any LC Issuer, or any remittance from any LC Issuer in respect of
such
LC Disbursement pursuant to Section
2.03(e),
subject
to clause (iii) below, the Administrative Agent shall remit such amounts to
the
Deposit Agent for deposit in the LC Deposit Account (and the Deposit Agent
shall
so deposit such amounts) and shall credit such amounts to the Sub-Accounts
of
the LC Lenders in accordance with their Applicable Percentages.
(iii) If
at any
time when any amount is required to be deposited in the LC Deposit Account
under
clause (ii) above the sum of such amount and the aggregate amount of the LC
Deposits at such time would exceed the aggregate LC Commitments, then such
excess shall not be remitted to the Deposit Agent or deposited in the LC Deposit
Account and the Administrative Agent shall instead pay to each LC Lender its
Applicable Percentage of such excess.
(o) Withdrawals
From and Closing of LC Deposit Account.
Amounts
on deposit in the LC Deposit Account shall be withdrawn and distributed (or
transferred, in the case of clause (iv) below) as follows:
(i) On
each
date on which an LC Issuer is to be reimbursed by the LC Lenders pursuant to
Section 2.03(e)
for any
LC Disbursement, the Deposit Agent shall withdraw from the LC Deposit Account
the amount of such unreimbursed LC Disbursement (as notified to it by the
Administrative Agent) and make such amount available to the Administrative
Agent
in accordance with Section 2.03(e).
(ii) Concurrently
with each voluntary reduction of the LC Commitments pursuant to and in
accordance with Section 2.05(a),
if
after giving effect thereto the aggregate LC Deposits would exceed the greater
of the aggregate LC Commitments and the aggregate LC Exposure, the
Administrative Agent shall inform the Deposit Agent of the amount of such
excess, and the Deposit Agent shall withdraw from the LC Deposit Account and
remit to the Administrative Agent such amount and, upon receipt thereof, the
Administrative Agent shall pay to each LC Lender such LC Lender’s Applicable
Percentage of such amount.
(iii) Concurrently
with any reduction of the LC Commitments to zero pursuant to and in accordance
with Section 2.05(a)
or
Article
VIII,
the
Administrative Agent shall inform the Deposit Agent thereof and of the amount
of
the excess at such time of the aggregate amount of the LC Deposits over the
LC
Exposure, and the Deposit Agent shall withdraw from the LC Deposit Account
and
remit to the Administrative Agent such amount and, upon receipt thereof, the
Administrative Agent shall pay to each LC Lender such LC Lender’s Applicable
Percentage of such amount.
44
(iv) Upon
the
reduction of each of the aggregate LC Commitments and the aggregate LC Exposure
to zero, the Administrative Agent shall inform the Deposit Agent thereof and
the
Deposit Agent shall withdraw from the LC Deposit Account the entire remaining
balance therein and remit to the Administrative Agent such amount (and shall
thereupon close the LC Deposit Account) and, upon receipt thereof, the
Administrative Agent shall pay to each LC Lender the entire remaining amount
of
such LC Lender’s LC Deposit.
Each
LC
Lender irrevocably and unconditionally agrees that its LC Deposit may be applied
or withdrawn from time to time as set forth in this Section 2.03(o).
(p) Investment
of Amounts in LC Deposit Account.
The
Deposit Agent shall invest, or cause to be invested, the LC Deposit of each
LC
Lender so as to earn for the account of such LC Lender a return thereon (the
“LC
Deposit Return”)
for
each day at a rate per annum equal to (i) the one month Eurocurrency Rate as
determined by the Deposit Agent based on rates for deposits in Dollars (as
set
forth by Bloomberg L.P.-page BTMM or any other comparable publicly available
service as may be selected by the Deposit Agent) (the “Benchmark
Eurocurrency Rate”)
minus
(ii)
0.15% per annum (based on a 360 day year). The Benchmark Eurocurrency Rate
will
be reset on the first day of each calendar month to the one month Eurocurrency
Rate in effect on the second Business Day immediately prior to such first day.
The LC Deposit Return accrued through and including the first day of each
calendar month (or, if such first day is not a Business Day, the next Business
Day) shall be payable by the Deposit Agent to the Administrative Agent, for
distribution among the LC Lenders, on the third Business Day following such
first day, commencing on the first such date to occur after the Closing Date,
and on the date on which each of the aggregate LC Deposits and the aggregate
LC
Exposure shall have been reduced to zero, and the Deposit Agent agrees to pay
to
the Administrative Agent, for distribution among the LC Lenders, the amounts
referred to in this sentence. In addition, the Borrower agrees to pay to the
Administrative Agent, for the account of each LC Lender, an additional amount
(payable in arrears on each date that participation fees are payable to each
such LC Lender in accordance with Section 2.08(a)),
accruing at the rate of 0.15% per annum (based on a 360 day year), on the daily
amount of the LC Deposit of such Lender during the period from and including
the
date hereof to but excluding the date on which each of the LC Deposits and
the
LC Exposure have been reduced to zero.
(q) Sufficiency
of LC Deposits to Provide for Undrawn/Unreimbursed LC Exposure.
Notwithstanding any other provision contained herein, including any provision
of
this Section 2.03,
no
Letter of Credit shall be issued or increased as to its stated amount, if after
giving effect to such issuance or increase, the aggregate amount of the LC
Deposits would be less than the LC Exposure. The Administrative Agent agrees
to
provide, at the request of any LC Issuer, information to such LC Issuer as
to
the aggregate amount of the LC Deposits and the LC Exposure.
(r) Satisfaction
of LC Lender Funding Obligations.
The
Borrower and each LC Issuer acknowledges and agrees that notwithstanding any
other provision contained herein, the deposit by each LC Lender in the LC
Deposit Account on the Closing Date of funds equal to its LC Deposit will fully
discharge the obligation of such LC Lender to reimburse such LC Lender’s
Applicable Percentage of LC Disbursements that are not reimbursed by the
Borrower pursuant to Section 2.03(e),
and
that no other or further payments shall be required to be made by any LC Lender
in respect of any such reimbursement obligations.
45
(s) Sub-Accounts.
The
Administrative Agent shall maintain records enabling it to determine at any
time
the amount of the interest of each LC Lender in the LC Deposit Account (the
interest of each LC Lender in the LC Deposit Account, as evidenced by such
records, being referred to as such LC Lender’s “Sub-Account”),
and
the amounts evidenced by such records shall be conclusive and binding on each
LC
Lender, absent manifest error. The Administrative Agent shall establish such
additional Sub-Accounts for assignee LC Lenders as shall be required pursuant
to
Section 10.06(e).
On the
Assignment Effective Date with respect to any assignment by an LC Lender of
all
or any portion of its LC Commitment or LC Deposit, the Administrative Agent
shall transfer from the Sub-Account of the assignor to the Sub-Account of the
assignee the corresponding portion of the LC Deposit credited to the Sub-Account
of the assignor (and, if required by Section
10.06(e),
close
the Sub-Account of the assignor), all in accordance with Section 10.06(e).
(t) Cooperation
of Agents.
The
Deposit Agent shall provide to the Administrative Agent such information with
respect to the LC Deposit Account as the Administrative Agent or an LC Issuer
may from time to time request. The Administrative Agent shall provide to the
Deposit Agent such information regarding the LC Lenders, the Letters of Credit
and the LC Issuers as the Deposit Agent may from time to time
request.
Section
2.04. Prepayments.
(a) Optional.
(i)
The
Borrower may, upon notice to the Administrative Agent, at any time or from
time
to time voluntarily prepay Loans in whole or in part; provided
that
(i) such notice must be received by the Administrative Agent not later than
1:00 p.m. three Business Days prior to the proposed date of prepayment and
(ii) any such prepayment in part shall be in a principal amount of
$5,000,000 or a whole multiple of $100,000 in excess thereof. Each such notice
shall specify the date and amount of such prepayment and, in the case of Dollar
Term Loans, the Type of Loans to be prepaid. The Administrative Agent will
promptly notify each applicable Lender of its receipt of each such notice,
and
of the amount of such Lender’s ratable portion of such prepayment (based on such
Lender’s Applicable Percentage in respect of the relevant Facility). Any such
prepayment notice given by the Borrower shall be in writing and shall be
irrevocable, and the payment amount specified in such notice shall be due and
payable on the date specified therein; provided
that the
Borrower may rescind any such notice of prepayment of all of the Loans in full
if the notice of such prepayment stated that it was conditioned on the
occurrence of a specified event and such event shall not have occurred. Each
prepayment of Loans pursuant to this Section
2.04(a)
(1)
shall be accompanied by all accrued interest thereon, together with, in the
case
of Eurocurrency Rate Loans, any additional amounts required pursuant to
Section 3.05,
(2)
shall be applied to the Dollar Term B II Facility, for so long as any
Dollar Term B II Loans are outstanding, and thereafter, ratably to the remaining
Term Facilities and, within each Term Facility, to the remaining scheduled
installments of principal due under Section 2.06
at the
Borrower’s election, and (3) shall be paid to the Lenders in accordance with
their Applicable Percentages in respect of each of the Term
Facilities.
46
(ii) In
the
event that the Loans made on the Closing Date are prepaid in full, or
substantially in full, pursuant to this Section 2.04(a) on or prior to the
first
anniversary of the Closing Date, the Borrower shall pay to the Administrative
Agent, for the account of the Term Lenders, in addition to the other amounts
due
at such time pursuant to the terms hereof, a prepayment premium on the amount
of
the aggregate principal amount of the Loans so prepaid equal to
1.00%.
(b) Mandatory.
(i) Commencing
with the fiscal year of the Borrower ending September 30, 2007, within five
Business Days after each delivery of financial statements pursuant to
Section 6.01(a)
and the
related Compliance Certificate pursuant to Section 6.02(a)
(and in
any event within 90 days after the end of each such fiscal year of the
Borrower), the Borrower shall prepay an aggregate principal amount of Loans
equal to (i) 75% of the Excess Cash Flow for the fiscal year covered by such
financial statements if the Senior Secured Leverage Ratio as of the last day
of
such fiscal year is equal to or greater than 3.00 to 1.00 or (ii) 50% of
the Excess Cash Flow for such fiscal year if the Senior Secured Leverage Ratio
as of the last day of such fiscal year is less than 3.00 to 1.00.
(ii) If
the
Borrower or any of its Subsidiaries Disposes of any assets in a Disposition
referred to in Section 7.05(g),
(h)
or
(i),
the
Borrower shall prepay an aggregate principal amount of Loans equal to 100%
of
all Net Cash Proceeds received therefrom within two Business Days after receipt
thereof by the Borrower or such Subsidiary; provided,
however,
that
the Borrower shall not be required to make any such prepayment with respect
to
any Disposition to the extent the aggregate Net Cash Proceeds received from
such
Disposition do not exceed $1,000,000; provided further,
however,
that at
the option of the Borrower (as elected by the Borrower in writing to the
Administrative Agent on or prior to the date of such Disposition), the Borrower
may, except in the case of a Disposition referred to in Section 7.05(g),
reinvest all or any portion of such Net Cash Proceeds (but not more than
$25,000,000 in the aggregate since the Closing Date) in long-term operating
assets useful in the business of the Borrower and the Subsidiaries so long
as
(A) no Event of Default shall have occurred and be continuing, (B) within
270 days following the receipt of such Net Cash Proceeds a definitive agreement
for the purchase of such assets with such Net Cash Proceeds shall have been
entered into (and the Borrower shall have certified the same in writing to
the
Administrative Agent) and (C) within 450 days following the receipt of such
Net Cash Proceeds such purchase shall have been consummated (and the Borrower
shall have certified the same in writing to the Administrative Agent);
provided further,
however,
that
(1) any Net Cash Proceeds not subject to such definitive agreement or so
reinvested shall be applied to the prepayment of the Loans as set forth in
this
Section 2.04(b)
within
two Business Days of the termination of the applicable period and (2) (x)
any Net Cash Proceeds received from a Disposition of assets (including Equity
Interests) that constitute Collateral may only be reinvested in assets that
constitute Collateral and (y) any Net Cash Proceeds received from a Disposition
of assets that are directly owned by a Subsidiary the Equity Interests of which
constitute Collateral may only be reinvested in assets that constitute
Collateral or are directly owned by a Subsidiary the Equity Interests of which
constitute Collateral.
47
(iii) Upon
the
occurrence of any Casualty Event, the Borrower shall prepay an aggregate
principal amount of Loans equal to 100% of all Net Cash Proceeds received
therefrom within two Business Days after receipt thereof by the Borrower or
any
of its Subsidiaries; provided,
however,
that at
the option of the Borrower (as elected by the Borrower in writing to the
Administrative Agent on or prior to the date such Net Cash Proceeds are
received), the Borrower may apply all or any portion of such Net Cash Proceeds
to repair, restore or replace the assets in respect of which such Casualty
Event
shall have occurred or to acquire other long-term operating assets useful in
the
business of the Borrower and the Subsidiaries (provided
that, in
the case of such other long-term operating assets, the amount of such Net Cash
Proceeds used to acquire such assets shall not exceed $25,000,000 in the
aggregate since the Closing Date), in each case, so long as (A) in the case
of any such repair or restoration, such repair or restoration shall have been
commenced within 270 days following the receipt of such Net Cash Proceeds and
shall thereafter be continued by the Borrower or the applicable Subsidiary
in
good faith (and the Borrower shall have certified the same in writing to the
Administrative Agent upon the commencement thereof and on a quarterly basis
thereafter until completion) and (B) in the case of any such acquisition of
replacement assets or of other long-term operating assets, (1) within 270 days
following the receipt of such Net Cash Proceeds a definitive agreement for
the
acquisition thereof with such Net Cash Proceeds shall have been entered into,
(2) within 450 days following the receipt of such Net Cash Proceeds such
acquisition shall have been consummated and (3) any Net Cash Proceeds received
from a Casualty Event in respect of assets that constitute Collateral shall
have
been reinvested only in assets that constitute Collateral (and the Borrower
shall have certified all of the foregoing in writing to the Administrative
Agent); provided further,
however,
that
any Net Cash Proceeds not subject to such definitive agreement or so reinvested
(and not designated for such repair or restoration) shall be applied to the
prepayment of the Loans as set forth in this Section 2.04(b)
within
two Business Days of the termination of the applicable period (or, as
applicable, promptly upon ceasing to be designated for such repair or
restoration).
(iv) Upon
the
incurrence or issuance by the Borrower or any of its Subsidiaries of any
Indebtedness (other than Indebtedness expressly permitted to be incurred or
issued pursuant to Section 7.02),
the
Borrower shall prepay an aggregate principal amount of Loans equal to 100%
of
all Net Cash Proceeds received therefrom on the date of receipt thereof by
the
Borrower or such Subsidiary.
(v) Upon
the
consummation of any Equity Issuance, the Borrower shall prepay an aggregate
principal amount of Loans equal to 50% of all Net Cash Proceeds received
therefrom within two Business Days after receipt thereof by the Borrower or
any
of its Subsidiaries; provided,
however,
that no
prepayment under this clause (v) shall be required with respect to any such
Net
Cash Proceeds if at the time of the receipt thereof the Senior Secured Leverage
Ratio is less than 3.00 to 1.00.
(vi) Each
prepayment of Loans pursuant to this Section 2.04(b)
(A)
shall be accompanied by accrued interest thereon, together with, in the case
of
Eurocurrency Rate Loans, any additional amounts required pursuant to
Section
3.05,
(B)
shall be applied ratably to the Term Facilities and, within each Term Facility,
to the remaining scheduled installments of principal due under Section 2.06
on a pro
rata basis and (C) shall be paid to the Lenders in accordance with their
Applicable Percentages in respect of each of the Term Facilities.
48
(vii) Notwithstanding
any of the foregoing provisions of this Section 2.04(b),
with
respect to any prepayment of Eurocurrency Rate Loans required to be made
hereunder the Borrower may, in its sole discretion, in lieu of prepaying such
Loans on the date due deposit, no later than such date due, into a Cash
Collateral Account an amount in cash equal to the amount of such required
prepayment (including any accrued interest). The Administrative Agent is hereby
authorized and directed (without any further action by or notice to or from
the
Borrower or any other Loan Party) to apply the amounts so deposited to the
prepayment of such Loans and accrued interest thereon in accordance with this
Section 2.04(b)
on the
last day of the applicable Interest Period (or, if earlier, the date on which
an
Event of Default shall have occurred and is continuing).
(viii) Notwithstanding
any of the other provisions of this Section 2.04(b),
(A) if, following the occurrence of any “Asset Sale” (as defined in any of
the Indentures) by the Borrower or any of its Subsidiaries, the Borrower is
required to commit by a particular date (a “Commitment
Date”)
to
apply or cause its Subsidiaries to apply an amount equal to any “Net Proceeds”
(as defined in such Indenture) thereof in a particular manner, or to apply
by a
particular date (an “Application
Date”)
an
amount equal to any such “Net Proceeds” in a particular manner, in either case
in order to excuse the Borrower from being required to make an “Asset Sale
Offer” (as defined in such Indenture) in connection with such “Asset Sale”, and
the Borrower shall have failed to so commit or to so apply an amount equal
to
such “Net Proceeds” before the applicable Commitment Date or Application Date,
as the case may be, or (B) if the Borrower at any other time shall have
failed to apply or commit or cause to be applied an amount equal to any such
“Net Proceeds” and thereafter, assuming no further application or commitment of
an amount equal to such “Net Proceeds”, the Borrower would otherwise be required
to make an “Asset Sale Offer” in respect thereof, then in either such case the
Borrower shall immediately pay or cause to be paid to the Administrative Agent
such amount, to be applied to the prepayment of the Loans in the manner set
forth in this Section 2.04(b),
as
shall excuse the Borrower from making any such “Asset Sale Offer”.
Section
2.05. Termination
or Reduction of Commitments.
(a) Optional.
The
Borrower may, upon notice to the Administrative Agent, terminate or from time
to
time permanently reduce the LC Commitments; provided
that
(i) any such notice must be received by the Administrative Agent not later
than 1:00 p.m. three Business Days prior to the date of termination or
reduction, (ii) any such partial reduction shall be in an aggregate amount
of $5,000,000 or any whole multiple of $1,000,000 in excess thereof and
(iii) the Borrower shall not terminate or reduce the LC Commitments if,
after giving effect thereto and any concurrent reimbursement of LC
Disbursements, the aggregate LC Exposure would exceed the aggregate LC
Commitments. Any such termination or reduction notice shall be in writing and
shall be irrevocable; provided
that the
Borrower may rescind any such notice of termination of all of the LC Commitments
if the notice of such termination stated that it was conditioned on the
occurrence of a specified event and such event shall not have
occurred. In
the
event that the LC Commitments are terminated in full or substantially in full
pursuant to this Section 2.05(a) on or prior to the first anniversary of the
Closing Date, the Borrower shall pay on the date of such termination, to the
Administrative Agent for the account of the LC Lenders, in addition to the
other
amounts due at such time pursuant to the terms hereof, a premium payment equal
to 1.00% of the aggregate amount of the LC Commitments so
terminated.
(b) Automatic.
(i) Each
of
the Dollar Term B Commitments, the Dollar Term B II Commitments and the
Euro Term Commitments shall automatically terminate on the date of,
respectively, the Dollar Term B Borrowing, the Dollar Term B II Borrowing
or the Euro Term Borrowing.
49
(ii) Each
of
the LC Commitments shall automatically terminate on the LC Maturity Date. The
obligation of any LC Issuer to issue, amend, renew or extend any Letter of
Credit shall terminate on the LC Maturity Date.
(c) Application
of Commitment Reductions; Payment of Fees.
The
Administrative Agent will promptly notify the LC Lenders of any termination
or
reduction of any LC Commitments under this Section 2.05.
Upon
any reduction of any of the LC Commitments, the LC Commitment of each LC Lender
shall be reduced by such LC Lender’s Applicable Percentage of such reduction
amount. All LC Lender Fees accrued on the amount of the LC Commitments so
terminated or reduced to, but excluding, the date of any such termination or
reduction shall be payable on the effective date of such termination or
reduction.
Section
2.06. Repayment
of Loans.
(a) Dollar
Term B Loans.
Subject
to adjustment for optional and mandatory prepayments as set forth in
Section 2.04,
the
Borrower shall repay to the Administrative Agent, for the ratable account of
the
Dollar Term B Lenders, the Dollar Term B Loans commencing on September 30,
2007, and continuing on the last day of each December, March, June and September
occurring thereafter and prior to the Term Maturity Date, in an aggregate
principal amount for each such date equal to 0.25% of the aggregate principal
amount of the Dollar Term B Loans outstanding on the Closing Date.
(b)
Dollar
Term B II Loans. Subject to adjustment for optional and mandatory
prepayments as set forth in Section 2.04, the Borrower shall repay to the
Administrative Agent, for the ratable account of the Dollar Term B II Lenders,
the Dollar Term B II Loans commencing on September 30, 2007, and continuing
on
the last day of each December, March, June and September occurring thereafter
and prior to the Term Maturity Date, in an aggregate principal amount for each
such date equal to 0.25% of the aggregate principal amount of the Dollar Term
B
II Loans outstanding on the Closing Date.
(c) Euro
Term Loans.
Subject
to adjustment for optional and mandatory prepayments as set forth in
Section 2.04,
the
Borrower shall repay to the Administrative Agent, for the ratable account of
the
Euro Term Lenders, the Euro Term Loans commencing on September 30, 2007,
and continuing on the last day of each December, March, June and September
occurring thereafter and prior to the Term Maturity Date, in an aggregate
principal amount for each such date equal to 0.25% of the aggregate principal
amount of the Euro Term Loans outstanding on the Closing Date.
(d) Term
Maturity Date.
To the
extent not previously paid, all Loans shall be due and payable on the Term
Maturity Date.
Section
2.07. Interest.
(a) Subject
to the provisions of Section 2.07(b),
(i)
each Eurocurrency Rate Loan shall bear interest on the outstanding principal
amount thereof for each Interest Period at a rate per annum equal to the
Eurocurrency Rate for such Interest Period plus
the
Applicable Rate and (ii) each Base Rate Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing or conversion
date at a rate per annum equal to the Base Rate plus
the
Applicable Rate.
50
(b) (i)
If any
amount of principal of any Loan or any LC Disbursement is not paid when due
(without regard to any applicable grace periods), whether at stated maturity,
by
acceleration or otherwise, such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate
to
the fullest extent permitted by applicable Laws.
(ii) If
any
amount (other than any amount referred to in Section 2.07(b)(i))
payable
by the Borrower under any Loan Document is not paid when due (without regard
to
any applicable grace periods), whether at stated maturity, by acceleration
or
otherwise, then upon the request of the Required Lenders such amount shall
thereafter bear interest at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Laws.
(iii) Accrued
and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.
(c) Interest
on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein. Interest
hereunder shall be due and payable in accordance with the terms hereof before
and after judgment, and before and after the commencement of any proceeding
under any Debtor Relief Law.
Section
2.08. Fees.
(a) Letter
of Credit Fees.
The
Borrower agrees to pay (i) to the Administrative Agent, for the account of
each LC Lender, a participation fee with respect to its participations and
commitment to participate in Letters of Credit, which shall accrue at the
Applicable Rate applicable to Eurodollar Rate Loans, on the average daily amount
of such LC Lender’s LC Deposit (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the Closing
Date to but excluding the date on which such LC Lender’s LC Deposit is returned
to it in full and (ii) to each LC Issuer a fronting fee, which shall accrue
at a rate separately agreed to by such LC Issuer and the Borrower, on the
average daily amount of the portion of the LC Exposure attributable to Letters
of Credit issued (or, in the case of the Existing Letters of Credit, deemed
issued) by such LC Issuer (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the Closing
Date to but excluding the later of the date of termination of the LC Commitments
and the date on which there ceases to be any LC Exposure, as well as each
Issuing Bank’s standard fees with respect to the issuance, amendment, renewal or
extension of any Letter of Credit or processing of drawings thereunder.
Participation fees and fronting fees accrued through and including the last
day
of March, June, September and December of each year shall be payable on the
third Business Day following such last day, commencing on the first such date
to
occur after the Closing Date; provided
that any
such fees accruing after the date on which the LC Commitments shall have
terminated shall be payable on demand. In addition to the foregoing fees, the
Borrower agrees to pay to the Administrative Agent, for the account of each
LC
Lender, the fees set forth in Section 2.03(p).
51
(b) Agent
Fees.
The
Borrower shall pay to the Administrative Agent and the Deposit Agent, for the
respective accounts of the Administrative Agent and the Deposit Agent, fees
in
the amounts and at the times specified in the applicable Fee
Letter.
(c) General.
Fees
payable hereunder shall not be refundable under any circumstances.
Section
2.09. Computation
of Interest and Fees.
All
computations of interest for Base Rate Loans when the Base Rate is
determined by reference to the Prime Rate shall be made on the basis of a year
of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of interest and fees shall be made on the basis of a 360-day year
and actual days elapsed. Interest shall accrue on each Loan for the day on
which
the Loan is made, and shall not accrue on a Loan, or any portion thereof, for
the day on which the Loan or such portion is paid. Each determination by the
Administrative Agent of an interest rate or fee hereunder shall be conclusive
and binding for all purposes, absent manifest error.
Section
2.10. Evidence
of Indebtedness.
The
Loans made by each Term Lender shall be evidenced by one or more accounts or
records maintained by such Term Lender and by the Administrative Agent in the
ordinary course of business. The accounts or records maintained by the
Administrative Agent and the Term Lenders shall be prima facie evidence absent
manifest error of the amount of the Loans made by the Term Lenders to the
Borrower and the interest and payments thereon. Any failure to so record or
any
error in doing so shall not, however, limit or otherwise affect the obligation
of the Borrower hereunder to pay any amount owing with respect to the
Obligations. In the event of any conflict between the accounts and records
maintained by any Term Lender and the accounts and records of the Administrative
Agent in respect of such matters, the accounts and records of the Administrative
Agent (as set forth in the Register) shall control in the absence of manifest
error.
Section
2.11. Payments
Generally; Administrative Agent’s Clawback.
(a) General.
Except
as otherwise expressly provided herein, all payments to be made by the Borrower
shall be made without condition or deduction for any counterclaim, defense,
recoupment or setoff. Except as otherwise expressly provided herein, all
payments by the Borrower hereunder shall be made to the Administrative Agent,
for the account of the respective Lenders to which such payment is owed, at
the
Administrative Agent’s Office in Dollars or in Euros, as applicable, and in
immediately available funds not later than 2:00 p.m. on the date specified
herein. The Administrative Agent will promptly distribute to each Lender its
Applicable Percentage in respect of the relevant Facility (or other applicable
share as provided herein) of such payment in like funds as received by wire
transfer to such Lender’s Lending Office. All payments received by the
Administrative Agent after 2:00 p.m. shall be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to
accrue. If any payment to be made by the Borrower shall come due on a day other
than a Business Day, payment shall be made on the next following Business Day
and such extension of time shall be reflected on computing interest or fees,
as
the case may be.
52
(b) Payments
by Borrower; Presumptions by Administrative Agent.
Unless
the Administrative Agent shall have received notice from the Borrower prior
to
the time at which any payment is due to the Administrative Agent for the account
of the Lenders or any LC Issuer hereunder that the Borrower will not make such
payment, the Administrative Agent may assume that the Borrower has made such
payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the applicable Lenders or such LC Issuer, as the
case
may be, the amount due. In such event, if the Borrower has not in fact made
such
payment, then each of the applicable Lenders or such LC Issuer, as the case
may
be, severally agrees to repay to the Administrative Agent forthwith on demand
the amount so distributed to such Lender or such LC Issuer, in immediately
available funds with interest thereon, for each day from and including the
date
such amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Rate (in the case
of
Loans denominated in Dollars) or the Overnight Rate (in the case of Loans
denominated in Euros) and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation. A
notice
of the Administrative Agent to any Lender, any LC Issuer or the Borrower with
respect to any amount owing under this Section
2.11(b)
shall be
conclusive, absent manifest error.
(c) Failure
to Satisfy Conditions Precedent.
If any
Lender makes available to the Administrative Agent or the Deposit Agent funds
for any Loan or any LC Deposit to be made by such Lender as provided in the
foregoing provisions of this Article II,
and
such funds are not used as contemplated by this Article II because the
conditions precedent thereto set forth in Article IV
are not
satisfied or waived in accordance with the terms hereof, the Administrative
Agent or the Deposit Agent, as applicable, shall return such funds (in like
funds as received from such Lender) to such Lender, without
interest.
(d) Obligations
of Lenders Several.
The
obligations of the Lenders hereunder to make Loans, to make deposits required
under Section 2.03(a)
and to
make payments pursuant to Section 9.06
are
several and not joint. The failure of any Lender to make any Loan, to make
any
such deposit or to make any such payments on any date required hereunder shall
not relieve any other Lender of its corresponding obligation to do so on such
date, and no Lender shall be responsible for the failure of any other Lender
to
so make its Loan or to so deposit or make its payments.
(e) Funding
Source.
Nothing
herein shall be deemed to obligate any Lender to obtain the funds for any Loan
in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for any Loan in any
particular place or manner.
(f) Insufficient
Payment.
If at
any time insufficient funds are received by and available to the Administrative
Agent to pay in full all amounts of principal, unreimbursed LC Disbursements,
interest and fees then due hereunder, such funds shall be applied (i)
first,
towards
payment of interest and fees then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of interest and fees then due
to
such parties, and (ii) second,
towards
payment of principal and unreimbursed LC Disbursements then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal and unreimbursed LC Disbursements then due to such
parties.
53
(g) Currency
Exchange.
To the
extent that the Administrative Agent receives funds for application to the
amounts owing by the Borrower under or in respect of this Agreement in
currencies other than the currency or currencies required to enable the
Administrative Agent to distribute funds to the Lenders in accordance with
the
terms of this Agreement, the Administrative Agent shall be entitled to convert
or exchange such funds into Dollars or into Euros, as the case may be, to the
extent necessary to enable the Administrative Agent to distribute such funds
in
accordance with the terms of this Agreement; provided
that the
Borrower and each of the Lenders hereby agree that the Administrative Agent
shall not be liable or responsible for any loss, cost or expense suffered by
the
Borrower or such Lender as a result of any conversion or exchange of currencies
affected pursuant to this Section 2.11(g)
or as a
result of the failure of the Administrative Agent to effect any such conversion
or exchange; and provided further
that the
Borrower agrees to indemnify the Administrative Agent and each Lender, and
hold
the Administrative Agent and each Lender harmless, for any and all losses,
costs
and expenses incurred by the Administrative Agent or any Lender for any
conversion or exchange of currencies (or the failure to convert or exchange
any
currencies) or which result in the Administrative Agent or the Lenders receiving
a lower amount that they would have received had such currency not been required
to be so converted or exchanged, in accordance with this Section 2.11(g).
Section
2.12. Sharing
of Payments
by
Lenders. If
any Lender shall, by exercising any right of setoff or counterclaim or any
right
in respect of Collateral or otherwise, obtain payment in respect of any
principal of or interest on any of the Loans made by it, or the participations
in LC Disbursements held by it, resulting in such Lender’s receiving payment of
a proportion of the aggregate amount of such Loans or participations and accrued
interest thereon greater than its pro
rata
share thereof of the applicable Facility as provided herein, then the Lender
receiving such greater proportion shall (a) notify the Administrative Agent
of such fact and (b) purchase (for cash at face value) participations in
the Loans and subparticipations in LC Disbursements of the other Lenders, or
make such other adjustments as shall be equitable, so that the benefit of all
such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Loans
and participations in LC Disbursements, provided
that:
(i) if
any
such participations or subparticipations are purchased and all or any portion
of
the payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the
extent of such recovery, without interest; and
54
(i) the
provisions of this Section 2.12
shall
not be construed to apply to (A) any payment made by the Borrower pursuant
to and in accordance with the express terms of this Agreement, (B) any
payment obtained by a Lender as consideration for the assignment of or sale
of a
participation in any of its Loans or subparticipations in LC Disbursements
to
any assignee or participant, other than to the Borrower or any Subsidiary or
other Affiliate thereof (as to which the provisions of this Section
2.12
shall
apply) or (C) any payment made to a Non-Consenting Lender pursuant to
Section 10.12(b).
The
Borrower consents to the foregoing and agrees, to the extent it may effectively
do so under applicable Law, that any Lender acquiring a participation or
subparticipation pursuant to the foregoing arrangements may exercise against
the
Borrower rights of setoff and counterclaim with respect to such participation
or
subparticipation as fully as if such Lender were a direct creditor of the
Borrower in the amount thereof.
ARTICLE
III
TAXES,
YIELD PROTECTION AND ILLEGALITY
Section
3.01. Taxes.
(a) Payments
Free of Taxes.
Any and
all payments by or on account of any obligation of the Borrower hereunder or
under any other Loan Document shall be made free and clear of and without
reduction or withholding for any Indemnified Taxes or Other Taxes, provided
that if
the Borrower shall be required by applicable Law to deduct any Indemnified
Taxes
(including any Other Taxes) from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section 3.01)
an
Agent, a Lender or an LC Issuer, as the case may be, receives an amount equal
to
the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall timely pay
the full amount deducted to the relevant Governmental Authority in accordance
with applicable Law.
(b) Payment
of Other Taxes by the Borrower.
Without
limiting the provisions of subsection (a) above, the Borrower shall timely
pay any Other Taxes to the relevant Governmental Authority in accordance with
applicable law.
(c) Indemnification
by the Borrower.
The
Borrower shall indemnify each Agent, each Lender and each LC Issuer, within
30
days after written demand therefor, for the full amount of any Indemnified
Taxes
or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted
on or attributable to amounts payable under this Section) paid by such Agent,
such Lender or such LC Issuer, as the case may be, and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto (provided
that
such penalties, interests and expenses are not attributable to the gross
negligence or willful misconduct of such Agent, such Lender or such LC Issuer),
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as
to
the amount of such payment, setting forth in reasonable detail the calculation
and basis for such amount, delivered to the Borrower by an Agent (other than
the
Administrative Agent), a Lender or an LC Issuer (with a copy to the
Administrative Agent), or by the Administrative Agent on its own behalf or
on
behalf of a Lender or an LC Issuer, shall be conclusive absent manifest
error.
55
(d) Change
in Place of Organization.
The
Borrower shall not be required pursuant to this Section 3.01
to pay
any additional amount to, or to indemnify, any Agent, any Lender or any LC
Issuer, as the case may be, to the extent such Agent, such Lender or LC Issuer
becomes subject to Taxes subsequent to the date on which such Agent, such Lender
or LC Issuer becomes a party to this Agreement as a result of a change in the
place of organization of such Agent, such Lender or LC Issuer, except to the
extent that any such change is requested or required by the Borrower (and
provided that nothing in this clause (d) shall be construed as relieving the
Borrower from any obligation to make such payments or indemnification in the
event of a Change in Law, including a Change in Law after the date of such
change of place of organization).
(e) Evidence
of Payments.
As soon
as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(f) Status
of Lenders.
Any
Foreign Lender that is entitled to an exemption from or reduction of withholding
tax under the law of the jurisdiction in which the Borrower is resident for
tax
purposes, or any treaty to which such jurisdiction is a party, with respect
to
payments hereunder or under any other Loan Document shall deliver to the
Borrower or the relevant Governmental Authority (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent, such properly
completed and executed documentation prescribed by applicable Law as will permit
such payments to be made without withholding or at a reduced rate of
withholding. In addition, any Lender, if requested by the Borrower or the
Administrative Agent, shall deliver such other documentation prescribed by
applicable law or reasonably requested by the Borrower or the Administrative
Agent as will enable the Borrower or the Administrative Agent to determine
whether or not such Lender is subject to withholding or information reporting
requirements.
Without
limiting the generality of the foregoing, if the Borrower is resident for tax
purposes in the United States:
(i) any
Foreign Lender shall deliver to the Borrower and the Administrative Agent,
or to
such Persons as they may reasonably designate (in such number of copies as
shall
be requested by the recipient), on or prior to the date on which such Foreign
Lender becomes a Lender under this Agreement (and from time to time thereafter
upon the request of the Borrower or the Administrative Agent, but only if such
Foreign Lender is legally entitled to do so), whichever of the following is
applicable:
(A) duly
completed originals of Internal Revenue Service Form W-8BEN claiming eligibility
for benefits of an income tax treaty to which the United States is a
party,
56
(B) duly
completed originals of Internal Revenue Service Form W-8ECI,
(C) in
the
case of a Foreign Lender claiming the benefits of the exemption for portfolio
interest under section 881(c) of the Code, (A) a certificate to the effect
that
such Foreign Lender is not (1) a “bank” within the meaning of section
881(c)(3)(A) of the Code, (2) a “10 percent shareholder” of the Borrower within
the meaning of section 881(c)(3)(B) of the Code, or (3) a “controlled foreign
corporation” described in section 881(c)(3)(C) of the Code and
(B) duly completed originals of Internal Revenue Service Form W-8BEN,
or
(D) any
other
form prescribed by applicable law as a basis for claiming exemption from or
reduction in United States Federal withholding tax (including any successor
form
to those referenced in Sections 3.01(f)(i)-(iii))
duly
completed together with such supplementary documentation as may be prescribed
by
applicable law to permit the Borrower to determine the withholding or deduction
required to be made, and
(ii) any
Lender that is not a Foreign Lender shall deliver to the Borrower and the
Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Lender becomes a Lender under
this Agreement (and from time to time thereafter upon the request of the
Borrower or the Administrative Agent) a duly completed Internal Revenue Service
Form W-9 (or successor form thereto) or shall otherwise prove that it is exempt
from backup withholding.
(g) Treatment
of Certain Refunds.
If any
Agent, any Lender or any LC Issuer becomes aware that it is entitled to claim
a
refund from a Governmental Authority in respect of Indemnified Taxes or Other
Taxes paid by the Borrower pursuant to this Section 3.01,
such
Agent, such Lender or such LC Issuer, as the case may be, shall promptly notify
the Borrower of the availability of such refund claim and, within 30 days after
receipt of a request by the Borrower, make a claim to such Governmental
Authority for such refund. If any Agent, any Lender or any LC Issuer determines,
in its reasonable discretion, that it has received a refund of any Taxes or
Other Taxes as to which it has been indemnified by the Borrower or with respect
to which the Borrower has paid additional amounts pursuant to this Section,
it
shall pay to the Borrower an amount equal to such refund (but only to the extent
of indemnity payments made, or additional amounts paid, by the Borrower under
this Section with respect to the Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of such Agent, such Lender or such
LC
Issuer, as the case may be, and without interest (other than any interest paid
by the relevant Governmental Authority with respect to such refund),
provided
that the
Borrower, upon the request of such Agent, such Lender or such LC Issuer, agrees
to repay the amount paid over to the Borrower (plus any penalties, interest
or
other charges imposed by the relevant Governmental Authority) to such Agent,
such Lender or such LC Issuer in the event such Agent, such Lender or such
LC
Issuer is required to repay such refund to such Governmental Authority. This
subsection shall not be construed to require any Agent, any Lender or any LC
Issuer to make available its tax returns (or any other information relating
to
its taxes that it reasonably deems confidential) to the Borrower or any other
Person.
57
Section
3.02. Illegality.
If
any
Term Lender determines in good faith that any Change in Law has made it
unlawful, or that any Governmental Authority has asserted after the Closing
Date
that it is unlawful, for such Term Lender or its applicable Lending Office
to
make, maintain or fund Eurocurrency Rate Loans, or to determine or charge
interest rates based upon the Eurocurrency Rate, or any Governmental Authority
has imposed material restrictions on the authority of such Term Lender to
purchase or sell, or to take deposits of, Dollars or Euros in the London
interbank market, then, on notice thereof by such Term Lender to the Borrower
through the Administrative Agent, any obligation of such Term Lender to make
or
continue Eurocurrency Rate Loans or to convert Base Rate Loans to Eurocurrency
Rate Loans shall be suspended until such Term Lender notifies the Administrative
Agent and the Borrower that the circumstances giving rise to such determination
no longer exist. Upon receipt of such notice, the Borrower shall, upon demand
from such Term Lender (with a copy to the Administrative Agent), (a) with
respect to Loans denominated in Dollars, prepay or, if applicable, convert
all
Eurodollar Rate Loans of such Lender to Base Rate Loans and (b) with respect
to
Loans denominated in Euros, exchange all such Loans into the Equivalent thereof
in Dollars and convert such Loans to Base Rate Loans, in each case either on
the
last day of the Interest Period therefor, if such Term Lender may lawfully
continue to maintain such Eurocurrency Rate Loans to such day, or immediately,
if such Term Lender may not lawfully continue to maintain such Eurocurrency
Rate
Loans. Upon any such prepayment or conversion, the Borrower shall also pay
accrued interest on the amount so prepaid or converted and amounts due pursuant
to Section 3.05,
if any.
58
Section
3.03. Inability
to Determine Rates. If
the
Required Term Lenders determine, for any reason in connection with any request
for a conversion to, or continuation as, Eurocurrency Rate Loans, that (a)
adequate and reasonable means do not exist for determining the Eurocurrency
Rate
for any requested Interest Period with respect to a proposed Eurocurrency Rate
Loan or (b) the Eurocurrency Rate for any requested Interest Period with respect
to a proposed Eurocurrency Rate Loan does not adequately and fairly reflect
the
cost to such Term Lenders of funding such Loan, the Administrative Agent will
promptly so notify the Borrower and each Term Lender. Thereafter, until the
Administrative Agent (upon the instruction of the Required Term Lenders) revokes
such notice, (i) any request for a conversion of any Dollar Term Loan to, or
continuation of any Eurodollar Rate Loan as, a Eurodollar Rate Loan shall be
ineffective and (ii) each outstanding Euro Term Loan, at the end of the Interest
Period then applicable thereto, shall bear interest at the Applicable Rate
for
Euro Term Loans plus a rate determined by the Administrative Agent to be
representative of the Euro Term Lenders’ cost of funding such Loans. Each
determination by the Administrative Agent pursuant to this Section
3.03
under
shall be conclusive absent manifest error.
Section
3.04. Increased
Costs; Reserves on Eurocurrency Rate Loans.
(a) Increased
Costs Generally.
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;
(ii) subject
any Lender or any LC Issuer 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 Eurocurrency Rate Loan made by it, or change the basis of taxation of
payments to such Lender or any LC Issuer in respect thereof (except for
Indemnified Taxes or Other Taxes covered by Section 3.01
and any
Excluded Tax); or
(iii) impose
on
any Lender or any LC Issuer or the London interbank market any other condition,
cost or expense affecting this Agreement or Eurocurrency 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
of
making or maintaining any Eurocurrency Rate Loan (or of maintaining its
obligation to make any such Loan), or to increase the cost to such Lender or
such LC Issuer 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 such LC Issuer hereunder (whether of principal, interest or any other
amount) then, upon request of such Lender or such LC Issuer, the Borrower will
pay to such Lender or such LC Issuer, as the case may be, such additional amount
or amounts as will compensate such Lender or such LC Issuer, as the case may
be,
for such additional costs incurred or reduction suffered.
(b) Capital
Requirements.
If any
Lender or any LC Issuer determines that any Change in Law affecting such Lender
or such LC Issuer or any Lending Office of such Lender or such Lender’s or such
LC Issuer’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 such LC
Issuer’s capital or on the capital of such Lender’s or such LC Issuer’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 such LC Issuer, to a level
below
that which such Lender or such LC Issuer or such Lender’s or such LC Issuer’s
holding company could have achieved but for such Change in Law (taking into
consideration such Lender’s or such LC Issuer’s policies and the policies of
such Lender’s or such LC Issuer’s holding company with respect to capital
adequacy), then from time to time the Borrower will pay to such Lender or such
LC Issuer, as the case may be, such additional amount or amounts as will
compensate such Lender or such LC Issuer or such Lender’s or such LC Issuer’s
holding company for any such reduction suffered.
59
(c) Certificates
for Reimbursement.
A
certificate of a Lender or an LC Issuer setting forth the amount or amounts
necessary to compensate such Lender or such LC Issuer or its holding company,
as
the case may be (which certificate shall set forth in reasonable detail the
basis for and calculation thereof), as specified in subsection (a) or (b) of
this Section and delivered to the Borrower shall be conclusive absent manifest
error. The Borrower shall pay such Lender or such LC Issuer, as the case may
be,
the amount shown as due on any such certificate within 10 Business Days after
receipt thereof.
(d) Delay
in Requests.
Failure
or delay on the part of any Lender or any LC Issuer to demand compensation
pursuant to the foregoing provisions of this Section shall not constitute a
waiver of such Lender’s or such LC Issuer’s right to demand such compensation,
provided
that the
Borrower shall not be required to compensate a Lender or an LC Issuer pursuant
to the foregoing provisions of this Section for any increased costs incurred
or
reductions suffered more than nine months prior to the date that such Lender
or
such LC Issuer, as the case may be, notifies the Borrower of the Change in
Law
giving rise to such increased costs or reductions and of such Lender’s or such
LC Issuer’s intention to claim compensation therefor (except that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
the nine-month period referred to above shall be extended to include the period
of retroactive effect thereof).
Section
3.05. Compensation
for Losses. Upon
written demand of any Term Lender (with a copy to the Administrative Agent)
from
time to time, the Borrower shall promptly compensate such Term Lender for and
hold such Term Lender harmless from any loss, cost or expense incurred by it
as
a result of:
(a) any
continuation, conversion, payment or prepayment of any Loan other than a Base
Rate Loan on a day other than the last day of the Interest Period for such
Loan
(whether voluntary, mandatory, automatic, by reason of acceleration, or
otherwise);
(b) any
failure by the Borrower (for a reason other than the failure of such Lender
to
make a Loan) to prepay, borrow, continue or convert any Loan other than a Base
Rate Loan on the date or in the amount notified by the Borrower; or
(c) any
assignment of a Eurocurrency Rate Loan on a day other than the last day of
the
Interest Period therefor as a result of a request by the Borrower pursuant
to
Section 10.12;
60
excluding
any loss of anticipated profits, but including any loss or expense arising
from
the liquidation or reemployment of funds obtained by it to maintain such Loan
or
from fees payable to terminate the deposits from which such funds were obtained.
The Borrower shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.
For
purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 3.05,
each
Lender shall be deemed to have funded each Eurocurrency Rate Loan made by it
at
the Eurocurrency Base Rate used in determining the Eurocurrency Rate for such
Loan by a matching deposit or other borrowing in the London interbank
eurocurrency market for a comparable amount and for a comparable period, whether
or not such Eurocurrency Rate Loan was in fact so funded.
Section
3.06. Mitigation
Obligations; Replacement of Lenders.
(a) Designation
of a Different Lending Office.
If any
Lender requests compensation under Section 3.04,
or the
Borrower is required to pay, or delivers to such Lender and the Administrative
Agent a certificate setting forth reasons it reasonably anticipates that it
will
be required to pay, any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 3.01,
or if
any Lender gives a notice pursuant to Section 3.02,
then
such Lender shall use reasonable efforts to designate a different Lending Office
for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if,
in
the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 3.01
or
3.04,
as the
case may be, in the future, or eliminate the need for the notice pursuant to
Section 3.02,
as
applicable, and (ii) in each case, would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to
such
Lender. The Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or
assignment.
(b) Replacement
of Lenders.
If any
Lender requests compensation under Section 3.02
or 3.04,
or if
the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01,
the
Borrower may replace such Lender in accordance with Section 10.12.
Section
3.07. Survival.
All of
the Borrower’s and Lenders’ obligations under this Article
III
shall
survive termination of the Commitments and repayment of all other Obligations
hereunder.
ARTICLE
IV
CONDITIONS
PRECEDENT TO EFFECTIVENESS
The
obligations of the Term Lenders to make Loans, of the LC Lenders to make the
LC
Deposits and of the LC Issuers to issue Letters of Credit hereunder (and the
designation of the Existing Letters of Credit as Letters of Credit hereunder)
is
subject to satisfaction of the following conditions precedent:
61
(a) The
Administrative Agent shall have received the following, in each case where
applicable properly executed by a Responsible Officer of the signing Loan Party,
dated the Closing Date (or, in the case of certificates of governmental
officials, a recent date before the Closing Date) and in form and substance
satisfactory to the Administrative Agent and the Lenders:
(i) a
counterpart of this Agreement signed on behalf of the Borrower;
(ii) such
certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each Loan Party as the
Administrative Agent may reasonably request to evidence the identity, authority
and capacity of each Responsible Officer thereof authorized to act as a
Responsible Officer in connection with this Agreement and the other Loan
Documents to which such Loan Party is a party or is to be a party, except to
the
extent the failure to do so could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect;
(iii) such
documents and certifications as the Administrative Agent may reasonably request
to evidence that each Loan Party is duly organized or formed, and that each
Loan
Party is validly existing, in good standing and qualified to engage in business
in each jurisdiction where its ownership, lease or operation of properties
or
the conduct of its business requires such qualification;
(iv) a
favorable opinion of Skadden, Arps, Slate, Meagher & Flom LLP, counsel to
the Loan Parties, addressed to each Agent, each Lender and each LC Issuer and
dated the Closing Date, and covering such matters as the Administrative Agent
may reasonably request;
(v) a
favorable opinion of such local counsel to the Loan Parties, in each case
addressed to each Agent, each Lender and each LC Issuer and dated the Closing
Date, and covering such matters concerning the Loan Parties and the Loan
Documents, as the Administrative Agent may reasonably request;
(vi) a
certificate of a Responsible Officer of the Borrower either (A) attaching copies
of all material consents, licenses and approvals required in connection with
the
execution, delivery and performance by any Loan Party and the validity against
any Loan Party of the Loan Documents to which it is a party, which consents,
licenses and approvals shall be in full force and effect, or (B) stating that
no
such consents, licenses or approvals are so required;
(vii) a
certificate of a Responsible Officer of the Borrower certifying that the
conditions specified in clauses
(c)
and
(d)
of this
Article IV
have
been satisfied;
(viii) a
certificate from the chief financial officer of the Borrower attesting to the
Solvency of the Loan Parties before and after giving effect to the
Transactions;
(ix) a
certificate from the chief financial officer of the Borrower to the effect
that,
after giving effect to the Transactions to be consummated on the Closing Date,
the Borrower and the Subsidiaries shall have at least $70,000,000 of
unrestricted cash and Cash Equivalents;
62
(x) a
certified copy of the 2013 Supplemental Indenture, duly executed by the parties
thereto, which shall be consistent with the Exchange Offer Circular and
otherwise be in form and substance reasonably satisfactory to the Administrative
Agent and which shall have become or shall simultaneously become effective
in
accordance with the terms of the 2013 Original Indenture;
(xi) a
certified copy of the 2013 New Indenture, duly executed by the parties thereto,
which shall be consistent with the Exchange Offer Circular and otherwise be
in
form and substance reasonably satisfactory to the Administrative
Agent;
(xii) a
notice
of borrowing under Section
2.02;
(xiii) a
Perfection Certificate, together with all attachments contemplated thereby,
including the results of a search of the Uniform Commercial Code (or equivalent)
filings made with respect to the Loan Parties in the jurisdictions contemplated
by the Perfection Certificate and copies of the financing statements (or similar
documents) disclosed by such search and evidence reasonably satisfactory to
the
Administrative Agent that the Liens indicated by such financing statements
are
Permitted Liens or have been released; and
(xiv) evidence
that the commitments under the Existing Credit Agreement shall have been, or
shall substantially concurrently be, terminated, all loans and other amounts
outstanding thereunder shall have been, or shall substantially concurrently
be,
paid in full and all Liens securing the obligations thereunder and under any
related agreements shall have been, or shall substantially concurrently be,
released.
(b) The
Guarantee and Collateral Requirement (other than the requirements set forth
in
clauses
(e),
(f)
and
(g)
of the
definition of such term) shall have been satisfied.
(c) The
Borrower (i) shall have accepted, or substantially concurrently shall accept,
for exchange all of the 2013 Original Notes validly tendered and not validly
withdrawn pursuant to the Exchange Offer and issued 2013 New Notes in exchange
therefor and (ii) shall have received the Requisite Consents (as defined in
the Exchange Offer Circular).
(d)
(i) The
representations and warranties of the Borrower and each other Loan Party
contained in Article V
or in
any other Loan Document shall be true and correct in all material respects
on
and as of the Closing Date, except to the extent that such representations
and
warranties specifically refer to an earlier date, in which case they shall
be
true and correct in all material respects as of such earlier date; and
(ii) no Default shall have occurred and be continuing or would result from
such proposed making of Loans or application of the proceeds therefrom or from
the issuance of the Letters of Credit.
(e) The
Lenders shall have received the financial statements referred to in Section 5.05.
(f) The
Lenders shall have received financial projections of the Borrower and its
Subsidiaries for the years 2007 through 2010, in form and substance satisfactory
to the Lenders.
63
(g) The
Administrative Agent shall have received evidence that the insurance required
by
Section 6.08
and by
the Guarantee and Collateral Agreement is in effect.
(h) All
fees
required to be paid to the Agents and the Arrangers on or before the Closing
Date shall have been paid. All costs and expenses (including legal fees and
expenses, title premiums, survey charges and recording taxes and fees) required
to be paid to the Agents and the Arrangers shall have been paid to the extent
due and invoiced.
(i) There
shall exist no action, suit, investigation, litigation or proceeding affecting
the Borrower or any of its Subsidiaries pending or, to the knowledge of the
Borrower, threatened before any Governmental Authority or arbitrator that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
(j) All
material governmental authorizations and all third party consents and approvals
necessary in connection with the Transactions shall have been obtained and
shall
remain in effect.
(k) The
Lenders shall have received all documentation and other information required
by
bank regulatory authorities under applicable “know-your-customer” and anti-money
laundering rules and regulations.
Notwithstanding
the foregoing, if the Borrower shall have used commercially reasonable efforts
to procure and deliver, but shall nevertheless be unable to deliver, any
mortgages, foreign pledge agreements and control agreements required to perfect
Liens on the Collateral, or any related lien searches, agreements of third
parties or documents from public officials, such delivery shall not be a
condition precedent to the obligations of the Term Lenders, the LC Lenders
or
the LC Issuers hereunder on the Closing Date, but shall be required to be
accomplished as provided in Section
6.18.
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES
The
Borrower represents and warrants to the Administrative Agent and the Lenders
that:
Section
5.01. Existence,
Qualification and Power; Compliance with Laws.
Each
Loan Party and each of its Subsidiaries (other than any Dormant Subsidiaries)
(a) is duly organized or formed and validly existing under the Laws of the
jurisdiction of its incorporation or organization, (b) has all requisite power
and authority and all requisite governmental licenses, authorizations (including
good standing), consents and approvals (i) to own or lease its assets and
carry on its business and (ii) to execute, deliver and perform its
obligations under the Loan Documents to which it is or is to be a party and
to
consummate the Transactions, (c) is duly qualified and is licensed and in good
standing under the Laws of each jurisdiction where its ownership, lease or
operation of properties or the conduct of its business requires such
qualification or license and (d) is in compliance with all Laws and licenses,
authorizations and permits of Governmental Authorities in favor of such Loan
Party, except in the case of clauses (b)(i), (c) and (d), to the extent that
failure to do so could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
64
Section
5.02. Authorization;
No Contravention.
The
execution, delivery and performance by each Loan Party of each Loan Document
to
which such Loan Party is or is to be a party are within such Loan Party’s
corporate or other powers, have been duly authorized by all necessary corporate
or other organizational action and do not and will not, except to the extent
that such breach, contravention or conflict could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect,
(a) contravene the terms of any of such Loan Party’s Organization
Documents, (b) conflict with or result in any breach or contravention of, or
the
creation of any Lien (other than Permitted Liens) under, or require any payment
to be made under (i) any Contractual Obligation to which such Loan Party is
a
party or, to such Loan Party’s knowledge, affecting such Loan Party or the
properties of such Loan Party or any of its Subsidiaries or (ii) any order,
injunction, writ or decree of any Governmental Authority or any arbitral award
to which such Loan Party or its property is subject, or (c) violate any Law
or
any license, authorization or permit of a Governmental Authority reasonably
necessarily in the conduct of such Loan Party’s business. Each Loan Party and
each Subsidiary thereof is in compliance with all Contractual Obligations
referred to in clause (b)(i), except to the extent that failure to do so could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
Section
5.03. Governmental
Authorization; Other Consents.
No
approval, consent, exemption, authorization or other action by, or notice to,
or
filing with, any Governmental Authority or any other Person is necessary or
required in connection with (a) the execution, delivery or performance by,
or
enforcement against, any Loan Party of this Agreement or any other Loan
Document, or for the consummation of the Transactions, except those approvals,
consents, exemptions, authorizations or other actions the failure of which
to
obtain or take could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, (b) the grant by any Loan Party
of the Liens granted by it pursuant to the Collateral Documents, (c) the
perfection or maintenance of the Liens created under the Collateral Documents,
other than UCC filings and other filings specifically contemplated by the
Collateral Documents, or (d) the exercise by any Agent, any Lender or any
LC Issuer of its rights under the Loan Documents or the remedies in respect
of
the Collateral pursuant to the Collateral Documents, except for (i) filings
necessary to perfect the Liens on the Collateral granted by the Loan Parties
pursuant to the Collateral Documents and (ii) approvals, consents,
exemptions, authorizations, deletions, notices and filings that (A) have
been duly obtained, taken, given or made and are in full force and effect or
(B) the failure of which to obtain, take, give or make could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
Section
5.04. Binding
Effect.
This
Agreement has been, and each other Loan Document when delivered hereunder will
have been, duly executed and delivered by each Loan Party that is party thereto.
This Agreement constitutes, and each other Loan Document when so delivered
will
constitute, a legal, valid and binding obligation of such Loan Party,
enforceable against each Loan Party that is party thereto in accordance with
its
terms, except to the extent such enforceability may be limited by the effect
of
applicable bankruptcy, insolvency or similar laws affecting the enforcement
of
creditors’ rights generally and by equitable principles relating to
enforceability.
65
Section
5.05. Financial
Statements; No Material Adverse Effect.
(a) The
Borrower has previously made available to the Lenders its consolidated balance
sheets and consolidated statements of operations, shareholders’ equity and cash
flows (i) as of and for the fiscal years ended September 30, 2006, 2005 and
2004, reported on by KPMG LLP, and (ii) as of and for the fiscal quarter ended
December 31, 2006. Such financial statements (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except
as
otherwise expressly noted therein and except, in the case of such quarterly
financial statements, the normal year-end audit adjustments and the absence
of
footnotes, (ii) in all material respects fairly present the financial
condition and shareholders’ equity of the Borrower and its Subsidiaries as of
the dates thereof and their results of operations and cash flows for the periods
covered thereby and (iii) show all material Indebtedness and other liabilities,
direct or contingent, of the Borrower and its Subsidiaries as of the dates
thereof, including liabilities for taxes and material commitments.
(b) Except
with respect to any events disclosed in the Borrower’s Current Reports on Form
8-K dated January 10, 2007 and March 12, 2007, since September 30, 2006,
there has been no event or circumstance that, individually or in the aggregate,
has had or could reasonably be expected to have a Material Adverse
Effect.
Section
5.06. Litigation.
Except
as disclosed on Schedule 5.06,
there
are no actions, suits, proceedings, claims or disputes pending or, to the
knowledge of the Borrower, threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, against the Borrower or any
of
its Subsidiaries or against any of their properties or revenues that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
Section
5.07. No
Default.
Neither
the Borrower nor any Subsidiary is in default under or with respect to, or
a
party to, any Contractual Obligation that, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.
Section
5.08. Ownership
of Property.
(a) The
Borrower and each of its Subsidiaries has (i) good title to, or valid
leasehold interest in, all of its personal property necessary or used in the
ordinary conduct of its business and (ii) good, indefeasible and insurable
title in fee simple to, or valid leasehold interests in, all real property
necessary or used in the ordinary conduct of its business, except where failure
to have such title or other property interests could not, individually or in
the
aggregate, reasonably be expected to have a Material Adverse Effect.
(b) Schedule 5.08(b)
sets
forth a complete and accurate list of all real property owned by each Loan
Party
that, as of the Closing Date, has an estimated fair market value of $5,000,000
or more, in each case showing as of the Closing Date the street address, county
or other relevant jurisdiction, state, record owner and estimated fair value
thereof. Each Loan Party has good, indefeasible and insurable fee simple title
to the real property owned by such Loan Party, free and clear of all Liens,
other than Permitted Liens.
66
(c) Schedule 5.08(c)
sets
forth a complete and accurate list of all leases of real property under which
any Loan Party is the lessee and which would constitute, as of the date hereof,
Mortgaged Properties, showing as of the date hereof the street address, county
or other relevant jurisdiction, state, lessor, lessee and expiration date
thereof. Each such lease is the legal, valid and binding obligation of the
lessor (assuming corporate power and authority and due execution and delivery
on
the part of the lessor with respect to such lease) thereof, enforceable in
accordance with its terms.
Section
5.09. Environmental
Compliance.
(a) The
Borrower and its Subsidiaries, and the facilities and properties owned or leased
by the Borrower and its Subsidiaries, are and have been in compliance with
all
Environmental Laws, except for such noncompliance as would not, individually
or
in the aggregate, reasonably be expected to result in a Material Adverse
Effect.
(b) Except
as
set forth in Schedule 5.09,
none of
the properties currently or, to the knowledge of the Borrower, formerly owned
or
operated by the Borrower or any of its Subsidiaries is listed or proposed for
listing on the NPL or on the CERCLIS or any analogous foreign, state or local
list; and, except as would not, individually or in the aggregate, reasonably
be
expected to result in a Material Adverse Effect, Hazardous Materials have not
been Released at, on, under or from any property currently or, to the knowledge
of the Borrower, formerly owned or operated by the Borrower or any of its
Subsidiaries.
(c) Except
as
set forth on Schedule 5.09
or as
could not, individually or in the aggregate, reasonably be expected to have
a
Material Adverse Effect, neither the Borrower nor any of its Subsidiaries is
undertaking, and has not completed, either individually or together with other
potentially responsible parties, any investigation or assessment or remedial
or
response action relating to any actual or threatened Release of Hazardous
Materials at any site, location or operation, either voluntarily or pursuant
to
the order of any Governmental Authority or the requirements of any Environmental
Law; and all Hazardous Materials generated, used, treated, handled or stored
at,
or transported to or from, any property currently or formerly owned or operated
by the Borrower or any of its Subsidiaries have been disposed of in a manner
not
reasonably expected to result, individually or in the aggregate, in a Material
Adverse Effect.
(d) There
are
no pending or threatened claims, actions, suits, proceedings, or investigations
against the Borrower or any of its Subsidiaries by any Government Authority
or
any other party arising under or relating to any Environmental Law, except
for
such claims, actions, suits, proceedings or investigations that, individually
or
in the aggregate, are not reasonably likely to result in a Material Adverse
Effect.
Section
5.10. Insurance.
The
properties of the Borrower and its Subsidiaries are insured with financially
sound and reputable insurance companies not Affiliates of the Borrower, in
such
amounts (after giving effect to any self-insurance compatible with the following
standards), with such deductibles and covering such risks as are customarily
carried by companies engaged in the same or similar businesses and owning
similar properties in localities where the Borrower or the applicable Subsidiary
operates.
67
Section
5.11. Taxes.
The
Borrower and its Subsidiaries have filed all material Federal, state and other
material tax returns and reports required to be filed, and have paid all
material Federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income
or
assets otherwise due and payable, except (a) those that are not overdue by
more than 30 days, (b) those that are being contested in good faith by
appropriate proceedings diligently conducted and for which adequate reserves
have been provided in accordance with GAAP or (c) to the extent that the
failure to make such filings could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. There is no proposed
tax assessment against the Borrower or any Subsidiary that would, if made,
have
a Material Adverse Effect. Neither the Borrower nor any of its Subsidiaries
is
party to any tax sharing agreement with any other Person (other than the
Borrower and its Subsidiaries) pursuant to which it is liable for any Taxes
of
any Person that, individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect.
Section
5.12. ERISA
Compliance.
(a) Each
Plan
is in compliance in all material respects with its terms, the applicable
provisions of ERISA, the Code and other federal or state Laws. Each Plan that
is
intended to qualify under Section 401(a) of the Code is so qualified, and
to the knowledge of the Borrower, nothing has occurred that could reasonably
be
expected to cause the loss of such qualification. There are no pending or,
to
the knowledge of the Borrower, threatened claims, actions or lawsuits, or action
by any Governmental Authority, with respect to any Plan that, individually
or in
the aggregate, could reasonably be expected to have a Material Adverse
Effect.
(b) No
ERISA
Event has occurred or could reasonably be expected to occur that, individually
or in the aggregate, has had or could reasonably be expected to have a Material
Adverse Effect. No Pension Plan has any Unfunded Pension Liability, except
as
could not, individually or in the aggregate, reasonably be expected to have
a
Material Adverse Effect.
(c) With
respect to each scheme or arrangement mandated by a Governmental Authority
outside the United States (a “Foreign
Government Scheme or Arrangement”)
and
with respect to each employee benefit plan maintained or contributed to by
any
Loan Party or any Subsidiary of any Loan Party that is not subject to United
States law (a “Foreign
Plan”),
except as could not, individually or in the aggregate, reasonably be expected
to
have a Material Adverse Effect:
(i) any
employer and employee contributions required by law or by the terms of any
Foreign Government Scheme or Arrangement or any Foreign Plan have been made,
or,
if applicable, accrued in accordance with normal accounting
practices;
(ii) the
fair
market value of the assets of each funded Foreign Plan, the liability of each
insurer for any Foreign Plan funded through insurance or the book reserve
established for any Foreign Plan, together with any accrued contributions,
is
sufficient to procure or provide for the accrued benefit obligations, as of
the
date hereof, with respect to all current and former participants in such Foreign
Plan according to the actuarial assumptions and valuations most recently used
to
account for such obligations in accordance with applicable generally accepted
accounting principles; and
68
(iii) each
Foreign Plan required to be registered has been registered and has been
maintained in good standing with applicable regulatory authorities.
Section
5.13. Subsidiaries;
Equity Interests.
As of
the Closing Date, the Borrower has no Subsidiaries other than those set forth
on
Schedule 5.13,
and all
of the outstanding Equity Interests in such Subsidiaries have been validly
issued, are fully paid and non-assessable and are owned by the Borrower or
its
Subsidiaries in the amounts specified on Schedule 5.13,
free
and clear of all Liens except those permitted under Section 7.01(a),
(c),
(h),
(j)
or
(m).
As of
the Closing Date, no Loan Party holds Equity Interests in any Person except
as
set forth on Schedule 5.13.
Section
5.14. Margin
Regulations; Investment Company Act.
(a) Following
the application of the proceeds of each Borrowing or drawing under each Letter
of Credit, not more than 25% of the value of the assets (of the Borrower only,
or of the Borrower and its Subsidiaries on a consolidated basis) subject to
the
provisions of Section 7.01
or
Section 7.05
or
subject to any restriction contained in any agreement or instrument between
the
Borrower and any Lender or any Affiliate of any Lender relating to Indebtedness
and within the scope of Section 8.01(e)
will be
margin stock.
(b) None
of
the Borrower, any Person Controlling the Borrower or any Subsidiary is or is
required to be registered as an “investment company” under the Investment
Company Act of 1940.
Section
5.15. Disclosure.
The
Borrower has disclosed to the Administrative Agent and the Lenders all
agreements, instruments and corporate or other restrictions to which the
Borrower or any of its Subsidiaries is subject, and all other matters known
to
it, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. Neither the Information Memorandum nor
any
report, financial statement, certificate or other written or formally presented
information furnished by or on behalf of the Loan Parties to the Administrative
Agent or any Lender in connection with the transactions contemplated hereby
and
the negotiation of this Agreement or delivered hereunder or under any other
Loan
Document (in each case taken as a whole and as modified or supplemented by
other
information so furnished) contains any untrue statement of a material fact
or
omits to state any material fact necessary to make the statements therein,
in
the light of the circumstances under which they were made, not misleading;
provided
that,
with respect to projected financial information, the Borrower represents only
that such information was prepared in good faith based upon assumptions believed
by the Borrower to be reasonable at the time made, it being understood that
actual results may vary from such projections, and such variations may be
material.
Section
5.16. Intellectual
Property; Licenses, Etc.
The
Borrower and its Subsidiaries own, or possess the right to use, all of the
trademarks, service marks, trade names, copyrights, patents, patent rights,
franchises, licenses and other intellectual property rights (collectively,
“IP
Rights”)
that
are necessary for the operation of their businesses, without conflict with
the
rights of any other Person, except to the extent that the failure to so own
or
possess any such IP Rights (or any conflict pertaining thereto) could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. To the knowledge of the Borrower, none of the IP Rights
currently used, or currently contemplated to be used, by the
Borrower or any of its Subsidiaries infringes upon any valid rights held by
any
other Person, except to the extent that such infringement could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Except as specifically disclosed in Schedule 5.16,
no
claim or litigation regarding any of the foregoing is pending or, to the
knowledge of the Borrower, threatened, that, individually or in the aggregate,
could reasonably be expected to have
a
Material Adverse Effect.
69
Section
5.17. Solvency.
The Loan
Parties are, on a consolidated basis, Solvent.
Section
5.18. Senior
Debt Status.
On the
Closing Date, no Indebtedness or other obligations, other than the Obligations,
constitute “Designated Senior Debt” under any of the Indentures.
ARTICLE
VI
AFFIRMATIVE
COVENANTS
So
long
as any Lender shall have any Commitment hereunder, any Loan, any LC Disbursement
or any interest or fees payable hereunder shall remain unpaid or unsatisfied
or
any Letter of Credit shall remain outstanding (other than any Letter of Credit
the obligations of the Borrower under which shall have been cash collateralized
or supported by letters of credit of other banks naming the applicable LC Issuer
as the beneficiary in a manner satisfactory to such LC Issuer), the Borrower
shall, and, except in the case of the covenants set forth in Sections 6.01,
6.02,
6.03,
6.11,
6.16
and
6.17
shall
cause each Subsidiary to:
Section
6.01. Financial
Statements.
Deliver
to the Administrative Agent, to be made available to the Lenders:
(a) as
soon
as available, but in any event within 90 days after the end of each fiscal
year
of the Borrower (or, if later, by the date the Annual Report on Form 10-K of
the
Borrower for such fiscal year would have been required to be filed under the
rules and regulations of the SEC, giving effect to any automatic extension
available thereunder for filing of such form), a consolidated balance sheet
of
the Borrower and its Subsidiaries as at the end of such fiscal year, and the
related consolidated statements of operations, shareholders’ equity and cash
flows for such fiscal year, setting forth in each case in comparative form
the
figures for the previous fiscal year, all prepared in accordance with GAAP,
such
consolidated financial statements to be audited and accompanied by a report
and
opinion of a “big four” national accounting firm or other Registered Public
Accounting Firm of nationally recognized standing reasonably acceptable to
the
Administrative Agent, which report and opinion shall be prepared in accordance
with generally accepted auditing standards and applicable Securities
Laws;
70
(b) as
soon
as available, but in any event within 45 days after the end of each of the
first
three fiscal quarters of each fiscal year of the Borrower (or, if later, by
the
date the Quarterly Report on Form 10-Q of the Borrower for such fiscal quarter
would have been required to be filed under the rules and regulations of the
SEC,
giving effect to any automatic extension available thereunder for filing of
such
form), a consolidated balance sheet of the Borrower and its Subsidiaries as
at
the end of such fiscal quarter, and the related consolidated statements of
operations, shareholders’ equity and cash flows for such fiscal quarter and for
the portion of the Borrower’s fiscal year then ended, setting forth in each case
in comparative form the figures for the corresponding fiscal quarter of the
previous fiscal year and the corresponding portion of the previous fiscal year,
all in reasonable detail and certified by the chief financial officer of the
Borrower as fairly presenting the financial condition, results of operations,
shareholders’ equity and cash flows of the Borrower and its Subsidiaries in
accordance with GAAP, subject only to normal year-end audit adjustments and
the
absence of footnotes; and
(c) as
soon
as available, but in any event within 91 days after the end of each fiscal
year
of the Borrower, forecasts prepared by management of the Borrower, in form
reasonably satisfactory to the Administrative Agent, of the operating budget
and
cash flow budget of the Borrower and its Subsidiaries for the succeeding fiscal
year, such projections to be accompanied by a certificate of the chief financial
officer of the Borrower to the effect that (i) such projections were prepared
by
the Borrower in good faith, (ii) the Borrower has a reasonable basis for the
assumptions contained in such projections and (iii) such projections have been
prepared in accordance with such assumptions, it being understood that actual
results may vary from such projections, and such variations may be
material.
As
to any
information contained in materials furnished pursuant to Section 6.02(d),
the
Borrower shall not be separately required to furnish such information under
Section 6.01(a)
or
(b),
but the
foregoing shall not be in derogation of the obligation of the Borrower to
furnish the information and materials described in Sections 6.01(a)
and
(b)
at the
times specified therein.
Section
6.02. Certificates;
Other Information.
Deliver
to the Administrative Agent, to be made available to the Lenders:
(a) concurrently
with the delivery of the financial statements referred to in Sections 6.01(a)
and
(b),
a duly
completed Compliance Certificate signed by a Responsible Officer of the
Borrower, which shall include, to the extent applicable, the computations of
pro
forma calculations referred to in the definition of the terms Consolidated
EBITDA and Consolidated Interest Expense;
(b) concurrently
with the delivery of the financial statements referred to in Section
6.01(a),
a
certificate of a Responsible Officer of the Borrower that all notices required
to be provided under Section 6.13
have
been provided;
(c) promptly
after any request by the Administrative Agent, copies of any final management
letters submitted to the board of directors (or the audit committee of the
board
of directors) of any Loan Party by independent accountants;
71
(d) promptly
after the same becomes publicly available, copies of each annual report, proxy
or financial statement or other report or communication sent to the stockholders
of the Borrower, and copies of all annual, regular, periodic and special reports
and registration statements that the Borrower files or is required to file
with
the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934,
or with any national securities exchange, and in any case not otherwise required
to be delivered pursuant to this Section 6.02;
(e) promptly
after the furnishing thereof, copies of any statement or report furnished to
any
holder of debt securities of the Borrower or of any of its Subsidiaries pursuant
to the terms of any indenture, loan or credit or similar agreement and not
otherwise required to be delivered pursuant to this Section 6.02;
(f) promptly
and in any event within five Business Days after receipt thereof by the
Borrower or any of its Subsidiaries, notice of receipt of any notice or other
correspondence received from the SEC (or comparable agency in any applicable
non-U.S. jurisdiction) concerning any material investigation or possible
material investigation or other material inquiry by such agency regarding
financial or other operational results of the Borrower or any of its
Subsidiaries, but not copies of any such notice or correspondence;
(g) promptly
after the occurrence thereof or any material development therein, notice of
any
Environmental Liability of, or any noncompliance with any Environmental Law
or
Environmental Permit by, the Borrower or any of its Subsidiaries that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect; and
(h) promptly,
such additional information regarding the business, financial, legal or
corporate affairs of the Borrower or any of its Subsidiaries, or compliance
with
the terms of the Loan Documents, as the Administrative Agent or any Lender
may
from time to time reasonably request.
Documents
required to be delivered pursuant to Section 6.01(a)
or
(b)
or
otherwise, to the extent any such documents are included in materials otherwise
filed with the SEC, may be delivered electronically and, if so delivered, shall
be deemed to have been delivered on the date on which (i) the Borrower
posts such documents, or provides a link thereto, on the Borrower’s principal
publicly accessible website or (ii) such documents are posted on the
Borrower’s behalf on an Internet or intranet website, if any, to which each
Lender and the Administrative Agent have access (which may be a commercial
or a
third-party website or a website sponsored by the Administrative Agent);
provided
that the
Borrower shall notify the Administrative Agent of the posting of any such
documents and provide to the Administrative Agent by electronic mail electronic
versions (i.e.,
soft
copies) of such documents.
Section
6.03. Notices.
Promptly
notify the Administrative Agent of:
(a) the
occurrence of any Default;
(b) any
matter that has resulted or could reasonably be expected to result in a Material
Adverse Effect;
72
(c) the
occurrence of any ERISA Event;
(d) the
occurrence of any Disposition or Casualty Event, or the incurrence or issuance
of any Indebtedness or Equity Interests, in each case for which the Borrower
is
required to make a mandatory prepayment pursuant to Section 2.04(b);
and
(e) the
occurrence of any Internal Control Event.
Each
notice pursuant to Section 6.03(a),
(b),
(c)
or
(e)
shall be
accompanied by a statement of a Responsible Officer of the Borrower setting
forth details of the occurrence referred to therein and stating what action
the
Borrower has taken and proposes to take with respect thereto. Each notice
pursuant to Section 6.03(a)
shall
describe with particularity any and all provisions of this Agreement and any
other Loan Document in respect of which a Default exists.
Section
6.04. Nonpublic
Information.
Concurrently with the delivery of any document or notice required to be
delivered pursuant to Section 6.01,
6.02
or
6.03,
indicate in writing whether such document or notice contains Nonpublic
Information. The Borrower and each Lender acknowledge that certain of the
Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive
material non-public information with respect to the Borrower, its Subsidiaries
or its or their securities) and, if documents or notices required to be
delivered pursuant to Section 6.01,
6.02
or
6.03,
or
otherwise, are being distributed through IntraLinks/IntraAgency, SyndTrak or
another relevant website or other information platform (the “Platform”),
any
document or notice that the Borrower has indicated contains Nonpublic
Information shall not be posted on that portion of the Platform designated
for
such public-side Lenders. If the Borrower has not indicated whether a document
or notice delivered pursuant to Section 6.01,
6.02
or
6.03
contains
Nonpublic Information, the Administrative Agent reserves the right to post
such
document or notice solely on that portion of the Platform designated for Lenders
who wish to receive Nonpublic Information with respect to the Borrower, its
Subsidiaries and its and their securities.
Section
6.05. Payment
of Obligations.
Pay,
discharge or otherwise satisfy as the same shall become due and payable
(a) all material tax liabilities, assessments and governmental charges or
levies upon it or its assets, unless the same are being contested in good faith
by appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being maintained by the Borrower or such Subsidiary,
except to the extent the failure to pay or discharge the same could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, and (b) all lawful claims that, if unpaid, would by Law
become a Lien upon its assets.
Section
6.06. Preservation
of Existence, Etc.
(a) Other
than as to Dormant Subsidiaries, preserve, renew and maintain in full force
and
effect its legal existence and good standing under the Laws of the jurisdiction
of its organization, except in a transaction permitted by Section 7.04
or
7.05
and
except, other than with respect to the Borrower, to the extent the failure
to do
so could not, individually or in the aggregate, reasonably be expected to have
a
Material Adverse Effect;
73
(b) take
all
reasonable action to maintain all rights, privileges, permits, licenses and
franchises necessary or desirable in the normal conduct of its business, except
to the extent the failure to do so could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; and
(c) preserve
or renew all of its registered IP Rights, except to the extent the failure
to do
so could not, individually or in the aggregate, reasonably be expected to have
a
Material Adverse Effect.
Section
6.07. Maintenance
of Properties.
Except
with respect to Dormant Subsidiaries and except where the failure to do so
could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, (a) maintain, preserve and protect all of its properties
and equipment that are necessary in the operation of its business in good
working order and condition, ordinary wear and tear excepted, and (b) make
all necessary repairs thereto and renewals and replacements thereof in
accordance with prudent industry practice.
Section
6.08. Maintenance
of Insurance.
Maintain, with financially sound and reputable insurance companies not
Affiliates of the Borrower, insurance with respect to its properties in such
amounts (after giving effect to any self-insurance (including with captive
insurance companies) compatible with the following standards), with such
deductibles and covering such risks as are customarily carried by companies
engaged in the same or similar businesses and owning similar properties in
localities where the Borrower or the applicable Subsidiary operates.
Section
6.09. Compliance
with Laws.
Comply
with the requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its business or property, except where such requirement
of Law or order, writ, injunction or decree is being contested in good faith
by
appropriate proceedings diligently conducted or where the failure to comply
therewith could not, individually or in the aggregate, reasonably be expected
to
have a Material Adverse Effect.
Section
6.10. Books
and Records.
Maintain
proper books of record and account, in which full, true and correct entries
shall be made of all material financial transactions and matters involving
the
assets and business of the Borrower or such Subsidiary, as the case may be,
in a
manner that permits the preparation of financial statements in accordance with
GAAP.
Section
6.11. Inspection
Rights.
Permit
representatives and independent contractors of the Administrative Agent and
each
Lender to visit and inspect any of its properties, to examine its corporate,
financial and operating records, and make copies thereof or abstracts therefrom,
and to discuss its affairs, finances and accounts with its directors, officers,
and independent public accountants, all at reasonable times during normal
business hours, in reasonable intervals and upon reasonable advance notice
to
the Borrower; provided,
that,
excluding any such visits and inspections during the continuation of an Event
of
Default, only the Administrative Agent on behalf of the Lenders may exercise
rights under this Section 6.11
and
the
Administrative Agent shall not exercise such rights more often than twice during
any calendar year and any one such time shall be at the Borrower’s expense;
provided further,
that
when an Event of Default exists the Administrative Agent or any Lender may
do
any of the foregoing at the expense of the Borrower at any time during normal
business hours and upon reasonable advance notice to the Borrower. The
Administrative Agent and the Lenders shall give the Borrower the opportunity
to
participate in any discussions with the Borrower’s accountants.
74
Section
6.12. Use
of
Proceeds.
Use the
proceeds of the Loans solely to repay in full all amounts outstanding under
the
Existing Credit Agreement and to pay fees and expenses related to the
Transactions and, with respect to any remaining proceeds, for general corporate
purposes not in contravention of any Law or of any Loan Document; and use
Letters of Credit solely to support obligations of the Borrower and its
Subsidiaries incurred in the ordinary course of business.
Section
6.13. Information
Regarding Collateral; Additional Subsidiaries. ii)
Furnish
to the Collateral Agent prompt written notice of any change in (i) any Loan
Party’s legal name, as reflected in its Organization Documents, (ii) any
Loan Party’s jurisdiction of organization or corporate structure and
(iii) any Loan Party’s identity, Federal Taxpayer Identification Number or
organization number, if any, assigned by the jurisdiction of its organization,
and not effect or permit any such change unless all filings have been made
under
the Uniform Commercial Code or otherwise that are required in order for the
Collateral Agent to continue at all times following such change to have a valid,
legal and perfected security interest in all the Collateral.
(b) If
any
material assets (including any Equity Interests and any real properties or
leasehold interests that would constitute Mortgaged Properties) are acquired,
or
any deposit accounts or securities accounts described in the definition of
the
term Guarantee and Collateral Requirement are established, by the Borrower
or
any Subsidiary Loan Party (or held by any Person becoming a Subsidiary Loan
Party) after the Closing Date (other than assets (but not Equity Interests
or
any such accounts) constituting Collateral under the Guarantee and Collateral
Agreement that become subject to the Lien created by the Guarantee and
Collateral Agreement upon acquisition thereof, but only if such Lien thereon
shall be perfected), notify the Collateral Agent thereof and, if requested
by
the Collateral Agent, cause such assets or accounts to be subjected to a Lien
securing the Obligations and take such actions as shall be necessary or
reasonably requested by the Collateral Agent to grant and perfect such Liens,
all at the expense of the Loan Parties.
(c) If
any
additional Subsidiary (other than a Dormant Subsidiary) is formed or acquired
after the Closing Date or if any Subsidiary ceases to be a Dormant Subsidiary,
notify, within 10 Business Days after such Subsidiary is formed or acquired
or
ceases to be a Dormant Subsidiary, as the case may be, the Collateral Agent
thereof and, promptly thereafter, cause the Guarantee and Collateral Requirement
to be satisfied with respect to such Subsidiary (if it is a Subsidiary Loan
Party) and with respect to any Equity Interest in or Indebtedness of such
Subsidiary owned by or on behalf of any Loan Party.
Section
6.14. Compliance
with Environmental Laws.
Except
to the extent the failure to do so could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, comply, and cause
all
lessees and other Persons operating or occupying its properties to comply,
with
all applicable Environmental Laws and Environmental Permits; obtain and renew
all Environmental Permits necessary for its operations and properties; and
conduct any investigation, study, sampling and testing, and undertake any
cleanup, removal, remedial or other action necessary to remove and clean up
all
Hazardous Materials from any of its properties in accordance with the
requirements of all applicable Environmental Laws; provided,
however,
that
neither the Borrower nor any of its Subsidiaries shall be required to undertake
any such cleanup, removal, remedial or other action (a) to the extent that
its obligation to do so is being contested in good faith and by proper
proceedings diligently pursued and appropriate reserves are being maintained
in
accordance with GAAP with respect to such circumstances or (b) where
failure to do so could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
75
Section
6.15. Further
Assurances.
Promptly
upon request by the Administrative Agent, or any Lender through the
Administrative Agent, (a) correct any material defect or error that may be
discovered in any Loan Document or in the execution, acknowledgment, filing
or
recordation thereof, and (b) do, execute, acknowledge, deliver, record,
re-record, file, re-file, register and re-register any and all such further
acts, deeds, certificates, assurances and other instruments as the
Administrative Agent or the Collateral Agent may reasonably require from time
to
time in order to cause the Guarantee and Collateral Requirement to be and remain
satisfied and assure, convey, grant, assign, transfer, preserve, protect and
confirm more effectively unto the Administrative Agent or the Collateral Agent,
the rights granted or now or hereafter intended to be granted to such Persons
under any Loan Document or under any other instrument executed in connection
with any Loan Document to which the Borrower or any other Loan Party is or
is to
be a party.
Section
6.16. Interest
Rate Hedging.
No later
than 90 days after the Closing Date, obtain and, at all times thereafter until
the third anniversary of the Closing Date cause to be maintained, protection
against fluctuations in interest rates pursuant to one or more Swap Contracts
in
form and substance reasonably satisfactory to the Administrative Agent, in
order
to ensure that not less than 50% of the aggregate principal amount of the total
Indebtedness for borrowed money of the Borrower and its Subsidiaries then
outstanding is either (i) subject to such Swap Contracts or
(ii) Indebtedness that bears interest at a fixed rate.
Section
6.17. Ratings.
Use
commercially reasonable efforts to obtain as promptly as practicable after
the
Closing Date, and thereafter to maintain at all times, ratings issued by Moody’s
and S&P with respect to senior secured debt of the Borrower.
Section
6.18. Certain
Post-Closing
Collateral Obligations.
As
promptly as practicable, and in any event within 60 days, after the Closing
Date, (a) cause the requirements set forth in clauses
(c)
(with
respect to Foreign Subsidiaries), (e),
(f)
and
(g)
of the
definition of the term Guarantee and Collateral Requirement to be satisfied
and
(b) deliver all mortgages, foreign pledge agreements, control agreements, lien
searches, agreements of third parties and documents from public officials that
would have been required to be delivered on the Closing Date but for the last
sentence of Article
IV,
in each
case except to the extent otherwise agreed to by the Collateral Agent pursuant
to the last two sentences of the definition of the term Guarantee and Collateral
Requirement.
76
ARTICLE
VII
NEGATIVE
COVENANTS
So
long
as any Lender shall have any Commitment hereunder, any Loan, any LC Disbursement
or any interest or fees payable hereunder shall remain unpaid or unsatisfied
or
any Letter of Credit shall remain outstanding (other than any Letter of Credit
the obligations of the Borrower under which shall have been cash collateralized
or supported by letters of credit of other banks naming the applicable LC Issuer
as the beneficiary in a manner satisfactory to such LC Issuer), the Borrower
shall not, nor shall it permit any Subsidiary to, directly or
indirectly:
Section
7.01. Liens.
Create,
incur, assume or suffer to exist any Lien upon any of its properties or assets,
whether now owned or hereafter acquired, other than the following (“Permitted
Liens”):
(a) Liens
created under any Loan Document;
(b) Liens
existing on the Closing Date and set forth on Schedule 7.01(b),
and any
renewals or extensions thereof; provided
that (i)
such Liens shall apply only to the assets to which they apply on the Closing
Date and (ii) such Liens shall secure only (A) those obligations that they
secure on the Closing Date and (B) refinancings, refundings, renewals and
extensions of such secured obligations permitted hereunder so long as the
aggregate principal amount of obligations secured under this Section
7.01(b)
does not
exceed at any time the sum of (x) the principal amount of the obligations
secured by such Liens on the Closing Date and (y) the aggregate amount of
reasonable premiums paid, and fees and expenses reasonably incurred, in
connection with such refinancings, refundings, renewals and
extensions;
(c) Liens
for
Taxes, fees, assessments or other governmental charges that are not overdue
by
more than 30 days or, if more than 30 days overdue, (i) that are being
contested in good faith by appropriate proceedings diligently conducted and
for
which adequate reserves have been provided in accordance with GAAP or
(ii) with respect to which in the aggregate the failure to make payment
could not reasonably be expected to have a Material Adverse Effect;
(d) statutory
Liens of landlords, warehousemen, mechanics, materialmen, repairmen or other
like Liens arising in the ordinary course of business that secure obligations
that are not overdue by more than 30 days or, if more than 30 days overdue,
(i) that are being contested in good faith by appropriate proceedings
diligently conducted and for which adequate reserves have been provided in
accordance with GAAP or (iii) with respect to which in the aggregate the
failure to make payment could not reasonably be expected to have a Material
Adverse Effect;
(e) pledges
and deposits made in the ordinary course of business (i) in connection with
workers’ compensation, unemployment insurance and other social security
legislation, other than any Lien imposed by ERISA, or (ii) securing
insurance premiums or reimbursement obligations under insurance policies, in
each case payable to insurance carriers that provide insurance to the Borrower
or any of its Subsidiaries;
(f) pledges
and deposits made in the ordinary course of business to secure the performance
of bids, trade contracts and leases (other than Indebtedness), statutory
obligations, surety, stay, customs and appeal bonds, performance bonds,
performance and completion guarantees and other obligations of a like nature
(including those to secure health, safety and environmental
obligations);
77
(g) easements,
rights-of-way, restrictions, encroachments, protrusions and other similar
encumbrances and minor title defects affecting real property that do not secure
Indebtedness, that are incurred in the ordinary course of business and that
do
not materially and adversely affect the use of the property subject thereto
for
its intended purpose;
(h) Liens
securing judgments for the payment of money that have not resulted in an Event
of Default under Section 8.01(h);
(i) Liens
securing Indebtedness permitted under Section 7.02(c);
provided
that
(i) such Liens do not at any time encumber any assets other than the assets
financed by such Indebtedness or, if applicable, subject to such Capitalized
Lease and the proceeds and product thereof and accessions thereto and
(ii) the Indebtedness secured thereby does not exceed the cost or fair
market value, whichever is lower, of the assets being encumbered at the time
such assets became so encumbered; provided further,
however,
that in
the event purchase money obligations are owed to any Person with respect to
financing of more than one purchase of equipment, Liens securing such purchase
money obligations shall be permitted to extend to all equipment so financed
by
such Person;
(j) Liens
securing Indebtedness or other obligations in an aggregate principal
amount at
any
time outstanding not
to
exceed $15,000,000; provided
that any
such Liens that extend to or cover any Collateral shall not secure Indebtedness
or other obligations in an aggregate principal amount at any time outstanding
in
excess of $10,000,000;
(k) Liens
arising solely by virtue of any statutory or common law provision relating
to
banker’s liens, rights of set-off or similar rights and remedies as to deposit
or commodity trading or brokerage accounts or other funds maintained with a
creditor depository institution, provided
that
such accounts and funds are not primarily intended by the Borrower or any
Subsidiary to provide collateral to the depository institution or the commodity
intermediary;
(l) Liens
on
property of any Subsidiary in favor of the Borrower or any Subsidiary Loan
Party;
(m) Liens
on
property of any Foreign Subsidiary securing Indebtedness of such Foreign
Subsidiary permitted under Section 7.02(e);
(n) (i) leases,
licenses, subleases and sublicenses granted in the ordinary course of business
and that do not (A) interfere in any material respect with the business of
the Borrower or any of its material Subsidiaries or (B) secure any
Indebtedness for borrowed money or (ii) the rights reserved or vested in
any Person by the terms of any lease, license, franchise, grant or permit held
by the Borrower or any of its Subsidiaries, or by Law to terminate any such
lease, license, franchise, grant or permit or to require annual or periodic
payments as a condition to the continuance thereof;
78
(o) Liens
in
favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods in the
ordinary course of business;
(p) Liens
consisting of (i) agreements to Dispose of any property in a Disposition
permitted under Section 7.05
and
(ii) earnest money deposits made by the Borrower or any of its Subsidiaries
in connection with any letter of intent or purchase agreement entered into
in
connection with an Investment permitted under Section 7.03;
(q) any
Lien
existing on (i) any asset prior to the acquisition thereof by the Borrower
or
any Subsidiary or (ii) any asset of any Person that becomes a Subsidiary (or
is
merged into or consolidated with any Subsidiary) after the date hereof prior
to
the time such Person becomes a Subsidiary (or is so merged or consolidated);
provided
that (A)
such Lien does not extend to or cover any other assets (other than the proceeds
or products of the assets originally subject thereto and, in the case of Liens
referred to in clause (ii), after-acquired assets subjected to a Lien pursuant
to requirements existing at the time such Person became a Subsidiary (or was
so
merged or consolidated), other than any such after-acquired assets that would
not have been subject to such Lien but for such Person becoming a Subsidiary
(or
so being merged or consolidated)), (ii) such Lien was not created in
contemplation of or in connection with such acquisition or such Person becoming
a Subsidiary (or so being merged or consolidated), as the case may be, and
(iii) the Indebtedness secured thereby is permitted under Section 7.02(i);
(r) Liens
arising out of conditional sale, title retention, consignment or similar
arrangements for sale of goods entered into by the Borrower or any of its
Subsidiaries in the ordinary course of business;
(s) Liens
deemed to exist in connection with Investments in repurchase agreements
permitted under Section 7.03;
(t) Liens
on
assets constituting ABL Collateral securing Indebtedness and other obligations
under the Permitted ABL Facility; provided
that the
Borrower, the Collateral Agent and the institution serving as collateral agent
for the Permitted ABL Facility shall have entered into the ABL Intercreditor
Agreement;
(u) Liens
that are contractual rights of set-off under agreements entered into with
customers of the Borrower or any Subsidiary in the ordinary course of business;
and
(v) Liens
securing IRB Debt permitted by Section 7.02(n),
provided
that
Liens extend to and cover only the capital assets and improvements financed
with
such IRB Debt.
Section
7.02. Indebtedness.
Create,
incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness
constituting (i) Investments permitted under Section 7.03(c),
provided
that
(A) any such Indebtedness that is owed to a Loan Party shall be evidenced
by a promissory note that shall have been pledged in accordance with the
Guarantee and Collateral Requirement, (B) any such Indebtedness of a Loan
Party to a Subsidiary that is not a Subsidiary Loan Party shall be subordinated
to the Obligations on terms no less favorable to the Lenders than the terms
set
forth on Exhibit
F,
as
reasonably determined by the Administrative Agent, and (C) no Domestic
Subsidiary of the Borrower shall Guarantee obligations of the Borrower under
the
Permitted ABL Facility unless such Domestic Subsidiary shall have Guaranteed
the
Obligations and (ii) Guarantees by the Borrower of (A) Indebtedness of any
Foreign Subsidiary permitted under Section
7.02(e)
or (B)
Indebtedness of any Foreign Subsidiary under a Qualified Foreign Credit
Facility;
79
(b) Indebtedness
under the Loan Documents;
(c) Indebtedness
in respect of Capitalized Leases, Synthetic Lease Obligations and purchase
money
obligations to finance the purchase, repair or improvement of fixed or capital
assets; provided,
however,
that
the aggregate amount of such Indebtedness at any time outstanding shall not
exceed $15,000,000;
(d) Indebtedness
(other than Indebtedness of Foreign Subsidiaries) in an aggregate principal
amount at any time outstanding not to exceed $25,000,000;
(e) Indebtedness
of Foreign Subsidiaries to Persons other than the Borrower and its Subsidiaries
in an aggregate principal amount at any time outstanding not to exceed
$25,000,000, it being understood that any such Indebtedness may be incurred
under a Qualified Foreign Credit Facility, subject to the limitation set forth
in the definition of such term;
(f) Guarantees
resulting from endorsement of negotiable instruments in the ordinary course
of
business;
(g) obligations
in respect of surety, stay, customs and appeal bonds, performance bonds and
performance and completion guarantees required in the ordinary course of
business or in connection with the enforcement of rights or claims of the
Borrower or its Subsidiaries or in connection with judgments that have not
resulted in an Event of Default under Section
8.01(h);
(h) Indebtedness
outstanding on the date hereof and set forth on Schedule 7.02(h)
and any
refinancings, refundings, renewals or extensions thereof, provided
that
(i) the principal amount of such Indebtedness is not increased at the time
of such refinancing, refunding, renewal or extension except by an amount equal
to a reasonable premium paid, and fees and expenses reasonably incurred, in
connection with such refinancing, refunding, renewal or extension and by an
amount equal to any existing commitments unutilized thereunder and (ii) the
direct or any contingent obligor with respect thereto is not changed as a result
of or in connection with such refinancing, refunding, renewal or extension;
provided further
that
(A) the final maturity and the weighted average life to maturity thereof is
no shorter than that of the Indebtedness being refinanced, refunded, renewed
or
extended and (B) the terms relating to collateral (if any) and subordination
(if
any), and other material terms (other than interest rates) taken as a whole,
of
any such refinancing, refunding, renewing or extending Indebtedness, and of
any
agreement entered into and of any instrument issued in connection therewith,
are
no less favorable in any material respect to the Lenders than the terms of
any
agreement or instrument governing the Indebtedness being refinanced, refunded,
renewed or extended;
(i) Indebtedness
of any Person that becomes a Subsidiary (or is merged into or consolidated
with
any Subsidiary) after the date hereof as a result of a Permitted Acquisition
or
is assumed by the Borrower or any of its Subsidiaries in connection with any
Permitted Acquisition (provided
that (i)
such Indebtedness was not incurred in contemplation of such Permitted
Acquisition and (ii) the aggregate principal amount of Indebtedness permitted
by
this Section 7.02(i)
shall
not exceed $20,000,000 at any time outstanding), and any refinancings,
refunding, renewal or extension thereof that would have been permitted under
Section
7.02(h)
had such
Indebtedness been permitted under such Section;
80
(j) Indebtedness
in respect of netting services, overdraft protections and similar arrangements
in each case in connection with cash management and deposit
accounts;
(k) Indebtedness
consisting of (i) the financing of insurance premiums in the ordinary course
of
business or (ii) take or pay obligations contained in supply arrangements not
to
exceed $100,000,000 in the aggregate;
(l) Indebtedness
incurred by the Borrower or any of its Subsidiaries constituting reimbursement
obligations with respect to letters of credit issued in the ordinary course
of
business in respect of workers compensation claims, health, disability or other
employee benefits or property, casualty or liability insurance or
self-insurance, other Indebtedness with respect to reimbursement-type
obligations regarding workers compensation claims and other Indebtedness in
respect of bankers’ acceptance, letter of credit, warehouse receipts or similar
facilities entered into in the ordinary course of business; provided
that
upon the drawing of such letters of credit or the incurrence of such
Indebtedness, such obligations are reimbursed within five Business Days
following such drawing or incurrence;
(m) Indebtedness
under an asset based revolving credit facility in an aggregate principal amount
at any time outstanding not to exceed the lesser of (i) the Facilities Reduction
Amount at such time and (ii) $300,000,000 (such facility, the “Permitted
ABL Facility”);
(n) IRB
Debt
in an aggregate principal amount at any time outstanding not to exceed
$20,000,000; and
(o) all
premiums (if any), interest (including post-petition interest), fees, expenses,
charges and additional or contingent interest on obligations described in
clauses
(a)
through
(n)
above.
Section
7.03. Investments.
Make or
hold any Investments, except:
(a) Investments
in Cash Equivalents;
(b) advances
to officers, directors and employees of the Borrower and its Subsidiaries
(i) for travel, entertainment, relocation and analogous ordinary business
purposes, in an aggregate amount not to exceed $5,000,000 at any time
outstanding, and (ii) in connection with such Person’s purchase of Equity
Interests of the Borrower, in an aggregate amount not to exceed $5,000,000
at
any time outstanding, in each case determined without regard to any write-downs
or write-offs of such advances;
(c) Investments
by the Borrower in any Subsidiary and by any Subsidiary
in any other Subsidiary or in the Borrower (except Investments in Equity
Interests of the Borrower), provided
that (i)
the aggregate amount of Investments made since the Closing Date by the Loan
Parties in Subsidiaries that are not Subsidiary Loan Parties shall not exceed
the sum of (A) $50,000,000, (B) $25,000,000 (provided
that
Investments made in reliance on this clause (B) shall be used by the recipient
thereof, promptly upon the receipt thereof, to repay Indebtedness of such
recipient or its Subsidiaries (subject to, in the case of any such Indebtedness
that is a revolving extension of credit, a corresponding permanent reduction
in
related commitments)) and (C) the aggregate amount of dividends paid, or loans
or advances repaid, by the Foreign Subsidiaries to, and Investments made by
the
Foreign Subsidiaries in, the Loan Parties since the Closing Date and (ii) any
such Investments by a Loan Party that constitute loans or advances to a
Subsidiary shall be evidenced by a promissory note that shall have been pledged
in accordance with the Guarantee and Collateral Requirement;
81
(d) Investments
consisting of extensions of credit in the nature of accounts receivable or
notes
receivable arising from the grant of trade credit in the ordinary course of
business, and Investments received in satisfaction or partial satisfaction
thereof from financially troubled account debtors and other credits to suppliers
made in the ordinary course of business;
(e) Guarantees
permitted by Section 7.02;
(f) Investments
existing on the date hereof and set forth on Schedule 7.03(f);
(g) Investments
by the Borrower in Swap Contracts;
(h) the
purchase or other acquisition of all of the Equity Interests in, or all or
substantially all of the property and assets constituting a line of business,
a
business unit or division of, any Person that, upon the consummation thereof,
will be owned by the Borrower or a Wholly-Owned Subsidiary (including as a
result of a merger or consolidation between such Person and any Subsidiary);
provided
that no
such purchase or other acquisition may be made prior to September 30, 2007
and
with respect to each such purchase or other acquisition made
thereafter:
(i) all
actions required to be taken under Section
6.13
with
respect to any Subsidiary that is the surviving or continuing Person in any
such
merger or consolidation, or any such purchased or otherwise acquired assets,
shall
have been taken;
(ii) the
lines
of business of the Person or assets to be so purchased or otherwise acquired
shall be reasonably related or similar to one or more lines of business that
are
the principal lines of businesses of the Borrower and its
Subsidiaries;
(iii) (A) the
total cash and noncash consideration (excluding the fair market value of all
Equity Interests of the Borrower (other than any such Equity Interests that
would give rise to Indebtedness) issued or transferred to the sellers thereof,
but including all indemnities, earnouts and other contingent payment obligations
to, and the aggregate amounts paid or to be paid under noncompete, consulting
and other affiliated agreements with, the sellers thereof, all write-downs
of
property and assets and reserves for liabilities with respect thereto and all
assumptions of debt, liabilities and other obligations in connection therewith)
paid by or on behalf of the Borrower and its Subsidiaries for any such purchase
or other acquisition, when aggregated with the total cash and noncash
consideration (determined as set forth above) paid by or on behalf of the
Borrower and its Subsidiaries for all other purchases and other acquisitions
made by the Borrower and its Subsidiaries pursuant to this Section 7.03(h),
shall
not exceed $25,000,000 in any fiscal year of the Borrower or (B) such
Investment is made solely with the Equity Interests of the Borrower (other
than
any such Equity Interests that would give rise to Indebtedness);
82
(iv) immediately
before and immediately after giving effect to any such purchase or other
acquisition, (A) no Event of Default shall have occurred and be continuing
and
(B) the Borrower and its Subsidiaries shall be in pro forma compliance with
the
covenant set forth in Section 7.11,
such
compliance to be determined on the basis of the financial information most
recently delivered to the Administrative Agent pursuant to Section 6.01(a)
or
(b)
as
though such purchase or other acquisition had been consummated as of the first
day of the fiscal period covered thereby; and
(v) the
Borrower shall have delivered to the Administrative Agent, at least five
Business Days prior to the date on which any such purchase or other acquisition
is to be consummated, a certificate of a Responsible Officer, in form and
substance reasonably satisfactory to the Administrative Agent, certifying that
all of the requirements set forth in this Section 7.03(h)
have
been satisfied or will be satisfied on or prior to the consummation of such
purchase or other acquisition;
(i) so
long
as no Event of Default shall have occurred and be continuing or would result
therefrom, other Investments not exceeding $25,000,000 in the aggregate since
the Closing Date (with all such Investments valued at the time of Investment
at
the cash amount thereof, if in cash, the fair market value thereof as determined
by the board of directors of the Borrower, if in property, and at the maximum
amount thereof if in Guarantees);
(j) bank
deposits made in the ordinary course of business;
(k) promissory
notes and other non-cash consideration received in connection with Dispositions
permitted by Section 7.05;
(l) Investments
in the ordinary course of business consisting of (i) endorsements for
collection or deposit and (ii) customary trade arrangements with customers
consistent with past practices; and
(m) Investments
(including debt obligations and Equity Interests) received in connection with
the bankruptcy or reorganization of any Person and in settlement of obligations
of, or other disputes with, such Persons arising in the ordinary course of
business and upon the foreclosure with respect to any secured Investment or
other transfer of title with respect to any secured Investment.
Section
7.04. Fundamental
Changes.
Merge or
consolidate with or into another Person, except that, so long as no Event of
Default shall have occurred and be continuing or would result therefrom,
(a)
any
Subsidiary may merge or consolidate with (i) the Borrower, provided
that the
Borrower shall be the continuing or surviving Person, other than in connection
with a merger the purpose of which is to reincorporate the Borrower in another
state of the United States so long as the surviving Person expressly assumes
all
of the obligations of the Borrower under the Loan Documents in a manner
reasonably satisfactory to the Administrative Agent, or (ii) any other
Subsidiary; provided
that
(A) in a merger or consolidation of any Wholly-Owned Subsidiary with
another Subsidiary, the continuing or surviving Person shall be a Wholly-Owned
Subsidiary and (B) in a merger or consolidation of any Subsidiary Loan
Party with another Subsidiary, the continuing or surviving Person shall be
a
Subsidiary Loan Party; and (b) in
connection with any Permitted Acquisition, a Subsidiary may merge or consolidate
with any other Person, provided
that the
continuing or surviving Person shall be a Wholly-Owned Subsidiary.
83
Section
7.05. Dispositions. Make
any
Disposition, except:
(a) Dispositions
of no longer useful or used, surplus, obsolete or worn out assets in the
ordinary course of business;
(b) Dispositions
of inventory in the ordinary course of business;
(c) Dispositions
of equipment (i) in a transaction where such equipment is exchanged for
credit against the purchase price of similar replacement equipment or
(ii) the proceeds of such Disposition are reasonably promptly applied to
the purchase price of such replacement equipment;
(d) Dispositions
of cash or Cash Equivalents;
(e) Dispositions
of property by any Subsidiary to the Borrower or by the Borrower or any
Subsidiary to any other Subsidiary; provided
that
(i) if the transferor of such property is a Loan Party, the transferee
thereof shall be a Loan Party and (ii) to the extent such transaction
constitutes an Investment, such transaction is permitted under Section 7.03;
(f) Dispositions
permitted under Section
7.06;
(g) Disposition
of (i) the Home and Garden division of the Borrower, in whole or in part, (ii)
assets constituting one or more other divisions or lines of business of the
Borrower and its Subsidiaries and (iii) any manufacturing plants or facilities,
in each case, made as part of a debt reduction program of the Borrower;
provided
that at
least 75% of the consideration received by the Borrower and its Subsidiaries
in
any such Disposition shall be in the form of cash and Cash
Equivalents;
(h) Dispositions
not otherwise permitted under this Section 7.05;
provided
that
(i) at the time of such Disposition, no Event of Default shall have
occurred and be continuing or would result therefrom, (ii) the aggregate
book value of all property Disposed of in reliance on this Section
7.03(h)
shall
not exceed $35,000,000 in any fiscal year of the Borrower or $100,000,000 since
the Closing Date and (iii) at least 75% of the consideration received by
the Borrower and its Subsidiaries in any such Disposition shall be in the form
of cash and Cash Equivalents;
(i) Dispositions
of property pursuant to sale and leaseback transactions; provided
that
(i) the aggregate fair market value of all property Disposed of in reliance
on this Section 7.03(i)
shall
not exceed $15,000,000 (which amount may, with prior approval by the
Administrative Agent, be increased to $25,000,000) since the Closing Date and
(ii) at least 75% of the consideration received by the Borrower and its
Subsidiaries in any such Disposition shall be in the form of cash and Cash
Equivalents;
84
(j) (i) sales
or discounts of accounts receivable without recourse arising in the ordinary
course of business in connection with the compromise or collection thereof
(but
not as part of any securitization or factoring arrangement) and (ii) sales
or transfers of accounts receivable and related rights by any Foreign Subsidiary
pursuant to customary receivables financing facilities or factoring
arrangements;
(k) transfers
of property that is the subject of a Casualty Event upon receipt of insurance
or
other proceeds arising from such Casualty Event;
(l) Dispositions
of Equity Interests in Dormant Subsidiaries;
(m) Dispositions
of Investments in joint ventures to the extent required by, or made pursuant
to,
any buy/sell arrangement or any similar binding arrangement between joint
venture parties, in each case, that is in effect on the Closing
Date;
(n) Dispositions
of accounts receivable pursuant to retailer-mandated factoring programs in
an
aggregate amount not to exceed $15,000,000 since the Closing Date;
(o) Dispositions
set forth on Schedule
7.05;
and
(p) Dispositions
in the ordinary course of business consisting of abandonment of IP Rights that,
in the good faith determination of the Borrower or any Subsidiary, are
uneconomical, negligible, obsolete or otherwise not material in the conduct
of
its business;
provided,
however,
that
any Disposition pursuant to Sections 7.05(a),
(b),
(c),
(g),
(h),
(i),
(n)
and
(o)
shall be
made at least for the fair market value of the assets Disposed.
Section
7.06. Restricted
Payments.
Declare
or make, directly or indirectly, any Restricted Payment, except
that:
(a) each
Subsidiary may make Restricted Payments to the Borrower or any other Subsidiary
or, in the case of any Subsidiary that is not a Wholly-Owned Subsidiary, to
any
other Person that owns a direct Equity Interest in such Subsidiary, ratably
in
accordance with such Person’s ownership of the type of Equity Interest in
respect of which such Restricted Payment is being made;
(b) the
Borrower and each of its Subsidiaries may declare and make dividend payments
or
other distributions payable solely in the common stock or other common Equity
Interests of such Person;
(c) the
Borrower and each of its Subsidiaries may purchase, redeem or otherwise acquire
its common Equity Interests with the proceeds received from the substantially
concurrent issuance of new common Equity Interests of such Person (other than
any such issuance to the Borrower or a Subsidiary);
85
(d) so
long
as no Event of Default shall have occurred and be continuing or would result
therefrom, the Borrower and its Subsidiaries may repurchase, retire or otherwise
acquire for value common stock or options with respect to common stock held
by
directors, officers, consultants or employees of the Borrower or any of its
Subsidiaries (or any persons that formerly held any such position), or by the
estate, family member, spouse or former spouse of any of the foregoing Persons,
in each case, (i) pursuant to the exercise by any holder thereof of a right
under the equity incentive plans of the Borrower and its Subsidiaries to require
such repurchase in connection with any Taxes payable by such holder as a result
of vesting, or lapse of restrictions on transfer, of such common stock or
options or (ii) in connection with the death or disability of any such director,
officer, consultant or employee (or any person that formerly held any such
position); provided
that
such Restricted Payments shall not exceed $5,000,000 in the aggregate in any
calendar year and the price paid for any such common stock or option shall
not
exceed the market value of such common stock or option at the time paid;
and
(e) so
long
as no Event of Default shall have occurred and be continuing or would result
therefrom, the Borrower may make cash payments in lieu of issuing fractional
shares in connection with the exercise of warrants, options or other securities
convertible into or exchangeable for Equity Interests of the Borrower or its
Subsidiaries, provided
that any
such cash payment shall not be for the purpose of evading the limitations set
forth in this Section 7.06
(as
determined in good faith by the board of directors of the Borrower (or any
authorized committee thereof)).
Section
7.07. Change
in Nature of Business.
Engage
in any material line of business substantially different from the lines of
business conducted by the Borrower and its Subsidiaries on the Closing Date
or
any business reasonably related or ancillary thereto.
Section
7.08. Transactions
with Affiliates.
Enter
into any transaction of any kind with any Affiliate of the Borrower, whether
or
not in the ordinary course of business, other than (a) on terms
substantially as favorable to the Borrower or such Subsidiary as would be
obtainable by the Borrower or such Subsidiary at the time in a comparable arm’s
length transaction with a Person other than an Affiliate, (b) transactions
among the Borrower and its Subsidiaries, (c) dividends, redemptions,
repurchases and other transactions permitted under Section 7.06,
(d) customary fees payable to any directors of the Borrower and its
Subsidiaries and reimbursement of reasonable out-of-pocket costs of the
directors of the Borrower and its Subsidiaries, (e) employment and
severance arrangements between the Borrower or its Subsidiaries and their
respective officers and employees entered into in the ordinary course of
business, (f) the payment of customary fees and indemnities to directors,
officers and employees of the Borrower and its Subsidiaries in the ordinary
course of business and (g) transactions pursuant to any agreement in effect
on the Closing Date and set forth on Schedule 7.08,
as any
such agreement may be amended, supplemented or otherwise modified, provided
that the
terms thereof following any such amendment, supplement or modifications are
not,
individually or in the aggregate, more adverse in any material respect to the
Loan Parties or the Lenders than the terms thereof in effect on the Closing
Date.
Section
7.09. Burdensome
Agreements. Enter
into, incur or permit to exist any Contractual Obligation that prohibits,
restricts or imposes any condition upon (a) the ability of the Borrower or
any Subsidiary to create, incur or permit to exist any Lien upon any of its
property or assets or (b) the ability of any Subsidiary to pay dividends or
other distributions with respect to any shares of its capital stock or to make
or repay loans or advances to the Borrower or any other Subsidiary or to
Guarantee Indebtedness of the Borrower or any other Subsidiary; provided
that
(i) the foregoing shall not apply to restrictions and conditions imposed by
Law or by any Loan Document, (ii) the foregoing shall not apply to
restrictions and conditions existing on the date hereof identified on
Schedule 7.09
(but
shall apply to any extension or renewal of, or any amendment or modification
expanding the scope of, any such restriction or condition), (iii) the
foregoing shall not apply to customary restrictions and conditions contained
in
agreements relating to the sale of a Subsidiary pending such sale, provided
such
restrictions and conditions apply only to the Subsidiary that is to be sold
and
such sale is permitted hereunder, (iv) clause (a) of the foregoing shall
not apply to restrictions or conditions imposed by any agreement relating to
secured Indebtedness permitted by this Agreement if such restrictions or
conditions apply only to the property or assets securing such Indebtedness
and
(v) clause (a) of the foregoing shall not apply to customary provisions in
leases and other contracts restricting the assignment thereof.
86
Section
7.10. Use
of
Proceeds.
Use the
proceeds of any Credit Extension to purchase or carry margin stock (within
the
meaning of Regulation U of the FRB), to extend credit to others for the purpose
of purchasing or carrying margin stock or to refund Indebtedness originally
incurred for such purpose, in each case, in violation of Regulation T or U
of
the FRB.
Section
7.11. Senior
Secured Leverage Ratio. Permit
the Senior Secured Leverage Ratio at any time during any period set forth below
to be greater than the ratio set forth below opposite such period:
|
Period
|
Maximum
Senior Secured Leverage Ratio
|
|
|
April 1,
2007 to September 30, 2007
|
7.50
to 1.00
|
|
|
October
1, 2007 to September 30, 2008
|
6.25
to 1.00
|
|
|
October 1,
2008 to September 30, 2009
|
5.75
to 1.00
|
|
|
October 1,
2009 and thereafter
|
5.00
to 1.00
|
Section
7.12. Capital
Expenditures.
Make any
Capital Expenditures, other than (a) Permitted Acquisitions and
(b) other Capital Expenditures made in the ordinary course of business that
do not exceed (i) for the fiscal year ending September 30, 2007, $50,000,000
in
the aggregate, (ii) for the fiscal year ending September 30, 2008, $45,000,000
in the aggregate, (iii) for the fiscal year ending September 30, 2009,
$45,000,000 in the aggregate and (iv) for the fiscal year ending September
30,
2010 and for any fiscal year thereafter, $50,000,000 in the aggregate for any
such fiscal year. The amount of any Capital Expenditures permitted to be made
pursuant to clause (b) above in any fiscal year may, to the extent not expended
in such fiscal year, be carried over for expenditure in the next two fiscal
years, provided
that (A)
such Capital Expenditures made in any fiscal year shall be deemed to use, first,
the amount permitted for such fiscal year and, second, the amount carried over
from any prior year pursuant to this sentence and (B) at the time of making
of
any Capital Expenditure made in reliance on this sentence, no Event of Default
shall have occurred or be continuing.
87
Section
7.13. Amendment
of Certain Documents. a) Amend,
supplement or otherwise modify any of its Organization Documents, except to
the
extent any of the foregoing could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(b) Amend,
supplement or otherwise modify any Indenture or any other agreement, instrument
or document governing any Material Indebtedness, except to the extent any of
the
foregoing is not adverse to the interests of the Lenders under the Loan
Documents in any material respect and except in connection with any refinancing,
refunding, renewal or extension of any Material Indebtedness permitted under
Section 7.02(h).
Section
7.14. Accounting
Changes.
Make any
change in (i) accounting policies or reporting practices, except as
required or permitted by GAAP, or (ii) its fiscal year, except with the
prior written approval of the Administrative Agent.
Section
7.15. Prepayments,
Etc. of Indebtedness.
Pay or
make, or agree to pay or make, directly or indirectly, any payment or other
distribution (whether in cash, securities or other property) of or in respect
of
principal of or interest on any subordinated Indebtedness (including the
Subordinated Notes), or any payment or other distribution (whether in cash,
securities or other property), including any sinking fund or similar deposit,
on
account of the purchase, redemption, retirement, acquisition, cancellation
or
termination of any subordinated Indebtedness, except:
(a) regularly
scheduled or other mandatory interest and principal payments as and when due
in
respect of any such Indebtedness, other than any payments prohibited by the
subordination provisions thereof;
(b) refinancings
of such Indebtedness to the extent permitted under Section 7.02;
and
(c) prepayment
of Indebtedness of any Loan Party owed to any other Loan Party.
Section
7.16. Speculative
Transactions.
Enter
into any Swap Contract, other than Swap Contracts entered into in the ordinary
course of business to hedge or mitigate risks to which the Borrower or any
Subsidiary is exposed in the conduct of its business or the management of its
liabilities.
Section
7.17. Senior
Debt Status.
Designate any Indebtedness (other than the Indebtedness under the Loan Documents
or the Permitted ABL Facility) of the Borrower or any of its Subsidiaries as
“Designated Senior Debt” under and as defined in any of the Indentures; or
permit the aggregate LC Exposure at any time to exceed the aggregate amount
of
Indebtedness that could be incurred by the Borrower at such time under the
covenants of the Indentures limiting Indebtedness (without reliance on any
provision permitting the incurrence of Indebtedness based upon the satisfaction
of any interest coverage or other financial ratio test).
88
ARTICLE
VIII
EVENTS
OF
DEFAULT AND REMEDIES
Section
8.01. Events
of Default.
Any of
the following shall constitute an “Event
of Default”:
(a) Non-Payment.
The
Borrower or any other Loan Party fails (i) to pay when due any amount of
principal of any Loan or any reimbursement obligation in respect of any LC
Disbursement, (ii) to pay within three days after the same becomes due, any
interest on any Loan or on any LC Disbursement or any fee due hereunder or
(iii)
to pay within five days after the same becomes due any other amount payable
hereunder or under any other Loan Document;
(b) Specific
Covenants.
The
Borrower (i) fails to perform or observe any covenant or agreement
contained in Section 6.03(a),
6.06(a)
(with
respect to maintenance of existence of the Borrower to the extent required
thereunder) or 6.11
or in
Article
VII
or
(ii) fails to perform or observe any covenant or agreement contained in
Section 6.01(a)
or
(b)
and such
failure continues for 15 days;
(c) Other
Defaults.
Any
Loan Party fails to perform or observe any other covenant or agreement (not
specified in Section 8.01(a)
or
(b)
above)
contained in any Loan Document on its part to be performed or observed and
such
failure continues for 30 days after the date on which such Loan Party knew
or
should have known of such failure;
(d) Representations
and Warranties.
Any
representation, warranty, certification or statement of fact made or deemed
made
by or on behalf of the Borrower or any other Loan Party herein, in any other
Loan Document, or in any document required to be delivered in connection
herewith or therewith, shall be incorrect or misleading in any material
respect when
made
or deemed made;
(e) Cross-Default.
(i) Any
Loan Party (A) fails to make any payment when due (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise) in respect
of
any Material Indebtedness (other than Indebtedness hereunder) and such failure
shall continue after the applicable grace period or (B) fails to observe or
perform any other agreement or condition relating to any Material Indebtedness
or contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event occurs, the effect of which failure or such other
event is to cause, or to permit the holder or holders of Material Indebtedness
to cause (after the applicable grace period, with the giving of notice if
required), such Material Indebtedness to be demanded or to become due or to
be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), or
an
offer to repurchase, prepay, defease or redeem such Material Indebtedness to
be
made, prior to its stated maturity; or (ii) there occurs under any Swap Contract
an Early Termination Date (as defined in such Swap Contract) resulting from
(A)
any event of default under such Swap Contract as to which the Borrower or any
Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B)
any
Termination Event (as so defined) under such Swap Contract as to which the
Borrower or any Subsidiary is an Affected Party (as so defined) and, in either
event, the Swap Termination Value owed by the Loan Party or such Subsidiary
as a
result thereof is greater than the Threshold Amount;
89
(f) Insolvency
Proceedings, Etc.
Any
Loan Party or any of its Subsidiaries (other than any Dormant Subsidiary)
institutes or consents to the institution of any proceeding under any Debtor
Relief Law, or makes an assignment for the benefit of creditors; applies for
or
consents to the appointment of any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer for it or for all or any material
part of its property; any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or consent
of such Person and the appointment continues undischarged or unstayed for 60
days; or any proceeding under any Debtor Relief Law relating to any such Person
or to all or any material part of its property is instituted without the consent
of such Person and continues undismissed or unstayed for 60 days, or an order
for relief is entered in any such proceeding;
(g) Inability
to Pay Debts; Attachment.
(i) Any
Loan Party or any of its Subsidiaries (other than any Dormant Subsidiary)
becomes unable or admits in writing its inability or fails generally to pay
its
debts as they become due or (ii) any writ or warrant of attachment or execution
or similar process is issued or levied against all or any material part of
the
property of any such Person and is not released, vacated or fully bonded within
30 days after its issue or levy;
(h) Judgments.
One or
more judgments or orders for the payment of money in an aggregate amount in
excess of the Threshold Amount (to the extent not covered by third-party
insurance as to which the insurer has been notified of the potential claim
and
does not dispute coverage) is rendered against any Loan Party or any of its
Subsidiaries and the same shall remain undischarged for a period of 45
consecutive days during which execution shall not be effectively
stayed;
(i) ERISA.
(i) An
ERISA Event occurs with respect to a Foreign Plan, Pension Plan or Multiemployer
Plan that has resulted or could reasonably be expected to result in liability
of
the Borrower under Title IV of ERISA to the Pension Plan, Multiemployer
Plan or the PBGC, or similar liabilities of any Loan Party under a Foreign
Plan,
in each case where such liability could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect or (ii) the Borrower
or any ERISA Affiliate fails to pay when due, after the expiration of any
applicable grace period, any installment payment with respect to its withdrawal
liability under Section 4201
of ERISA
under a Multiemployer Plan, or a similar event occurs with respect to any
Foreign Plan, in each case where such failure could reasonably be expected
to
have, individually or in the aggregate, a Material Adverse Effect;
(j) Invalidity
of Loan Documents.
Any
material provision of any Loan Document, at any time after its execution and
delivery and for any reason other than as expressly permitted hereunder or
thereunder, including as a result of a transaction permitted under Section 7.04
or
Section 7.05,
or
satisfaction in full of all the Obligations, ceases to be in full force and
effect; or any Loan Party or any other Person contests in any manner the
validity or enforceability of any provision of any Loan Document; or any Loan
Party denies that it has any or further liability or obligation under any
provision of any Loan Document, or purports to revoke, terminate or rescind
any
provision of any Loan Document;
(k) Change
of Control.
There
occurs any Change of Control;
90
(l) Senior
Debt Status.
The
Obligations shall cease to be “Senior Debt” and “Designated Senior Debt” for
purposes of any of the Indentures, or any Loan Party shall so assert in writing;
or
(m) Collateral
Document.
Any
Collateral Document after delivery thereof pursuant to Section 4.01
or
6.13
shall
for any reason (other than pursuant to the terms thereof, including as a result
of a transaction permitted under Section 7.05)
cease
to create a valid and perfected Lien on and security interest in the Collateral
purported to be covered thereby, or any Loan Party shall so assert in
writing.
Section
8.02. Remedies
Upon Event of Default.
If any
Event of Default occurs and is continuing, the Administrative Agent shall,
at
the request of, or may, with the consent of, the Required Lenders, take any
or
all of the following actions:
(a) declare
the Commitment of each Lender to be terminated, whereupon such Commitments
shall
be terminated;
(b) declare
the unpaid principal amount of all outstanding Loans, all interest accrued
and
unpaid thereon, and all other amounts owing or payable hereunder or under any
other Loan Document to be immediately due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Borrower;
(c) require
that the Borrower cash collateralize the LC Exposure in accordance with
Section 2.03(l);
and
(d) exercise
on behalf of itself and the Lenders all rights and remedies available to it
and
the Lenders under the Loan Documents;
provided,
however,
that
upon the occurrence any Event of Default with respect to the Borrower described
in Section 8.01(f),
the
Commitments shall automatically terminate, the unpaid principal amount of all
outstanding Loans and all interest and other amounts as aforesaid shall
automatically become due and payable, and the obligation of the Borrower to
cash
collateralize the LC Exposure as aforesaid shall automatically become effective,
in each case without further act of the Administrative Agent or any
Lender.
ARTICLE
IX
ADMINISTRATIVE
AGENT
Section
9.01. Appointment
of Agents.
GSCP is
hereby appointed as the Syndication Agent hereunder, and each Lender hereby
authorizes GSCP to act as the Syndication Agent in accordance with the terms
hereof and the other Loan Documents. GSCP is hereby appointed as the
Administrative Agent and as the Collateral Agent hereunder and under the other
Loan Documents, and each Lender hereby authorizes GSCP to act as the
Administrative Agent and the Collateral Agent in accordance with the terms
hereof and the other Loan Documents. Wachovia is hereby appointed as the Deposit
Agent hereunder, and each Lender hereby authorizes Wachovia to act as the
Deposit Agent in accordance with the terms hereof and of the other Loan
Documents. Each Agent hereby agrees to act in its capacity as such upon the
express conditions contained herein and the other Loan Documents, as applicable.
The provisions of this Article
IX
are
solely for the benefit of the Agents and the Lenders (and, in the case of
Section
9.09,
the
Arrangers), and no Loan Party shall have any rights as a third party beneficiary
of any of the provisions thereof. In performing its functions and duties
hereunder, each Agent shall act solely as an agent of Lenders and does not
assume and shall not be deemed to have assumed any obligation towards or
relationship of agency or trust with or for the Borrower or any of its
Subsidiaries. The Syndication Agent, without consent of or notice to any party
hereto, may assign any and all of its rights or obligations hereunder to any
of
its Affiliates. As of the Closing Date, GSCP, in its capacity as the Syndication
Agent, shall have no obligations, but shall be entitled to all benefits of
this
Article
IX.
91
Section
9.02. Powers
and
Duties.
Each
Lender irrevocably authorizes each Agent to take such action on such Lender’s
behalf and to exercise such powers, rights and remedies hereunder and under
the
other Loan Documents as are specifically delegated or granted to such Agent
by
the terms hereof and thereof, together with such powers, rights and remedies
as
are reasonably incidental thereto. Each Agent shall have only those duties
and
responsibilities as are expressly specified herein and in the other Loan
Documents. Each Agent may exercise such powers, rights and remedies and perform
such duties by or through its agents or employees. No Agent shall have, by
reason hereof or any of the other Loan Documents, a fiduciary relationship
in
respect of any Lender; and nothing herein or in any of the other Loan Documents,
expressed or implied, is intended to or shall be so construed as to impose
upon
any Agent any obligations in respect hereof or any of the other Loan Documents
except as expressly set forth herein or therein.
Section
9.03. General
Immunity.
(a) No
Responsibility for Certain Matters.
No Agent
shall be responsible to any Lender for the execution, effectiveness,
genuineness, validity, enforceability, collectability or sufficiency hereof
or
of any other Loan Document or for any representations, warranties, recitals
or
statements made herein or therein or made in any written or oral statements
or
in any financial or other statements, instruments, reports or certificates
or
any other documents furnished or made by any Agent to the Lenders or by or
on
behalf of any Loan Party or any Lender to any Agent or any Lender in connection
with the Loan Documents and the transactions contemplated thereby or for the
financial condition or business affairs of any Loan Party or any other Person
liable for the payment of any Obligations, nor shall any Agent be required
to
ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained in any of the Loan
Documents or as to the use of the proceeds of the Loans or as to the existence
or possible existence of any Event of Default or Default or to make any
disclosures with respect to the foregoing. Anything contained herein to the
contrary notwithstanding, the Administrative Agent shall not have any liability
arising from confirmations of the amount of outstanding Loans or the LC Exposure
or the component amounts thereof.
(b) Exculpatory
Provisions.
No Agent
or any of its officers, partners, directors, employees or agents shall be liable
to Lenders for any action taken or omitted by any Agent under or in connection
with any of the Loan Documents, except to the extent caused by such Agent’s
gross negligence or willful misconduct. Each Agent shall be entitled to refrain
from any act or the taking of any action (including the failure to take an
action) in connection herewith or any of the other Loan Documents or from the
exercise of any power, discretion or authority vested in it hereunder or
thereunder unless and until such Agent shall have received instructions in
respect thereof from the Required Lenders (or such other Lenders as may be
required to give such instructions under Section
10.01)
and,
upon receipt of such instructions from the Required Lenders (or such other
Lenders, as the case may be), such Agent shall be entitled to act or (where
so
instructed) refrain from acting, or to exercise such power, discretion or
authority, in accordance with such instructions. Without prejudice to the
generality of the foregoing, (i) each Agent shall be entitled to rely, and
shall
be fully protected in relying, upon any communication, instrument or document
believed by it to be genuine and correct and to have been signed or sent by
the
proper Person or Persons and shall be entitled to rely and shall be protected
in
relying on opinions and judgments of attorneys (who may be attorneys for the
Borrower and its Subsidiaries), accountants, experts and other professional
advisors selected by it; and (ii) no Lender shall have any right of action
whatsoever against any Agent as a result of such Agent acting or (where so
instructed) refraining from acting hereunder or any of the other Loan Documents
in accordance with the instructions of the Required Lenders (or such other
Lenders as may be required to give such instructions under Section
10.01).
92
(c) Delegation
of Duties.
Each
Agent may perform any and all of its duties and exercise its rights and powers
under this Agreement or under any other Loan Document by or through any one
or
more sub-agents appointed by such Agent. Each Agent and any such sub-agent
may
perform any and all of its duties and exercise its rights and powers by or
through its Affiliates. The exculpatory, indemnification and other provisions
of
this Section
9.03
and of
Section
9.06
shall
apply to the respective Affiliates of the Agents and shall apply to their
respective activities in connection with the syndication of the Facilities
as
well as activities as an Agent. All of the rights, benefits, and privileges
(including the exculpatory and indemnification provisions) of this Section
9.03
and of
Section
9.06
shall
apply to any such sub-agent and to the Affiliates of any such sub-agent, and
shall apply to their respective activities as sub-agent as if such sub-agent
and
Affiliates were named herein. Notwithstanding anything herein to the contrary,
with respect to each sub-agent appointed by any Agent, (i) such sub-agent shall
be a third party beneficiary under this Agreement with respect to all such
rights, benefits and privileges (including exculpatory rights and rights to
indemnification) and shall have all of the rights and benefits of a third party
beneficiary, including an independent right of action to enforce such rights,
benefits and privileges (including exculpatory rights and rights to
indemnification) directly, without the consent or joinder of any other Person,
against any or all of the Loan Parties and the Lenders, (ii) such rights,
benefits and privileges (including exculpatory rights and rights to
indemnification) shall not be modified or amended without the consent of such
sub-agent, and (iii) such sub-agent shall only have obligations to the Agent
that has appointed such sub-agent, and not to any Loan Party, any Lender or
any
other Person, and no Loan Party, Lender or any other Person shall have any
rights, directly or indirectly, as a third party beneficiary or otherwise,
against such sub-agent.
Section
9.04. Agents
Entitled to Act as Lender.
The
agency hereby created shall in no way impair or affect any of the rights and
powers of, or impose any duties or obligations upon, any Agent in its individual
capacity as a Lender hereunder. With respect to its participation in the Loans
and the Letters of Credit, each Agent shall have the same rights and powers
hereunder as any other Lender and may exercise the same as if it were not
performing the duties and functions delegated to it hereunder, and the term
“Lender” shall, unless the context clearly otherwise indicates, include each
Agent in its individual capacity. Any Agent and its Affiliates may accept
deposits from, lend money to, own securities of, and generally engage in any
kind of banking, trust, financial advisory or other business with the Borrower
or any of its Affiliates as if it were not performing the duties specified
herein, and may accept fees and other consideration from the Borrower for
services in connection herewith and otherwise without having to account for
the
same to the Lenders.
93
Section
9.05. Lenders’
Representations, Warranties and Acknowledgments.
(a) Each
Lender represents and warrants that it has made its own independent
investigation of the financial condition and affairs of the Borrower and its
Subsidiaries in connection with Credit Extensions hereunder and that it has
made
and shall continue to make its own appraisal of the creditworthiness of the
Borrower and its Subsidiaries. No Agent shall have any duty or responsibility,
either initially or on a continuing basis, to make any such investigation or
any
such appraisal on behalf of the Lenders or to provide any Lender with any credit
or other information with respect thereto, whether coming into its possession
before the making of the Loans or at any time or times thereafter, and no Agent
shall have any responsibility with respect to the accuracy of or the
completeness of any information provided to the Lenders.
(b) Each
Lender, by delivering its signature page to this Agreement and funding its
Loans
or making its LC Deposit on the Closing Date, or delivering its signature page
to an Assignment and Acceptance, shall be deemed to have acknowledged receipt
of, and consented to and approved, each Loan Document and each other document
required to be approved by any Agent or Lenders, as applicable, on the Closing
Date.
Section
9.06. Right
to Indemnity.
Each
Lender, in proportion to its “pro rata share”, severally agrees to indemnify
each Agent, to the extent that such Agent shall not have been reimbursed by
any
Loan Party, for and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses (including
counsel fees and disbursements) or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against such Agent
in exercising its powers, rights and remedies or performing its duties hereunder
or under the other Loan Documents or otherwise in its capacity as such Agent
in
any way relating to or arising out of this Agreement or the other Loan
Documents; provided,
no
Lender shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from such Agent’s gross negligence or willful misconduct. If any
indemnity furnished to any Agent for any purpose shall, in the opinion of such
Agent, be insufficient or become impaired, such Agent may call for additional
indemnity and cease, or not commence, to do the acts indemnified against until
such additional indemnity is furnished; provided, in no event shall this
sentence require any Lender to indemnify any Agent against any liability,
obligation, loss, damage, penalty, action, judgment, suit, cost, expense or
disbursement in excess of such Lender’s Applicable Percentage thereof; and
provided further,
this
sentence shall not be deemed to require any Lender to indemnify any Agent
against any liability, obligation, loss, damage, penalty, action, judgment,
suit, cost, expense or disbursement described in the proviso in the immediately
preceding sentence. For purposes of this paragraph, “pro rata share” means the
percentage obtained by dividing (a) an amount equal to the sum of the aggregate
principal amount of Loans, LC Exposure and unused Commitment of a Lender by
(b)
an amount equal to the sum of the aggregate principal amount of Loans, LC
Exposures and unused Commitments of all Lenders.
94
Section
9.07. Successor
Agents.
Each of
the Administrative Agent and the Deposit Agent may resign at any time by giving
30 days’ prior written notice thereof to the Lenders and the Borrower (and, in
the case of the Deposit Agent, the Administrative Agent). The Administrative
Agent may be removed at any time with or without cause by an instrument or
concurrent instruments in writing delivered to the Borrower and the
Administrative Agent and signed by the Required Lenders. The Deposit Agent
may
be removed at any time with or without cause by an instrument or concurrent
instruments in writing delivered to the Borrower and the Deposit Agent and
signed by the Required LC Lenders and the Administrative Agent. Upon any such
notice of resignation or any such removal, (a) the Required Lenders shall
have the right to appoint a successor Administrative Agent that shall have
been
approved by the Borrower (such approval not to be unreasonably withheld) and
(b) the Required LC Lenders shall have the right to appoint a successor
Deposit Agent that shall have been approved by the Borrower (such approval
not
to be unreasonably withheld). Upon the acceptance of any appointment as the
Administrative Agent or as the Deposit Agent hereunder by a successor
Administrative Agent or a successor Deposit Agent, such successor Administrative
Agent or such successor Deposit Agent, as the case may be, shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring or removed Agent, and the retiring or removed Agent shall
promptly (i) transfer to such applicable successor Agent all sums and other
items of Collateral held under the Collateral Documents and, in the case of
a
retiring or removed Deposit Agent, all sums in the LC Deposit Account, together
with all records and other documents necessary or appropriate in connection
with
the performance of the duties of such successor Agent under the Loan Documents,
and (ii) in the case of a retiring or removed Administrative Agent, execute
and
deliver to such successor Administrative Agent such amendments to financing
statements, and take such other actions, as may be necessary or appropriate
in
connection with the assignment to such successor Administrative Agent of the
security interests created under the Collateral Documents, whereupon such
retiring or removed Administrative Agent shall be discharged from its duties
and
obligations hereunder. Any resignation or removal of GSCP or its successor
as
the Administrative Agent pursuant to this Section
9.07
shall
also constitute the resignation or removal of GSCP or its successor as the
Collateral Agent. After any retiring or removed Agent’s resignation or removal
hereunder as an Agent, the provisions of this Article
IX
shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was such Agent hereunder. Any successor Administrative Agent appointed
pursuant to this Section
9.07
shall,
upon its acceptance of such appointment, become the successor Collateral Agent
for all purposes hereof.
Section
9.08. Collateral
Documents.
(a) Concerning
Collateral Agent.
Each
Secured Party hereby further authorizes the Collateral Agent, on behalf of
and
for the benefit of Secured Parties, to be the agent for and representative
of
the Secured Parties with respect to the Collateral and the Collateral Documents;
provided
that the
Collateral Agent shall owe no fiduciary duty, duty of loyalty, duty of care,
duty of disclosure or any other obligation whatsoever to any holder of
Obligations with respect to any Swap Contract. Subject to Section
10.01,
without
further written consent or authorization from any Secured Party, the Collateral
Agent may execute any documents or instruments necessary to (i) in connection
with a Disposition of assets permitted by this Agreement, release any Lien
encumbering any item of Collateral that is the subject of such Disposition
or to
which Required Lenders (or such other Lenders as may be required to give such
consent under Section
10.01)
have
otherwise consented or (ii) release any Subsidiary Loan Party from its
obligations under the Guarantee and Collateral Agreement or any other Collateral
Document in connection with a Disposition (including by merger or consolidation)
of all of the Equity Interests of any Subsidiary Loan Party in accordance with
the terms hereof or any other transaction with respect to which the Required
Lenders (or such other Lenders as may be required to give such consent under
Section
10.01)
have
otherwise consented.
95
(b) Right
to Realize on Collateral and Enforce Guaranty.
Anything
contained in any of the Loan Documents to the contrary notwithstanding, the
Borrower, the Administrative Agent, the Collateral Agent and each other Secured
Party hereby agree that (i) no Secured Party shall have any right individually
to realize upon any of the Collateral or to enforce any Guarantee of the
Obligations, it being understood and agreed that all powers, rights and remedies
hereunder may be exercised solely by the Administrative Agent, on behalf of
the
Secured Parties, in accordance with the terms hereof and all powers, rights
and
remedies under the Collateral Documents may be exercised solely by the
Collateral Agent, on behalf of the Secured Parties, and (ii) in the event of
a
foreclosure by the Collateral Agent on any of the Collateral pursuant to a
public or private sale or other disposition, the Collateral Agent or any Lender
may be the purchaser or licensor of any or all of such Collateral at any such
sale or other disposition, and the Collateral Agent, as agent for and
representative of the Secured Parties (but not any Lender or Lenders in its
or
their respective individual capacities unless Required Lenders shall otherwise
agree in writing) shall be entitled, for the purpose of bidding and making
settlement or payment of the purchase price for all or any portion of the
Collateral sold at any such public sale, to use and apply any of the Obligations
as a credit on account of the purchase price for any collateral payable by
the
Collateral Agent at such sale or other disposition. Each Secured Party, whether
or not a party hereto, will be deemed, by its acceptance of the benefits of
the
Collateral and of the Guarantees of the Obligations provided under the Loan
Documents, to have agreed to the foregoing provisions.
Section
9.09. No
Arranger Duties.
Anything
herein to the contrary notwithstanding, no Arranger shall have any duties or
responsibilities under this Agreement or any of the other Loan Documents solely
in its capacity as an Arranger.
ARTICLE
X
MISCELLANEOUS
Section
10.01. Amendments,
Waivers, Etc.
No
amendment or waiver of any provision of this Agreement or of any other Loan
Document, and no consent to any departure by the Borrower or any other Loan
Party therefrom, shall be effective unless in writing signed by the Required
Lenders and the Borrower or, in the case of any Loan Document other than this
Agreement, the applicable Loan Party or Loan Parties and acknowledged by the
Administrative Agent, and each such waiver or consent shall be effective only
in
the specific instance and for the specific purpose for which it is given;
provided,
however,
that,
subject to Section
10.16,
no such
amendment, waiver or consent shall:
(a) extend
or
increase any Commitment of any Lender without the written consent of such Lender
(it being understood that a waiver of any condition or precedent set forth
in
Article IV,
or
waiver of any Default or Event of Default, mandatory prepayment or mandatory
reduction of the Commitments, shall not constitute an extension or increase
of
any commitment of any Lender);
96
(b) postpone
the maturity of any Loan, any date fixed for any scheduled payment of principal
amount of any Loan under Section
2.06,
any
date fixed for repayment of any LC Deposit or a portion thereof to any LC Lender
under Section
2.03(o),
the
required date of reimbursement of any LC Disbursement or any date for payment
of
interest or fees (including the LC Deposit Return and the LC Lender Fees)
payable hereunder, or forgive, waive or excuse any such payment, repayment
or
reimbursement or any amount thereof, in each case without the written consent
of
each Lender directly affected thereby (it being understood that a waiver of
any
Default or Event Default, or a waiver of any mandatory prepayment of the Term
Loans, shall not constitute a postponement of any date fixed for the payment
of
principal or interest);
(c) reduce
the principal amount of, or the rate of interest specified herein on, any Loan
or LC Disbursement, or reduce any LC Lender Fees or any other fees or premiums
payable hereunder or the rate of the LC Deposit Return on any LC Deposit, in
each case without the written consent of each Lender directly affected thereby;
provided,
however,
that
only the consent of the Required Lenders shall be necessary to amend the
definition of “Default Rate” or to waive any obligation of the Borrower to pay
interest or LC Lender Fees at the Default Rate;
(d) change
Section
2.11(f)
or
2.12
in a
manner that would alter the pro rata sharing of payments required thereby
without the prior written consent of each Lender;
(e) change
any provision of this Section 10.01
or the
percentage set forth in the definition of the term Required Lenders or any
other
provision hereof or of any other Loan Document specifying the number or
percentage of Lenders (or Lenders of any Class) required to amend, waive or
otherwise modify any rights thereunder or make any determination or grant any
consent thereunder, without the written consent of each Lender (or each Lender
of such Class, as the case may be);
(f) release
all or substantially all the Collateral from the Liens of the Collateral
Documents in any transaction or series of related transactions, without the
written consent of each Lender (it being understood that a transaction permitted
under Section 7.05
shall
not be deemed to constitute a release of all or substantially all of the
Collateral from the Liens of the Collateral Documents);
(g) release
all or substantially all of the Subsidiary Loan Parties from their Guarantees
under the Guarantee and Collateral Agreement (except as expressly provided
in
Section 9.08)
or
limit their liability in respect of such Guarantees, without the written consent
of each Lender (it being understood that a transaction permitted under
Section
7.05
shall
not be deemed to constitute a release of all or substantially all of the
Guarantees under the Guarantee and Collateral Agreement); and
97
(h) change
any provisions of this Agreement or any other Loan Document in a manner that
by
its terms adversely affects the rights in respect of collateral or payments
due
to Lenders of one Class differently than Lenders of any other Class without
the
written consent of (i) if such adversely affected Lenders are Dollar Term B
Lenders, the Required Dollar Term B Lenders, (ii) if such adversely affected
Lenders are Dollar Term B II Lenders, the Required Dollar Term B II Lenders,
(iii) if such adversely affected Lenders are Euro Term Lenders, the Required
Euro Term Lenders and (iv) if such adversely affected Lenders are LC Lenders,
the Required LC Lenders;
and
provided further
that,
subject to Section
10.16,
(i) no
amendment, waiver or consent shall, unless in writing and signed by an LC Issuer
in addition to the Lenders required above, affect the rights or duties of such
LC Issuer under this Agreement or any other Loan Document; (ii) no amendment,
waiver or consent shall, unless in writing and signed by the Administrative
Agent, the Collateral Agent, the Deposit Agent or the Syndication Agent in
addition to the Lenders required above, affect the rights or duties of the
Administrative Agent, the Collateral Agent, the Deposit Agent or the Syndication
Agent, as the case may be, under this Agreement or any other Loan Document;
and
(iii) any amendment or waiver of, or consent to any departure from, this
Agreement or any other Loan Document that by its terms affects the rights or
duties thereunder of (A) Lenders of one Class but not Lenders of any other
Class, (B) Term Lenders but not the LC Lenders or (C) LC Lenders but not the
Term Lenders, may be effected by an agreement or agreements in writing signed
by
(x) the requisite percentage in interest of Lenders of the affected Class or
Classes that would be required under this Section
10.01
to
consent thereto if such Class or Classes of Lenders were the only Class of
Lenders hereunder at the time and (y) the Borrower or, in the case of any Loan
Document other than this Agreement, the applicable Loan Party or Loan Parties,
and acknowledged by the Administrative Agent. Notwithstanding the foregoing,
Section
2.03
may be
amended by the Company, the Administrative Agent and the Deposit Agent or any
LC
Issuer, as the case may be, and without the consent of any Lender, to modify
provisions relating to the LC Deposits or the issuance and administration of
Letters of Credit issued by such LC Issuer as necessary to conform to the
systems, procedures and policies of the Deposit Agent or such LC Issuer;
provided,
that no
such amendment shall reduce or postpone the payment of any reimbursement, fee
or
other amount due to any LC Lender hereunder.
In
the
event that (a) the Borrower or the Administrative Agent has requested the
Lenders to consent to a departure from or waiver of any provision of any Loan
Document or to agree to any amendment thereof, (b) the consent, waiver or
amendment in question requires under this Section
10.01
the
agreement of all affected Lenders or all Lenders of a certain Class and (c)
the
Required Lenders (or, in the case of a required agreement of all Lenders of
a
certain Class, the Required Dollar Term Lenders, the Required Euro Term Lenders
or the Required LC Lenders, as applicable) have agreed to such consent, waiver
or amendment, then any Lender that does not agree to such consent, waiver or
amendment shall be deemed to be a “Non-Consenting
Lender.”
The
Borrower shall be entitled to replace any Non-Consenting Lender in accordance
with the provisions of Section 10.12.
98
Section
10.02. Notices
and Other Communications; Facsimile Copies.
(a) Notices
Generally.
Except
in the case of notices and other communications expressly permitted to be given
by telephone (and except as provided in Section
10.02(b)),
all
notices and other communications provided for herein shall be in writing and
shall be delivered by hand or overnight courier service, mailed by certified
or
registered mail, electronic mail or sent by facsimile as follows, and all
notices and other communications expressly permitted hereunder to be given
by
telephone shall be made to the applicable telephone number, as
follows:
(i) if
to the
Borrower, any Agent or any LC Issuer, to the address, facsimile number,
electronic mail address or telephone number specified for such Person on
Schedule 10.02;
and
(ii) if
to any
other Lender, to the address, facsimile number, electronic mail address or
telephone number specified in its Administrative Questionnaire.
Notices
sent by hand or overnight courier service shall be deemed to have been given
when received; notices mailed by certified or registered mail shall be deemed
to
have been given four Business Days after deposit in the mails postage
prepaid; and notices sent by facsimile shall be deemed to have been given when
sent (except that, if not given during normal business hours for the recipient,
shall be deemed to have been given at the opening of business on the next
Business Day for the recipient); provided,
that no
notice to any Agent shall be effective until received by such Agent;
provided further,
that
any such notice or other communication shall at the request of any Agent be
provided to any sub-agent appointed by it pursuant to Section 9.03(c) hereto,
as
designated by such Agent from time to time. Notices delivered through electronic
communications to the extent provided in Section
10.02(b)
shall be
effective as provided in such Section.
(b) Electronic
Communications.
Notices, communications, information, documents and other materials delivered
or
furnished to the Lenders and the LC Issuers hereunder may be delivered or
furnished by electronic communication (including e-mail and Internet or intranet
websites) pursuant to procedures approved by the Administrative Agent,
provided
that the
foregoing shall not apply to notices to any Lender or any LC Issuer pursuant
to
Article
II
if such
Lender or such LC Issuer, as applicable, has notified the Administrative Agent
that it is incapable of receiving notices under such Article by electronic
communication. The Administrative Agent or the Borrower may, in its discretion,
agree to accept notices and other communications to each of them hereunder
by
electronic communications pursuant to procedures approved by it, provided
that
approval of such procedures may be limited to particular notices or
communications.
Unless
the Administrative Agent otherwise prescribes, (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 sent during the normal business hours
of the recipient, such notice or communication 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 communication is available and identifying the website
address therefor.
99
(c) The
Platform.
The
Platform and any Approved Electronic Communications are provided “as is” and “as
available”. None of the Agents or any of their respective officers, directors,
employees, agents, advisors or representatives (the “Agent
Affiliates”)
warrant the accuracy, adequacy or completeness of the Approved Electronic
Communications or the Platform, and each of the Agents expressly disclaims
liability for errors or omissions in the Platform and the Approved Electronic
Communications. No warranty of any kind, express, implied or statutory,
including any warranty of merchantability, fitness for a particular purpose,
non-infringement of third party rights or freedom from viruses or other code
defects is made by any Agent or any Agent Affiliates in connection with the
Platform or the Approved Electronic Communications. Each of the Loan Parties
understands that the distribution of material through an electronic medium
is
not necessarily secure and that there are confidentiality and other risks
associated with such distribution, and agrees and assumes the risks associated
with such electronic distribution, except to the extent caused by the willful
misconduct or gross negligence of the Administrative Agent. Each of the Loan
Parties, the Lenders, the LC Issuers and the other Agents agree that the
Administrative Agent may, but shall not be obligated to, store any Approved
Electronic Communications on the Platform in accordance with the Administrative
Agent’s customary document retention procedures and policies.
(d) Change
of Address, Etc.
Each of
the Borrower, any Agent or any LC Issuer may change its address, facsimile
number, electronic mail address or telephone number for notices and other
communications hereunder by notice to the other parties hereto. Each Lender
may
change its address, facsimile number, electronic mail address or telephone
number for notices and other communications hereunder by notice to the Borrower,
the Administrative Agent and, in the case of the LC Lenders, each LC Issuer.
In
addition, each Lender agrees to notify the Administrative Agent from time to
time to ensure that the Administrative Agent has on record (i) an effective
address, contact name, telephone number, facsimile number and electronic mail
address to which notices and other communications may be sent and
(ii) accurate wire instructions for such Lender.
(e) Reliance
by Administrative Agent, LC Issuers and Lenders. The
Agents, the LC Issuers and the Lenders shall be entitled to rely and act upon
any notices (including telephonic Committed Loan Notices) purportedly given
by
or on behalf of an authorized representative of the Borrower even if
(i) such notices were not made in a manner specified herein, were
incomplete or were not preceded or followed by any other form of notice
specified herein or (ii) the terms thereof, as understood by the recipient,
varied from any confirmation thereof. The Borrower shall indemnify each Agent,
each LC Issuer, each Lender and the Related Parties of each of the foregoing
from all losses, costs, expenses and liabilities resulting from the reliance
by
such Person on each notice purportedly given by or on behalf of the Borrower,
other than losses, costs, expenses and liabilities resulting from the gross
negligence or willful misconduct of such Person. All telephonic notices to
and
other telephonic communications with the Administrative Agent may be recorded
by
the Administrative Agent, and each of the parties hereto hereby consents to
such
recording.
Section
10.03. No
Waiver; Cumulative Remedies.
No
failure by any Lender, any LC Issuer or any Agent to exercise, and no delay
by
any such Person in exercising, any right, remedy, power or privilege hereunder
or under any other Loan Document shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, remedy, power or privilege
hereunder or thereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges provided hereunder and under each other Loan Document
are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by Law or otherwise.
100
Section
10.04. Expenses;
Indemnity; Damage Waiver.
(a) Costs
and Expenses.
Whether
or not the transactions contemplated hereby shall be consummated, the Borrower
agrees to pay promptly (i) all the actual and reasonable costs and expenses
of
preparation of the Loan Documents and any consents, amendments, waivers or
other
modifications thereto; (ii) all the costs of furnishing all opinions by counsel
for the Borrower and the other Loan Parties; (iii) the reasonable fees, expenses
and disbursements of counsel to the Agents and to either Arranger in connection
with the negotiation, preparation, execution and administration of the Loan
Documents and any consents, amendments, waivers or other modifications thereto
and any other documents or matters requested by the Borrower; (iv) all the
actual costs and reasonable expenses of creating, perfecting and recording
Liens
in favor of the Collateral Agent, for the benefit of the Secured Parties,
including filing and recording fees, expenses and taxes, stamp or documentary
taxes, search fees, title insurance premiums and reasonable fees, expenses
and
disbursements of counsel to any Agent and of counsel providing any opinions
that
any Agent or Required Lenders may request in respect of the Collateral or the
Liens created pursuant to the Collateral Documents; (v) all the actual costs
and
reasonable fees, expenses and disbursements of any auditors, accountants,
consultants or appraisers; (vi) all the actual costs and reasonable expenses
(including the reasonable fees, expenses and disbursements of any appraisers,
consultants, advisors and agents employed or retained by the Collateral Agent
and its counsel) in connection with the custody or preservation of any of the
Collateral; (vii) all other actual and reasonable costs and expenses incurred
by
any Agent or any Arranger in connection with the syndication of the Loans and
Commitments and the negotiation, preparation and execution of the Loan Documents
and any consents, amendments, waivers or other modifications thereto and the
transactions contemplated thereby; and (viii) after the occurrence of a Default
or an Event of Default, all costs and expenses, including reasonable attorneys’
fees (including allocated actual costs of internal counsel) and costs of
settlement, incurred by any Agent, Lenders and LC Issuers in enforcing any
Obligations of or in collecting any payments due from any Loan Party hereunder
or under the other Loan Documents by reason of such Default or Event of Default
(including in connection with the sale, lease or license of, collection from,
or
other realization upon any of the Collateral or the enforcement of any Guarantee
of the Obligations) or in connection with any refinancing or restructuring
of
the credit arrangements provided hereunder in the nature of a “work-out” or
pursuant to any insolvency or bankruptcy cases or proceedings.
(b) Indemnification
by the Borrower.
In
addition to the payment of expenses pursuant to Section
10.04(a),
whether
or not the transactions contemplated hereby shall be consummated, the Borrower
agrees to defend (subject to Indemnitees’ selection of counsel), indemnify, pay
and hold harmless, each Agent, each Lender and each LC Issuer, and the officers,
partners, members, directors, trustees, advisors, employees, agents, sub-agents
and Affiliates of any of the foregoing (each, an “Indemnitee”),
from
and against any and all Indemnified Liabilities; provided
that the
Borrower shall have no obligation to any Indemnitee hereunder with respect
to
any Indemnified Liabilities to the extent such Indemnified Liabilities arise
from the gross negligence or willful misconduct of such Indemnitee. To the
extent that the undertakings to defend, indemnify, pay and hold harmless set
forth in this Section
10.04(b)
may be
unenforceable in whole or in part because they violate any Law or public policy,
the Borrower shall contribute the maximum portion that it is permitted to pay
and satisfy under applicable Law to the payment and satisfaction of all
Indemnified Liabilities incurred by Indemnitees or any of them.
101
(c) Waiver
of Consequential Damages, Etc.
To the
extent permitted by applicable Law, the Borrower shall not assert, and hereby
waives, any claim against each Lender, each Agent and their respective
Affiliates, directors, employees, attorneys, agents or sub-agents, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) (whether or not the claim therefor is
based
on contract, tort or duty imposed by any applicable legal requirement) arising
out of, in connection with, arising out of, as a result of, or in any way
related to, this Agreement or any Loan Document or any agreement or instrument
contemplated hereby or thereby or referred to herein or therein, the
transactions contemplated hereby or thereby, any Loan or the use of the proceeds
thereof or any act or omission or event occurring in connection therewith,
and
the Borrower hereby waives, releases and agrees not to sue upon any such claim
or any such damages, whether or not accrued and whether or not known or
suspected to exist in its favor.
(d) Payments.
All
amounts due under this Section
10.04
shall be
payable not later than ten Business Days after demand therefor.
(e) Survival.
The
agreements in this Section
10.04
shall
survive the resignation or removal of any Agent, the replacement of any Lender,
the termination of the Commitments and the repayment, satisfaction or discharge
of all the other Obligations.
Section
10.05. Payments
Set Aside.
To the
extent that any payment by or on behalf of the Borrower is made to the
Administrative Agent, any LC Issuer or any Lender, or the Administrative Agent,
any LC Issuer or any Lender exercises its right of setoff, and such payment
or
the proceeds of such setoff or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required (including
pursuant to any settlement entered into by the Administrative Agent, such LC
Issuer or such Lender in its discretion) to be repaid to a trustee, receiver
or
any other party, in connection with any proceeding under any Debtor Relief
Law
or otherwise, then (a) to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued
in
full force and effect as if such payment had not been made or such setoff had
not occurred, and (b) each Lender and each LC Issuer severally agrees to pay
to
the Administrative Agent upon demand its applicable share (without duplication)
of any amount so recovered from or repaid by the Administrative Agent, plus
interest thereon from the date of such demand to the date such payment is made
at a rate per annum equal to the Federal Funds Rate from time to time in effect.
The obligations of the Lenders and the LC Issuers under clause (b) of the
preceding sentence shall survive the payment in full of the Obligations and
the
termination of this Agreement.
102
Section
10.06. Successors
and Assigns.
(a) Generally.
This
Agreement shall be binding upon the parties hereto and their respective
successors and assigns and shall inure to the benefit of the parties hereto
and
the successors and assigns of Lenders and the Agents. No rights or obligations
of the Borrower hereunder nor any interest therein may be assigned or delegated
by the Borrower without the prior written consent of each Lender. Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby and, to the extent expressly contemplated hereby, Affiliates
of
each of the Agents and Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement
(b) Register.
The
Administrative Agent (or its agent or sub-agent appointed by it) shall maintain
at the Administrative Agent’s Office a register for the recordation of the names
and addresses of Lenders and the Commitments, Loans, LC Deposit and Sub-Account
of each Lender from time to time (the “Register”).
The
Register shall be available for inspection by the Borrower or any Lender (with
respect to any entry relating to such Lender’s Commitments, Loans, LC Deposit or
Sub-Account) at any reasonable time and from time to time upon reasonable prior
notice. The Administrative Agent shall record, or shall cause to be recorded,
in
the Register the Commitments, Loans, LC Deposits and Sub-Accounts in accordance
with the provisions of this Section
10.06,
and
each repayment or prepayment in respect of the principal amount of the Loans
and
any repayment to the LC Lenders of its LC Deposit or any portion thereof, and
any such recordation shall be conclusive and binding on the Borrower and each
Lender, absent manifest error; provided
that
failure to make any such recordation, or any error in such recordation, shall
not affect any Lender’s Commitments or the Borrower’s obligations hereunder. The
Borrower hereby designates GSCP to serve as the Borrower’s agent solely for
purposes of maintaining the Register as provided in this Section
10.06(b),
and the
Borrower hereby agrees that, to the extent GSCP serves in such capacity, GSCP
and its officers, directors, employees, agents, sub-agents and Affiliates shall
constitute “Indemnitees.”
(c)
The
Borrower, the Agents and the Lenders shall deem and treat the Persons listed
as
Lenders in the Register as the holders and owners of the corresponding
Commitments, Loans and LC Deposits listed therein for all purposes hereof,
and
no assignment or transfer of any such Commitment, Loan or LC Deposit shall
be
effective, in each case, unless and until recorded in the Register following
receipt of an Assignment and Assumption effecting the assignment thereof,
together with the required forms and certificates regarding tax matters and
any
fees payable in connection with such assignment, in each case, as provided
in
Section 10.06(e).
Each
assignment shall be recorded in the Register on the Business Day the Assignment
and Assumption is received by the Administrative Agent, if received by 12:00
p.m., and on the following Business Day if received after such time, prompt
notice thereof shall be provided to the Borrower and a copy of such Assignment
and Assumption shall be maintained, as applicable. The date of such recordation
of an assignment shall be referred to herein as the “Assignment
Effective Date”.
Any
request, authority or consent of any Person who, at the time of making such
request or giving such authority or consent, is listed in the Register as a
Lender shall be conclusive and binding on any subsequent holder, assignee or
transferee of the corresponding Commitments, Loans or LC Deposits.
(d) Right
to Assign.
Each
Lender shall have the right at any time to assign all or a portion of its rights
and obligations under this Agreement, including all or a portion of its
Commitments, Loans and LC Deposit or of any other Obligations (provided,
however,
that
each partial assignment shall be made as an assignment of a proportionate part
of all the assigning Lender’s rights and obligations under this Agreement,
except that this proviso shall not be construed to prohibit the assignment
of a
proportionate part of all the assigning Lender’s rights and obligations in
respect of one Class of Commitments or Loans):
(i)
to
any Person meeting the criteria of clause (a) of the definition of the term
Eligible Assignee upon the giving of notice to the Borrower and the
Administrative Agent; and
103
(ii)
to
any
Person meeting the criteria of clause (b) of the definition of the term Eligible
Assignee upon the giving of notice to the Borrower and the Administrative Agent;
provided,
further
each such assignment pursuant to this Section
10.06(d)(ii)
shall be
in an aggregate amount of not less than $1,000,000, or such lesser amount as
may
be agreed to by the Borrower and the Administrative Agent or as shall constitute
the aggregate amount of the Dollar Term B Loans, the Dollar Term B II Loans
or
the Euro Term Loans, or the LC Deposit, of the assigning Lender.
(e) Mechanics.
Assignments and assumptions of Loans, Commitments and LC Deposits shall be
effected by manual execution and delivery to the Administrative Agent of an
Assignment and Assumption. Assignments made pursuant to the foregoing provision
shall be effective as of the Assignment Effective Date. In connection with
all
assignments there shall be delivered to the Administrative Agent such forms,
certificates or other evidence, if any, with respect to United States federal
income tax withholding matters as the assignee under such Assignment and
Assumption may be required to deliver pursuant to Section
3.01(f),
together
with payment to the Administrative Agent of a registration and processing fee
of
$3,500 (except that no such registration and processing fee shall be payable
(i)
in connection with an assignment by or to GSCP or any Affiliate thereof or
(ii)
in the case of an Assignee that is already a Lender or is an Affiliate or
Related Fund of a Lender or a Person under common management with a
Lender).
In
connection with each assignment of an LC Commitment or an LC Deposit, the LC
Deposit of the assignor LC Lender shall not be released, but shall instead
be
purchased by the relevant assignee and continue to be held for application
(to
the extent not already applied) in accordance with Article
II
to
satisfy such assignee’s obligations in respect of its LC Exposure. Each LC
Lender agrees that on the Assignment Effective Date for any such assignment
(i)
the Administrative Agent shall establish a new Sub-Account in the name of the
assignee, (ii) a corresponding portion of the LC Deposit credited to the
Sub-Account of the assignor LC Lender shall be purchased by the assignee and
shall be transferred from the Sub-Account of the assignor to the Sub-Account
of
the assignee and (iii) if after giving effect to such assignment the LC Deposit
of the assignor LC Lender shall be zero, the Administrative Agent shall close
the Sub-Account of such assignor.
(f) Representations
and Warranties of Assignee.
Each
Lender, upon execution and delivery hereof or upon succeeding to an interest
in
the Commitments, Loans or LC Deposits, as the case may be, represents and
warrants as of the Closing Date or as of the Assignment Effective Date that
(i)
it is an Eligible Assignee; (ii) it has experience and expertise in the making
of or investing in commitments or loans such as the applicable Commitments
or
Loans, as the case may be; and (iii) it will make or invest in, as the case
may
be, its Commitments or Loans for its own account in the ordinary course and
without a view to distribution of such Commitments or Loans within the meaning
of the Securities Laws (it being understood that, subject to the provisions
of
this Section
10.06,
the
disposition of such Commitments or Loans or any interests therein shall at
all
times remain within its exclusive control).
104
(g) Effect
of Assignment.
Subject
to the terms and conditions of this Section
10.06,
as of
the Assignment Effective Date with respect to any Assignment and Assumption,
(i)
the assignee thereunder shall have the rights and obligations of a Lender
hereunder to the extent of its interest in the Loans, Commitments and LC Deposit
as reflected in the Register and shall thereafter be a party hereto and a Lender
for all purposes hereof; (ii) the assigning Lender thereunder shall, to the
extent that rights and obligations hereunder have been assigned to the assignee,
relinquish its rights (other than any rights which expressly survive the
termination hereof) and be released from its obligations hereunder (and, in
the
case of an assignment covering all or the remaining portion of an assigning
Lender’s rights and obligations hereunder, such Lender shall cease to be a party
hereto on the Assignment Effective Date; provided,
anything contained in any of the Loan Documents to the contrary notwithstanding,
(A) an LC Issuer shall continue to have all rights and obligations thereof
with
respect to Letters of Credit issued by it hereunder until the cancellation
or
expiration of such Letters of Credit and the reimbursement of any amounts drawn
thereunder and (B) such assigning Lender shall continue to be entitled to the
benefit of all indemnities hereunder as specified herein with respect to matters
arising out of the prior involvement of such assigning Lender as a Lender
hereunder); and (iii) the Commitments and Applicable Percentages shall be
modified to reflect such assignment.
(h) Participations.
(i) Each
Lender shall have the right at any time to sell one or more participations
to
any Person (other than the Borrower, any of its Subsidiaries or any of its
other
Affiliates) in all or any part of its Commitments, Loans or other
Obligations.
(ii)
The
holder of any such participation, other than an Affiliate of the Lender granting
such participation, shall not be entitled to require such Lender to take or
omit
to take any action hereunder, except with respect to any amendment, waiver
or
consent described in the first proviso to Section
10.01
that
affects such participant.
(iii) The
Borrower agrees that each participant shall be entitled to the benefits of
Sections
3.01,
3.04
and
3.05
to the
same extent as if it were a Lender and had acquired its interest by assignment
pursuant to Section
10.06(d);
provided
that (A)
a participant shall not be entitled to receive any greater payment under
Section
3.01
or
3.04
than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such participant and (B) a participant that would be
a
Foreign Lender if it were a Lender shall not be entitled to the benefits of
Section
3.01
unless
the Borrower is notified of the participation sold to such participant and
such
participant agrees, for the benefit of the Borrower, to comply with Section
3.01
as
though it were a Lender; provided further
that,
except as specifically set forth in clauses (A) and (B) of this sentence,
nothing herein shall require any notice to the Borrower or any other Person
in
connection with the sale of any participation. To the extent permitted by Law,
each participant also shall be entitled to the benefits of Section 10.08
as
though it were a Lender, provided
(1) such
Participant agrees to be subject to Section
2.12
as
though it were a Lender and (2) the Borrower is notified of the participation
sold to such participant.
105
(i) Certain
Other Assignments and Participations.
In
addition to any other assignment or participation permitted pursuant to this
Section
10.06,
any
Lender may assign and/or pledge all or any portion of its Loans and the other
Obligations owed to such Lender, if any, to secure obligations of such Lender,
including to any Federal Reserve Bank as collateral security pursuant to
Regulation A of the FRB and any operating circular issued by such Federal
Reserve Bank; provided,
that no
Lender, as between the Borrower and such Lender, shall be relieved of any of
its
obligations hereunder as a result of any such assignment and pledge; and
provided further,
that in
no event shall the applicable Federal Reserve Bank, pledgee or trustee be
considered to be a “Lender” or be entitled to require the assigning Lender to
take or omit to take any action hereunder.
Section
10.07. Confidentiality.
Each
Agent, each Lender and each LC Issuer shall hold all non-public information
regarding the Borrower and its Subsidiaries and their businesses identified
as
such by the Borrower and obtained by such Agent, Lender or LC Issuer pursuant
to
the requirements hereof in accordance with such Agent’s, Lender’s or LC Issuer’s
customary procedures for handling confidential and non-public information of
such nature, it being understood and agreed by the Borrower that, in any event,
the Agents, the Lenders and the LC Issuers may make (a) disclosures of such
information to their respective Affiliates and to their respective agents and
advisors (and to other Persons authorized by such Agent, such Lender or such
LC
Issuer to organize, present or disseminate such information in connection with
disclosures otherwise made in accordance with this Section
10.07),
(b)
disclosures of such information reasonably required by any bona fide or
potential assignee, transferee or participant in connection with the
contemplated assignment, transfer or participation of any Commitments or Loans
or any participations therein or by any direct or indirect contractual
counterparties (or the professional advisors thereto) to any swap or derivative
transaction relating to the Borrower and its obligations (provided
that
such assignees, transferees, participants, counterparties and advisors are
advised of and agree to be bound by either the provisions of this Section
10.07
or other
provisions at least as restrictive as this Section
10.07)),
(c)
disclosure to any rating agency when required by it, provided
that,
prior to any disclosure, such rating agency shall undertake in writing to
preserve the confidentiality of any confidential and non-public information
relating to the Loan Parties received by it from any of the Agents or any Lender
and (d) disclosures required or requested by any governmental agency or
representative thereof or by the NAIC or pursuant to legal or judicial process;
provided,
unless
specifically prohibited by applicable Law, each Agent, each Lender and each
LC
Issuer shall make reasonable efforts to notify the Borrower of any request
by
NAIC or any governmental agency or representative thereof (other than any such
request in connection with any examination of the financial condition or other
routine examination of such Person by such governmental agency), or pursuant
to
any legal or judicial process, for disclosure of any such non-public information
prior to disclosure of such information. In addition, each Agent, each Lender
and each LC Issuer may disclose the existence of this Agreement and the
information about this Agreement to market data collectors, similar service
providers to the lending industry and service providers to the Agents and the
Lenders in connection with the administration and management of this Agreement
and the other Loan Documents.
106
Section
10.08. Right
of Setoff.
If an
Event of Default shall have occurred and be continuing, each Lender and each
LC
Issuer is hereby authorized at any time and from time to time, to the fullest
extent permitted by applicable Law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final, in whatever currency)
at any time held and other obligations (in whatever currency) at any time owing
by such Lender or such LC Issuer to or for the credit or the account of the
Borrower or any other Loan Party against any and all of the Obligations of
the
Borrower or such Loan Party now or hereafter existing under this Agreement
or
any other Loan Document to such Lender or such LC Issuer, irrespective of
whether or not such Lender or such LC Issuer shall have made any demand under
this Agreement or any other Loan Document and although such obligations of
the
Borrower or such Loan Party may be contingent or unmatured or are owed to a
branch or office of such Lender or such LC Issuer different from the branch
or
office holding such deposit or obligated on such indebtedness. The rights of
each Lender and each LC Issuer under this Section
10.08
are in
addition to other rights and remedies (including other rights of setoff) that
such Lender and such LC Issuer may have. Each Lender and each LC Issuer agrees
to notify the Borrower and the Administrative Agent promptly after any such
setoff and application, provided
that the
failure to give such notice shall not be deemed to affect the validity of such
setoff and application.
Section
10.09. Counterparts;
Effectiveness;
Integration. (a)
This
Agreement may be executed in counterparts (and by different parties hereto
in
different counterparts), each of which shall constitute an original, but all
of
which when taken together shall constitute a single contract. Delivery of an
executed counterpart of a signature page of this Agreement by facsimile or
by an
electronically mailed scanned copy shall be effective as delivery of a manually
executed counterpart of this Agreement. Except as provided in Article
IV,
this
Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof that, when taken together, bear the signatures of each
of
the other parties hereto.
(b) This
Agreement, the other Loan Documents and the Fee Letters constitute the entire
agreement among the parties relating to the subject matter hereof and supersede
any and all previous agreements and understandings, oral or written, relating
to
the subject matter hereof.
Section
10.10. Survival
of Representations and Warranties.
All
representations and warranties made hereunder and in any other Loan Document
or
other document delivered pursuant hereto or thereto or in connection herewith
or
therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by each Agent
and each Lender, regardless of any investigation made by any Agent or any Lender
or on their behalf and notwithstanding that any Agent or any Lender may have
had
notice or knowledge of any Default at the time of any Credit Extension, and
shall continue in full force and effect as long as any Loan or any other
Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit
shall remain outstanding.
Section
10.11. Severability.
If any
provision of this Agreement or the other Loan Documents is held to be illegal,
invalid or unenforceable, (a) the legality, validity and enforceability of
the
remaining provisions of this Agreement and the other Loan Documents shall not
be
affected or impaired thereby and (b) the parties shall endeavor in good faith
negotiations to replace the illegal, invalid or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to
that
of the illegal, invalid or unenforceable provisions. The invalidity of a
provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
107
Section
10.12. Replacement
of Lenders.
If any
Lender requests compensation under Section 3.04,
or if
the Borrower is required to pay or delivers to such Lender and the
Administrative Agent a certificate setting forth reasons as to why it reasonably
anticipates that it will be required to pay, and such Lender and the
Administrative Agent agree with such reasons, any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant
to
Section 3.01,
if any
Lender ceases to make Eurocurrency Rate Loans as a result of a condition
described in Section 3.02
or
3.04,
if any
Lender is a Non-Consenting Lender or if any other circumstance exists hereunder
that gives the Borrower the right to replace a Lender as a party hereto, then
the Borrower may, at its sole expense and effort, upon notice to such Lender
and
the Administrative Agent, require such Lender to assign, without recourse (in
accordance with and subject to the restrictions contained in, and consents
required by, Section 10.06),
all of
its interests, rights and obligations under this Agreement and the other Loan
Documents to an Eligible Assignee that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment),
provided
that:
(a) the
Borrower or assignee shall have paid to the Administrative Agent the
registration and processing fee specified in Section
10.06(e);
(b) such
Lender shall have received payment of an amount equal to the sum of (i) the
outstanding principal amount of its Loans and all interest accrued thereon,
(ii) its LC Deposit and the LC Deposit Return accrued thereon,
(iii) all accrued and unpaid LC Lender Fees owing to such Lender and
(iv) all other amounts payable to such Lender hereunder and under the other
Loan Documents (including any amounts under Section 3.05)
from
the assignee (to the extent of the amounts referred to in clauses (i), (ii)
and
(iii)) or the Borrower (in the case of the amounts referred to in clause
(iv));
(c) in
the
case of any such assignment resulting from a claim for compensation under
Section 3.04
or
payments required to be made pursuant to Section 3.01,
such
assignment will result in a reduction in such compensation or payments
thereafter; and
(d) such
assignment does not conflict with applicable Law.
A
Lender
shall not be required to make any such assignment if, prior thereto, as a result
of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment cease to apply.
Section
10.13. Governing
Law; Jurisdiction; Etc.
(a) GOVERNING
LAW.
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE
STATE OF NEW YORK.
(b) SUBMISSION
TO JURISDICTION.
EACH OF
THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND
ITS
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW
YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT FOR
THE
SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN
ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH
OF
THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH
NEW
YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN
SUCH
FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY
SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT
THAT ANY AGENT, ANY LENDER OR ANY LC ISSUER MAY OTHERWISE HAVE TO BRING ANY
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS
OF
ANY JURISDICTION.
108
(c) WAIVER
OF VENUE.
THE
BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN
PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING
IN ANY SUCH COURT.
(d) SERVICE
OF PROCESS.
EACH
PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED
FOR NOTICES IN SECTION 10.02
(OTHER
THAN BY EMAIL OR OTHER ELECTRONIC COMMUNICATION). NOTHING IN THIS AGREEMENT
WILL
AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY APPLICABLE LAW
Section
10.14. WAIVER
OF JURY TRIAL.
EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED
ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT
IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
109
Section
10.15. Patriot
Act.
Each
Lender and each Agent (for itself and not on behalf of any Lender) hereby
notifies each Loan Party that pursuant to the requirements of the USA PATRIOT
Act (Title III of Pub. L. 107-56 (signed into law on October 26, 2001)), it
is
required to obtain, verify and record information that identifies the Borrower
and each Subsidiary Loan Party, which information includes the name and address
of the Borrower and the Subsidiary Loan Parties and other information that
will
allow such Lender or Agent, as applicable, to identify the Borrower and the
Subsidiary Loan Parties in accordance with such Act.
Section
10.16. Concerning
the Permitted ABL Facility.
The
Lenders acknowledge that obligations of the Borrower under the Permitted ABL
Facility may be secured by Liens on assets of the Borrower and its Subsidiaries
that constitute ABL Collateral. At the request of the Borrower, the
Administrative Agent or the Collateral Agent shall enter into the ABL
Intercreditor Agreement establishing the relative rights of the Lenders and
of
the lenders under the Permitted ABL Facility with respect to the ABL Collateral.
Each Lender hereby irrevocably authorizes and directs the Administrative Agent
and/or the Collateral Agent to execute and deliver ABL Intercreditor Agreement
and any documents relating thereto, in each case, on behalf of such Lender
and
without any further consent, authorization or other action by such Lender,
and
agrees that no Lender shall have any right of action whatsoever against the
Administrative Agent or the Collateral Agent as a result of any action taken
by
such Agent pursuant to this Section 10.16.
The
Administrative Agent and the Collateral Agent shall have the benefit of the
provisions of Article
IX
with
respect to all actions taken by them pursuant to this Section 10.16
to the
full extent thereof.
110
IN
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be duly executed as of the date
first above written.
| SPECTRUM BRANDS, INC., as the Borrower | ||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name: Randall J. Steward |
||
|
Title: Executive
Vice President and Chief Financial
Officer
|
||
| SPECTRUM BRANDS, INC., as the Borrower | ||
| |
|
|
| By: | /s/ James T. Lucke | |
|
Name: James T. Lucke |
||
| Title: Senior Vice President, Secretary and General Counsel | ||
| GOLDMAN SACHS CREDIT PARTNERS L.P., individually and as the Administrative Agent, the Collateral Agent and the Syndication Agent | ||
| |
|
|
| By: | /s/ Walter A. Jackson | |
|
Name: Walter A. Jackson |
||
| Title: Authorized Signatory | ||
| WACHOVIA BANK, NATIONAL ASSOCIATION, as the Deposit Agent | ||
| |
|
|
| By: | /s/ Vicky Balmot | |
|
Name: Vicky Balmot |
||
| Title: Managing Director | ||
| BANK OF AMERICA, N.A., as an LC Issuer | ||
| |
|
|
| By: | /s/ Kevin M. Behan | |
|
Name: Kevin M. Behan |
||
|
Title: SVP
|
||
EXECUTION
VERSION
GUARANTEE
AND COLLATERAL AGREEMENT
dated
as
of
March
30,
2007,
among
SPECTRUM
BRANDS, INC.,
THE
SUBSIDIARIES OF SPECTRUM
BRANDS,
INC.
IDENTIFIED
HEREIN
and
GOLDMAN
SACHS CREDIT PARTNERS L.P.,
as
the
Collateral Agent
TABLE
OF
CONTENTS
|
ARTICLE
I
|
|
|
Definitions
|
|
|
SECTION
1.01. Credit Agreement
|
1
|
|
SECTION
1.02. Other Defined Terms
|
1
|
|
ARTICLE
II
|
|
|
Guarantee
|
|
|
SECTION
2.01. Guarantee
|
5
|
|
SECTION
2.02. Guarantee of Payment
|
5
|
|
SECTION
2.03. No Limitations
|
6
|
|
SECTION
2.04. Reinstatement
|
6
|
|
SECTION
2.05. Agreement To Pay; Subrogation
|
7
|
|
SECTION
2.06. Information
|
7
|
|
ARTICLE
III
|
|
|
Pledge
of Securities
|
|
|
SECTION
3.01. Pledge
|
7
|
|
SECTION
3.02. Delivery of the Pledged Collateral
|
8
|
|
SECTION
3.03. Representations, Warranties and Covenants
|
8
|
|
SECTION
3.04. Certification of Limited Liability Company and Limited Partnership
Interests
|
10
|
|
SECTION
3.05. Registration in Nominee Name; Denominations
|
10
|
|
SECTION
3.06. Voting Rights; Dividends and Interest
|
10
|
ii
|
ARTICLE
IV
|
|
|
Security
Interests in Personal Property
|
|
|
SECTION
4.01. Security Interest
|
12
|
|
SECTION
4.02. Representations and Warranties
|
14
|
|
SECTION
4.03. Covenants
|
16
|
|
SECTION
4.04. Other Actions
|
19
|
|
SECTION
4.05. Covenants Regarding Patent, Trademark and Copyright
Collateral
|
21
|
|
ARTICLE
V
|
|
|
Remedies
|
|
|
SECTION
5.01. Remedies Upon Default
|
23
|
|
SECTION
5.02. Application of Proceeds
|
25
|
|
SECTION
5.03. Grant of License to Use Intellectual Property
|
25
|
|
SECTION
5.04. Securities Act
|
26
|
|
SECTION
5.05. Registration
|
26
|
|
ARTICLE
VI
|
|
|
Indemnity,
Subrogation and Subordination
|
|
|
SECTION
6.01. Indemnity and Subrogation
|
27
|
|
SECTION
6.02. Contribution and Subrogation
|
27
|
|
SECTION
6.03. Subordination
|
28
|
|
ARTICLE
VII
|
|
|
Miscellaneous
|
|
|
SECTION
7.01. Notices
|
28
|
|
SECTION
7.02. Waivers; Amendment
|
28
|
|
SECTION
7.03. Collateral Agent’s Fees and Expenses;
Indemnification
|
29
|
|
SECTION
7.04. Successors and Assigns
|
29
|
iii
|
SECTION
7.05. Survival of Agreement
|
30
|
|
SECTION
7.06. Counterparts; Effectiveness; Several Agreement
|
30
|
|
SECTION
7.07. Severability
|
30
|
|
SECTION
7.08. Right of Set-Off
|
31
|
|
SECTION
7.09. Governing Law; Jurisdiction; Consent to Service of
Process
|
31
|
|
SECTION
7.10. WAIVER OF JURY TRIAL
|
32
|
|
SECTION
7.11. Headings
|
32
|
|
SECTION
7.12. Security Interest Absolute
|
32
|
|
SECTION
7.13. Termination or Release
|
32
|
|
SECTION
7.14. Additional Subsidiaries
|
33
|
|
SECTION
7.15. Collateral Agent Appointed Attorney-in-Fact
|
33
|
iv
|
Schedule
I
|
Subsidiary
Loan Parties
|
|
|
Schedule
II
|
Pledged
Equity Interests; Debt Securities
|
|
|
Schedule
III
|
Intellectual
Property
|
|
|
Schedule
IV
|
Commercial
Tort Claims
|
|
|
Exhibits
|
||
|
Exhibit
I
|
Form
of Supplement
|
|
|
Exhibit
II
|
Form
of Perfection Certificate
|
|
|
Exhibit
III
|
Form
of Trademark Security Agreement
|
|
|
Form
of Patent Security Agreement
|
||
|
Exhibit
V
|
Form
of Copyright Security Agreement
|
v
GUARANTEE
AND COLLATERAL AGREEMENT dated as of March 30, 2007, among SPECTRUM BRANDS,
INC., a Wisconsin corporation (the “Borrower”),
the
Subsidiaries of the Borrower identified herein and GOLDMAN SACHS CREDIT PARTNERS
L.P., as the Collateral Agent.
Reference
is made to the Credit Agreement dated as of March 30, 2007 (as amended,
supplemented or otherwise modified from time to time, the “Credit
Agreement”),
among
the Borrower, the Lenders party thereto, Goldman Sachs Credit Partners L.P.,
as
the Administrative Agent, the Collateral Agent and the Syndication Agent,
Wachovia Bank, National Association, as the Deposit Agent, and Bank of America,
N.A., as an LC Issuer. The Lenders and the LC Issuers have agreed to extend
credit to the Borrower subject to the terms and conditions set forth in the
Credit Agreement. The obligations of the Lenders and the LC Issuers to extend
such credit are conditioned upon, among other things, the execution and delivery
of this Agreement. The Subsidiary Loan Parties are Affiliates of the Borrower,
will derive substantial benefits from the extension of credit to the Borrower
pursuant to the Credit Agreement and are willing to execute and deliver this
Agreement in order to induce the Lenders and the LC Issuers to extend such
credit. Accordingly, the parties hereto agree as follows:
ARTICLE
I
Definitions
SECTION
1.01. Credit
Agreement.
(a)
Capitalized terms used in this Agreement (including the preamble hereto) and
not
otherwise defined herein have the meanings specified in the Credit Agreement.
All terms defined in the New York UCC (as defined herein) and not defined
in this Agreement or in the Credit Agreement have the meanings specified
therein; the term “instrument” shall have the meaning specified in
Article 9 of the New York UCC.
(b)
The
rules
of construction specified in Section 1.02 of the Credit Agreement also
apply to this Agreement.
SECTION
1.02. Other
Defined Terms.
As used
in this Agreement, the following terms have the meanings specified
below:
“Account
Debtor”
means
any Person who is or who may become obligated to any Loan Party under, with
respect to or on account of an Account.
“Article 9
Collateral”
has
the
meaning assigned to such term in Section 4.01 hereof.
“Borrower”
has
the
meaning assigned to such term in the preliminary statement to this
Agreement.
“Collateral”
means
Article 9 Collateral and Pledged Collateral.
1
“Copyright
License”
means
any written agreement, now or hereafter in effect, granting any right to any
third party under any copyright now or hereafter owned by any Loan Party or
that
such Loan Party otherwise has the right to license, or granting any right to
any
Loan Party under any copyright now or hereafter owned by any third party, and
all rights of such Loan Party under any such agreement.
“Copyrights”
means
all of the following now owned or hereafter acquired by any Loan Party:
(a) all copyright rights in any work subject to the copyright laws of the
United States or any other country, whether as author, assignee, transferee
or otherwise, and (b) all registrations and applications for registration
of any such copyright in the United States or any other country, including
registrations, recordings, supplemental registrations and pending applications
for registration in the United States Copyright Office, including those
listed on Schedule III.
“Credit
Agreement”
has
the
meaning assigned to such term in the preliminary statement to this
Agreement.
“Federal
Securities Laws”
has
the
meaning assigned to such term in Section 5.04.
“General
Intangibles”
means
all choses in action and causes of action and all other intangible personal
property of every kind and nature (other than Accounts) now owned or hereafter
acquired by any Loan Party and all other “general intangibles” as defined in the
New York UCC (other than Accounts), including corporate or other business
records, indemnification claims, contract rights (including rights under leases,
whether entered into as lessor or lessee, Swap Contracts and other agreements),
Intellectual Property, goodwill, registrations, franchises, tax refund claims
and any letter of credit, guarantee, claim, security interest or other security
held by or granted to any Loan Party to secure payment by an Account Debtor
of
any of the Accounts.
“Intellectual
Property”
means
all intellectual and similar property of every kind and nature now owned or
hereafter acquired by any Loan Party, including inventions, designs, Patents,
Copyrights, Licenses, Trademarks, trade secrets, confidential or proprietary
technical and business information, know-how, show-how or other proprietary
data
or information, rights in software and databases and rights in all embodiments
or fixations thereof and rights in related documentation, registrations and
franchises, and all additions, improvements and accessions to any of the
foregoing.
“IP
Security Agreements”
has
the
meaning assigned to such term in Section 4.02(b) hereof.
“Lender
Party”
means
each Lender, each Agent, each Arranger, each LC Issuer and each of their
respective Affiliates (including any Person that is a Lender, an Agent or an
LC
Issuer (or that is such an Affiliate) as of the Closing Date but subsequently
ceases to be a Lender, an Agent or an LC Issuer (or such an Affiliate), as
the
case may be, if such Person is a counterparty to any Swap Contract with any
Loan
Party or provides any cash management services to any Loan Party).
2
“License”
means
any Patent License, Trademark License, Copyright License or other license or
sublicense agreement to which any Loan Party is a party, including those listed
on Schedule III.
“Loan
Parties”
means,
collectively, the Borrower and the Subsidiary Loan Parties.
“New York
UCC”
means
the Uniform Commercial Code as from time to time in effect in the State of
New York.
“Obligations”
means
(a) the due and punctual payment by the Borrower of (i) the principal
of and interest (including interest accruing during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless
of
whether allowed or allowable in such proceeding) on the Loans, when and as
due,
whether at maturity, by acceleration, upon one or more dates set for prepayment
or otherwise, (ii) each payment required to be made by the Borrower under
any Loan Document in respect of any Letter of Credit, when and as due, including
payments in respect of reimbursement of LC Disbursements, interest thereon
(including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) and obligations to provide cash collateral, and
(iii) all other monetary obligations of the Borrower to any of the Secured
Parties under the Credit Agreement and each of the other Loan Documents,
including obligations to pay LC Lender Fees, expense reimbursement obligations
and indemnification obligations, whether primary, secondary, direct, contingent,
fixed or otherwise (including monetary obligations incurred, and any interest
thereon accruing, during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), (b) the due and punctual payment of all the
monetary obligations of each other Loan Party under or pursuant to the Credit
Agreement and each of the other Loan Documents, (c) the due and punctual
payment and performance of all monetary obligations of each Loan Party under
each Swap Contract with a counterparty that is a Lender Party, whether such
Swap
Contract is in effect on the Closing Date or entered into after the Closing
Date, (d) the due and punctual payment and performance of all monetary
obligations of each Loan Party to any Lender Party in respect of cash management
services (including treasury, depository, overdraft, credit or debit card,
electronic funds transfer and other cash management arrangements) (other than
cash management services provided after (i) the principal of each Loan and
all
LC Disbursements, interest and fees payable under the Credit Agreement have
been
paid in full, (ii) all Commitments under the Credit Agreement have been reduced
to zero and (iii) no LC Issuer shall have any obligation to issue Letters of
Credit under the Credit Agreement and no Letter of Credit is outstanding (other
than any Letter of Credit the obligations under which have been cash
collateralized in full or supported in full by letters of credit of other banks
naming the applicable LC Issuer as the beneficiary, in each case, in a manner
satisfactory to the applicable LC Issuer)) and (e) the due and punctual payment
of all the monetary obligations of each Loan Party under or pursuant to the
Qualified Foreign Credit Facility.
3
“Patent
License”
means
any written agreement, now or hereafter in effect, granting to any third party
any right to make, use or sell any invention on which a patent, now or hereafter
owned by any Loan Party or that any Loan Party otherwise has the right to
license, is in existence, or granting to any Loan Party any right to make,
use
or sell any invention on which a patent, now or hereafter owned by any third
party, is in existence, and all rights of any Loan Party under any such
agreement.
“Patents”
means
all of the following now owned or hereafter acquired by any Loan Party:
(a) all letters patent of the United States or the equivalent thereof
in any other country, all registrations and recordings thereof, and all
applications for letters patent of the United States or the equivalent
thereof in any other country, including registrations, recordings and pending
applications in the United States Patent and Trademark Office or any
similar offices in any other country, including those listed on
Schedule III, and (b) all reissues, continuations, divisions,
continuations-in-part, renewals or extensions thereof, and the inventions
disclosed or claimed therein, including the right to make, use and/or sell
the
inventions disclosed or claimed therein.
“Perfection
Certificate”
means
a
certificate substantially in the form of Exhibit II, completed and
supplemented with the schedules and attachments contemplated thereby, and duly
executed by a Responsible Officer of the Borrower.
“Pledged
Collateral”
has
the
meaning assigned to such term in Section 3.01.
“Pledged
Debt Securities”
has
the
meaning assigned to such term in Section 3.01.
“Pledged
Equity Interests”
has
the
meaning assigned to such term in Section 3.01.
“Pledged
Securities”
means
any promissory notes, stock certificates or other securities now or hereafter
included in the Pledged Collateral, including all certificates, instruments
or
other documents representing or evidencing any Pledged Collateral.
“Proceeds”
has
the
meaning specified in Section 9-102 of the New York UCC.
“Secured
Parties”
means
(a) the Lenders, (b) the Administrative Agent, (c) the Collateral
Agent, (d) the Deposit Agent, (e) the Syndication Agent, (f) the Arrangers,
(g) the LC Issuers, (h) the Lender Parties to whom any of the
Obligations is owed, (i) each other Person to whom any of the Obligations
referred to in clause (e) of the definition of such term is owed and
(j) the permitted successors and assigns of each of the
foregoing.
“Security
Interest”
has
the
meaning assigned to such term in Section 4.01.
4
“Subsidiary
Loan Parties”
means
(a) the Subsidiaries identified on Schedule I and (b) each other
Subsidiary that becomes a party to this Agreement as a Subsidiary Loan Party
after the Closing Date.
“Trademark
License”
means
any written agreement, now or hereafter in effect, granting to any third party
any right to use any trademark now or hereafter owned by any Loan Party or
that
any Loan Party otherwise has the right to license, or granting to any Loan
Party
any right to use any trademark now or hereafter owned by any third party, and
all rights of any Loan Party under any such agreement.
“Trademarks”
means
all of the following now owned or hereafter acquired by any Loan Party:
(a) all trademarks, service marks, trade names, corporate names, company
names, business names, fictitious business names, trade styles, trade dress,
logos, other source or business identifiers and other general intangibles of
like nature, now existing or hereafter adopted or acquired, all registrations
and recordings thereof, and all registration and recording applications filed
in
connection therewith, including registrations and registration applications
in
the United States Patent and Trademark Office or any similar offices in any
State of the United States or any other country or any political
subdivision thereof, and all extensions or renewals thereof, including those
listed on Schedule III and (b) all goodwill associated therewith or
symbolized thereby.
ARTICLE
II
Guarantee
SECTION
2.01. Guarantee.
Each
Loan Party (including the Borrower) unconditionally guarantees, jointly with
the
other Loan Parties and severally, as a primary obligor and not merely as a
surety, the due and punctual payment of the Obligations. Each Loan Party further
agrees that the Obligations may be extended or renewed, in whole or in part,
or
amended or modified, without notice to or further assent from it, and that
it
will remain bound upon its guarantee notwithstanding any extension or renewal,
or amendment or modification, of any Obligation. Each Loan Party waives
presentment to, demand of payment from and protest to the Borrower or any other
Loan Party of any of the Obligations, and also waives notice of acceptance
of
its guarantee and notice of protest for nonpayment.
SECTION
2.02. Guarantee
of Payment.
Each
Loan Party further agrees that its guarantee hereunder constitutes a guarantee
of payment when due and not of collection, and waives any right to require
that
any resort be had by the Collateral Agent or any other Secured Party to any
security held for the payment of the Obligations or to any balance of any
deposit account or credit on the books of the Collateral Agent or any other
Secured Party in favor of the Borrower or any other Person.
5
SECTION
2.03. No
Limitations.
(a)
Except for termination of a Loan Party’s obligations hereunder as expressly
provided in Section 7.13, the obligations of each Loan Party hereunder
shall not be subject to any reduction, limitation, impairment or termination
for
any reason, including any claim of waiver, release, surrender, alteration or
compromise of any Obligations, and shall not be subject to any defense or
set-off, counterclaim, recoupment or termination whatsoever by reason of the
invalidity, illegality or unenforceability of the Obligations or otherwise.
Without limiting the generality of the foregoing, the obligations of each Loan
Party hereunder shall not be discharged or impaired or otherwise affected by
(i) the failure of the Collateral Agent or any other Secured Party to
assert any claim or demand or to enforce any right or remedy under the
provisions of any Loan Document or otherwise; (ii) any rescission, waiver,
amendment or modification of, or any release from any of the terms or provisions
of, any Loan Document or any other agreement, including with respect to any
other Loan Party under this Agreement; (iii) the release of, or any
impairment of or failure to perfect any Lien on or security interest in, any
security held by the Collateral Agent or any other Secured Party for the
Obligations or any of them; (iv) any default, failure or delay, wilful or
otherwise, in the performance of the Obligations; or (v) any other act or
omission that may or might in any manner or to any extent vary the risk of
any
Loan Party or otherwise operate as a discharge of any Loan Party as a matter
of
law or equity (other than the indefeasible payment in full in cash of all the
Obligations). Each Loan Party expressly authorizes the Secured Parties to take
and hold security in accordance with the terms of this Agreement and the other
Loan Documents for the payment and performance of the Obligations, to exchange,
waive or release any or all such security (with or without consideration),
to
enforce or apply such security and direct the order and manner of any sale
thereof in their sole discretion or to release or substitute any one or more
other Loan Parties or obligors upon or in respect of the Obligations, all
without affecting the obligations of any Loan Party hereunder.
(b)
To
the
fullest extent permitted by applicable Law, each Loan Party waives any defense
based on or arising out of any defense of the Borrower or any other Loan Party
or the unenforceability of the Obligations or any part thereof from any cause,
or the cessation from any cause of the liability of any Borrower or any other
Loan Party, other than the indefeasible payment in full in cash of all the
Obligations. The Collateral Agent and the other Secured Parties may, at their
election, foreclose on any security held by one or more of them in accordance
with the terms of this Agreement and the other Loan Documents by one or more
judicial or nonjudicial sales, accept an assignment of any such security in
lieu
of foreclosure, compromise or adjust any part of the Obligations, make any
other
accommodation with the Borrower or any other Loan Party or exercise any other
right or remedy available to them against the Borrower or any other Loan Party,
without affecting or impairing in any way the liability of any Loan Party
hereunder except to the extent the Obligations have been fully and indefeasibly
paid in full in cash. To the fullest extent permitted by applicable Law, each
Loan Party waives any defense arising out of any such election even though
such
election operates, pursuant to applicable Law, to impair or to extinguish any
right of reimbursement or subrogation or other right or remedy of such Loan
Party against the Borrower or any other Loan Party, as the case may be, or
any
security.
SECTION
2.04. Reinstatement.
Each
Loan Party agrees that its guarantee hereunder shall continue to be effective
or
be reinstated, as the case may be, if at any time payment, or any part thereof,
of any Obligation is rescinded or must otherwise be restored by the Collateral
Agent or any other Secured Party upon the bankruptcy or reorganization of the
Borrower, any other Loan Party or otherwise.
6
SECTION
2.05. Agreement
To Pay; Subrogation.
In
furtherance of the foregoing and not in limitation of any other right that
the
Collateral Agent or any other Secured Party has at law or in equity against
any
Loan Party by virtue hereof, upon the failure of the Borrower or any other
Loan
Party to pay any Obligation when and as the same shall become due, whether
at
maturity, by acceleration, after notice of prepayment or otherwise, each Loan
Party hereby promises to and will forthwith pay, or cause to be paid, to the
Collateral Agent for distribution to the applicable Secured Parties in cash
the
amount of such unpaid Obligation. Upon payment by any Loan Party of any sums
to
the Collateral Agent as provided above, all rights of such Loan Party against
the Borrower or any other Loan Party arising as a result thereof by way of
right
of subrogation, contribution, reimbursement, indemnity or otherwise shall in
all
respects be subject to Article VI.
SECTION
2.06. Information.
Each
Loan Party assumes all responsibility for being and keeping itself informed
of
the Borrower’s and each other Loan Party’s financial condition and assets, and
of all other circumstances bearing upon the risk of nonpayment of the
Obligations and the nature, scope and extent of the risks that such Loan Party
assumes and incurs hereunder, and agrees that neither the Collateral Agent
nor
any of the other Secured Parties will have any duty to advise such Loan Party
of
information known to it or any of them regarding such circumstances or
risks.
ARTICLE
III
Pledge
of Securities
SECTION
3.01. Pledge.
As
security for the payment in full of the Obligations, each Loan Party (including
the Borrower) hereby pledges to the Collateral Agent, its successors and
assigns, for the benefit of the Secured Parties, and hereby grants to the
Collateral Agent, its successors and assigns, for the benefit of the Secured
Parties, a security interest in, all of such Loan Party’s right, title and
interest in, to and under (a) (i) the shares of capital stock and other
Equity Interests of each Subsidiary owned by it on the date hereof (including
all such shares and other Equity Interests listed on Schedule II), (ii) any
Equity Interests of a Subsidiary obtained by such Loan Party in the future
and
(iii) the certificates representing all such Equity Interests (all the
foregoing being called the “Pledged
Equity Interests”);
provided
that the
Pledged Equity Interests shall not include (i) more than 65% of the issued
and outstanding voting Equity Interests of any Foreign Subsidiary and
(ii) any Equity Interests of any Dormant Subsidiary; (b)(i) all
instruments and promissory notes owned by such Loan Party on the date hereof
(including all such instruments and the promissory notes listed on
Schedule II), and (ii) all instruments and promissory notes issued to
or otherwise obtained by such Loan Party in the future (all the foregoing being
called the “Pledged
Debt Securities”);
(c) subject to Section 3.06, all payments of principal or interest,
dividends, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of, in exchange for or upon
the
conversion of, and all other Proceeds received in respect of, the securities
referred to in clauses (a) and (b) above; (d) subject to
Section 3.06, all rights and privileges of such Loan Party with respect to
the securities and other property referred to in clauses (a), (b) and (c)
above; and (e) all Proceeds of any of the foregoing (the items referred to
in clauses (a) through (e) above being collectively referred to as the
“Pledged
Collateral”).
7
TO
HAVE
AND TO HOLD the Pledged Collateral, together with all right, title, interest,
powers, privileges and preferences pertaining or incidental thereto, unto the
Collateral Agent, its successors and assigns, for the benefit of the Secured
Parties, during the term of this Agreement; subject,
however,
to the
terms, covenants and conditions hereinafter set forth.
SECTION
3.02. Delivery
of the Pledged Collateral.
(a)
Each Loan Party agrees promptly to deliver or cause to be delivered to the
Collateral Agent any and all Pledged Securities.
(b)
Each
Loan
Party will cause any Indebtedness for borrowed money owed to such Loan Party
by
the Borrower or any Subsidiary to be evidenced by a duly executed promissory
note that is pledged and delivered to the Collateral Agent pursuant to the
terms
hereof.
(c)
Upon
delivery to the Collateral Agent, (i) all Pledged Securities shall be
accompanied by undated stock powers duly executed in blank or other undated
instruments of transfer reasonably satisfactory to the Collateral Agent and
duly
executed in blank and (ii) all other property comprising part of the
Pledged Collateral shall be accompanied by proper instruments of assignment
duly
executed by the applicable Loan Party and such other instruments or documents
as
the Collateral Agent may reasonably request. Each delivery of Pledged Securities
shall be accompanied by a schedule describing such Pledged Securities, which
schedule shall be attached hereto as a supplement to Schedule II and made a
part hereof; provided
that
failure to attach any such schedule hereto shall not affect the validity of
such
pledge of such Pledged Securities.
SECTION
3.03. Representations,
Warranties and Covenants.
The
Loan Parties jointly and severally represent, warrant and covenant to and with
the Collateral Agent, for the benefit of the Secured Parties, that:
(a) Schedule
II correctly sets forth the percentage of the issued and outstanding units
of
each class of the Equity Interests of the issuer thereof represented by the
Pledged Equity Interests and includes all Equity Interests, debt securities
and
promissory notes required to be pledged hereunder in order to satisfy the
Guarantee and Collateral Requirement;
8
(b) the
Pledged Equity Interests and Pledged Debt Securities have been duly and validly
authorized and issued by the issuers thereof (this representation and warranty
being made, in the case of Pledged Debt Securities of a Person that is not
the
Borrower or a Subsidiary, to the knowledge of the applicable Loan Party) and
(i) in the case of Pledged Equity Interests (other than interests in any
limited liability company), are fully paid and nonassessable and (ii) in
the case of Pledged Debt Securities (this representation and warranty being
made, in the case of Pledged Debt Securities of a Person that is not the
Borrower or a Subsidiary, to the knowledge of the applicable Loan Party), are
legal, valid and binding obligations of the issuers thereof, and there exists
no
defense, offset or counterclaim to any obligation of the maker or issuer of
any
Pledged Debt Securities (this representation and warranty being made, in the
case of Pledged Debt Securities of a Person that is not the Borrower or a
Subsidiary, to the knowledge of the applicable Loan Party);
(c) except
for the security interests granted hereunder, each Loan Party (i) is and,
subject to any transfers made in compliance with the Credit Agreement, will
continue to be the direct owner, beneficially and of record, of the Pledged
Securities indicated on Schedule II as owned by such Loan Party, (ii) holds
the same free and clear of all Liens, other than Liens created by the Loan
Documents and Permitted Liens, (iii) will make no further assignment,
pledge, hypothecation or transfer of, or create or permit to exist any security
interest in or other Lien on, the Pledged Collateral, other than Permitted
Liens
and as otherwise permitted by the Credit Agreement, and (iv) will defend
its title or interest thereto or therein against any and all Liens (other than
Permitted Liens), however arising, of all Persons whomsoever;
(d) except
for restrictions and limitations imposed or permitted by the Loan Documents
or
securities laws generally, the Pledged Collateral is freely transferable and
assignable;
(e) each
Loan
Party has the power and authority to pledge the Pledged Collateral pledged
by it
hereunder in the manner hereby done or contemplated;
(f) no
consent or approval of any Governmental Authority, any securities exchange
or
any other Person was or is necessary to the validity of the pledge effected
hereby (other than such as have been obtained and are in full force and effect
and other than consents or approvals that, individually or in the aggregate,
could not reasonably be expected to be material to the interests of the Secured
Parties hereunder);
(g) by
virtue
of the execution and delivery by the Loan Parties of this Agreement, when any
Pledged Securities are delivered to the Collateral Agent in accordance with
this
Agreement, the Collateral Agent will obtain, for the benefit of the Secured
Parties, a legal, valid and perfected first priority lien upon and security
interest in such Pledged Securities as security for the payment of the
Obligations; and
(h) each
pledge effected hereby is effective to vest in the Collateral Agent, for the
benefit of the Secured Parties, the rights of the Collateral Agent in the
Pledged Collateral as set forth herein.
9
SECTION
3.04. Certification
of Limited Liability Company and Limited Partnership Interests.
With
respect to any Equity Interests in a limited liability company or a limited
partnership controlled by a Loan Party and pledged hereunder that are not
represented by a certificate, such Loan Party represents that such interests
are
not “securities” within the meaning of Article 8 of the New York UCC and
covenants and agrees that it shall at no time elect to treat any such Equity
Interests as a “security” within the meaning of Article 8 of the New York UCC or
request or permit the issuance of any certificate representing such Equity
Interests, unless it provides prior written notice to the Collateral Agent
of
such election and immediately pledges and delivers any such certificate to
the
Collateral Agent pursuant to the terms hereof.
SECTION
3.05. Registration
in Nominee Name; Denominations.
The
Collateral Agent, on behalf of the Secured Parties, shall have the right (in
its
sole and absolute discretion) to hold the Pledged Securities in its own name
as
pledgee, the name of its nominee (as pledgee or as sub-agent) or the name of
the
applicable Loan Party, endorsed or assigned in blank or in favor of the
Collateral Agent. Each Loan Party will promptly give to the Collateral Agent
copies of any notices or other communications received by it with respect to
Pledged Securities registered in the name of such Loan Party. Upon the
occurrence and during the continuance of an Event of Default, the Collateral
Agent shall have the right to exchange the certificates representing Pledged
Securities for certificates of smaller or larger denominations for any purpose
consistent with this Agreement.
SECTION
3.06. Voting
Rights; Dividends and Interest.
(a)
Unless and until an Event of Default shall have occurred and is continuing
and
the Collateral Agent shall have notified the Loan Parties that their rights
under this Section 3.06 are being suspended:
(i) Each
Loan
Party shall be entitled to exercise any and all voting and/or other consensual
rights and powers inuring to an owner of Pledged Securities or any part thereof
for any purpose consistent with the terms of this Agreement, the Credit
Agreement and the other Loan Documents; provided that
such
rights and powers shall not be exercised in any manner that could materially
and
adversely affect the rights and remedies of any of the Collateral Agent or
the
other Secured Parties under this Agreement or the Credit Agreement or any other
Loan Document or the ability of the Secured Parties to exercise the
same.
(ii) The
Collateral Agent shall promptly execute and deliver to each Loan Party, or
cause
to promptly be executed and delivered to such Loan Party, all such proxies,
powers of attorney and other instruments as such Loan Party may reasonably
request for the purpose of enabling such Loan Party to exercise the voting
and/or consensual rights and powers it is entitled to exercise pursuant to
subparagraph (i) above.
10
(iii) Each
Loan
Party shall be entitled to receive and retain any and all dividends, interest,
principal and other distributions paid on or distributed in respect of the
Pledged Securities to the extent and only to the extent that such dividends,
interest, principal and other distributions are permitted by, and otherwise
paid
or distributed in accordance with, the terms and conditions of the Credit
Agreement, the other Loan Documents and applicable Laws; provided
that any
noncash dividends, interest, principal or other distributions that would
constitute Pledged Equity Interests or Pledged Debt Securities, whether
resulting from a subdivision, combination or reclassification of the outstanding
Equity Interests of the issuer of any Pledged Securities or received in exchange
for Pledged Securities or any part thereof, or in redemption thereof, or as
a
result of any merger, consolidation, acquisition or other exchange of assets
to
which such issuer may be a party or otherwise, shall be and become part of
the
Pledged Collateral, and, if received by any Loan Party, shall not be commingled
by such Loan Party with any of its other funds or property but shall be held
separate and apart therefrom, shall be held in trust for the benefit of the
Collateral Agent and the other Secured Parties and shall be forthwith delivered
to the Collateral Agent in the same form as so received (with any necessary
endorsement, stock powers and other instruments of transfer).
(b)
Upon
the
occurrence and during the continuance of an Event of Default, after the
Collateral Agent shall have notified the Loan Parties of the suspension of
their
rights under paragraph (a)(iii) of this Section 3.06, all rights of any
Loan Party to dividends, interest, principal or other distributions that such
Loan Party is authorized to receive pursuant to such paragraph shall cease,
and all such rights shall thereupon become vested in the Collateral Agent,
which
shall have the sole and exclusive right and authority to receive and retain
such
dividends, interest, principal or other distributions. All dividends, interest,
principal or other distributions received by any Loan Party contrary to the
provisions of this Section 3.06 shall be held in trust for the benefit of
the Collateral Agent and the other Secured Parties, shall be segregated from
other property or funds of such Loan Party and shall be forthwith delivered
to
the Collateral Agent upon demand in the same form as so received (with any
necessary endorsement). Any and all money and other property paid over to or
received by the Collateral Agent pursuant to the provisions of this paragraph
(b) shall be retained by the Collateral Agent in an account to be
established by the Collateral Agent upon receipt of such money or other property
and shall be applied in accordance with the provisions of Section 5.02.
After all Events of Default have been cured or waived and the Borrower has
delivered to the Collateral Agent a certificate to that effect, the Collateral
Agent shall promptly repay to each Loan Party (without interest) all dividends,
interest, principal or other distributions that such Loan Party would otherwise
be permitted to retain pursuant to the terms of paragraph (a)(iii) of this
Section 3.06 and that remain in such account.
(c)
Upon
the
occurrence and during the continuance of an Event of Default, after the
Collateral Agent shall have notified the Loan Parties of the suspension of
their
rights under paragraph (a)(i) of this Section 3.06, all rights of any Loan
Party to exercise the voting and consensual rights and powers it is entitled
to
exercise pursuant to paragraph (a)(i) of this Section 3.06, and the
obligations of the Collateral Agent under paragraph (a)(ii) of this
Section 3.06, shall cease, and all such rights shall thereupon become
vested in the Collateral Agent, which shall have the sole and exclusive right
and authority to exercise such voting and consensual rights and powers;
provided
that,
unless otherwise directed by the Required Lenders, the Collateral Agent shall
have the right from time to time following and during the continuance of an
Event of Default to permit the Loan Parties to exercise such rights. After
all
Events of Default have been cured or waived, as the case may be, all rights
vested in the Collateral Agent pursuant to this paragraph shall cease, and
the
Loan Parties shall have the voting and consensual rights and powers they would
otherwise be entitled to exercise pursuant to paragraph (a)(i) of this
Section 3.06.
11
(d)
Any
notice given by the Collateral Agent to the Loan Parties suspending their rights
under paragraph (a) of this Section 3.06 (i) may be given by telephone
if promptly confirmed in writing, (ii) may be given to one or more of the Loan
Parties at the same or different times and (iii) may suspend the rights of
the
Loan Parties under paragraph (a)(i) or paragraph (a)(iii) in part without
suspending all such rights (as specified by the Collateral Agent in its sole
and
absolute discretion) and without waiving or otherwise affecting the Collateral
Agent’s rights to give additional notices from time to time suspending other
rights so long as an Event of Default has occurred and is
continuing.
ARTICLE
IV
Security
Interests in Personal Property
SECTION
4.01. Security
Interest.
(a) As
security for the payment in full of the Obligations, each Loan Party (including
the Borrower) hereby pledges to the Collateral Agent, its successors and
assigns, for the benefit of the Secured Parties, and hereby grants to the
Collateral Agent, its successors and assigns, for the benefit of the Secured
Parties, a security interest (the “Security
Interest”)
in,
all right, title or interest in or to any and all of the following assets and
properties now owned or at any time hereafter acquired by such Loan Party or
in
which such Loan Party now has or at any time in the future may acquire any
right, title or interest (collectively, the “Article 9
Collateral”):
(i) all
Accounts;
(ii) all
Chattel Paper;
(iii) all
cash
and Deposit Accounts;
(iv) all
Documents;
(v) all
Equipment;
(vi) all
General Intangibles;
(vii) all
Instruments;
(viii) all
Inventory;
12
(ix) all
Investment Property;
(x) all
letter-of-credit rights;
(xi) all
commercial tort claims specified on Schedule IV;
(xii) all
books
and records pertaining to the Article 9 Collateral; and
(xiii) to
the
extent not otherwise included, all Proceeds and products of any and all of
the
foregoing and all collateral security and guarantees given by any Person with
respect to any of the foregoing.
(b)
Each
Loan
Party hereby irrevocably authorizes the Collateral Agent at any time and from
time to time to file in any relevant jurisdiction any initial financing
statements (including fixture filings) with respect to the Article 9
Collateral or any part thereof and amendments thereto and continuations thereof
that contain the information required by Article 9 of the Uniform Commercial
Code of each applicable jurisdiction for the filing of any financing statement
or amendment, including (a) whether such Loan Party is an organization, the
type
of organization and any organizational identification number issued to such
Loan
Party and (b) in the case of a financing statement filed as a fixture filing,
a
sufficient description of the real property to which such Article 9
Collateral relates. Each Loan Party agrees to provide such information to the
Collateral Agent promptly upon request. Without limiting the foregoing, each
Loan Party hereby irrevocably authorizes the Collateral Agent at any time and
from time to time to file in any relevant jurisdiction financing statements
that
describe the Collateral as “all assets, whether now owned or hereafter acquired”
of such Loan Party, or words of similar effects as being of an equal or lesser
scope or with greater detail.
Each
Loan
Party also ratifies its authorization for the Collateral Agent to file in any
relevant jurisdiction any initial financing statements or amendments thereto
if
filed prior to the date hereof.
The
Collateral Agent is further authorized to file with the United States
Patent and Trademark Office or United States Copyright Office (or any
successor office or any similar office in any other country) such documents
as
may be necessary or advisable for the purpose of perfecting, confirming,
continuing, enforcing or protecting the Security Interest granted by each Loan
Party, without the signature of any Loan Party, and naming any Loan Party or
the
Loan Parties as debtors and the Collateral Agent as secured party.
(c)
The
Security Interest is granted as security only and shall not subject the
Collateral Agent or any other Secured Party to, or in any way alter or modify,
any obligation or liability of any Loan Party with respect to or arising out
of
the Article 9 Collateral (other than the duties expressly created
hereunder).
13
(d)
Notwithstanding
anything herein to the contrary, in no event shall the security interest granted
hereunder attach to any license, contract or agreement to which a Loan Party
is
a party or any of its rights or interests thereunder if and for so long as
the
grant of such security interest shall constitute or result in (i) the
abandonment, invalidation or unenforceability of any right, title or interest
of
the Loan Party therein or (ii) in a breach or termination pursuant to the terms
of, or a default under, any such license, contract or agreement (other than
to
the extent that any such term would be rendered ineffective pursuant to
Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other
applicable law or principles of equity), provided,
however,
that
such security interest shall attach immediately at such time as the condition
causing such abandonment, invalidation or unenforceability shall be remedied
and, to the extent severable, shall attach immediately to any portion of such
license, contract or agreement that does not result in any of the consequences
specified in (i) or (ii) including, without limitation, any proceeds of such
contract or agreement, provided further
that in
no event shall the Security Interest granted hereunder attach to (i) more
than 65% of the issued and outstanding voting Equity Interests of any Foreign
Subsidiary, (ii) any Equity Interests of any Dormant Subsidiary or
(iii) any trademark or service mark applications filed in the United States
Patent and Trademark Office on the basis of any Loan Party’s “intent to use”
such mark unless and until the earlier of the filing of an amendment to allege
use (or statement of use) or the issuance of a registration.
SECTION
4.02. Representations
and Warranties.
The
Loan Parties jointly and severally represent and warrant to the Collateral
Agent
and the other Secured Parties that:
(a)
Each
Loan
Party has good and valid rights in and title to the Article 9 Collateral
with respect to which it has purported to grant a Security Interest hereunder
and has full power and authority to grant to the Collateral Agent, for the
benefit of the Secured Parties, the Security Interest in such Article 9
Collateral pursuant hereto and to execute, deliver and perform its obligations
in accordance with the terms of this Agreement, without the consent or approval
of any other Person other than any consent or approval that has been obtained,
except to the extent that the failure to have such rights, title, power or
authority could not, individually or in the aggregate, reasonably be expected
to
have a Material Adverse Effect.
14
(b)
The
Perfection Certificate has been duly prepared, completed and executed and the
information set forth therein, including the exact legal name and place of
organization of each Loan Party, is correct and complete as of the Closing
Date.
The Uniform Commercial Code financing statements (including fixture filings,
as
applicable) or other appropriate filings, recordings or registrations prepared
by the Collateral Agent based upon the information provided to the Collateral
Agent in the Perfection Certificate for filing in each governmental, municipal
or other office specified in Schedules 2A and 2B to the Perfection Certificate
(or specified by notice from the Borrower to the Collateral Agent after the
Closing Date in the case of filings, recordings or registrations required by
Section 6.13(b) or 6.15 of the Credit Agreement), are all the filings,
recordings and registrations (other than filings required to be made in the
United States Patent and Trademark Office and the United States
Copyright Office in order to perfect the Security Interest in Article 9
Collateral consisting of United States Patents, Trademarks and Copyrights
and the taking of appropriate actions with respect to Intellectual Property
that
is the subject of a registration or application outside the U.S. under
applicable local Law to perfect such Security Interest) that are necessary
to
publish notice of, perfect and protect the validity of and to establish a legal,
valid and perfected security interest in favor of the Collateral Agent, for
the
benefit of the Secured Parties, in respect of all Article 9 Collateral in
which the Security Interest may be perfected by filing, recording or
registration in the United States (or any political subdivision thereof)
and its territories and possessions, and no further or subsequent filing,
refiling, recording, rerecording, registration or reregistration is necessary
in
any such jurisdiction, except as provided under applicable Law with respect
to
the filing of continuation statements, provided
that
subsequent recordings in the United States Patent and Trademark Office and
United States Copyright Office and actions under applicable foreign Law may
be
necessary with respect to registrations and applications for Intellectual
Property acquired by the Loan Parties after the date hereof. Each Loan Party
shall ensure that a fully executed Trademark Security Agreement and, if any
of
Article 9 Collateral consists of Patents or Copyrights, Patent Security
Agreement and Copyright Security Agreement (collectively, the “IP
Security Agreements”)
in the
form of Exhibits III, IV and V, respectively, hereto and containing a
description of all Article 9 Collateral consisting of applicable
Intellectual Property shall be submitted for recordation within three months
after the execution of this Agreement with respect to United States Patents
and United States registered Trademarks (and Trademarks for which
United States registration applications are pending) and within one month
after the execution of this Agreement with respect to United States
registered Copyrights by the United States Patent and Trademark Office and
the United States Copyright Office pursuant to
35 U.S.C. § 261, 15 U.S.C. § 1060 or
17 U.S.C. § 205 and the regulations thereunder, as
applicable.
(c)
The
Security Interest constitutes (i) a legal and valid security interest in
all the Article 9 Collateral securing the payment of the Obligations,
(ii) subject to the filings described in Section 4.02(b), a perfected
security interest in all Article 9 Collateral in which a security interest
may be perfected by filing, recording or registering a financing statement
or
analogous document in the United States (or any political subdivision
thereof) and its territories and possessions pursuant to the Uniform Commercial
Code or other applicable Law in such jurisdictions and (iii) subject to the
filings described in Section 4.02(b), a security interest that shall be
perfected in all Article 9 Collateral in which a security interest may be
perfected upon the receipt and recording of the IP Security Agreements with
the
United States Patent and Trademark Office and the United States
Copyright Office, as applicable, within the three-month period (commencing
as of
the date hereof) pursuant to 35 U.S.C. § 261 or 15 U.S.C.
§ 1060 or the one-month period (commencing as of the date hereof) pursuant
to 17 U.S.C. § 205. The Security Interest is and shall be prior to any
other Lien on any of the Article 9 Collateral, other than Permitted Liens
that have priority as a matter of law.
(d)
The
Article 9 Collateral is owned by the Loan Parties free and clear of any
Lien, except for Permitted Liens. None of the Loan Parties has filed or
consented to the filing of (i) any financing statement or analogous
document under the Uniform Commercial Code or any other applicable Laws covering
any Article 9 Collateral, (ii) any assignment in which any Loan Party
assigns any Collateral or any security agreement or similar instrument covering
any Article 9 Collateral with the United States Patent and Trademark
Office or the United States Copyright Office or (iii) any assignment
in which any Loan Party assigns any Article 9 Collateral or any security
agreement or similar instrument covering any Article 9 Collateral with any
foreign governmental, municipal or other office, which financing statement
or
analogous document, assignment, security agreement or similar instrument is
still in effect, except, in each case, for Permitted Liens.
15
SECTION
4.03. Covenants.
(a)
Each Loan Party agrees to maintain, at its own cost and expense, such complete
and accurate records with respect to the Article 9 Collateral owned by it
as is consistent with its current practices and its reasonable business
judgment, and, at such time or times as the Collateral Agent may reasonably
request, promptly to prepare and deliver to the Collateral Agent an updated
schedule in form and detail reasonably satisfactory to the Collateral Agent
showing the identity, amount and location of any and all Article 9
Collateral.
(b)
Each
Loan
Party shall, at its own expense, take any and all actions consistent with its
current practices and its reasonable business judgment to defend title to the
Article 9 Collateral against all Persons and to defend the Security
Interest of the Collateral Agent in the Article 9 Collateral and the
priority thereof against any Lien not expressly permitted pursuant to
Section 7.01 of the Credit Agreement that is not a Permitted
Lien.
(c)
Each
Loan
Party agrees, at its own expense, to execute, acknowledge, deliver and cause
to
be duly filed all such further instruments and documents and take all such
actions as the Collateral Agent may from time to time reasonably request to
better assure, preserve, protect and perfect the Security Interest and the
rights and remedies created hereby, including the payment of any fees and taxes
required in connection with the execution and delivery of this Agreement, the
granting of the Security Interest and the filing of any financing statements
(including fixture filings) or other documents in connection herewith or
therewith. If any amount payable under or in connection with any of the
Article 9 Collateral shall be or become evidenced by any promissory note or
other instrument, such note or instrument shall be promptly pledged and
delivered to the Collateral Agent, duly endorsed in a manner reasonably
satisfactory to the Collateral Agent.
Without
limiting the generality of the foregoing, each Loan Party hereby authorizes
the
Collateral Agent, with prompt notice thereof to the Loan Parties, to supplement
this Agreement by supplementing Schedule III or adding additional schedules
hereto to specifically identify any asset or item that may constitute
Copyrights, Licenses, Patents or Trademarks; provided
that any
Loan Party shall have the right, exercisable within 30 days (or such longer
period as shall be agreed by the Borrower and the Collateral Agent) after it
has
been notified by the Collateral Agent of the specific identification of such
Collateral, to advise the Collateral Agent in writing of any inaccuracy
(i) with respect to such supplement or additional schedule or (ii) of
the representations and warranties made by such Loan Party hereunder with
respect to such Collateral. Each Loan Party agrees that it will use commercially
reasonable efforts to take such action as shall be necessary in order that
all
representations and warranties hereunder shall be true and correct with respect
to such Collateral within 30 days (or such longer period as shall be agreed
by the Borrower and the Collateral Agent) after the date it has been notified
by
the Collateral Agent of the specific identification of such
Collateral.
16
(d)
Upon
the
occurrence and during the continuance of an Event of Default, the Collateral
Agent and such Persons as the Collateral Agent may reasonably designate shall
have the right upon reasonable prior notice, to inspect the Article 9
Collateral, all records related thereto (and to make extracts and copies from
such records) and the premises upon which any of the Article 9 Collateral
is located, to discuss the Loan Parties’ affairs with the officers of the Loan
Parties and their independent accountants and to verify under reasonable
procedures, in accordance with Section 6.11 of the Credit Agreement, the
validity, amount, quality, quantity, value, condition and status of, or any
other matter relating to, the Article 9 Collateral, including, in the case
of
Accounts or other Article 9 Collateral in the possession of any third
person, by contacting Account Debtors or the third person possessing such
Article 9 Collateral for the purpose of making such a verification. The
Loan Parties shall be required to pay all reasonable out-of-pocket costs and
expenses incurred by the Collateral Agent or any other Person in connection
with
any inspection or verification referred to in this paragraph.
(e)
At
its
option, the Collateral Agent may discharge past due taxes, assessments, charges,
fees, Liens, security interests or other encumbrances at any time levied or
placed on the Article 9 Collateral and not permitted pursuant to
Section 7.01 of the Credit Agreement, and may pay for the maintenance and
preservation of the Article 9 Collateral to the extent any Loan Party fails
to do so as required by the Credit Agreement or this Agreement, and each Loan
Party jointly and severally agrees to reimburse the Collateral Agent on demand
for any payment made or any expense incurred by the Collateral Agent pursuant
to
the foregoing authorization; provided
that
nothing in this paragraph shall be interpreted as excusing any Loan Party from
the performance of, or imposing any obligation on the Collateral Agent or any
Secured Party to cure or perform, any covenants or other promises of any Loan
Party with respect to taxes, assessments, charges, fees, Liens, security
interests or other encumbrances and maintenance as set forth herein or in the
other Loan Documents.
(f)
If
at any
time any Loan Party shall take a security interest in any property with a value
in excess of $1,000,000 in the aggregate of an Account Debtor or any other
Person to secure payment and performance of an Account, such Loan Party shall
promptly assign such security interest to the Collateral Agent, for the benefit
of the Secured Parties. Such assignment need not be filed of public record
unless necessary to continue the perfected status of the security interest
against creditors of and transferees from the Account Debtor or other Person
granting the security interest.
(g)
Each
Loan
Party shall remain liable to observe and perform all the conditions and
obligations to be observed and performed by it under each contract, agreement
or
instrument relating to the Article 9 Collateral, all in accordance with the
terms and conditions thereof, and the Loan Parties jointly and severally agree
to indemnify and hold harmless the Collateral Agent and the other Secured
Parties from and against any and all liability for such
performance.
17
(h)
Each
Loan
Party agrees that it shall not request any warehouseman, agent, bailee or
processor that possesses any Inventory of such Loan Party to acknowledge that
such warehouseman, agent, bailee or processor holds such Inventory for the
benefit of the collateral agent under the Permitted ABL Facility, or to agree
to
act upon the instructions of such collateral agent, unless such Loan Party
shall
concurrently request a corresponding acknowledgement or agreement, as the case
may be, in each case, in writing, for the benefit of the Collateral Agent (and
each Loan Party hereby agrees that in the event of such a request, it will
use
its commercially reasonable efforts to obtain such acknowledgment or agreement
for the benefit of the Collateral Agent).
(i)
None
of
the Loan Parties will, without the Collateral Agent’s prior written consent,
grant any extension of the time of payment of any Accounts included in the
Article 9 Collateral, compromise, compound or settle the same for less than
the full amount thereof, release, wholly or partly, any Person liable for the
payment thereof or allow any credit or discount whatsoever thereon, other than
extensions, compromises, settlements, releases, credits or discounts granted
or
made in the ordinary course of business and consistent with its current
practices and in accordance with such prudent and standard practice used in
industries that are the same as or similar to those in which such Loan Party
is
engaged.
(j)
The
Loan
Parties, at their own expense, shall maintain or cause to be maintained
insurance covering physical loss or damage to the Inventory and Equipment in
accordance with the requirements set forth in Section 6.08 of the Credit
Agreement. Each
Loan
Party shall use its commercially reasonable efforts to cause (i) any fire and
extended coverage insurance policies maintained by it with respect to any
Collateral to be endorsed or otherwise amended to include a lenders’ loss
payable clause in favor of the Collateral Agent, (ii) any commercial general
liability insurance policy maintained by it to be endorsed to name the
Collateral Agent as an additional insured and (iii) each such policy to provide
that it shall not be canceled, modified or not renewed except upon not less
than
10 days’ prior written notice thereof by the insurer to the Collateral
Agent.
Each
Loan Party irrevocably makes, constitutes and appoints the Collateral Agent
(and
all officers, employees or agents designated by the Collateral Agent) as such
Loan Party’s true and lawful agent (and attorney-in-fact) for the purpose,
during the continuance of an Event of Default, of making, settling and adjusting
claims in respect of Article 9 Collateral under policies of insurance,
endorsing the name of such Loan Party on any check, draft, instrument or other
item of payment for the proceeds of such policies of insurance and for making
all determinations and decisions necessary with respect thereto. In the event
that any Loan Party at any time or times shall fail to obtain or maintain any
of
the policies of insurance required hereby or to pay any premium in whole or
part
relating thereto, the Collateral Agent may, without waiving or releasing any
obligation or liability of the Loan Parties hereunder or any Event of Default,
in its sole discretion, obtain and maintain such policies of insurance and
pay
such premium and take any other actions with respect thereto as the Collateral
Agent deems advisable. All sums disbursed by the Collateral Agent in connection
with this paragraph, including reasonable out-of-pocket attorneys’ fees, court
costs, expenses and other charges relating thereto, shall be payable, upon
demand, by the Loan Parties to the Collateral Agent and shall be additional
Obligations secured hereby.
18
(k)
Each
Loan
Party shall maintain customary and prudent records of its Chattel Paper and
its
books, records and documents evidencing or pertaining thereto.
SECTION
4.04. Other
Actions.
In
order to further insure the attachment, perfection and priority of, and the
ability of the Collateral Agent to enforce, the Security Interest, each Loan
Party agrees, in each case at such Loan Party’s own expense, to take the
following actions with respect to the following Article 9
Collateral:
(a) Instruments.
If any
Loan Party shall at any time hold or acquire any Instruments, such Loan Party
shall promptly endorse, assign and deliver the same to the Collateral Agent,
accompanied by such undated instruments of endorsement, transfer or assignment
duly executed in blank as the Collateral Agent may from time to time reasonably
request.
(b) Deposit
Accounts.
For
each deposit account that any Loan Party at any time opens or maintains, such
Loan Party shall, either (i) cause the depositary bank to agree to comply
with instructions from the Collateral Agent to such depositary bank directing
the disposition of funds from time to time credited to such deposit account,
without further consent of such Loan Party or any other Person, pursuant to
an
agreement reasonably satisfactory to the Collateral Agent, or (ii) arrange
for the Collateral Agent to become the customer of the depositary bank with
respect to the deposit account, with the Loan Party being permitted, only with
the consent of the Collateral Agent, to exercise rights to withdraw funds from
such deposit account. The Collateral Agent agrees with each Loan Party that
the
Collateral Agent shall not give any such instructions or withhold any withdrawal
rights from any Loan Party unless an Event of Default has occurred and is
continuing, or, after giving effect to any withdrawal would occur. The
provisions of this paragraph shall not apply to (A) any deposit account for
which any Loan Party, the depositary bank and the Collateral Agent have entered
into a cash collateral agreement specially negotiated among such Loan Party,
the
depositary bank and the Collateral Agent for the specific purpose set forth
therein, (B) deposit accounts for which the Collateral Agent is the
depositary bank and (C) any deposit account the average daily balance in
which does not exceed $1,000,000 for any such account individually, and
$5,000,000 for all such accounts in the aggregate, at any time. Notwithstanding
the foregoing, at any time when a Permitted ABL Facility shall be in effect,
the
foregoing requirements shall be deemed satisfied with respect to any deposit
account if the institution serving as collateral agent for such Permitted ABL
Facility shall have control over such deposit account, for the benefit of the
lenders under the Permitted ABL Facility and as bailee for the Collateral Agent,
pursuant to an agreement reasonably satisfactory to the Collateral Agent and
entered into by the Collateral Agent, the collateral agent for the Permitted
ABL
Facility and the applicable depository institution, which agreement shall
provide for the transfer of control over such deposit account to the Collateral
Agent upon the termination of the Permitted ABL Facility and the repayment
and
discharge of all loans and other extensions of credit thereunder.
19
(c) Investment
Property.
Except
to the extent otherwise provided in Article III, if any Loan Party shall at
any time hold or acquire any certificated securities of a Subsidiary, such
Loan
Party shall forthwith endorse, assign and deliver the same to the Collateral
Agent, accompanied by such undated instruments of transfer or assignment duly
executed in blank as the Collateral Agent may from time to time specify. If
any
securities of a Subsidiary now or hereafter acquired by any Loan Party are
uncertificated and are issued to such Loan Party or its nominee directly by
the
issuer thereof, such Loan Party shall immediately notify the Collateral Agent
thereof and, at the Collateral Agent’s reasonable request and option, pursuant
to an agreement in form and substance reasonably satisfactory to the Collateral
Agent, either (i) cause the issuer to agree to comply with instructions
from the Collateral Agent as to such securities, without further consent of
any
Loan Party or such nominee, or (ii) arrange for the Collateral Agent to
become the registered owner of the securities. If any securities, whether
certificated or uncertificated, or other Investment Property now or hereafter
acquired by any Loan Party are held by such Loan Party or its nominee through
a
securities intermediary, such Loan Party shall immediately notify the
Collateral Agent thereof and, at the Collateral Agent’s request and option,
pursuant to an agreement in form and substance reasonably satisfactory to the
Collateral Agent, either (i) use commercially reasonable efforts to cause
such securities intermediary to agree to comply with entitlement orders or
other
instructions from the Collateral Agent to such securities intermediary as to
such security entitlements without further consent of any Loan Party or such
nominee, or (ii) in the case of Financial Assets or other Investment
Property held through a securities intermediary, use commercially reasonable
efforts to arrange for the Collateral Agent to become the entitlement holder
with respect to such Investment Property, with the Loan Party being permitted,
only with the consent of the Collateral Agent, to exercise rights to withdraw
or
otherwise deal with such Investment Property. The Collateral Agent agrees with
each of the Loan Parties that the Collateral Agent shall not give any such
entitlement orders or instructions or directions to any such issuer or
securities intermediary, and shall not withhold its consent to the exercise
of
any withdrawal or dealing rights by any Loan Party, unless an Event of Default
has occurred and is continuing, or, after giving effect to any such investment
and withdrawal rights would occur. The provisions of this paragraph shall not
apply to (A) any Financial Assets credited to a securities account for which
the
Collateral Agent is the securities intermediary and (B) any securities account
the value of securities or other Investment Property in which does not exceed
$1,000,000 for any such account individually, and $5,000,000 for all such
accounts in the aggregate, at any time.
(d) Electronic
Chattel Paper and Transferable Records. If
any
Loan Party at any time holds or acquires an interest in any electronic chattel
paper or any “transferable record,” as that 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 of an amount in excess of $1,000,000, such Loan Party
shall promptly notify the Collateral Agent thereof and, at the request of the
Collateral Agent, shall take such action as the Collateral Agent may reasonably
request to vest in the Collateral Agent control under New York UCC
Section 9-105 of such electronic chattel paper or control 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 so in effect in such jurisdiction, of such transferable
record. The Collateral Agent agrees with such Loan Party that the Collateral
Agent will arrange, pursuant to procedures reasonably satisfactory to the
Collateral Agent and so long as such procedures will not result in the
Collateral Agent’s loss of control, for the Loan Party to make alterations to
the electronic chattel paper or transferable record permitted under UCC
Section 9-105 or, as the case may be, Section 201 of the Federal
Electronic Signatures in Global and National Commerce Act or Section 16 of
the Uniform Electronic Transactions Act for a party in control to allow without
loss of control, unless an Event of Default has occurred and is continuing
or
would occur after taking into account any action by such Loan Party with respect
to such electronic chattel paper or transferable record.
20
(e) Letter-of-Credit
Rights.
If any
Loan Party is at any time a beneficiary under a letter of credit now or
hereafter issued in favor of such Loan Party in a face amount in excess of
$1,000,000, such Loan Party shall promptly notify the Collateral Agent thereof
and, at the request and option of the Collateral Agent, such Loan Party shall,
pursuant to an agreement in form and substance reasonably satisfactory to the
Collateral Agent, either (i) use commercially reasonable efforts to arrange
for the issuer and any confirmer of such letter of credit to consent to an
assignment to the Collateral Agent of the proceeds of any drawing under such
letter of credit or (ii) use commercially reasonable efforts to arrange for
the Collateral Agent to become the transferee beneficiary of such letter of
credit, with the Collateral Agent agreeing, in each case, that the proceeds
of
any drawing under such letter of credit are to be paid to the applicable Loan
Party unless an Event of Default has occurred or is continuing.
(f) Commercial
Tort Claims.
If any
Loan Party shall at any time hold or acquire a commercial tort claim in an
amount reasonably estimated to exceed $5,000,000, the Loan Party shall promptly
notify the Collateral Agent thereof in a writing signed by such Loan Party
including a description of such claim and grant to the Collateral Agent, for
the
benefit of the Secured Parties, in such writing a security interest therein
and
in the proceeds thereof, all upon the terms of this Agreement.
SECTION
4.05. Covenants
Regarding Patent, Trademark and Copyright Collateral.
(a)
Each Loan Party agrees that it will not do any act or omit to do any act (and
will exercise commercially reasonable efforts to prevent its licensees from
doing any act or omitting to do any act) whereby any issued or applied for
Patent that is material to the conduct of such Loan Party’s business may become
invalidated or dedicated to the public.
21
(b)
Each
Loan
Party (either itself or through its licensees or its sublicensees) will, for
each registered or applied for Trademark material to the conduct of such Loan
Party’s business, (i) maintain such Trademark free from any valid claim of
abandonment or invalidity for non-use, (ii) maintain the quality of
products and services offered under such Trademark and (iii) if registered,
display such Trademark with notice of Federal or foreign registration to the
extent necessary and sufficient to establish and preserve its rights under
applicable Law.
(c)
Each
Loan
Party (either itself or through its licensees or sublicensees) will, for each
work covered by a material Copyright, continue to use appropriate copyright
notice as necessary and sufficient to establish and preserve its rights under
applicable copyright laws.
(d)
Each
Loan
Party shall notify the Collateral Agent promptly if it knows that any issued
Patent, registered Trademark or registered Copyright material to the conduct
of
its business is likely to become abandoned, lost or dedicated to the public,
or
of any materially adverse determination or development (including the
institution of, or any such determination or development in, any proceeding
in
the United States Patent and Trademark Office, United States Copyright
Office or any court or similar office of any country) regarding such Loan
Party’s ownership of any such Patent, Trademark or Copyright, its right to
register the same, or its right to keep and maintain the same.
(e)
Within
30 days of the end of any calendar quarter in which any Loan Party, either
itself or through any agent, employee, licensee or designee, files an
application for any Patent, Trademark or Copyright (or for the registration
of
any Trademark or Copyright) with the United States Patent and Trademark
Office, United States Copyright Office or in any other country or any
political subdivision thereof, it shall inform the Collateral Agent of such
application and, upon request of the Collateral Agent, shall execute and deliver
any and all agreements (including any IP Security Agreements), instruments,
documents and papers as the Collateral Agent may reasonably request to evidence
the Collateral Agent’s security interest in such Patent, Trademark or
Copyright.
(f)
Each
Loan
Party will take steps that are consistent with its current practice and its
reasonable business judgment in any proceeding before the United States
Patent and Trademark Office, the United States Copyright Office or any
office or agency in any political subdivision of the United States or in
any other country or any political subdivision thereof, to maintain and pursue
each material application relating to the Patents, Trademarks and/or Copyrights
(and to obtain the relevant grant or registration) and to maintain each issued
Patent and each registration of the Trademarks and Copyrights that is material
to the conduct of any Loan Party’s business, including timely filings of
applications for renewal, affidavits of use, affidavits of incontestability
and
payment of maintenance fees, and, if consistent with reasonable business
judgment, to initiate opposition, interference and cancelation proceedings
against third parties.
22
(g)
In
the
event that any Loan Party has reason to believe that any Article 9
Collateral consisting of a Patent, Trademark or Copyright material to the
conduct of any Loan Party’s business has been or is about to be materially
infringed, misappropriated or diluted by a third party, such Loan Party promptly
shall notify the Collateral Agent and shall, if consistent with reasonable
business judgment, promptly take such actions as are appropriate under the
circumstances to protect such Article 9 Collateral.
(h)
Upon
and
during the continuance of an Event of Default, each Loan Party shall use its
commercially reasonable efforts to obtain all requisite consents or approvals
by
the licensor of each Copyright License, Patent License or Trademark License
to
effect the assignment of all such Loan Party’s right, title and interest
thereunder to the Collateral Agent or its designee, for the benefit of the
Secured Parties.
ARTICLE
V
Remedies
SECTION
5.01. Remedies
Upon Default.
Upon
the occurrence and during the continuance of an Event of Default, each Loan
Party agrees to deliver, on demand, each item of Collateral to the Collateral
Agent or any Person designated by the Collateral Agent, and it is agreed that
the Collateral Agent shall have the right to take any of or all the following
actions at the same or different times: (a) with respect to any
Article 9 Collateral consisting of Intellectual Property, on demand, to
cause the Security Interest to become an assignment, transfer and conveyance
of
any of or all such Article 9 Collateral by the applicable Loan Parties to the
Collateral Agent, for the benefit of the Secured Parties, or to license or
sublicense, whether general, special or otherwise, and whether on an exclusive
or nonexclusive basis, any such Article 9 Collateral throughout the world on
such terms and conditions and in such manner as the Collateral Agent shall
determine (other than in violation of any applicable Law or then-existing
licensing arrangements to the extent that waivers cannot reasonably be
obtained); provided
that in
connection with any such license or sublicense of a Trademark the Collateral
Agent shall endeavor to obtain a commitment from such licensee or sublicensee
that any goods or services sold under such Trademark will be of comparable
quality to the goods and services of the applicable Loan Party sold under such
Trademark immediately prior to such Event of Default, and (b) with or
without legal process and with or without prior notice or demand for
performance, to take possession of the Article 9 Collateral and without
liability for trespass to enter any premises where the Article 9 Collateral
may
be located for the purpose of taking possession of or removing the Article
9
Collateral and, generally, to exercise any and all rights afforded to a secured
party under the Uniform Commercial Code or other applicable Law. Without
limiting the generality of the foregoing, each Loan Party agrees that the
Collateral Agent shall have the right, subject to the mandatory requirements
of
applicable Law, to sell or otherwise dispose of all or any part of the
Collateral at a public or private sale or at any broker’s board or on any
securities exchange, for cash, upon credit or for future delivery as the
Collateral Agent shall deem appropriate. The Collateral Agent shall be
authorized at any such sale of securities (if it deems it advisable to do so)
to
restrict the prospective bidders or purchasers to Persons who will represent
and
agree that they are purchasing the Collateral for their own account for
investment and not with a view to the distribution or sale thereof, and upon
consummation of any such sale the Collateral Agent shall have the right to
assign, transfer and deliver to the purchaser or purchasers thereof the
Collateral so sold. Each such purchaser at any sale of Collateral shall hold
the
property sold absolutely, free from any claim or right on the part of any Loan
Party, and each Loan Party hereby waives (to the extent permitted by law) all
rights of redemption, stay and appraisal which such Loan Party now has or may
at
any time in the future have under any rule of law or statute now existing or
hereafter enacted.
23
The
Collateral Agent shall give the applicable Loan Parties at least 10 days’
written notice (which each Loan Party agrees is reasonable notice within the
meaning of Section 9-611 of the New York UCC or its equivalent in
other jurisdictions) of the Collateral Agent’s intention to make any sale of
Collateral. Such notice, in the case of a public sale, shall state the time
and
place for such sale and, in the case of a sale at a broker’s board or on a
securities exchange, shall state the board or exchange at which such sale is
to
be made and the day on which the Collateral, or portion thereof, will first
be
offered for sale at such board or exchange. Any such public sale shall be held
at such time or times within ordinary business hours and at such place or places
as the Collateral Agent may fix and state in the notice (if any) of such sale.
At any such sale, the Collateral, or portion thereof, to be sold may be sold
in
one lot as an entirety or in separate parcels, as the Collateral Agent may
(in
its sole and absolute discretion) determine. The Collateral Agent shall not
be
obligated to make any sale of any Collateral if it shall determine not to do
so,
regardless of the fact that notice of sale of such Collateral shall have been
given. The Collateral Agent may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time
by
announcement at the time and place fixed for sale, and such sale may, without
further notice, be made at the time and place to which the same was so
adjourned. In case any sale of all or any part of the Collateral is made on
credit or for future delivery, the Collateral so sold may be retained by the
Collateral Agent until the sale price is paid by the purchaser or purchasers
thereof, but the Collateral Agent and the other Secured Parties shall not incur
any liability in case any such purchaser or purchasers shall fail to take up
and
pay for the Collateral so sold and, in case of any such failure, such Collateral
may be sold again upon like notice. At any public (or, to the extent permitted
by law, private) sale made pursuant to this Agreement, any Secured Party may
bid
for or purchase, free (to the extent permitted by law) from any right of
redemption, stay, valuation or appraisal on the part of any Loan Party (all
said
rights being also hereby waived and released to the extent permitted by law),
the Collateral or any part thereof offered for sale and may make payment on
account thereof by using any claim then due and payable to such Secured Party
from any Loan Party as a credit against the purchase price, and such Secured
Party may, upon compliance with the terms of sale, hold, retain and dispose
of
such property without further accountability to any Loan Party therefor. For
purposes hereof, a written agreement to purchase the Collateral or any portion
thereof shall be treated as a sale thereof; the Collateral Agent shall be free
to carry out such sale pursuant to such agreement and no Loan Party shall be
entitled to the return of the Collateral or any portion thereof subject thereto,
notwithstanding the fact that after the Collateral Agent shall have entered
into
such an agreement all Events of Default shall have been remedied and the
Obligations paid in full. As an alternative to exercising the power of sale
herein conferred upon it, the Collateral Agent may proceed by a suit or suits
at
law or in equity to foreclose this Agreement and to sell the Collateral or
any
portion thereof pursuant to a judgment or decree of a court or courts having
competent jurisdiction or pursuant to a proceeding by a court-appointed
receiver. Any sale pursuant to the provisions of this Section 5.01 shall be
deemed to conform to the commercially reasonable standards as provided in
Section 9-610(b) of the New York UCC or its equivalent in other
jurisdictions.
24
SECTION
5.02. Application
of Proceeds.
The
Collateral Agent shall apply the proceeds of any collection or sale of
Collateral, including any Collateral consisting of cash, as
follows:
FIRST,
to
the
payment of all costs and expenses incurred by the Collateral Agent in connection
with such collection or sale or otherwise in connection with this Agreement,
any
other Loan Document or any of the Obligations, including all court costs and
the
reasonable out-of-pocket fees and expenses of its agents and legal counsel,
the
repayment of all advances made by the Collateral Agent hereunder or under any
other Loan Document on behalf of any Loan Party and any other costs or expenses
incurred in connection with the exercise of any right or remedy hereunder or
under any other Loan Document;
SECOND,
to
the
payment in full of the Obligations (the amounts so applied to be distributed
among the Secured Parties pro rata in accordance with the amounts of the
Obligations owed to them on the date of any such distribution); and
THIRD,
to
the
Loan Parties, their successors or assigns, or as a court of competent
jurisdiction may otherwise direct.
The
Collateral Agent shall have absolute discretion as to the time of application
of
any such proceeds, moneys or balances in accordance with this Agreement. Upon
any sale of Collateral by the Collateral Agent (including pursuant to a power
of
sale granted by statute or under a judicial proceeding), the receipt of the
Collateral Agent or of the officer making the sale shall be a sufficient
discharge to the purchaser or purchasers of the Collateral so sold and such
purchaser or purchasers shall not be obligated to see to the application of
any
part of the purchase money paid over to the Collateral Agent or such officer
or
be answerable in any way for the misapplication thereof.
SECTION
5.03. Grant
of License to Use Intellectual Property.
For the
purpose of enabling the Collateral Agent to exercise rights and remedies
under
this Agreement and solely at such time as the Collateral Agent shall be lawfully
entitled to exercise such rights and remedies, each Loan Party hereby grants
to
the Collateral Agent an irrevocable, nonexclusive license (exercisable without
payment of royalty or other compensation to the Loan Parties) to use, license
or
sublicense any of the Article 9 Collateral consisting of Intellectual
Property now owned or hereafter acquired by such Loan Party, and wherever
the
same may be located, and 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 software and programs used for the compilation or printout thereof;
provided
that in
connection with any such license or sublicense of a Trademark the Collateral
Agent shall endeavor to obtain a commitment from such licensee or sublicensee
that any goods or services sold under such Trademark will be of comparable
quality to the goods and services of the applicable Loan Party sold under
such
Trademark immediately prior to such Event of Default. The use of such license
by
the Collateral Agent may be exercised, at the option of the Collateral Agent,
only upon the occurrence and during the continuation of an Event of Default
as
part of the Collateral Agent’s exercise of remedies
hereunder.
25
SECTION
5.04. Securities
Act.
In view
of the position of the Loan Parties in relation to the Pledged Collateral,
or
because of other current or future circumstances, a question may arise under
the
Securities Act of 1933, as now or hereafter in effect, or any similar statute
hereafter enacted analogous in purpose or effect (such Act and any such similar
statute as from time to time in effect being called the “Federal
Securities Laws”)
with
respect to any disposition of the Pledged Collateral permitted hereunder. Each
Loan Party understands that compliance with the Federal Securities Laws might
very strictly limit the course of conduct of the Collateral Agent if the
Collateral Agent were to attempt to dispose of all or any part of the Pledged
Collateral, and might also limit the extent to which or the manner in which
any
subsequent transferee of any Pledged Collateral could dispose of the same.
Similarly, there may be other legal restrictions or limitations affecting the
Collateral Agent in any attempt to dispose of all or part of the Pledged
Collateral under applicable Blue Sky or other state securities laws or similar
laws analogous in purpose or effect. Each Loan Party recognizes that in light
of
such restrictions and limitations the Collateral Agent may, with respect to
any
sale of the Pledged Collateral, limit the purchasers to those who will agree,
among other things, to acquire such Pledged Collateral for their own account,
for investment, and not with a view to the distribution or resale thereof.
Each
Loan Party acknowledges and agrees that in light of such restrictions and
limitations, the Collateral Agent, in its sole and absolute discretion may
approach and negotiate with a single potential purchaser to effect such sale.
Each Loan Party acknowledges and agrees that any such sale might result in
prices and other terms less favorable to the seller than if such sale were
a
public sale without such restrictions. In the event of any such sale, the
Collateral Agent and the other Secured Parties shall incur no responsibility
or
liability for a sale of all or any part of the Pledged Collateral at a price
that the Collateral Agent, in its sole and absolute discretion, may in good
faith deem reasonable under the circumstances, notwithstanding the possibility
that a substantially higher price might have been realized if more than a single
purchaser were approached. The provisions of this Section 5.04 will apply
notwithstanding the existence of a public or private market upon which the
quotations or sales prices may exceed substantially the price at which the
Collateral Agent sells.
SECTION
5.05. Registration.
Each
Loan Party agrees that, upon the occurrence and during the continuance of an
Event of Default, if for any reason the Collateral Agent desires to sell any
of
the Pledged Collateral at a public sale, it will, at any time and from time
to
time, upon the written request of the Collateral Agent, use commercially
reasonable efforts to take or to cause the issuer of such Pledged Collateral
to
take such action and prepare, distribute and/or file such documents, as are
required or advisable in the reasonable opinion of counsel for the Collateral
Agent to permit the public sale of such Pledged Collateral. Each Loan Party
further agrees, upon such written request referred to above, to use commercially
reasonable efforts to qualify, file or register, or cause the issuer of such
Pledged Collateral to qualify, file or register, any of the Pledged Collateral
under the Blue Sky or other securities laws of such states as may be reasonably
requested by the Collateral Agent and keep effective, or cause to be kept
effective, all such qualifications, filings or registrations. Each Loan Party
will bear all costs and expenses of carrying out its obligations under this
Section 5.05. Each Loan Party acknowledges that there is no adequate remedy
at law for failure by it to comply with the provisions of this Section 5.05
and that such failure would not be adequately compensable in damages, and
therefore agrees that its agreements contained in this Section 5.05 may be
specifically enforced.
26
ARTICLE
VI
Indemnity,
Subrogation and Subordination
SECTION
6.01. Indemnity
and Subrogation.
In
addition to all such rights of indemnity and subrogation as the Loan Parties
may
have under applicable Law (but subject to Section 6.03), the Borrower
agrees that (a) in the event a payment of an Obligation of the Borrower
shall be made by any other Subsidiary Loan Party under this Agreement, the
Borrower shall indemnify such Subsidiary Loan Party for the full amount of
such
payment and such Subsidiary Loan Party shall be subrogated to the rights of
the
Person to whom such payment shall have been made to the extent of such payment
and (b) in the event any assets of any Subsidiary Loan Party shall be sold
pursuant to this Agreement or any other Security Document to satisfy in whole
or
in part an obligation of the Borrower owed to any Secured Party, the Borrower
shall indemnify such Subsidiary Loan Party in an amount equal to the greater
of
the book value or the fair market value of the assets so sold.
SECTION
6.02. Contribution
and Subrogation.
Each
Subsidiary Loan Party (a “Contributing
Party”)
agrees
(subject to Section 6.03) that, in the event a payment shall be made by any
other Subsidiary Loan Party hereunder in respect of any Obligation or assets
of
any other Subsidiary Loan Party shall be sold pursuant to any Security Document
to satisfy any Obligation (other, in each case, than an Obligation for the
incurrence of which such other Subsidiary Loan Party received fair and adequate
consideration) and such other Subsidiary Loan Party (the “Claiming
Party”)
shall
not have been fully indemnified by the Borrower as provided in
Section 6.01, the Contributing Party shall indemnify the Claiming Party in
an amount equal to the amount of such payment or the greater of the book value
or the fair market value of such assets, as the case may be, in each case
multiplied by a fraction of which the numerator shall be the net worth of the
Contributing Party on the date hereof and the denominator shall be the aggregate
net worth of all the Subsidiary Loan Parties on the date hereof (or, in the
case
of any Subsidiary Loan Party becoming a party hereto pursuant to
Section 7.14, the date of the supplement hereto executed and delivered by
such Subsidiary Loan Party). Any Contributing Party making any payment to a
Claiming Party pursuant to this Section 6.02 shall be subrogated to the
rights of such Claiming Party under Section 6.01 to the extent of such
payment.
27
SECTION
6.03. Subordination.
(a)
Notwithstanding any provision of this Agreement to the contrary, all rights
of
the Loan Parties under Sections 6.01 and 6.02 and all other rights of
indemnity, contribution or subrogation under applicable Law or otherwise shall
be fully subordinated to the indefeasible payment in full in cash of the
Obligations. No failure on the part of the Borrower or other Loan Party to
make
the payments required by Sections 6.01 and 6.02 (or any other payments
required under applicable Law or otherwise) shall in any respect limit the
obligations and liabilities of any Loan Party with respect to its Obligations
hereunder, and each Loan Party shall remain liable for the full amount of the
Obligations of such Loan Party hereunder.
(b)
Each
Loan
Party hereby agrees that all Indebtedness and other monetary obligations owed
by
it to any other Loan Party or any other Subsidiary shall be fully subordinated
to the indefeasible payment in full in cash of the Obligations.
ARTICLE
VII
Miscellaneous
SECTION
7.01. Notices.
All
communications and notices hereunder shall (except as otherwise expressly
permitted herein) be in writing and given as provided in Section 10.02 of
the Credit Agreement. All communications and notices hereunder to any Subsidiary
Loan Party shall be given to it in care of the Borrower as provided in
Section 10.02 of the Credit Agreement.
SECTION
7.02. Waivers;
Amendment.
(a) No
failure or delay by the Collateral Agent, any other Agent, any LC Issuer or
any
Lender in exercising any right or power hereunder or under any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies
of
the Collateral Agent and the other Secured Parties hereunder and under the
other
Loan Documents are cumulative and are not exclusive of any rights or remedies
that they would otherwise have. No waiver of any provision of this Agreement
or
consent to any departure by any Loan Party therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this
Section 7.02, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. Without limiting
the
generality of the foregoing, the making of a Loan or issuance of a Letter of
Credit shall not be construed as a waiver of any Default, regardless of whether
the Collateral Agent, any other Agent, any Arranger, any Lender or any LC Issuer
may have had notice or knowledge of such Default at the time. No notice or
demand on any Loan Party in any case shall entitle any Loan Party to any other
or further notice or demand in similar or other circumstances.
28
(b)
Neither
this Agreement nor any provision hereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by the
Required Lenders and the Loan Party or Loan Parties with respect to which such
waiver, amendment or modification is to apply, and acknowledged by the
Administrative Agent, subject to any consent required in accordance with
Section 10.01 of the Credit Agreement and the other terms of such
Section.
SECTION
7.03. Collateral
Agent’s Fees and Expenses; Indemnification.
(a) The
parties hereto agree that the Collateral Agent shall be entitled to
reimbursement of its expenses incurred hereunder as provided in
Section 10.04(a) of the Credit Agreement.
(b)
Without
limitation of its indemnification obligations under the other Loan Documents,
each Loan Party jointly and severally agrees to defend (subject to Indemnitees’
selection of counsel), indemnify, pay and hold harmless the Collateral Agent
and
the other Indemnitees (as defined in Section 10.04(b) of the Credit
Agreement) from and against any and all Indemnified Liabilities; provided
that no
Loan Party shall have any obligation to any Indemnitee hereunder with respect
to
any Indemnified Liability to the extent such Indemnified Liability arises from
the gross negligence or wilful misconduct of such Indemnitee. To the extent
permitted by applicable Law, no Loan Party shall assert, and each Loan Party
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) (whether or not the claim therefor is based on contract, tort
or
duty imposed by any applicable legal requirement) arising out of, in connection
with, as a result of, or in any way related to, this Agreement or any other
Loan
Document, the transactions contemplated hereby or thereby, any Loan or the
use
of the proceeds thereof or any act or omission or event occurring in connection
therewith, and each Loan Party hereby waives, releases and agrees not to sue
upon any such claim or any such damages, whether or not accrued and whether
or
not known or suspected to exist in its favor.
(c)
Any
such
amounts payable as provided hereunder shall be additional Obligations secured
hereby and by the other Security Documents. The provisions of this
Section 7.03 shall remain in full force and effect regardless of the
termination of this Agreement or any other Loan Document, the consummation
of
the transactions contemplated hereby, the repayment of any of the Obligations,
the invalidity or unenforceability of any term or provision of this Agreement
or
any other Loan Document, or any investigation made by or on behalf of the
Collateral Agent or any other Secured Party. All amounts due under this
Section 7.03 shall be payable promptly after written demand
therefor.
SECTION
7.04. Successors
and Assigns.
Whenever in this Agreement any of the parties hereto is referred to, such
reference shall be deemed to include the permitted successors and assigns of
such party; and all covenants, promises and agreements by or on behalf of any
Loan Party or the Collateral Agent that are contained in this Agreement shall
bind and inure to the benefit of their respective successors and
assigns.
29
SECTION
7.05. Survival
of Agreement.
All
covenants, agreements, representations and warranties made by the Loan Parties
in the Loan Documents and in the certificates or other instruments prepared
or
delivered in connection with or pursuant to this Agreement or any other Loan
Document shall be considered to have been relied upon by the Lenders and the
LC
Issuers and shall survive the execution and delivery of the Loan Documents
and
the making of any Loans and issuance of any Letters of Credit, regardless of
any
investigation made by or on behalf of any Lender or any LC Issuer and
notwithstanding that the Collateral Agent, any LC Issuer or any Lender may
have
had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended under the Credit Agreement, and shall
continue in full force and effect as long as the principal of or any accrued
interest on any Loan or any fee or any other amount payable under any Loan
Document is outstanding and unpaid or any Letter of Credit is outstanding and
so
long as the Commitments have not expired or terminated.
SECTION
7.06. Counterparts;
Effectiveness; Several Agreement.
This
Agreement may be executed in counterparts (and by different parties hereto
on
different counterparts), each of which shall constitute an original but all
of
which when taken together shall constitute a single contract. Delivery of an
executed signature page to this Agreement by facsimile transmission or
electronic transmission (pdf) shall be as effective as delivery of a manually
signed counterpart of this Agreement. This Agreement shall become effective
as
to any Loan Party when a counterpart hereof executed on behalf of such Loan
Party shall have been delivered to the Collateral Agent and a counterpart hereof
shall have been executed on behalf of the Collateral Agent, and thereafter
shall
be binding upon such Loan Party and the Collateral Agent and their respective
permitted successors and assigns, and shall inure to the benefit of such Loan
Party, the Collateral Agent and the other Secured Parties and their respective
successors and assigns, except that no Loan Party shall have the right to assign
or transfer its rights or obligations hereunder or any interest herein or in
the
Collateral (and any such assignment or transfer shall be void) except as
expressly contemplated by this Agreement or the Credit Agreement. This Agreement
shall be construed as a separate agreement with respect to each Loan Party
and
may be amended, modified, supplemented, waived or released with respect to
any
Loan Party without the approval of any other Loan Party and without affecting
the obligations of any other Loan Party hereunder.
SECTION
7.07. Severability.
Any
provision of this Agreement held to be invalid, illegal or unenforceable in
any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction. The parties hereto shall
endeavor in good faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
30
SECTION
7.08. Right
of Set-Off.
If an
Event of Default shall have occurred and be continuing, each Agent, each Lender,
each LC Issuer and each of their respective Affiliates is hereby authorized
at
any time and from time to time, to the fullest extent permitted by law, to
set
off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other obligations at any time owing
by such Agent, such Lender, such LC Issuer or such Affiliate to or for the
credit or the account of any Loan Party against any of and all the Obligations
of such Loan Party now or hereafter existing under this Agreement owed to such
Agent, such Lender or such LC Issuer, irrespective of whether or not such Agent,
such Lender or such LC Issuer shall have made any demand under this Agreement
and although such obligations may be unmatured. The rights of each Agent, each
Lender, each LC Issuer and its Affiliates under this Section 7.08 are in
addition to other rights and remedies (including other rights of set-off) which
such Person may have.
SECTION
7.09. Governing
Law; Jurisdiction; Consent to Service of Process.
(a)
This Agreement shall be construed in accordance with and governed by the law
of
the State of New York.
(b)
Each
of
the Loan Parties hereby irrevocably and unconditionally submits, for itself
and
its property, to the nonexclusive jurisdiction of the Supreme Court of the
State
of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement or any other Loan Document, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the
extent permitted by law, in such federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or
in any other manner provided by law. Nothing in this Agreement or any other
Loan
Document shall affect any right that the Collateral Agent, any LC Issuer or
any
Lender may otherwise have to bring any action or proceeding relating to this
Agreement or any other Loan Document against any Loan Party, or its properties
in the courts of any jurisdiction.
(c)
Each
of
the Loan Parties hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it may now
or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement or any other Loan Document in any court
referred to in paragraph (b) of this Section 7.09. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d)
Each
party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 7.01. Nothing in this Agreement or any
other Loan Document will affect the right of any party to this Agreement to
serve process in any other manner permitted by law.
31
SECTION
7.10. WAIVER
OF JURY TRIAL.
EACH
PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR
ANY
OTHER THEORY).
EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 7.10.
SECTION
7.11. Headings.
Article
and Section headings and the Table of Contents used herein are for
convenience of reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Agreement.
SECTION
7.12. Security
Interest Absolute.
All
rights of the Collateral Agent hereunder, the Security Interest, the grant
of a
security interest in the Pledged Collateral and all obligations of each Loan
Party hereunder shall be absolute and unconditional irrespective of (a) any
lack of validity or enforceability of the Credit Agreement, any other Loan
Document, any agreement with respect to any of the Obligations or any other
agreement or instrument relating to any of the foregoing, (b) any change in
the time, manner or place of payment of, or in any other term of, all or any
of
the Obligations, or any other amendment or waiver of or any consent to any
departure from the Credit Agreement, any other Loan Document or any other
agreement or instrument, (c) any exchange, release or non-perfection of any
Lien on other collateral, or any release or amendment or waiver of or consent
under or departure from any guarantee, securing or guaranteeing all or any
of
the Obligations, or (d) any other circumstance that might otherwise
constitute a defense available to, or a discharge of, any Loan Party in respect
of the Obligations or this Agreement.
SECTION
7.13. Termination
or Release.
(a)
This Agreement, the Guarantees made herein, the Security Interest and all other
security interests granted hereby shall terminate when all the Obligations
(other than, with respect to the termination of the Security Interest and all
other security interests granted hereby only, any Obligations that consist
solely of contingent obligations) have been indefeasibly paid in full, all
Commitments under the Credit Agreement shall have been reduced to zero, no
LC
Issuer shall have any obligation to issue Letters of Credit under the Credit
Agreement and no Letter of Credit shall be outstanding (other than any Letter
of
Credit the obligations under which have been cash collateralized in full or
supported by letters of credit of other banks naming the applicable LC Issuer
as
the beneficiary, in each case, in a manner satisfactory to the applicable LC
Issuer). In connection with any termination pursuant to this paragraph, the
Collateral Agent shall execute and deliver to any Loan Party, at such Loan
Party’s expense, all Uniform Commercial Code termination statements and any
other documents that such Loan Party shall reasonably request to evidence such
termination. Any execution and delivery of documents pursuant to this
Section 7.13 shall be without recourse to, or representation of warranty
by, the Collateral Agent or any other Secured Party.
32
(b)
Release
of any Subsidiary Loan Party from its obligations hereunder and of the Security
Interest in any Collateral shall be governed by Section 9.08(a) of the
Credit Agreement.
SECTION
7.14. Additional
Subsidiaries.
Pursuant to Section 6.13(c) of the Credit Agreement, certain subsidiaries
not originally parties hereto may be required from time to time to enter in
this
Agreement as Subsidiary Loan Parties. Upon execution and delivery by the
Collateral Agent and a Subsidiary of an instrument in the form of Exhibit I
hereto, such Subsidiary shall become a Subsidiary Loan Party hereunder with
the
same force and effect as if originally named as a Subsidiary Loan Party herein.
The execution and delivery of any such instrument shall not require the consent
of any other Loan Party hereunder. The rights and obligations of each Loan
Party
hereunder shall remain in full force and effect notwithstanding the addition
of
any new Loan Party as a party to this Agreement.
SECTION
7.15. Collateral
Agent Appointed Attorney-in-Fact.
Each
Loan Party hereby appoints the Collateral Agent the attorney-in-fact of such
Loan Party for the purpose of carrying out the provisions of this Agreement
and
taking any action and executing any instrument that the Collateral Agent may
deem necessary or advisable to accomplish the purposes hereof, which appointment
is irrevocable and coupled with an interest. Without limiting the generality
of
the foregoing, the Collateral Agent shall have the right, but only upon the
occurrence and during the continuance of an Event of Default, with full power
of
substitution either in the Collateral Agent’s name or in the name of such Loan
Party (a) to receive, endorse, assign and/or deliver any and all notes,
acceptances, checks, drafts, money orders or other evidences of payment relating
to the Collateral or any part thereof; (b) to demand, collect, receive
payment of, give receipt for and give discharges and releases of all or any
of
the Collateral; (c) to sign the name of any Loan Party on any invoice or
bill of lading relating to any of the Collateral; (d) to send verifications
of Accounts Receivable to any Account Debtor; (e) to commence and prosecute
any and all suits, actions or proceedings at law or in equity in any court
of
competent jurisdiction to collect or otherwise realize on all or any of the
Collateral or to enforce any rights in respect of any Collateral; (f) to
settle, compromise, compound, adjust or defend any actions, suits or proceedings
relating to all or any of the Collateral; (g) to notify, or to require any
Loan Party to notify, Account Debtors to make payment directly to the Collateral
Agent; and (h) to use, sell, assign, transfer, pledge, make any agreement
with respect to or otherwise deal with all or any of the Collateral, and to
do
all other acts and things necessary to carry out the purposes of this Agreement,
as fully and completely as though the Collateral Agent were the absolute owner
of the Collateral for all purposes; provided
that
nothing herein contained shall be construed as requiring or obligating the
Collateral Agent to make any commitment or to make any inquiry as to the nature
or sufficiency of any payment received by the Collateral Agent, or to present
or
file any claim or notice, or to take any action with respect to the Collateral
or any part thereof or the moneys due or to become due in respect thereof or
any
property covered thereby. The Collateral Agent and the other Secured Parties
shall be accountable only for amounts actually received as a result of the
exercise of the powers granted to them herein, and neither they nor their
officers, directors, employees or agents shall be responsible to any Loan Party
for any act or failure to act hereunder, except for their own gross negligence,
bad faith or wilful misconduct.
33
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the
day and year first above written.
|
SPECTRUM
BRANDS, INC., as the Borrower
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name: Randall
J. Steward
|
||
|
Title: Executive
Vice President and Chief Financial
Officer
|
||
|
SPECTRUM
BRANDS, INC., as the Borrower
|
||
| |
|
|
| By: | /s/ James T. Lucke | |
|
Name: James
T. Lucke
|
||
|
Title: Senior
Vice President, Secretary and General
Counsel
|
||
|
ROVCAL,
INC., as a Subsidiary Loan Party
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name: Randall
J. Steward
|
||
|
Title: Vice
President and Treasurer
|
||
|
ROV
HOLDING, INC., as a Subsidiary Loan Party
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name: Randall
J. Steward
|
||
|
Title: Vice
President
|
||
|
TETRA
HOLDING (US), INC., as a Subsidiary Loan Party
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name: James
T. Lucke
|
||
|
Title: Assistant
Secretary
|
||
|
UNITED
INDUSTRIES CORPORATION, as a Subsidiary Loan Party
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name: Randall
J. Steward
|
||
|
Title: Executive
Vice President, Treasurer and Chief
Financial Officer
|
||
|
SCHULTZ
COMPANY, as a Subsidiary Loan Party
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name: Randall
J. Steward
|
||
|
Title: Vice
President, Treasurer and Chief Financial
Officer
|
||
|
SPECTRUM
NEPTUNE US HOLDCO CORPORATION, as a Subsidiary Loan
Party
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name: Randall
J. Steward
|
||
|
Title: Vice
President, Treasurer and Chief Financial
Officer
|
||
|
UNITED
PET GROUP, INC., as a Subsidiary Loan Party
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name: Randall
J. Steward
|
||
|
Title: Vice
President, Treasurer and Chief Financial
Officer
|
||
|
DB
ONLINE, LLC, as a Subsidiary Loan Party
|
||
|
By:
United Pet Group, Inc., Its Sole Member
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name: Randall
J. Steward
|
||
|
Title: Vice
President, Treasurer and Chief Financial
Officer
|
||
|
AQUARIA,
INC., as a Subsidiary Loan Party
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name: Randall
J. Steward
|
||
|
Title: Vice
President, Treasurer and Chief Financial
Officer
|
||
|
SOUTHERN
CALIFORNIA FOAM, INC., as a Subsidiary Loan Party
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name: Randall
J. Steward
|
||
|
Title: Vice
President, Treasurer and Chief Financial
Officer
|
||
|
PERFECTO
MANUFACTURING, INC., as a Subsidiary Loan Party
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name: Randall
J. Steward
|
||
|
Title: Vice
President, Treasurer and Chief Financial
Officer
|
||
|
AQUARIUM
SYSTEMS, INC., as a Subsidiary Loan Party
|
||
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Name: Randall
J. Steward
|
||
|
Title: Vice
President, Treasurer and Chief Financial
Office
|
||
|
GOLDMAN
SACHS CREDIT PARTNERS, L.P., as the Collateral Agent
|
||
| |
|
|
| By: | /s/ Walter A. Jackson | |
|
Name: Walter
A. Jackson
|
||
|
Title: Authorized
Signatory
|
||