EXECUTION VERSION
$520,000,000
SENIOR
SECURED BRIDGE LOAN CREDIT AGREEMENT
Dated
as of February 5, 2008,
Among
BERRY
PLASTICS CORPORATION
(formerly
Berry Plastics Holding Corporation),
as
Borrower,
THE
LENDERS PARTY HERETO,
BANK
OF AMERICA, N.A.,
as
Collateral Agent and Administrative Agent
GOLDMAN
SACHS CREDIT PARTNERS L.P.,
as
Syndication Agent,
LEHMAN
BROTHERS INC.,
as
Documentation Agent,
BANC
OF AMERICA SECURITIES LLC
GOLDMAN
SACHS CREDIT PARTNERS L.P.
LEHMAN
BROTHERS INC.,
as
Joint Bookrunners and
Joint
Lead Arrangers
_________________
TABLE OF CONTENTS
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ARTICLE
I
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Page |
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Definitions
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SECTION
1.01.
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Defined
Terms
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1
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SECTION
1.02.
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Terms
Generally
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46
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SECTION
1.03.
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Effectuation
of Transactions
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47
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SECTION
1.04.
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Senior
Debt
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47
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ARTICLE
II
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The
Credits
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SECTION
2.01.
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Commitment
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47
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SECTION
2.02.
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Loans
and Borrowings
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49
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SECTION
2.03.
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Requests
for Borrowings
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49
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SECTION
2.04.
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[Reserved]
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50
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SECTION
2.05.
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[Reserved].
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50
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SECTION
2.06.
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Funding
of Borrowings
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50
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SECTION
2.07.
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Interest
Elections
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50
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SECTION
2.08.
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Termination
of Commitment
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51
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SECTION
2.09.
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Repayment
of Loans; Evidence of Debt
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51
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SECTION
2.10.
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Prepayments,
etc.
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52
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SECTION
2.11.
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Change
of Control Prepayment Offer
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53
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SECTION
2.12.
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Fees
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54
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SECTION
2.13.
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Interest
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54
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SECTION
2.14.
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Alternate
Rate of Interest
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55
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SECTION
2.15.
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Increased
Costs
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55
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SECTION
2.16.
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Break
Funding Payments
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56
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SECTION
2.17.
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Taxes
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57
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SECTION
2.18.
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Payments
Generally; Pro Rata Treatment; Sharing of Set
offs
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58
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SECTION
2.19.
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Mitigation
Obligations; Replacement of Lenders
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60
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SECTION
2.20.
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Illegality
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61
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ARTICLE
III
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Representations
and Warranties
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SECTION
3.01.
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Organization;
Powers
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61
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SECTION
3.02.
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Authorization
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61
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SECTION
3.03.
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Enforceability
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62
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SECTION
3.04.
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Governmental
Approvals
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62
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SECTION
3.05.
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Financial
Statements
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62
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SECTION
3.06.
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No
Material Adverse Effect
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63
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SECTION
3.07.
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Title
to Properties; Possession Under Leases
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63
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SECTION
3.08.
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Subsidiaries
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64
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SECTION
3.09.
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Litigation;
Compliance with Laws
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64
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SECTION
3.10.
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Federal
Reserve Regulations
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64
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SECTION
3.11.
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Investment
Company Act
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64
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SECTION
3.12.
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Use
of Proceeds
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64
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SECTION
3.13.
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Tax
Returns
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65
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SECTION
3.14.
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No
Material Misstatements
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65
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SECTION
3.15.
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Employee
Benefit Plans
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65
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SECTION
3.16.
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Environmental
Matters
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66
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SECTION
3.17.
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Security
Documents
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66
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SECTION
3.18.
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Location
of Real Property and Leased Premises
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67
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SECTION
3.19.
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Solvency
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68
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SECTION
3.20.
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Labor
Matters
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68
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SECTION
3.21.
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Insurance
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68
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SECTION
3.22.
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No
Default
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68
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SECTION
3.23.
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Intellectual
Property; Licenses, etc.
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68
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SECTION
3.24.
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Senior
Debt
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69
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ARTICLE
IV
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Conditions
of Lending
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ARTICLE
V
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Affirmative
Covenants
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SECTION
5.01.
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Existence;
Businesses and Properties
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72
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SECTION
5.02.
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Insurance
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72
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SECTION
5.03.
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Taxes
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73
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SECTION
5.04.
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Financial
Statements, Reports, etc.
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73
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SECTION
5.05.
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Litigation
and Other Notices
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75
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SECTION
5.06.
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Compliance
with Laws
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75
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SECTION
5.07.
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Maintaining
Records; Access to Properties and Inspections
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76
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SECTION
5.08.
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Use
of Proceeds
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76
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SECTION
5.09.
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Compliance
with Environmental Laws
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76
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SECTION
5.10.
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Further
Assurances; Additional Security
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76
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SECTION
5.11.
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[Reserved]
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78
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SECTION
5.12.
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Securities
Demand
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78
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SECTION
5.13.
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Exchange
Notes
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79
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ARTICLE
VI
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Negative
Covenants
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SECTION
6.01.
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Limitation
on Incurrence of Indebtedness and Issuance of Disqualified
Stock and Preferred Stock
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80
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SECTION
6.02.
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Liens
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85
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SECTION
6.03.
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Asset
Sales
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85
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SECTION
6.04.
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Limitation
on Restricted Payments
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86
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SECTION
6.05.
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Mergers,
Consolidations, Sales of Assets and Acquisitions
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90
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SECTION
6.06.
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Dividend
and Other Payment Restrictions Affecting
Subsidiaries
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92
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SECTION
6.07.
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Transactions
with Affiliates
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94
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SECTION
6.08.
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Amendment
of Security Documents
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96
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SECTION
6.09.
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Termination
and Suspension of Certain Covenants
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97
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ARTICLE
VII
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Events
of Default
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SECTION
7.01.
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Events
of Default
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97
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SECTION
7.02.
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Exclusion
of Immaterial Subsidiaries
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100
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ARTICLE
VIII
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The
Agents
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SECTION
8.01.
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Appointment
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100
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SECTION
8.02.
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Delegation
of Duties
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102
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SECTION
8.03.
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Exculpatory
Provisions
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102
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SECTION
8.04.
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Reliance
by Administrative Agent
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103
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SECTION
8.05.
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Notice
of Default
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103
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SECTION
8.06.
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Non-Reliance
on Agents and Other Lenders
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103
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SECTION
8.07.
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Indemnification
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104
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SECTION
8.08.
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Agent
in Its Individual Capacity
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104
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SECTION
8.09.
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Successor
Administrative Agent
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104
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SECTION
8.10.
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Agents
and Arrangers
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105
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ARTICLE
IX
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Miscellaneous
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SECTION
9.01.
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Notices;
Communications
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105
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SECTION
9.02.
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Survival
of Agreement
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106
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SECTION
9.03.
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Binding
Effect
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106
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SECTION
9.04.
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Successors
and Assigns
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106
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SECTION
9.05.
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Expenses;
Indemnity
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109
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SECTION
9.06.
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Right
of Set off
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111
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SECTION
9.07.
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Applicable
Law
|
111
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SECTION
9.08.
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Waivers;
Amendment
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111
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SECTION
9.09.
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Interest
Rate Limitation
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113
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SECTION
9.10.
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Entire
Agreement
|
113
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SECTION
9.11.
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WAIVER
OF JURY TRIAL
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114
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SECTION
9.12.
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Severability
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114
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SECTION
9.13.
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Counterparts
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114
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SECTION
9.14.
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Headings
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114
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SECTION
9.15.
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Jurisdiction;
Consent to Service of Process
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114
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SECTION
9.16.
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Confidentiality
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115
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SECTION
9.17.
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Platform;
Borrower Materials
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115
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SECTION
9.18.
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Release
of Liens and Guarantees
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116
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SECTION
9.19.
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PATRIOT
Act Notice
|
116
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SECTION
9.20.
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Intercreditor
Agreements and Collateral Agreement
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116
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SECTION
9.21.
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Conversion
of Covenants; Events of Default
|
116
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SECTION
9.22.
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No
Fiduciary Duty
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117
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Exhibits
and Schedules
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Exhibit
A
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Form
of Assignment and Acceptance
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Exhibit
B
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Form
of Solvency Certificate
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Exhibit
C
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Form
of Borrowing Request
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Exhibit
D
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Senior
Secured Exchange Notes Indenture
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Exhibit
E-1
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Form
of Bridge Note
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Exhibit
E-2
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Form
of Rollover Note
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Exhibit
F
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Form
of Collateral Agreement
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Exhibit
G
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Form
of Registration Rights Agreement
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Exhibit
H
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Form
of Exchange Notice
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Exhibit
I
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Form
of Closing Certificate
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Schedule
1.01(a)
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Certain
U.S. Subsidiaries
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Schedule
1.01(d)
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Immaterial
Subsidiaries
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Schedule
2.01
|
Commitments
|
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Schedule
3.01
|
Organization
and Good Standing
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Schedule
3.04
|
Governmental
Approvals
|
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Schedule
3.07(b)
|
Possession
Under Leases
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Schedule
3.08(a)
|
Subsidiaries
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Schedule
3.08(b)
|
Subscriptions
|
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Schedule
3.13
|
Taxes
|
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Schedule
3.16
|
Environmental
Matters
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Schedule
3.21
|
Insurance
|
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Schedule
3.23
|
Intellectual
Property
|
|
Schedule
4.02(d)
|
Post-Closing
Interest Deliveries
|
|
Schedule
6.07
|
Affiliate
Transactions
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|
Schedule
9.01
|
Notice
Information
|
This
SENIOR SECURED BRIDGE LOAN CREDIT AGREEMENT is
entered into as of February 5, 2008 (this “ Agreement
”), among BERRY PLASTICS CORPORATION (formerly Berry
Plastics Holding Corporation), a Delaware corporation (the
“ Borrower
”), the LENDERS party hereto from time to time, BANK OF
AMERICA, N.A., as administrative agent and collateral agent
(in such capacities or its successors in such capacities, the
“ Administrative
Agent ”) for the Lenders, GOLDMAN SACHS CREDIT
PARTNERS L.P., as syndication agent (in such capacity, the
“ Syndication
Agent ”), and LEHMAN BROTHERS INC. as
documentation agent (in such capacity, the “ Documentation
Agent ”).
WHEREAS,
on April 3, 2007, Berry Plastics Group, Inc. (“
Holdings
”) completed a stock-for-stock merger (the “
Berry Covalence
Merger ”) with Covalence Specialty Materials
Holding Corp. in which the resulting company retained the name
Berry Plastics Group, Inc.
WHEREAS,
immediately following the Berry Covalence Merger, Berry
Plastics Holding Corporation and Covalence Specialty Materials
Corp. (“ Covalence
”) were combined as a direct subsidiary of Berry
Plastics Group, Inc. and the resulting company retained the
name Berry Plastics Holding Corporation.
WHEREAS,
on December 28, 2007, Berry Plastics Holding Corporation was
combined together with Berry Plastics Corporation in a merger
in which Berry Plastics Holding Corporation survived and was
renamed Berry Plastics Corporation.
WHEREAS,
on December 21, 2007, the Borrower, Captive Holdings, Inc.,
and Captive Holdings, LLC (“ Captive
Holdings ”) entered into a stock purchase
agreement, as amended, supplemented or modified from time to
time prior to the date hereof in accordance with the terms of
this Agreement (the “ Captive Merger
Agreement ”);
WHEREAS,
on the Closing Date, the Borrower will enter into this
Agreement, under which the Borrower will obtain $520,000,000
in senior secured interim loans; and
WHEREAS,
the Borrower desires to obtain Bridge Loans hereunder, the
proceeds of which will be used (i) to finance the Captive
Acquisition (as defined below) and (ii) to pay costs related
to the Transactions.
In
consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as
follows:
ARTICLE
I
Definitions
SECTION
1.01.
Defined
Terms
. As
used in this Agreement, the following terms shall have the
meanings specified below:
“
ABL
Assets ” shall mean any Accounts and Inventory
(as such terms are defined in the Revolving Credit Agreement)
of the Borrower or any Subsidiary.
“
ABR
” shall mean, for any day, a fluctuating rate per annum
equal to the higher of (a) the Federal Funds Effective Rate
plus 1/2 of 1% and (b) the rate of interest in effect for such
day as publicly announced from time to time by Bank of America
as its “prime rate” at its principal office in New
York,
New
York. Any change in such rate announced by Bank of
America shall take effect at the opening of business on the
day specified in the public announcement of such
change.
“
ABR
Borrowing ” shall mean a Borrowing comprised of
ABR Loans.
“
ABR
Loan ” shall mean any Loan bearing interest at a
rate determined by reference to the ABR in accordance with the
provisions of Article II.
“
Acquired
Indebtedness ” shall mean, with respect to any
specified Person:
(1) Indebtedness
of any other Person existing at the time such other Person is
merged, consolidated or amalgamated with or into or became a
Restricted Subsidiary of such specified Person,
and
(2) Indebtedness
secured by a Lien encumbering any asset acquired by such
specified Person.
“
Acquisition
Documents ” shall mean the Captive Merger
Agreement and any other document entered into in connection
therewith, in each case as amended, supplemented or modified
from time to time prior to the Closing Date or thereafter (so
long as any amendment, supplement or modification after the
Closing Date, together with all other amendments, supplements
and modifications after the Closing Date, taken as a whole, is
not more disadvantageous to the Lenders in any material
respect than the Acquisition Documents as in effect on the
Closing Date).
“
Act
” shall have the meaning assigned to such term in
Section 9.19.
“
Additional
Mortgage ” shall have the meaning assigned to
such term in Section 5.10(c).
“
Adjusted LIBO
Rate ” shall mean, with respect to any
Eurocurrency Borrowing for any Interest Period, an interest
rate per annum equal to (a) the LIBO Rate in effect for such
Interest Period divided by (b) one minus the Statutory
Reserves applicable to such Eurocurrency Borrowing, if
any.
“
Administrative
Agent ” shall have the meaning assigned to such
term in the introductory paragraph of this
Agreement.
“
Administrative
Questionnaire ” shall mean an Administrative
Questionnaire in a form supplied by the Administrative
Agent.
“
Affiliate
” of any specified Person shall mean any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified
Person. For purposes of this definition,
“control” (including, with correlative meanings,
the terms “controlling,” “controlled
by” and “under common control with”), as
used with respect to any Person, means 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.
“
Affiliate
Transaction ” shall have the meaning assigned to
such term in Section 6.07(a).
“
Agents
” shall mean the Administrative Agent and the Collateral
Agent.
“
Agreement
” shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.
“
Applicable
Margin ” shall mean initially (i) 4.00% in the
case of any Eurocurrency Loan and (ii) 3.00% in the case of
any ABR Loan. The Applicable Margin will increase by 0.50% per
annum on August 5, 2008 and shall increase by an additional
0.50% per annum at the end of each three-month period
thereafter until the Rollover Loan Maturity Date.
Notwithstanding the foregoing, the Applicable Margin shall be
adjusted such that the applicable interest rate on the Loans
shall not exceed the Rate Cap.
“
Approved
Fund ” shall have the meaning assigned to such
term in Section 9.04(b).
“
Asset
Sale ” shall mean:
(1) the
sale, conveyance, transfer or other disposition (whether in a
single transaction or a series of related transactions) of
property or assets (including by way of a Sale/Leaseback
Transaction) outside the ordinary course of business of the
Borrower or any Restricted Subsidiary of the Borrower (each
referred to in this definition as a “disposition”)
or
(2) the
issuance or sale of Equity Interests (other than
directors’ qualifying shares and shares issued to
foreign nationals or other third parties to the extent
required by applicable law) of any Restricted Subsidiary
(other than to the Borrower or another Restricted Subsidiary
of the Borrower) (whether in a single transaction or a series
of related transactions),
in
each case other than:
(a) a
disposition of Cash Equivalents or Investment Grade Securities
or obsolete or worn out property or equipment in the ordinary
course of business;
(b) the
disposition of all or substantially all of the assets of the
Borrower in a manner permitted pursuant to Section 6.05 or any
disposition that constitutes a Change of Control;
(c) any
Restricted Payment or Permitted Investment that is permitted
to be made, and is made, under Section 6.04;
(d) any
disposition of assets or issuance or sale of Equity Interests
of any Restricted Subsidiary, which assets or Equity Interests
so disposed or issued have an aggregate Fair Market Value of
less than $7.5 million;
(e) any
disposition of property or assets, or the issuance of
securities, by a Restricted Subsidiary of the Borrower to the
Borrower or by the Borrower or a Restricted Subsidiary of the
Borrower to a Restricted Subsidiary of the
Borrower;
(f) any
exchange of assets (including a combination of assets and Cash
Equivalents) for assets related to a Similar Business of
comparable or greater market value or usefulness to the
business of the Borrower and its Restricted Subsidiaries as a
whole, as determined in good faith by the
Borrower;
(g) foreclosure
on assets of the Borrower or any of its Restricted
Subsidiaries;
(h) any
sale of Equity Interests in, or Indebtedness or other
securities of, an Unrestricted Subsidiary;
(i) the
lease, assignment or sublease of any real or personal property
in the ordinary course of business;
(j) any
sale of inventory or other assets in the ordinary course of
business;
(k) any
grant in the ordinary course of business of any license of
patents, trademarks, know-how or any other intellectual
property;
(l) a
transfer of accounts receivable and related assets of the type
specified in the definition of “Receivables
Financing” (or a fractional undivided interest therein)
by a Receivables Subsidiary in a Qualified Receivables
Financing; and
(m) the
sale of any property in a Sale/Leaseback Transaction within
six months of the acquisition of such property.
“
Assignee
” shall have the meaning assigned to such term in
Section 9.04(b).
“
Assignment and
Acceptance ” shall mean an assignment and
acceptance entered into by a Lender and an Assignee, and
accepted by the Administrative Agent and the Borrower (if
required by such assignment and acceptance), in the form of
Exhibit A
or such other form as shall be approved by the Administrative
Agent and reasonably satisfactory to the
Borrower.
“
Bank
Agreement Security Documents ” shall mean the
Existing Senior Security Agreement, the Second Amended and
Restated First Lien Intellectual Property Security Agreement
dated as of April 3, 2007, among Berry Plastics Group, Inc.,
the Borrower, the subsidiaries of the Borrower party thereto,
the Term Loan Collateral Agent and the Revolving Facility
Collateral Agent, as amended, supplemented, restated, renewed,
refunded, replaced, restructured, repaid, refinanced or
otherwise modified from time to time, all
“Mortgages” as defined in the Revolving Credit
Agreement and/or the Term Loan Credit Agreement, and any other
documents now existing or entered into after the Closing Date
that create Liens on any assets or properties of the Borrower
or any Subsidiary Loan Party to secure any Term Loan
Obligations or Revolving Facility Obligations.
“
Bank
Indebtedness ” shall mean any and all amounts
payable under or in respect of any Credit Agreement and any
other Credit Agreement Documents as amended, restated,
supplemented, waived, replaced, restructured, repaid,
refunded, refinanced or otherwise modified from time to time
(including after termination of any Credit Agreement),
including principal, premium (if any), interest (including
interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Borrower
whether or not a claim for post-filing interest is allowed in
such proceedings), fees, charges, expenses, reimbursement
obligations, guarantees and all other amounts payable
thereunder or in respect thereof.
“
Bank
of America ” shall mean Bank of America, N.A.,
and its successors.
“
Berry Covalence Merger ” shall have
the meaning assigned to it in the recitals to this
Agreement.
“
Board
” shall mean the Board of Governors of the Federal
Reserve System of the United States of America.
“
Board of
Directors ” shall mean, as to any Person, the
board of directors or managers, as applicable, of such Person
(or, if such Person is a partnership, the board of directors
or other governing body of the general partner of such Person)
or any duly authorized committee thereof.
“
Borrower
” shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.
“
Borrower
Materials ” shall have the meaning assigned to
such term in Section 9.17.
“
Borrowing
” shall mean a group of Loans of a single Type and made
on a single date and, in the case of Eurocurrency Loans, as to
which a single Interest Period is in effect.
“
Borrowing
Minimum ” shall mean $5.0 million.
“
Borrowing
Multiple ” shall mean $1.0 million.
“
Borrowing
Request ” shall mean a request by the Borrower in
accordance with the terms of Section 2.03 and
substantially in the form of Exhibit C
.
“
Bridge
Loan ” shall mean each of the interim bridge
loans made to the Borrower pursuant to Section
2.01(a).
“
Bridge Loan
Borrowing ” shall mean a borrowing of Bridge
Loans.
“
Bridge Loan
Maturity Date ” shall mean February 5,
2009.
“
Bridge
Note ” shall have the meaning set forth in
Section 2.09(e).
“
Budget
” shall have the meaning assigned to such term in
Section 5.04(e).
“
Business
Day ” shall mean any day that is not a Saturday,
Sunday or other day on which commercial banks in New York City
are authorized or required by law to remain closed;
provided
, that when used in connection with a Eurocurrency Loan, the
term “Business Day” shall also exclude any day on
which banks are not open for dealings in deposits in the
applicable currency in the London interbank
market.
“
Capital
Stock ” shall mean:
(a) in
the case of a corporation, corporate stock or
shares;
(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.
“
Capitalized
Lease Obligation ” shall mean, at the time any
determination thereof is to be made, the amount of the
liability in respect of a capital lease that would at such
time be required to be capitalized and reflected as a
liability on a balance sheet (excluding the footnotes thereto)
in accordance with GAAP.
“
Captive
Acquisition ” shall mean the acquisition by the
Borrower of substantially all of the outstanding shares of
Capital Stock of Captive Holdings, Inc. pursuant to the
Captive Merger Agreement.
“
Captive Credit
Agreement ” shall mean that certain credit
agreement, dated August 18, 2005 by and among Captive
Holdings, Inc., Captive Plastics, Inc., the guarantors party
thereto, Credit Suisse, as administrative agent and collateral
agent, and the lenders from time to time party thereto, as
amended, modified or supplemented from time to
time.
“
Captive
Holdings ” shall have the meaning assigned to it
in the recitals to this Agreement.
“
Captive Merger
Agreement ” shall have the meaning assigned to it
in the recitals to this Agreement.
“
Captive Merger
Documents ” shall mean the collective reference
to the Captive Merger Agreement, all material exhibits and
schedules thereto and all agreements expressly contemplated
thereby.
“
Captive
Note ” shall mean that certain $10,000,000
subordinated note, dated July 21, 2004 by and among Captive
Holdings, Inc. and the John W. Raymonds Lifetime
Trust.
“
Captive Second
Lien Credit Agreement ” shall mean
that certain second lien credit agreement, dated December 23,
2005 by and among Captive Holdings, Inc., Captive Plastics,
Inc., the guarantors party thereto and Credit Suisse, as
administrative agent and collateral agent, and the lenders
from time to time party thereto, as amended, modified or
supplemented from time to time.
“
Cash
Contribution Amount ” shall mean the aggregate
amount of cash contributions made to the capital of the
Borrower described in the definition of “Contribution
Indebtedness.”
“
Cash
Equivalents ” shall mean:
(a) Dollars,
pounds sterling, euros, the national currency of any member
state in the European Union or, in the case of any Foreign
Subsidiary that is a Restricted Subsidiary, such local
currencies held by it from time to time in the ordinary course
of business;
(b) securities
issued or directly and fully guaranteed or insured by the U.S.
government or any country that is a member of the European
Union or any agency or instrumentality thereof in each case
maturing not more than two years from the date of
acquisition;
(c) certificates
of deposit, time deposits and eurodollar time deposits with
maturities of one year or less from the date of acquisition,
bankers’ acceptances, in each case with maturities not
exceeding one year, and overnight bank deposits, in each case
with any commercial bank having capital and surplus in excess
of $250 million and whose long-term debt is rated
“A” or the equivalent thereof by Moody’s or
S&P (or reasonably equivalent ratings of another
internationally recognized ratings agency);
(d) repurchase
obligations 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 issued by a corporation (other than an Affiliate of the
Borrower) rated at least “A-1” or the equivalent
thereof by Moody’s or S&P (or reasonably equivalent
ratings of another internationally recognized ratings agency)
and in each case maturing within one year after the date of
acquisition;
(f) readily
marketable direct obligations issued by any state of the
United States of America or any political subdivision thereof
having one of the two highest rating categories obtainable
from either Moody’s or S&P (or reasonably equivalent
ratings of another internationally recognized ratings agency)
in each case with maturities not exceeding two years from the
date of acquisition;
(g) Indebtedness
issued by Persons (other than the Funds or any of the Fund
Affiliates) with a rating of “A” or higher from
S&P or “A-2” or higher from Moody’s in
each case with maturities not exceeding two years from the
date of acquisition; and
(h) investment
funds investing at least 95% of their assets in securities of
the types described in clauses (a) through (g)
above.
“
Change in
Law ” shall mean (a) the adoption of any law,
rule or regulation after the Closing Date, (b) any change in
law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the
Closing Date or (c) compliance by any Lender (or, for purposes
of Section 2.15(b), by any Lending Office of such Lender
or by such Lender’s holding company, if any) with any
written request, guideline or directive (whether or not having
the force of law) of any Governmental Authority made or issued
after the Closing Date.
“
Change of
Control ” shall mean the occurrence of any of the
following events:
(a) the
sale, lease or transfer, in one or a series of related
transactions, of all or substantially all the assets of the
Borrower and its Subsidiaries, taken as a whole, to a Person
other than any of the Permitted Holders; or
(b) the
Borrower becomes aware (by way of a report or any other filing
pursuant to Section 13(d) of the Exchange Act, proxy, vote,
written notice or otherwise) of the acquisition by any Person
or group (within the meaning of Section 13(d)(3) or Section
14(d)(2) of the Exchange Act, or any successor provision),
including any group acting for the purpose of acquiring,
holding or disposing of securities (within the meaning of Rule
13d-5(b)(1) under the Exchange Act), other than any of the
Permitted Holders, in a single transaction or in a related
series of transactions, by way of merger, consolidation or
other business combination or purchase of beneficial ownership
(within the meaning of Rule 13d-3 under the Exchange Act, or
any successor provision), of more than 50% of the total voting
power of the voting stock of the Borrower or any direct or
indirect parent of the Borrower.
“
Change of
Control Offer ” shall have the meaning assigned
to such term in Section 2.11.
“
Change of
Control Payment ” shall have the meaning assigned
to such term in Section 2.11.
“
Change of
Control Payment Date ” shall have the meaning
assigned to such term in Section 2.11.
“
Charges
” shall have the meaning assigned to such term in
Section 9.09.
“
Closing
Date ” shall mean February 5, 2008.
“
Code
” shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and
rulings issued thereunder.
“
Collateral
” shall mean all the “Collateral” as defined
in any Security Document and shall also include the Mortgaged
Properties and all other property that is subject to any Lien
in favor of the Collateral Agent or any Subagent for the
benefit of the Lenders pursuant to any Security
Documents.
“
Collateral
Agent ” shall mean the party acting as collateral
agent for the Secured Parties under the Security
Documents. On the Closing Date, the Collateral
Agent is the same Person as the Administrative
Agent. Unless the context otherwise requires, the
term “Administrative Agent” as used herein shall,
unless the context otherwise requires, include the Collateral
Agent, notwithstanding various specific references to the
Collateral Agent herein.
“
Collateral
Agreement ” shall mean the Bridge Loan Guarantee
and Collateral Agreement, dated as of the Closing Date, as
amended, supplemented or otherwise modified from time to time,
in the form of Exhibit E
, among the Borrower, each Subsidiary Loan Party and the
Collateral Agent.
“
Collateral and
Guarantee Requirement ” shall mean the
requirement that:
(a) on
the Closing Date, the Collateral Agent shall have received
from the Borrower and each Subsidiary Loan Party, a
counterpart of the Collateral Agreement duly executed and
delivered on behalf of such Person;
(b) on
or before the Closing Date, (i) the Collateral Agent shall
have received (A) a pledge of all the issued and outstanding
Equity Interests of each Domestic Subsidiary (other than
Subsidiaries listed on Schedule 1.01(a)
) owned on the Closing Date directly by or on behalf of the
Borrower or any Subsidiary Loan Party and (B) a pledge of 65%
of the outstanding Equity Interests of (1) each “first
tier” Foreign Subsidiary directly owned by any Loan
Party (except for NIM Holdings Limited, Berry Plastics Asia
Pte. Ltd., and Ociesse s.r.l., Berry Plastics Acquisition
Corporation II, and Berry Plastics Acquisition Corporation
XIV, LLC), and (2) each “first tier” Qualified CFC
Holding Company directly owned by any Loan Party and (ii)
subject to the terms of the Intercreditor Agreements, the
Collateral Agent shall have received all certificates or other
instruments (if any) representing such Equity Interests,
together with stock powers or other instruments of transfer
with respect thereto endorsed in blank;
(c) (i)
all Indebtedness of the Borrower and each Subsidiary having,
in the case of each instance of Indebtedness, an aggregate
principal amount in excess of $5.0 million (other than (A)
intercompany current liabilities incurred in the ordinary
course of business in connection with the cash management
operations of the Borrower and its Subsidiaries or (B) to the
extent that a pledge of such promissory note or instrument
would violate applicable law) that is owing to any Loan Party
shall be evidenced by a promissory note or an instrument and
shall have been pledged pursuant to the Collateral Agreement
(or other applicable Security Document as reasonably required
by the Administrative Agent) (which pledge, in the case of any
intercompany note evidencing debt owed by a Foreign Subsidiary
to a Loan Party, shall be limited to 65% of the amount
outstanding thereunder), and (ii) the Possessory Collateral
Agent shall have received all such promissory notes or
instruments, together with note powers or other instruments of
transfer with respect thereto endorsed in blank;
(d) in
the case of any Person that becomes a Subsidiary Loan Party
after the Closing Date, the Collateral Agent shall have
received a supplement to each of the Collateral Agreement, the
Senior Lender Intercreditor Agreement, the Second Priority
Intercreditor Agreement and the Senior Fixed Lender
Intercreditor Agreement, in the form specified therein, duly
executed and delivered on behalf of such Subsidiary Loan Party
(it being understood that each Domestic Subsidiary that is
acquired or formed after the Closing Date (including any
Unrestricted Subsidiary that is redesignated) is a Subsidiary
Loan Party and is required to become a party to the Collateral
Agreement and the Intercreditor Agreements);
(e) in
the case of any Person that becomes a “first tier”
Foreign Subsidiary directly owned by the Borrower or a
Subsidiary Loan Party after the Closing Date, the Collateral
Agent shall have received, as promptly as reasonably
practicable following a request by the Collateral Agent, a
Foreign Pledge Agreement, duly executed and delivered on
behalf of such Foreign Subsidiary and the direct parent
company of such Foreign Subsidiary;
(f) after
the Closing Date, (i) all the outstanding Equity Interests of
(A) any Person that becomes a Subsidiary Loan Party after the
Closing Date and (B) subject to Section 5.10(g), all the
Equity Interests that are acquired by a Loan Party after the
Closing Date (including, without limitation, the Equity
Interests of any Receivables Subsidiary established after the
Closing Date), shall have been pledged pursuant to the
Collateral Agreement; provided
that in no event shall more than 65% of the issued and
outstanding Equity Interests of any “first tier”
Foreign Subsidiary or any “first tier” Qualified
CFC Holding Company directly owned by such Loan Party be
pledged to secure Obligations, and in no event shall any of
the issued and outstanding Equity Interests of any Foreign
Subsidiary that is not a “first tier” Foreign
Subsidiary of a Loan Party or any Qualified CFC Holding
Company that is not a “first tier” Subsidiary of a
Loan Party be pledged to secure Obligations, and (ii) subject
to the terms of the Intercreditor Agreements, the Collateral
Agent shall have received all certificates or other
instruments (if any) representing such Equity Interests,
together with stock powers or other instruments of transfer
with respect thereto endorsed in blank;
(g) except
as otherwise contemplated by any Security Document or the
Intercreditor Agreements, all documents and instruments,
including Uniform Commercial Code financing statements,
required by law or reasonably requested by the Collateral
Agent to be filed, registered or recorded to create the Liens
intended to be created by the Security Documents (in each
case, including any supplements thereto) and perfect such
Liens to the extent required by, and with the priority
required by, the Security Documents, shall have been filed,
registered or recorded or delivered to the Collateral Agent
for filing, registration or the recording concurrently with,
or promptly following, the execution and delivery of each such
Security Document;
(h) [Reserved];
(i) [Reserved];
(j) [Reserved];
(k) except
as otherwise contemplated by any Security Document, each Loan
Party shall have obtained all consents and approvals required
to be obtained by it in connection with (i) the execution and
delivery of all Security Documents (or supplements thereto) to
which it is a party and the granting by it of the Liens
thereunder and (ii) the performance of its obligations
thereunder; and
(l) after
the Closing Date, the Administrative Agent shall have received
(i) such other Security Documents as may be required to be
delivered pursuant to Section 5.10, and (ii) upon reasonable
request by the Administrative Agent, evidence of compliance
with any other requirements of Section 5.10.
“
Commitment
” shall mean, with respect to any Lender, such
Lender’s commitment to make Bridge Loans under Section
2.01(a) in the amount set forth opposite such Lender’s
name on Schedule 2.01 or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its
Commitment, as applicable. The aggregate amount of
Commitments of all Lenders on the Closing Date is
$520,000,000.
“
Commitment
Banks ” shall mean Banc of America Bridge LLC,
Goldman Sachs Credit Partners L.P., Lehman Commercial Paper
Inc. and Lehman Brothers Commercial Bank.
“
Commitment
Letter ” shall mean that certain Commitment
Letter dated December 21, 2007 by and among the Borrower, Banc
of America Bridge LLC, Banc of America Securities LLC, Goldman
Sachs Credit Partners L.P., Lehman Commercial Paper Inc.,
Lehman Brothers Commercial Bank and Lehman Brothers
Inc.
“
Conduit
Lender ” shall mean any special purpose
corporation organized and administered by any Lender for the
purpose of making Loans otherwise required to be made by such
Lender and designated by such Lender in a written instrument;
provided
that the designation by any Lender of a Conduit Lender shall
not relieve the designating Lender of any of its obligations
to fund a Loan under this Agreement if, for any reason, its
Conduit Lender fails to fund any such Loan, and the
designating Lender (and not the Conduit Lender) shall have the
sole right and responsibility to deliver all consents and
waivers required or requested under this Agreement with
respect to its Conduit Lender; provided
, further ,
that no Conduit Lender shall (a) be entitled to receive any
greater amount pursuant to Section 2.15, 2.16, 2.17 or
9.05 than the designating Lender would have been entitled to
receive in respect of the extensions of credit made by such
Conduit Lender or (b) be deemed to have any
Commitment.
“
consolidated
” shall mean, with respect to any Person, such Person
consolidated with its Restricted Subsidiaries, and shall not
include any Unrestricted Subsidiary, but the interest of such
Person in an Unrestricted Subsidiary shall be accounted for as
an Investment.
“
Consolidated
Interest Expense ” shall mean, with respect to
any Person for any period, the sum, without duplication,
of:
(1) consolidated
interest expense of such Person and its Restricted
Subsidiaries for such period, to the extent such expense was
deducted in computing Consolidated Net Income (including
amortization of original issue discount, the interest
component of Capitalized Lease Obligations, and net payments
and receipts (if any) pursuant to interest rate Hedging
Obligations and excluding amortization of deferred financing
fees and expensing of any bridge or other financing fees);
plus
(2) consolidated
capitalized interest of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued;
plus
(3) commissions,
discounts, yield and other fees and charges Incurred in
connection with any Receivables Financing which are payable to
Persons other than the Borrower and its Restricted
Subsidiaries; minus
(4) interest
income for such period.
“
Consolidated Net
Income ” shall mean, with respect to any Person
for any period, the aggregate of the Net Income of such Person
and its Restricted Subsidiaries for such period, on a
consolidated basis; provided
, however ,
that:
(a) any
net after-tax extraordinary, nonrecurring or unusual gains or
losses or income, expenses or charges (less all fees and
expenses relating thereto), including, without limitation, any
severance expenses, any expenses related to any
reconstruction, recommissioning or reconfiguration of fixed
assets for alternate uses, and fees, expenses or charges
relating to new product lines, plant shutdown costs,
acquisition integration costs, expenses or charges related to
any Equity Offering, Permitted Investment, acquisition or
Indebtedness permitted to be Incurred by this Agreement (in
each case, whether or not successful), including any such
fees, expenses, charges or change in control payments made
under the Acquisition Documents or otherwise related to the
Transactions, in each case, shall be excluded;
(b) any
increase in amortization or depreciation or any one-time
non-cash charges increases or reductions in Net Income, in
each case resulting from purchase accounting in connection
with the Transactions or any acquisition that is consummated
after the Closing Date shall be excluded;
(c) the
Net Income for such period shall not include the cumulative
effect of a change in accounting principles during such
period;
(d) any
net after-tax income or loss from discontinued operations and
any net after-tax gains or losses on disposal of discontinued
operations shall be excluded;
(e) any
net after-tax gains or losses (less all fees and expenses or
charges relating thereto) attributable to business
dispositions or asset dispositions other than in the ordinary
course of business (as determined in good faith by the Board
of Directors of the Borrower) shall be excluded;
(f) any
net after-tax gains or losses (less all fees and expenses or
charges relating thereto) attributable to the early
extinguishment of indebtedness shall be excluded;
(g) the
Net Income for such period of any Person that is not a
Subsidiary of such Person, or is an Unrestricted 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 or other payments paid in cash (or
to the extent converted into cash) to the referent Person or a
Restricted Subsidiary thereof in respect of such
period;
(h) solely
for the purpose of determining the amount available for
Restricted Payments under clause (a) of the definition of
Cumulative Credit, the Net Income for such period of any
Restricted Subsidiary (other than any Subsidiary Loan Party)
shall be excluded to the extent that the declaration or
payment of dividends or similar distributions by such
Restricted Subsidiary of its Net Income is not at the date of
determination permitted without any prior governmental
approval (which has not been obtained) or, directly or
indirectly, by the 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 stockholders, unless such restrictions with
respect to the payment of dividends or similar distributions
have been legally waived; provided that the Consolidated Net
Income of such Person shall be increased by the amount of
div
dends
or other distributions or other payments actually paid in cash
(or converted into cash) by any such Restricted Subsidiary to
such Person, to the extent not already included
therein;
(i) an
amount equal to the amount of Tax Distributions actually made
to any parent of such Person in respect of such period in
accordance with Section 6.04(b)(xii) shall be included as
though such amounts had been paid as income taxes directly by
such Person for such period;
(j) any
non-cash impairment charges resulting from the application of
Statement of Financial Accounting Standards (“
SFAS
”) Nos. 142 and 144 and the amortization of intangibles
arising pursuant to SFAS No. 141 shall be
excluded;
(k) any
non-cash expense realized or resulting from stock option
plans, employee benefit plans or post-employment benefit
plans, grants of stock appreciation or similar rights, stock
options or other rights to officers, directors and employees
of such Person or any of its Restricted Subsidiaries shall be
excluded;
(l) any
(a) severance or relocation costs or expenses, (b) one-time
non-cash compensation charges, (c) the costs and expenses
after the Closing Date related to employment of terminated
employees, (d) costs or expenses realized in connection with,
resulting from or in anticipation of the Transactions or (e)
costs or expenses realized in connection with or resulting
from stock appreciation or similar rights, stock options or
other rights existing on the Closing Date of officers,
directors and employees, in each case of such Person or any of
its Restricted Subsidiaries, shall be excluded;
(m) accruals
and reserves that are established within 12 months after the
Closing Date and that are so required to be established in
accordance with GAAP shall be excluded;
(n) solely
for purposes of calculating EBITDA, (a) the Net Income of any
Person and its Restricted Subsidiaries shall be calculated
without deducting the income attributable to, or adding the
losses attributable to, the minority equity interests of third
parties in any non-wholly-owned Restricted Subsidiary except
to the extent of dividends declared or paid in respect of such
period or any prior period on the shares of Capital Stock of
such Restricted Subsidiary held by such third parties and (b)
any ordinary course dividend, distribution or other payment
paid in cash and received from any Person in excess of amounts
included in clause (7) above shall be included;
(o) (a)(i)
the non-cash portion of “straight-line” rent
expense shall be excluded and (ii) the cash portion of
“straight-line” rent expense which exceeds the
amount expensed in respect of such rent expense shall be
included and (b) non-cash gains, losses, income and expenses
resulting from fair value accounting required by Statement of
Financial Accounting Standards No. 133 shall be
excluded;
(p) unrealized
gains and losses relating to hedging transactions and
mark-to-market of Indebtedness denominated in foreign
currencies resulting from the applications of Financial
Accounting Standards 52 shall be excluded; and
(q) solely
for the purpose of calculating Restricted Payments, the
difference, if positive, of the Consolidated Taxes of the
Borrower calculated in accordance with GAAP and the actual
Consolidated Taxes paid in cash by the Borrower during any
Reference Period shall be included.
Notwithstanding
the foregoing, for the purpose of Section 6.04 only, there
shall be excluded from Consolidated Net Income any dividends,
repayments of loans or advances or other transfers of assets
from Unrestricted Subsidiaries of the Borrower or a Restricted
Subsidiary of the Borrower to the extent such dividends,
repayments or transfers increase the amount of Restricted
Payments permitted under clauses (E) and (F) of the definition
of “Cumulative Credit.”
“
Consolidated
Non-cash Charges ” shall mean, with respect to
any Person for any period, the aggregate depreciation,
amortization and other non-cash expenses of such Person and
its Restricted Subsidiaries reducing Consolidated Net Income
of such Person for such period on a consolidated basis and
otherwise determined in accordance with GAAP, but excluding
any such charge which consists of or requires an accrual of,
or cash reserve for, anticipated cash charges for any future
period.
“
Consolidated
Taxes ” shall mean provision for taxes based on
income, profits or capital, including, without limitation,
state, franchise and similar taxes and any Tax Distributions
taken into account in calculating Consolidated Net
Income.
“
Contingent
Obligations ” shall mean, with respect to any
Person, any obligation of such Person guaranteeing any leases,
dividends or other obligations that do not constitute
Indebtedness (“primary obligations”) of any other
Person (the “primary obligor”) in any manner,
whether directly or indirectly, including, without limitation,
any obligation of such Person, whether or not
contingent:
(a) to
purchase any such primary obligation or any property
constituting direct or indirect security
therefor,
(b) to
advance or supply funds:
(i)
for the
purchase or payment of any such primary obligation;
or
(ii)
to
maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of
the primary obligor; or
(iii)
to
purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation
of the ability of the primary obligor to make payment of such
primary obligation against loss in respect
thereof.
“
Contribution
Indebtedness ” shall mean Indebtedness of the
Borrower or any Subsidiary Loan Party in an aggregate
principal amount not greater than twice the aggregate amount
of cash contributions (other than Excluded Contributions) made
to the capital of the Borrower or any such Subsidiary Loan
Party after the Closing Date; provided
that:
(1) such
cash contributions have not been used to make a Restricted
Payment,
(2) if
the aggregate principal amount of such Contribution
Indebtedness is greater than the aggregate amount of such cash
contributions to the capital of the Borrower or any such
Subsidiary Loan Party, as the case may be, the amount in
excess shall be Indebtedness (other than Secured Indebtedness)
with a Stated Maturity later than the Stated Maturity of the
Loans, and
(3) such
Contribution Indebtedness (a) is Incurred within 180 days
after the making of such cash contributions and (b) is so
designated as Contribution Indebtedness pursuant to an
Officers’ Certificate on the Incurrence date
thereof.
“
Covalence
” shall have the meaning assigned to it in the recitals
to this Agreement.
“
Covenant
Suspension Event ” shall have the meaning
assigned to such term in Section 6.09(b).
“
Credit Agreement
Documents ” shall mean the collective reference
to Credit Agreements, any notes issued pursuant thereto and
the guarantees thereof, and the collateral documents relating
thereto, as amended, supplemented, restated, renewed,
refunded, replaced, restructured, repaid, refinanced or
otherwise modified from time to time.
“
Credit
Agreements ” shall mean (i)(A) the Term Loan
Credit Agreement and (B) the Revolving Credit
Agreement, and (ii) whether or not the credit agreements
referred to in clause (i) remains outstanding, if
designated by the Borrower to be included in the definition of
“Credit Agreement,” one or more (A) debt
facilities or commercial paper facilities, providing for
revolving credit loans, term loans, receivables financing
(including through the sale of receivables to lenders or to
special purpose entities formed to borrow from lenders against
such receivables) or letters of credit, (B) debt
securities, indentures or other forms of debt financing
(including convertible or exchangeable debt instruments or
bank guarantees or bankers’ acceptances), or
(C) instruments or agreements evidencing any other
Indebtedness, in each case, with the same or different
borrowers or issuers and, in each case, as amended,
supplemented, modified, extended, restructured, renewed,
refinanced, restated, replaced or refunded in whole or in part
from time to time.
“
Cumulative
Credit ” shall mean the sum of (without
duplication):
(A) 50%
of the Consolidated Net Income of the Borrower for the period
(taken as one accounting period, the “ Reference
Period ”) from April 1, 2008 to the end of the
Borrower’s most recently ended fiscal quarter for which
internal financial statements are available at the time of
such Restricted Payment (or, in the case such Consolidated Net
Income for such period is a deficit, minus 100% of such
deficit), plus
(B) 100%
of the aggregate net proceeds, including cash and the Fair
Market Value (as determined in good faith by Borrower) of
property other than cash, received by the Borrower after the
Closing Date from the issue or sale of Equity Interests of the
Borrower (excluding Refunding Capital Stock, Designated
Preferred Stock, Excluded Contributions, Disqualified Stock
and the Cash Contribution Amount), including Equity Interests
issued upon conversion of Indebtedness or Disqualified Stock
or upon exercise of warrants or options (other than an
issuance or sale to a Restricted Subsidiary of the Borrower or
an employee stock ownership plan or trust established by the
Borrower or any of its Subsidiaries), plus
(C) 100%
of the aggregate amount of contributions to the capital of the
Borrower received in cash and the Fair Market Value (as
determined in good faith by the Borrower) of property other
than cash after the Closing Date (other than Excluded
Contributions, Refunding Capital Stock, Designated Preferred
Stock, Disqualified Stock and the Cash Contribution Amount),
plus
(D) the
principal amount of any Indebtedness, or the liquidation
preference or maximum fixed repurchase price, as the case may
be, of any Disqualified Stock of the Borrower or any
Restricted Subsidiary thereof issued after the Closing Date
(other than Indebtedness or Disqualified Stock issued to a
Restricted Subsidiary) which has been converted into or
exchanged for Equity Interests in the Borrower (other than
Disqualified Stock) or any direct or indirect parent of the
Borrower (provided in the case of any parent, such
Indebtedness or Disqualified Stock is retired or
extinguished), plus
(E) 100%
of the aggregate amount received by the Borrower or any
Restricted Subsidiary in cash and the Fair Market Value (as
determined in good faith by the Borrower) of property other
than cash received by the Borrower or any Restricted
Subsidiary after the Closing Date from:
(I)
the sale
or other disposition (other than to the Borrower or a
Restricted Subsidiary of the Borrower) of Restricted
Investments made by the Borrower and its Restricted
Subsidiaries and from repurchases and redemptions of such
Restricted Investments from the Borrower and its Restricted
Subsidiaries by any Person (other than the Borrower or any of
its Restricted Subsidiaries) and from repayments of loans or
advances which constituted Restricted Investments (other than
in each case to the extent that the Restricted Investment was
made pursuant to clause (vii) or (x) of Section
6.04(b)),
(II)
the sale
(other than to the Borrower or a Restricted Subsidiary of the
Borrower) of the Capital Stock of an Unrestricted Subsidiary,
or
(III)
a
distribution or dividend from an Unrestricted Subsidiary,
plus
(F) in
the event any Unrestricted Subsidiary of the Borrower has been
redesignated as a Restricted Subsidiary or has been merged,
consolidated or amalgamated with or into, or transfers or
conveys its assets to, or is liquidated into, the Borrower or
a Restricted Subsidiary, in each case after the Closing Date,
the Fair Market Value (as determined in good faith by the
Borrower or, if such Fair Market Value may exceed $25.0
million, in writing by an Independent Financial Advisor) of
the Investment of the Borrower in such Unrestricted Subsidiary
at the time of such redesignation, combination or transfer (or
of the assets transferred or conveyed, as applicable), after
taking into account any Indebtedness associated with the
Unrestricted Subsidiary so designated or combined or any
Indebtedness associated with the assets so transferred or
conveyed (other than in each case to the extent that the
designation of such Subsidiary as an Unrestricted Subsidiary
was made pursuant to clause (vii) or (x) of Section 6.04(b) or
constituted a Permitted Investment).
“
Default
” shall mean any event or condition that upon notice,
lapse of time or both would constitute an Event of
Default.
“
Defaulting
Lender ” shall mean any Lender with respect to
which a Lender Default is in effect.
“
Designated
Non-cash Consideration ” shall mean the Fair
Market Value of non-cash consideration received by the
Borrower or one of its Restricted Subsidiaries in connection
with an Asset Sale that is so designated as Designated
Non-cash Consideration pursuant to an Officers’
Certificate, setting forth the basis of such valuation, less
the amount of Cash Equivalents received in connection with a
subsequent sale of such Designated Non-cash
Consideration.
“
Designated
Preferred Stock ” shall mean Preferred Stock of
the Borrower or any direct or indirect parent of the Borrower,
as applicable (other than Disqualified Stock), that is issued
for cash (other than to the Borrower or any of its
Subsidiaries or an employee stock ownership plan or trust
established by the Borrower or any of its Subsidiaries) and is
so designated as Designated Preferred Stock, pursuant to an
Officers’ Certificate, on the issuance date
thereof.
“
Disqualified
Stock ” shall mean, with respect to any Person,
any Capital Stock of such Person which, by its terms (or by
the terms of any security into which it is convertible or for
which it is redeemable or exchangeable), or upon the happening
of any event:
(a) matures
or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise (other than as a result of a change of
control or asset sale; provided that the relevant asset sale
or change of control provisions, taken as a whole, are no more
favorable in any material respect to holders of such Capital
Stock than the asset sale and change of control provisions
applicable to the Loans and any purchase requirement triggered
thereby may not become operative until compliance with the
asset sale and change of control provisions applicable to the
Loans (including the purchase of any Loans tendered pursuant
thereto)),
(b) is
convertible or exchangeable for Indebtedness or Disqualified
Stock of such Person, or
(c) is
redeemable at the option of the holder thereof, in whole or in
part,
in
each case prior to 91 days after the Rollover Loan Maturity
Date; provided
, however ,
that only the portion of Capital Stock which so matures or is
mandatorily redeemable, is so convertible or exchangeable or
is so redeemable at the option of the holder thereof prior to
such date shall be deemed to be Disqualified Stock;
provided
, further ,
however ,
that if such Capital Stock is issued to any employee or to any
plan for the benefit of employees of the Borrower or its
Subsidiaries or by any such plan to such employees, such
Capital Stock shall not constitute Disqualified Stock solely
because it may be required to be repurchased by the Borrower
in order to satisfy applicable statutory or regulatory
obligations or as a result of such employee’s
termination, death or disability; provided
, further ,
that any class of Capital Stock of such Person that by its
terms authorizes such Person to satisfy its obligations
thereunder by delivery of Capital Stock that is not
Disqualified Stock shall not be deemed to be Disqualified
Stock.
“
Documentation
Agent ” shall have the meaning assigned to such
term in the introductory paragraph of this
Agreement.
“
Dollars
” or “ $ ”
shall mean the lawful currency of the United States of
America.
“
Domestic
Subsidiary ” shall mean any Subsidiary that is
not a Foreign Subsidiary, a Qualified CFC Holding Company or a
subsidiary listed on Schedule 1.01(a).
“
EBITDA
” shall mean, with respect to any Person for any period,
the Consolidated Net Income of such Person for such period
plus, without duplication, to the extent the same was deducted
in calculating Consolidated Net Income:
(a) Consolidated
Taxes; plus
(b) Consolidated
Interest Expense; plus
(c) Consolidated
Non-cash Charges; plus
(d) business
optimization expenses and other restructuring charges or
expenses (which, for the avoidance of doubt, shall include,
without limitation, the effect of inventory optimization
programs, plant closures, retention, systems establishment
costs and excess pension charges); provided
that with respect to each business optimization expense or
other restructuring charge, the Borrower shall have delivered
to the Administrative Agent an Officers’
Certificate
specifying
and quantifying such expense or charge and stating that such
expense or charge is a business optimization expense or other
restructuring charge, as the case may be; plus
(e) the
amount of management, monitoring, consulting and advisory fees
and related expenses paid to the Funds or any Fund Affiliates
(or any accruals relating to such fees and related expenses)
during such period pursuant to the terms of the agreements
between the Fund Affiliates and the Borrower and its
Subsidiaries;
less , without duplication,
(f) non-cash
items increasing Consolidated Net Income for such period
(excluding the recognition of deferred revenue or any items
which represent the reversal of any accrual of, or cash
reserve for, anticipated cash charges in any prior period and
any items for which cash was received in a prior
period).
“
environment
” shall mean ambient and indoor air, surface water and
groundwater (including potable water, navigable water and
wetlands), the land surface or subsurface strata, natural
resources such as flora and fauna, the workplace or as
otherwise defined in any Environmental Law.
“
Environmental
Laws ” shall mean all applicable laws (including
common law), rules, regulations, codes, ordinances, orders,
decrees or judgments, promulgated or entered into by any
Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural resources,
the generation, management, Release or threatened Release of,
or exposure to, any Hazardous Material or to occupational
health and safety matters (to the extent relating to the
environment or Hazardous Materials).
“
Equity
Interests ” shall mean 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).
“
Equity
Issuance ” shall mean, without duplication, any
issuance or sale by the Borrower after the Closing Date of any
Equity Interests in the Borrower or any direct or indirect
parent of the Borrower (including any Equity Interests issued
upon exercise of any warrant or option) or any warrants or
options to purchase Equity Interests; provided
, however ,
that an Equity Issuance shall not include (y) any sale or
issuance by the Borrower or any direct or indirect parent of
the Borrower of any Equity Interests (including its Equity
Interests issued upon exercise of any warrant or option or
warrants or options to purchase its Equity Interests but
excluding Disqualified Stock), in each case, to directors,
officers or employees of the Borrower or any direct or
indirect parent of the Borrower, or any of their Subsidiaries
in connection with any employee stock option plan and
(z) any sale or issuance by the Borrower or any direct or
indirect parent of the Borrower of any Equity Interests
(including its Equity Interests issued upon exercise of any
warrant or option or warrants or options to purchase its
Equity Interests but excluding Disqualified Stock), to
Holdings, or any Permitted Holder identified in clause (i) of
the definition thereto.
“
Equity
Offering ” shall mean any public or private sale
after the Closing Date of common stock or Preferred Stock of
the Borrower or any direct or indirect parent of the Borrower,
as applicable (other than Disqualified Stock), other
than:
(1) public
offerings with respect to the Borrower’s or such direct
or indirect parent’s common stock registered on Form
S-8; and
(2) any
such public or private sale that constitutes an Excluded
Contribution.
“
ERISA
” shall mean the Employee Retirement Income Security Act
of 1974, as the same may be amended from time to time and any
final regulations promulgated and the rulings issued
thereunder.
“
ERISA
Affiliate ” shall mean any trade or business
(whether or not incorporated) that, together with the Borrower
or a Subsidiary, is treated as a single employer under
Section 414(b) or (c) of the Code, or, solely for
purposes of Section 302 of ERISA and Section 412 of
the Code, is treated as a single employer under
Section 414 of the Code.
“
ERISA
Event ” shall mean (a) any Reportable Event or
the requirements of Section 4043(b) of ERISA apply with
respect to a Plan ; (b) the existence
with respect to any Plan of an “accumulated funding
deficiency” (as defined in Section 412 of the Code
or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or
Section 303(d) of ERISA of an application for a waiver of
the minimum funding standard with respect to any Plan, the
failure to make by its due date a required installment under
Section 412(m) of the Code with respect to any Plan or
the failure to make any required contribution to a
Multiemployer Plan; (d) the incurrence by the Borrower, a
Subsidiary or any ERISA Affiliate of any liability under Title
IV of ERISA with respect to the termination of any Plan or
Multiemployer Plan; (e) the receipt by the Borrower, a
Subsidiary or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to
terminate any Plan or to appoint a trustee to administer any
Plan under Section 4042 of ERISA; (f) the incurrence by
the Borrower, a Subsidiary or any ERISA Affiliate of any
liability with respect to the withdrawal or partial withdrawal
from any Plan or Multiemployer Plan; (g) the receipt by the
Borrower, a Subsidiary or any ERISA Affiliate of any notice,
or the receipt by any Multiemployer Plan from the Borrower, a
Subsidiary or any ERISA Affiliate of any notice, concerning
the impending imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to
be, insolvent or in reorganization, within the meaning of
Title IV of ERISA; (h) the conditions for imposition of a lien
under Section 302(f) of ERISA shall have been met with respect
to any Plan; or (i) the adoption of an amendment to a Plan
requiring the provision of security to such Plan pursuant to
Section 307 of ERISA .
“
Eurocurrency
Borrowing ” shall mean a Borrowing comprised of
Eurocurrency Loans.
“
Eurocurrency
Loan ” shall mean any Bridge Loan bearing
interest at a rate determined by reference to the Adjusted
LIBO Rate in accordance with the provisions of
Article II.
“
Event of
Default ” shall have the meaning assigned to such
term in Section 7.01.
“
Exchange
Act ” shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations of the SEC
promulgated thereunder.
“
Exchange
Date ” shall have the meaning assigned to such
term in Section 2.01(d)(ii).
“
Exchange
Notes ” shall have the meaning assigned to such
term in Section 2.01(d)(i).
“
Exchange Notes
Indenture ” shall mean the indenture to be
entered into relating to the Exchange Notes substantially in
the form of Exhibit D
(with such changes to cure any ambiguity, omission, defect or
inconsistency, in each case, as the Joint Lead Arrangers and
the Borrower shall agree), as the same may be amended,
modified or supplemented from time to time in accordance with
the terms thereof.
“
Exchange
Notice ” shall have the meaning assigned to such
term in Section 2.01(d)(i).
“
Exchange Trigger
Event ” shall mean on and after the Rollover
Date, (a) with respect to the initial Exchange Trigger Event,
the receipt by the Administrative Agent of one or more
Exchange Notices which, individually or together, represent at
least $100 million aggregate principal amount of Rollover
Loans that have not been exchanged for Exchange Notes and (b)
thereafter (i) the receipt by the Administrative Agent of one
or more Exchange Notices which, individually or together,
represent at least $25 million aggregate principal amount of
Rollover Loans that have not been exchanged for Exchange Notes
and (ii) if less than $25 million aggregate principal amount
of Rollover Loans are outstanding at such time, the remainder
of the then outstanding Rollover Loans..
“
Excluded
Contributions ” shall mean the Cash Equivalents
or other assets (valued at their Fair Market Value as
determined in good faith by senior management or the Board of
Directors of the Borrower) received by the Borrower after the
Closing Date from:
(a) contributions
to its common equity capital, and
(b) the
sale (other than to a Subsidiary of the Borrower or to any
Subsidiary management equity plan or stock option plan or any
other management or employee benefit plan or agreement) of
Capital Stock (other than Disqualified Stock and Designated
Preferred Stock) of the Borrower,
in
each case designated as Excluded Contributions pursuant to an
Officers’ Certificate executed by an officer of the
Borrower on or promptly after the date such capital
contributions are made or the date such Capital Stock is sold,
as the case may be.
“
Excluded
Indebtedness ” shall mean all Indebtedness
permitted to be incurred under Section 6.01 (other than
Section 6.01(b)(xvi) and any Permanent
Financing).
“
Excluded
Taxes ” shall mean, with respect to the
Administrative Agent, any Lender or any other recipient of any
payment to be made by or on account of any obligation of any
Loan Party hereunder, (a) any income taxes imposed on (or
measured by) its net income (or franchise taxes imposed in
lieu of net income taxes) by the United States of America (or
any state or locality thereof) or the jurisdiction under the
laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in
which its applicable Lending Office is located or any other
jurisdiction as a result of such recipient engaging in a trade
or business in such jurisdiction for tax purposes, (b) any
branch profits tax or any similar tax that is imposed by any
jurisdiction described in clause (a) above, (c) in the
case of a Lender making a Loan to the Borrower, any tax
(including any backup withholding tax) imposed by the United
States (or the jurisdiction under the laws of which such
Lender is organized or in which its principal office is
located or in which its applicable Lending Office is located
or any other jurisdiction as a result of such Lender engaging
in a trade or business or having a taxable presence in such
jurisdiction for tax purposes) that (x) is in effect and would
apply to amounts payable hereunder to such Lender at the time
such Lender becomes a party to such Loan to the Borrower (or
designates a new Lending Office) except to the extent that the
assignor to such Lender in the case of an assignment or the
Lender in the case of a designation of a new Lending Office
(for the absence of doubt, other than the Lending Office at
the time such Lender becomes a party to such Loan) was
entitled, at the time of such assignment or designation of a
new Lending Office, respectively, to receive additional
amounts from a Loan Party with respect to any withholding tax
pursuant to Section 2.17(a) or Section 2.17(c) or
(y) is attributable to such Lender’s failure to comply
with Section 2.17(e) or (f) with respect to such Loan and
(d) any taxes that are imposed as a result of any event
occurring after the Lender becomes a Lender (other than a
Change in Law) in the case of clause (a), (b), (c) and (d),
together with any and all interest and penalties related
thereto.
“
Existing Senior
Security Agreement ” shall mean the Second
Amended and Restated First Lien Guarantee and Collateral
Agreement dated as of April 3, 2007 among the Borrower,
Holdings, and the Subsidiaries of the Borrower identified
therein, the Revolving Facility Collateral Agent and the Term
Loan Collateral Agent as the same may be amended, amended and
restated or otherwise modified from time to time.
“
Facility
” shall mean the respective facility and commitments
utilized in making Loans and credit extensions hereunder,
i.e. ,
the Bridge Loans and the Rollover Loans.
“
Fair
Market Value ” shall mean, with respect to any
asset or property, the price which could be negotiated in an
arm’s-length, free market transaction, for cash, between
a willing seller and a willing and able buyer, neither of whom
is under undue pressure or compulsion to complete the
transaction.
“
Federal Funds
Effective Rate ” shall mean, for any day, the
rate per annum 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
Effective 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 Effective Rate for such day shall be
the average rate (rounded upward, if necessary, to a whole
multiple of 1/100 of 1%) charged to Bank of America on such
day on such transactions as determined by the Administrative
Agent.
“
Fee
Letter ” shall mean that certain Fee Letter dated
December 21, 2007 by and among the Borrower, Banc of America
Bridge LLC, Banc of America Securities LLC, Goldman Sachs
Credit Partners L.P., Lehman Commercial Paper Inc., Lehman
Brothers Commercial Bank and Lehman Brothers Inc.
“
Fees
” shall have the meaning assigned to such term in
Section 2.12(a).
“
Financial
Officer ” of any Person shall mean the Chief
Financial Officer, principal accounting officer, Treasurer,
Assistant Treasurer or Controller of such Person.
“
First Priority
Lien Obligations ” shall mean (i) all Secured
Bank Indebtedness, (ii) all other Obligations (not
constituting Indebtedness) of the Borrower and its Restricted
Subsidiaries under the agreements governing Secured Bank
Indebtedness, (iii) Obligations and (iv) all other obligations
of the Borrower or any of its Restricted Subsidiaries in
respect of Hedging Obligations or Obligations in respect of
cash management services, in each case owing to a Person that
is a holder of Indebtedness described in clause (i) or
Obligations described in clause (ii) or an Affiliate of such
holder at the time of entry into such Hedging Obligations or
Obligations in respect of cash management
services.
“
Fixed Charge
Coverage Ratio ” shall mean, with respect to any
Person for any period, the ratio of EBITDA of such Person for
such period to the Fixed Charges of such Person for such
period. In the event that the Borrower or any of
its Restricted Subsidiaries Incurs, repays, repurchases or
redeems any Indebtedness (other than in the case of revolving
credit borrowings or revolving advances under any Qualified
Receivables Financing, in which case interest expense shall be
computed based upon the average daily balance of such
Indebtedness during the applicable period) or issues,
repurchases or redeems Disqualified Stock or Preferred Stock
subsequent to the commencement of the period for which the
Fixed Charge Coverage Ratio is being calculated but prior to
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, repayment,
repurchase or redemption of Indebtedness, or such issuance,
repurchase or redemption of Disqualified Stock or Preferred
Stock, as if the same had occurred at the beginning of the
applicable four-quarter period.
For
purposes of making the computation referred to above,
Investments, acquisitions, dispositions, mergers,
consolidations and discontinued operations (as determined in
accordance with GAAP), in each case with respect to an
operating unit of a business, and any operational changes that
the Borrower or any of its Restricted Subsidiaries has
determined to make and/or made after the Closing Date and
during the four-quarter reference period or subsequent to such
reference period and on or prior to or simultaneously with the
Calculation Date (each, for purposes of this definition, a
“pro forma event”) shall be calculated on a pro
forma basis assuming that all such Investments, acquisitions,
dispositions, mergers, consolidations (including the
Transactions) discontinued operations and operational changes
(and the change of any associated fixed charge obligations and
the change in EBITDA resulting therefrom) had occurred on the
first day of the four-quarter reference period. If
since the beginning of such period any Person that
subsequently became a Restricted Subsidiary or was merged with
or into the Borrower or any Restricted Subsidiary since the
beginning of such period shall have made any Investment,
acquisition, disposition, merger, consolidation, discontinued
operation or operational change, in each case with respect to
an operating unit of a business, that would have required
adjustment pursuant to this definition, then the Fixed Charge
Coverage Ratio shall be calculated giving pro forma effect
thereto for such period as if such Investment, acquisition,
disposition, discontinued operation, merger, consolidation or
operational change had occurred at the beginning of the
applicable four-quarter period.
For
purposes of this definition, whenever pro forma effect is to
be given to any pro forma event, the pro forma calculations
shall be made in good faith by a responsible financial or
accounting officer of the Borrower. Any such pro
forma calculation may include adjustments appropriate, in the
reasonable good faith determination of the Borrower as set
forth in an Officers’ Certificate, to reflect (1)
operating expense reductions and other operating improvements
or synergies reasonably expected to result from the applicable
pro forma event (including, to the extent applicable, from the
Transactions), and (2) all pro forma adjustments of the nature
used in similar calculations in the Second Priority Notes
Indenture (as in effect on the date hereof), including,
without limitation, as applied to the
Transactions.
If
any Indebtedness bears a floating rate of interest and is
being given pro forma effect, the interest on such
Indebtedness shall be calculated as if the rate in effect on
the Calculation Date had been the applicable rate for the
entire period (taking into account any Hedging Obligations
applicable to such Indebtedness if such Hedging Obligation has
a remaining term in excess of 12 months). Interest
on a Capitalized Lease Obligation shall be deemed to accrue at
an interest rate reasonably determined by a responsible
financial or accounting officer of the Borrower to be the rate
of interest implicit in such Capitalized Lease Obligation in
accordance with GAAP. For purposes of making the
computation referred to above, interest on any Indebtedness
under a revolving credit facility computed on a pro forma
basis shall be computed based upon the average daily balance
of such Indebtedness during the applicable
period. Interest on Indebtedness that may
optionally be determined at an interest rate based upon a
factor of a prime or similar rate, a eurocurrency interbank
offered rate, or other rate, shall be deemed to have been
based upon the rate actually chosen, or, if none, then based
upon such optional rate chosen as the Borrower may
designate.
“
Fixed
Charges ” shall mean, with respect to any Person
for any period, the sum, without duplication, of:
(1) Consolidated
Interest Expense of such Person for such period,
and
(2) all
cash dividend payments (excluding items eliminated in
consolidation) on any series of Preferred Stock or
Disqualified Stock of such Person and its Restricted
Subsidiaries.
“
Foreign Pledge
Agreement ” shall mean a pledge agreement with
respect to the Pledged Collateral that constitutes Equity
Interests of a “first tier” Foreign Subsidiary, in
form and substance reasonably satisfactory to the Collateral
Agent; provided
that in no event shall more than 65% of the issued and
outstanding Equity Interests of such Foreign Subsidiary be
pledged to secure Obligations of the Borrower.
“
Foreign
Subsidiary ” shall mean any Restricted Subsidiary
not organized or existing under the laws of the United States
of America or any state or territory thereof or the District
of Columbia and any direct or indirect subsidiary of such
Restricted Subsidiary.
“
Fund
Affiliates ” shall mean (i) each Affiliate of any
Funds, (ii) any individual who is a partner or employee of
Apollo Management, L.P., Apollo Management IV, L.P. or Apollo
Management V, L.P., Apollo Management VI, L.P., and (iii)
Graham BPC Investment Holdings, LP.
“
Fund
I ” shall mean Apollo Management V, L.P. and
other affiliated co-investment partnerships.
“
Fund
II ” shall mean Apollo Management VI, L.P. and
other affiliated co-investment partnerships and Graham
Partners Inc.
“
Funds
” shall mean Fund I and Fund II,
collectively.
“
GAAP
” shall mean generally accepted accounting principles in
effect from time to time in the United States, applied on a
consistent basis, subject to the provisions of
Section 1.02; provided
that any reference to the application of GAAP in Sections
3.13(b), 3.20, 5.03 and 5.07 to a Foreign Subsidiary (and not
as a consolidated Subsidiary of the Borrower) shall mean
generally accepted accounting principles in effect from time
to time in the jurisdiction of organization of such Foreign
Subsidiary.
“
Governmental
Authority ” shall mean any federal, state, local
or foreign court or governmental agency, authority,
instrumentality or regulatory or legislative
body.
“
guarantee
” shall mean 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, letters of credit and reimbursement
agreements in respect thereof), of all or any part of any
Indebtedness or other obligations.
“
Guarantee
” shall mean any guarantee of the obligations of the
Borrower under this Agreement by any Person, pursuant to the
Collateral Agreement.
“
Hazardous
Materials ” shall mean all pollutants,
contaminants, wastes, chemicals, materials, substances and
constituents, including, without limitation, explosive or
radioactive substances or petroleum or petroleum distillates,
asbestos or asbestos containing materials, polychlorinated
biphenyls or radon gas, of any nature subject to regulation or
which can give rise to liability under any Environmental
Law.
“
Hedging
Obligations ” shall mean, with respect to any
Person, the obligations of such Person under (i) currency
exchange, interest rate or commodity swap agreements, currency
exchange, interest rate or commodity cap agreements and
currency exchange, interest rate or commodity
collar
agreements,
and (ii) other agreements or arrangements designed to protect
such Person against fluctuations in currency exchange,
interest rates or commodity prices.
“
Holdings
” shall have the meaning assigned to it in the recitals
to this Agreement.
“
Immaterial
Subsidiary ” shall mean any Subsidiary that, as
of the last day of the fiscal quarter of the Borrower most
recently ended, (a) did not have assets with a value in excess
of 5.0% of the Total Assets or revenues representing in excess
of 5.0% of total revenues of the Borrower and the Subsidiaries
on a consolidated basis as of such date and (b) when taken
together with all other Immaterial Subsidiaries as of such
date, did not have assets with a value in excess of 10.0% of
the Total Assets or revenues representing in excess of 10.0%
of total revenues of the Borrower and the Subsidiaries on a
consolidated basis as of such date. Each Immaterial
Subsidiary as of the Closing Date shall be set forth in
Schedule 1.01(d).
“
Incur
” shall mean issue, assume, guarantee, incur or
otherwise become liable for; provided
, however ,
that any Indebtedness or Capital Stock of a Person existing at
the time such Person becomes a Subsidiary (whether by merger,
amalgamation, consolidation, acquisition or otherwise) shall
be deemed to be Incurred by such Person at the time it becomes
a Subsidiary.
“
Indebtedness
” shall mean, with respect to any Person:
(a) the
principal and premium (if any) of any indebtedness of such
Person, whether or not contingent, (i) in respect of borrowed
money, (ii) evidenced by bonds, notes, debentures or similar
instruments or letters of credit or bankers’ acceptances
(or, without duplication, reimbursement agreements in respect
thereof), (iii) representing the deferred and unpaid purchase
price of any property, except any such balance that
constitutes a trade payable or similar obligation to a trade
creditor due within six months from the date on which it is
Incurred, in each case Incurred in the ordinary course of
business, which purchase price is due more than six months
after the date of placing the property in service or taking
delivery and title thereto, (iv) in respect of Capitalized
Lease Obligations, or (v) representing any Hedging
Obligations, if and to the extent that any of the foregoing
indebtedness (other than letters of credit and Hedging
Obligations) would appear as a liability on a balance sheet
(excluding the footnotes thereto) of such Person prepared in
accordance with GAAP;
(b) to
the extent not otherwise included, any obligation of such
Person to be liable for, or to pay, as obligor, guarantor or
otherwise, on the Indebtedness of another Person (other than
by endorsement of negotiable instruments for collection in the
ordinary course of business);
(c) to
the extent not otherwise included, Indebtedness of another
Person secured by a Lien on any asset owned by such Person
(whether or not such Indebtedness is assumed by such Person);
provided
, however ,
that the amount of such Indebtedness will be the lesser of:
(i) the Fair Market Value of such asset at such date of
determination, and (ii) the amount of such Indebtedness of
such other Person; and
(d) to
the extent not otherwise included, with respect to the
Borrower and its Restricted Subsidiaries, the amount then
outstanding ( i.e .,
advanced, and received by, and available for use by, the
Borrower or any of its Restricted Subsidiaries) under any
Receivables Financing (as set forth in the books and records
of the Borrower or any Restricted Subsidiary and confirmed by
the agent, trustee or other representative of the institution
or group providing such Receivables Financing);
provided , however , that
notwithstanding the foregoing, Indebtedness shall be deemed not to
include (1) Contingent Obligations incurred in the ordinary course
of business and not in respect of borrowed money; (2) deferred or
prepaid revenues; (3) purchase price holdbacks in respect of a
portion of the purchase price of an asset to satisfy warranty or
other unperformed obligations of the respective seller; (4)
Obligations under or in respect of Qualified Receivables Financing
or (5) obligations under the Acquisition Documents.
Notwithstanding
anything in this Agreement to the contrary, Indebtedness shall
not include, and shall be calculated without giving effect to,
the effects of Statement of Financial Accounting Standards No.
133 and related interpretations to the extent such effects
would otherwise increase or decrease an amount of Indebtedness
for any purpose under this Agreement as a result of accounting
for any embedded derivatives created by the terms of such
Indebtedness; and any such amounts that would have constituted
Indebtedness under this Agreement but for the application of
this sentence shall not be deemed an Incurrence of
Indebtedness under this Agreement.
“
Indemnified
Taxes ” shall mean all Taxes other than Excluded
Taxes.
“
Indemnitee
” shall have the meaning assigned to such term in
Section 9.05(b).
“
Independent
Financial Advisor ” shall mean an accounting,
appraisal or investment banking firm or consultant, in each
case of nationally recognized standing, that is, in the good
faith determination of the Borrower, qualified to perform the
task for which it has been engaged.
“
Ineligible
Institution ” shall mean the Persons identified
in writing to the Administrative Agent by the Borrower on the
Closing Date, and as may be identified in writing to the
Administrative Agent by the Borrower from time to time
thereafter with the consent of the Administrative Agent (not
to be unreasonably withheld or delayed), by delivery of a
notice thereof to the Administrative Agent setting forth such
Person or Persons (or the Person or Persons previously
identified to the Administrative Agent that are to be no
longer considered “Ineligible
Institutions”).
“
Information
” shall have the meaning assigned to such term in
Section 3.14(a).
“
Intellectual
Property Rights ” shall have the meaning assigned
to such term in Section 3.23.
“
Intercreditor
Agreements ” shall mean the Senior Lender
Intercreditor Agreement, the Second Priority Intercreditor
Agreement and the Senior Fixed Lender Intercreditor
Agreement.
“
Interest
Election Request ” shall mean a request by the
Borrower to convert or continue a Borrowing in accordance with
Section 2.07.
“
Interest
Expense ” shall mean, with respect to any Person
for any period, the sum of (a) gross interest expense of such
Person for such period on a consolidated basis, including (i)
the amortization of debt discounts, (ii) the amortization of
all fees (including fees with respect to Swap Agreements)
payable in connection with the incurrence of Indebtedness to
the extent included in interest expense, (iii) the portion of
any payments or accruals with respect to Capitalized Lease
Obligations allocable to interest expense, and (iv) net
payments and receipts (if any) pursuant to interest rate
Hedging Obligations, (b) capitalized interest of such Person,
and (c) commissions, discounts, yield and other fees and
charges incurred in connection with any Qualified Receivables
Financing which are payable to any Person other
than
the Borrower or a Subsidiary Loan Party. For
purposes of the foregoing, gross interest expense shall be
determined after giving effect to any net payments made or
received and costs incurred by the Borrower and the
Subsidiaries with respect to Swap Agreements.
“
Interest Payment
Date ” shall mean, (a) with respect to any
Eurocurrency Loan, the last day of each Interest Period
applicable to the Borrowing of which such Loan is a part and,
in addition, the date of any refinancing or conversion of such
Borrowing with or to a Borrowing of a different Type, and (b)
with respect to any ABR Loan, the last Business Day of each
calendar quarter and, in addition, the date of any conversion
of such Borrowing with or to a Borrowing of a different Type
in accordance with Article II.
“
Interest
Period ” shall mean, as to any Eurocurrency
Borrowing, the period commencing on the date of such Borrowing
or on the last day of the immediately preceding Interest
Period applicable to such Borrowing, as applicable, and ending
on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) in the
calendar month that is 1, 2 or 3 months thereafter, or the
date any Eurocurrency Borrowing is converted to an ABR
Borrowing in accordance with Section 2.07, 2.14 or 2.20
or repaid or prepaid in accordance with Section 2.10 or
2.11; provided
, however ,
that if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the next preceding
Business Day. Interest shall accrue from and
including the first day of an Interest Period to but excluding
the last day of such Interest Period.
“
Investment
Bank ” shall mean one or more investment banks
engaged to publicly sell or privately place the Permanent
Financing reasonably acceptable to the Joint Lead
Arrangers.
“
Investment Grade
Rating ” shall mean a rating equal to or higher
than Baa3 (or the equivalent) by Moody’s and BBB- (or
the equivalent) by S&P, or an equivalent rating by any
other Rating Agency.
“
Investment Grade
Securities ” shall mean:
(a) securities
issued or directly and fully guaranteed or insured by the U.S.
government or any agency or instrumentality thereof (other
than Cash Equivalents),
(b) securities
that have a rating equal to or higher than Baa3 (or
equivalent) by Moody’s or BBB- (or equivalent) by
S&P, or an equivalent rating by any other Rating Agency,
but excluding any debt securities or loans or advances between
and among the Borrower and its Subsidiaries;
(c) investments
in any fund that invests exclusively in investments of the
type described in clauses (a) and (b) which fund may also hold
immaterial amounts of cash pending investment and/or
distribution, and
(d) corresponding
instruments in countries other than the United States
customarily utilized for high quality investments and in each
case with maturities not exceeding two years from the date of
acquisition.
“
Investments
” shall mean, with respect to any Person, all
investments by such Person in other Persons (including
Affiliates) in the form of loans (including guarantees),
advances or capital contributions (excluding accounts
receivable, trade credit and advances to customers and
commission, travel
and
similar advances to officers, employees and consultants made
in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity
Interests or other securities issued by any other Person and
investments that are required by GAAP to be classified on the
balance sheet of the Borrower in the same manner as the other
investments included in this definition to the extent such
transactions involve the transfer of cash or other
property. For purposes of the definition of
“Unrestricted Subsidiary” and Section
6.04:
(a) “Investments”
shall include the portion (proportionate to the
Borrower’s equity interest in such Subsidiary) of the
Fair Market Value of the net assets of a Subsidiary of the
Borrower at the time that such Subsidiary is designated an
Unrestricted Subsidiary; provided
, however ,
that upon a redesignation of such Subsidiary as a Restricted
Subsidiary, the Borrower shall be deemed to continue to have a
permanent “Investment” in an Unrestricted
Subsidiary equal to an amount (if positive) equal
to:
(i)
the
Borrower’s “Investment” in such Subsidiary
at the time of such redesignation less
(ii)
the
portion (proportionate to the Borrower’s equity interest
in such Subsidiary) of the Fair Market Value of the net assets
of such Subsidiary at the time of such redesignation;
and
(b) any
property transferred to or from an Unrestricted Subsidiary
shall be valued at its Fair Market Value at the time of such
transfer, in each case as determined in good faith by the
Board of Directors of the Borrower.
“
Joint Lead
Arrangers ” shall mean Banc of America Securities
LLC and Goldman Sachs Credit Partners L.P., in their
capacities as joint lead arrangers.
“
Lender
” shall mean each financial institution listed on
Schedule 2.01
, as well as any Person that becomes a “Lender”
hereunder pursuant to Section 9.04.
“
Lender
Default ” shall mean (i) the refusal (which has
not been retracted) of a Lender to make available its portion
of any Borrowing, or (ii) a Lender having notified the
Borrower and/or the Administrative Agent that it does not
intend to comply with its obligations under
Section 2.06.
“
Lending
Office ” shall mean, as to any Lender, the
applicable branch, office or Affiliate of such Lender
designated by such Lender to make Loans.
“
Letter of
Credit ” shall mean any letter of credit issued
pursuant to the Revolving Credit Agreement.
“
LIBOR
Rate ” shall mean, with respect to any
Eurocurrency Borrowing for any 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 Dollar
deposits (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period;
provided
, that if such rate is not available at such time for any
reason, then the “LIBO 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 for delivery on the first day of such Interest Period
in same day funds in the approximate amount of the
Eurocurrency Loan being made, continued or converted by Bank
of America and with a term equivalent
to
such Interest Period would be offered by Bank of
America’s London Branch 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 commencement of such Interest Period.
“
Lien
” shall mean, 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);
provided
that in no event shall an operating lease be deemed to
constitute a Lien.
“
Loan
Documents ” shall mean this Agreement, the
Security Documents, the Senior Lender Intercreditor Agreement,
the Second Priority Intercreditor Agreement, the Senior Fixed
Lender Intercreditor Agreement and any Note issued under
Section 2.09(e), each other agreement or instrument
delivered pursuant to Section 5.10 hereof and, solely for the
purposes of Article IV and Section 7.01 hereof, the Fee
Letter.
“
Loan
Parties ” shall mean the Borrower and the
Subsidiary Loan Parties.
“
Loans
” shall mean the Bridge Loans and the Rollover
Loans.
“
Local
Time ” shall mean New York City
time.
“
Management
Group ” shall mean the group consisting of the
directors, executive officers and other management personnel
of the Borrower or any direct or indirect parent of the
Borrower, as the case may be, on the Closing Date together
with (1) any new directors whose election by such boards of
directors or whose nomination for election by the shareholders
of the Borrower or any direct or indirect parent of the
Borrower, as applicable, was approved by a vote of a majority
of the directors of the Borrower or any direct or indirect
parent of the Borrower, as applicable, then still in office
who were either directors on the Closing Date or whose
election or nomination was previously so approved and (2)
executive officers and other management personnel of the
Borrower or any direct or indirect parent of the Borrower, as
applicable, hired at a time when the directors on the Closing
Date together with the directors so approved constituted a
majority of the directors of the Borrower or any direct or
indirect parent of the Borrower, as applicable.
“
Margin
Stock ” shall have the meaning assigned to such
term in Regulation U.
“
Material Adverse
Effect ” shall mean a material adverse effect on
the business, property, operations or condition of the
Borrower and its Subsidiaries, taken as a whole, or the
validity or enforceability of any of the material Loan
Documents or the rights and remedies of the Administrative
Agent and the Lenders thereunder.
“
Material
Indebtedness ” shall mean Indebtedness (other
than Loans) of any one or more of the Borrower or any
Subsidiary in an aggregate principal amount exceeding $35
million.
“
Material
Subsidiary ” shall mean any Subsidiary other than
an Immaterial Subsidiary.
“
Maximum
Rate ” shall have the meaning assigned to such
term in Section 9.09.
“
Moody’s
” shall mean Moody’s Investors Service, Inc. or
any successor to the rating agency business
thereof.
“
Mortgaged
Properties ” shall mean the Real Properties owned
in fee by the Loan Parties required to be encumbered by a
Mortgage pursuant to Section 5.01 of the Collateral Agreement
and each additional Real Property encumbered by a Mortgage
pursuant to Section 5.10.
“
Mortgages
” shall mean the mortgages, trust deeds, deeds of trust,
deeds to secure debt, assignments of leases and rents, and
other security documents delivered with respect to Mortgaged
Properties, each in form and substance reasonably satisfactory
to the Administrative Agent and the Borrower, as amended,
supplemented or otherwise modified from time to
time. For the avoidance of doubt, Mortgages may
include mortgages delivered under the Term Loan Credit
Agreement to the extent amended to be in a form otherwise
satisfactory to the Administrative Agent.
“
Multiemployer
Plan ” shall mean a multiemployer plan as defined
in Section 4001(a)(3) of ERISA to which the Borrower or
any Subsidiary or any ERISA Affiliate (other than one
considered an ERISA Affiliate only pursuant to
subsection (m) or (o) of Code Section 414) is making
or accruing an obligation to make contributions, or has within
any of the preceding six plan years made or accrued an
obligation to make contributions.
“
Net
Income ” shall mean, with respect to any Person,
the net income (loss) of such Person, determined in accordance
with GAAP and before any reduction in respect of Preferred
Stock dividends.
“
Net
Proceeds ” shall mean:
(a) 100%
of the cash proceeds actually received by the Borrower or any
Subsidiary Loan Party (including any cash payments received by
way of deferred payment of principal pursuant to a note or
installment receivable or purchase price adjustment receivable
or otherwise and including casualty insurance settlements and
condemnation awards, but only as and when received) from any
Asset Sale (other than, for the avoidance of doubt, any Asset
Sale pursuant to Section 6.05(a), (b), (c) and (d) of the Term
Loan Credit Agreement as in effect on the date hereof, except
as contemplated by Section 6.03(b)(ii), (e), (f), (h), (i) or
(j) of the Term Loan Credit Agreement as in effect on the date
hereof), net of (i) attorneys’ fees, accountants’
fees, investment banking fees, survey costs, title insurance
premiums, and related search and recording charges, transfer
taxes, deed or mortgage recording taxes, required debt
payments and required payments of other obligations relating
to the applicable asset to the extent such debt or obligations
are secured by a Lien permitted hereunder (other than pursuant
to the Loan Documents or the Revolving Loan Documents) on such
asset, other customary expenses and brokerage, consultant and
other customary fees actually incurred in connection
therewith, (ii) Taxes paid or payable as a result thereof, and
(iii) the amount of any reasonable reserve established in
accordance with GAAP against any adjustment to the sale price
or any liabilities (other than any taxes deducted pursuant to
clause (i) above) (x) related to any of the applicable assets
and (y) retained by the Borrower or any of the Subsidiaries
including, without limitation, pension and other
post-employment benefit liabilities and liabilities related to
environmental matters or against any indemnification
obligations (however, the amount of any subsequent reduction
of such reserve (other than in connection with a payment in
respect of any such liability) shall be deemed to be Net
Proceeds of such Asset Sale occurring on the date of such
reduction); provided
that, if no Event of Default exists and the Borrower shall
deliver a certificate of a Responsible Officer of the Borrower
to the Administrative Agent promptly following receipt of any
such proceeds setting forth the Borrower’s intention to
use any portion of such proceeds, to acquire, maintain,
develop,
construct,
improve, upgrade or repair assets useful in the business of
the Borrower and the Subsidiaries or to make Investments in
Permitted Business Acquisitions (as defined in the Term Loan
Credit Agreement as in effect on the date hereof) , in each
case within 15 months of such receipt, such portion of such
proceeds shall not constitute Net Proceeds except to the
extent not, within 15 months of such receipt, so used or
contractually committed to be so used (it being understood
that if any portion of such proceeds are not so used within
such 15-month period but within such 15-month period are
contractually committed to be used, then, upon the termination
of such contract, such remaining portion shall constitute Net
Proceeds as of the date of such termination or expiry without
giving effect to this proviso); provided
, further ,
that (A) no proceeds realized in a single transaction or
series of related transactions shall constitute Net Proceeds
unless such proceeds shall exceed $5.0 million, (B) no
proceeds shall constitute Net Proceeds in any fiscal year
until the aggregate amount of all such proceeds in such fiscal
year shall exceed $10.0 million,
(C) at any time during the 15-month period contemplated by the
immediately preceding proviso above, if, on a Pro Forma Basis
(as defined in the Term Loan Credit Agreement as in effect on
the date hereof) after giving effect to the Asset Sale and the
application of the proceeds thereof, the Total Net First Lien
Leverage Ratio (as defined in the Term Loan Credit Agreement
as in effect on the date hereof) is less than or equal to 2.00
to 1.00, up to $75 million of such proceeds shall not
constitute Net Proceeds, (D) proceeds from any Asset Sale
shall not constitute Net Proceeds to the extent that the Term
Loan Credit Agreement requires that such proceeds be applied
in payment of any obligations thereunder (and such requirement
is not waived by the Lenders thereunder), and (E) proceeds
from the sale or other disposition of any ABL Assets
(including any indirect sale or other disposition occurring by
reason of the indirect sale or other disposition of the Person
that holds such ABL Assets) shall not constitute Net Proceeds
to the extent that the Revolving Credit Agreement requires
that such proceeds be applied in payment of any obligations
thereunder (and such requirement is not waived by the Lenders
thereunder);
(b) 100%
of the cash proceeds from the incurrence, issuance or sale by
the Borrower or any Subsidiary Loan Party of any Indebtedness
(other than Excluded Indebtedness), net of all taxes and fees
(including investment banking fees), commissions, costs and
other expenses, in each case incurred in connection with such
issuance or sale; and
(c) 100%
of the cash proceeds from the incurrence, issuance or sale by
the Borrower of any Equity Issuance, net of all taxes and fees
(including investment banking fees), commissions, costs and
other expenses, in each case incurred in connection with such
issuance or sale.
For
purposes of calculating the amount of Net Proceeds, fees,
commissions and other costs and expenses payable to the
Borrower or any Affiliate of the Borrower shall be
disregarded, except for financial advisory fees customary in
type and amount paid to Affiliates of the Funds and otherwise
not prohibited from being paid hereunder.
“
New
York Courts ” shall have the meaning assigned to
such term in Section 9.15.
“
Non-Consenting
Lender ” shall have the meaning assigned to such
term in Section 2.19(c).
“
Notes
” shall mean, collectively, Bridge Notes and Rollover
Notes.
“
Obligations
” shall mean all amounts owing to the Administrative
Agent or any Lender pursuant to the terms of this Agreement or
any other Loan Document.
“
Offering
Document ” shall have the meaning assigned to
such term in Section 5.12(d).
“
Officer
” shall mean the Chairman of the Board of Directors,
Chief Executive Officer, Chief Financial Officer, President,
any Executive Vice President, Senior Vice President or Vice
President, the Treasurer or the Secretary of the
Borrower.
“
Officers’
Certificate ” shall mean a certificate signed on
behalf of the Borrower by two Officers of the Borrower, one of
whom must be the principal executive officer, the principal
financial officer, the treasurer or the principal accounting
officer of the Borrower that meets the requirements set forth
in this Agreement.
“
OID
” shall have the meaning assigned to such term in
Section 5.12(b).
“
Opinion of
Counsel ” shall mean a written opinion from legal
counsel who is acceptable to the Administrative
Agent. The counsel may be an employee of or counsel
to the Borrower or the Administrative Agent.
“
Other
Taxes ” shall mean any and all present or future
stamp or documentary taxes or any other excise, transfer,
sales, property, intangible, mortgage recording, or similar
taxes, charges or levies arising from any payment made
hereunder or from the execution, delivery or enforcement of,
or otherwise with respect to, the Loan Documents, and any and
all interest and penalties related thereto (but not Excluded
Taxes).
“
Parent
Entity ” shall mean any direct or indirect parent
of Holdings.
“
Participant
” shall have the meaning assigned to such term in
Section 9.04(c).
“
PBGC
” shall mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA.
“
Perfection
Certificate ” shall mean the Perfection
Certificate with respect to the Borrower and the other Loan
Parties in a form reasonably satisfactory to the
Administrative Agent.
“
Permanent
Financing ” shall mean first priority senior
secured debt of the Borrower issued pursuant to Section 5.12
hereof and guaranteed by the Subsidiary Loan Parties, which
may take the form of loans or debt securities or a combination
thereof, that will provide proceeds in an amount sufficient to
repay all or any portion then outstanding of the principal and
other amounts under the Bridge Loans; provided, that there
shall be no more than two series (plus any exchange
securities) of any such Permanent Financing.
“
Permanent
Financing Offering ” shall have the meaning
assigned to such term in Section 5.12(a).
“
Permitted
Holders ” shall mean, at any time, each of (i)
the Funds and the Fund Affiliates and (ii) the Management
Group. Any Person or group whose acquisition of
beneficial ownership constitutes a Change of Control in
respect of which a Change of Control Offer is made in
accordance with the requirements of this Agreement will
thereafter, together with its Affiliates, constitute an
additional Permitted Holder.
“
Permitted
Investments ” shall mean:
(a) any
Investment in the Borrower or any Restricted
Subsidiary;
(b) any
Investment in Cash Equivalents or Investment Grade
Securities;
(c) any
Investment by the Borrower or any Restricted Subsidiary of the
Borrower in a Person if as a result of such Investment (i)
such Person becomes a Restricted Subsidiary of the Borrower,
or (ii) such Person, in one transaction or a series of related
transactions, is merged, consolidated or amalgamated with or
into, or transfers or conveys all or substantially all of its
assets to, or is liquidated into, the Borrower or a Restricted
Subsidiary of the Borrower;
(d) any
Investment in securities or other assets not constituting Cash
Equivalents and received in connection with an Asset Sale made
pursuant to the provisions of Section 6.03 or any other
disposition of assets not constituting an Asset
Sale;
(e) any
Investment existing on, or made pursuant to binding
commitments existing on, the Closing Date;
(f) advances
to employees, taken together with all other advances made
pursuant to this clause (f), not to exceed $15.0 million at
any one time outstanding;
(g) any
Investment acquired by the Borrower or any of its Restricted
Subsidiaries (i) in exchange for any other Investment or
accounts receivable held by the Borrower or any such
Restricted Subsidiary in connection with or as a result of a
bankruptcy, workout, reorganization or recapitalization of the
issuer of such other Investment or accounts receivable, or
(ii) as a result of a foreclosure by the Borrower or any of
its Restricted Subsidiaries with respect to any secured
Investment or other transfer of title with respect to any
secured Investment in default;
(h) Hedging
Obligations permitted under Section 6.01(b)(x);
(i) any
Investment by the Borrower or any of its Restricted
Subsidiaries in a Similar Business having an aggregate Fair
Market Value, taken together with all other Investments made
pursuant to this clause (i) that are at that time outstanding,
not to exceed the greater of (x) $100.0 million and (y) 4.5%
of Total Assets at the time of such Investment (with the Fair
Market Value of each Investment being measured at the time
made and without giving effect to subsequent changes in
value); provided
, however ,
that if any Investment pursuant to this clause (i) is made in
any Person that is not a Restricted Subsidiary of the Borrower
at the date of the making of such Investment and such Person
becomes a Restricted Subsidiary of the Borrower after such
date, such Investment shall thereafter be deemed to have been
made pursuant to clause (a) above and shall cease to have been
made pursuant to this clause (i) for so long as such Person
continues to be a Restricted Subsidiary;
(j) additional
Investments by the Borrower or any of its Restricted
Subsidiaries having an aggregate Fair Market Value, taken
together with all other Investments made pursuant to this
clause (j) that are at that time outstanding, not to exceed
the greater of (x) $100.0 million and (y) 4.5% of Total Assets
at the time of such Investment (with the Fair Market Value of
each Investment being measured at the time made and without
giving effect to subsequent changes in value);
(k) loans
and advances to officers, directors and employees for
business-related travel expenses, moving expenses and other
similar expenses, in each case Incurred in the ordinary course
of business;
(l) Investments
the payment for which consists of Equity Interests of the
Borrower (other than Disqualified Stock) or any direct or
indirect parent of the Borrower, as applicable; provided
, however ,
that such Equity Interests will not increase the amount
available for Restricted Payments under clause (C) of the
definition of “Cumulative Credit”;
(m) any
transaction to the extent it constitutes an Investment that is
permitted by and made in accordance with the provisions of
Section 6.07(b) (except transactions described in clauses
(ii), (vi), (vii) and (xi)(B) of such Section);
(n) Investments
consisting of the licensing or contribution of intellectual
property pursuant to joint marketing arrangements with other
Persons;
(o) guarantees
issued in accordance with Section 6.01;
(p) Investments
consisting of or to finance purchases and acquisitions of
inventory, supplies, materials, services or equipment or
purchases of contract rights or licenses or leases of
intellectual property, in each case in the ordinary course of
business;
(q) any
Investment in a Receivables Subsidiary or any Investment by a
Receivables Subsidiary in any other Person in connection with
a Qualified Receivables Financing, including Investments of
funds held in accounts permitted or required by the
arrangements governing such Qualified Receivables Financing or
any related Indebtedness; provided
, however ,
that any Investment in a Receivables Subsidiary is in the form
of a Purchase Money Note, contribution of additional
receivables or an equity interest;
(r) additional
Investments in joint ventures of the Borrower or any of its
Restricted Subsidiaries existing on the Closing Date not to
exceed at any one time in the aggregate outstanding, $15.0
million; and
(s) Investments
of a Restricted Subsidiary of the Borrower acquired after the
Closing Date or of an entity merged into, amalgamated with, or
consolidated with the Borrower or a Restricted Subsidiary of
the Borrower in a transaction that is not prohibited by
Section 6.05 after the Closing Date to the extent that such
Investments were not made in contemplation of such
acquisition, merger, amalgamation or consolidation and were in
existence on the date of such acquisition, merger,
amalgamation or consolidation.
“
Permitted
Liens ” shall mean, with respect to any
Person:
(a) pledges
or deposits by such Person under workmen’s compensation
laws, unemployment insurance laws or similar legislation, or
good faith deposits in connection with bids, tenders,
contracts (other than for the payment of Indebtedness) or
leases to which such Person is a party, or deposits to secure
public or statutory obligations of such Person or deposits of
cash or U.S. government bonds to secure surety or appeal bonds
to which such Person is a party, or deposits as security for
contested taxes or import duties or for the payment of rent,
in each case Incurred in the ordinary course of
business;
(b) Liens
imposed by law, such as carriers’, warehousemen’s
and mechanics’ Liens, in each case for sums not yet due
or being contested in good faith by appropriate proceedings or
other Liens arising out of judgments or awards against such
Person with respect to which such Person shall then be
proceeding with an appeal or other proceedings for
review;
(c) Liens
for taxes, assessments or other governmental charges not yet
due or payable or subject to penalties for nonpayment or which
are being contested in good faith by appropriate
proceedings;
(d) Liens
in favor of issuers of performance and surety bonds or bid
bonds or with respect to other regulatory requirements or
letters of credit issued pursuant to the request of and for
the account of such Person in the ordinary course of its
business;
(e) minor
survey exceptions, minor encumbrances, easements or
reservations of, or rights of others for, licenses,
rights-of-way, sewers, electric lines, telegraph and telephone
lines and other similar purposes, or zoning or other
restrictions as to the use of real properties or Liens
incidental to the conduct of the business of such Person or to
the ownership of its properties which were not Incurred in
connection with Indebtedness and which do not in the aggregate
materially adversely affect the value of said properties or
materially impair their use in the operation of the business
of such Person;
(f) (A)
Liens on assets of a Restricted Subsidiary that is not a Loan
Party securing Indebtedness of such Restricted Subsidiary,
permitted to be Incurred pursuant to Section 6.01, (B) Liens
securing an aggregate principal amount of First Priority Lien
Obligations not to exceed the greater of (x) the aggregate
amount of Indebtedness permitted to be incurred pursuant to
clause (i) of Section 6.01(b) and (y) the maximum principal
amount of Indebtedness that, as of the date such Indebtedness
was Incurred, and after giving effect to the Incurrence of
such Indebtedness and the application of proceeds therefrom on
such date, would not cause the Secured Indebtedness Leverage
Ratio of the Borrower to exceed 4.00 to 1.00, and (C) Liens
securing Indebtedness permitted to be Incurred pursuant to
clause (iv), (xii) or (xx) of Section 6.01(b) ( provided
that in the case of clause (xx), such Lien does not extend to
the property or assets of any Subsidiary of the Borrower other
than a Foreign Subsidiary);
(g) Liens
existing on the Closing Date (including after giving effect to
the Transactions);
(h) Liens
on assets, property or shares of stock of a Person at the time
such Person becomes a Subsidiary; provided
, however ,
that such Liens are not created or Incurred in connection
with, or in contemplation of, such other Person becoming such
a Subsidiary; provided
, further ,
however ,
that such Liens may not extend to any other property owned by
the Borrower or any Restricted Subsidiary of the
Borrower);
(i) Liens
on assets or property at the time the Borrower or a Restricted
Subsidiary of the Borrower acquired the assets or property,
including any acquisition by means of a merger, amalgamation
or consolidation with or into the Borrower or any Restricted
Subsidiary of the Borrower; provided
, however ,
that such Liens are not created or Incurred in connection
with, or in contemplation of, such acquisition; provided
, further ,
however ,
that the Liens may not extend to any other property owned by
the Borrower or any Restricted Subsidiary of the
Borrower;
(j) Liens
securing Indebtedness or other obligations of a Restricted
Subsidiary owing to the Borrower or another Restricted
Subsidiary of the Borrower permitted to be Incurred in
accordance with Section 6.01;
(k) Liens
securing Hedging Obligations not incurred in violation of this
Agreement; provided
that with respect to Hedging Obligations relating to
Indebtedness, such Lien extends only to the property securing
such Indebtedness;
(l) Liens
on specific items of inventory or other goods and proceeds of
any Person securing such Person’s obligations in respect
of bankers’ acceptances issued or created for the
account of such Person to facilitate the purchase, shipment or
storage of such inventory or other goods;
(m) leases
and subleases of real property which do not materially
interfere with the ordinary conduct of the business of the
Borrower or any of its Restricted Subsidiaries;
(n) Liens
arising from Uniform Commercial Code financing statement
filings regarding operating leases entered into by the
Borrower and its Restricted Subsidiaries in the ordinary
course of business;
(o) Liens
in favor of the Borrower or any Subsidiary Loan
Party;
(p) Liens
on accounts receivable and related assets of the type
specified in the definition of “Receivables
Financing” Incurred in connection with a Qualified
Receivables Financing;
(q) deposits
made in the ordinary course of business to secure liability to
insurance carriers;
(x) Liens
on the Equity Interests of Unrestricted
Subsidiaries;
(y) grants
of software and other technology licenses in the ordinary
course of business;
(z) Liens
to secure any refinancing, refunding, extension, renewal or
replacement (or successive refinancings, refundings,
extensions, renewals or replacements) as a whole, or in part,
of any Indebtedness secured by any Lien referred to in the
foregoing clauses (f)(B), (g), (h), (i), (j), (k) and (o);
provided
, however ,
that (x) such new Lien shall be limited to all or part of the
same property that secured the original Lien (plus
improvements on such property), and (y) the Indebtedness
secured by such Lien at such time is not increased to any
amount greater than the sum of (A) the outstanding principal
amount or, if greater, committed amount of the Indebtedness
described under clauses (f)(B), (g), (h), (i), (j), (k) and
(o) at the time the original Lien became a Permitted Lien
under this Agreement, and (B) an amount necessary to pay any
fees and expenses, including premiums, related to such
refinancing, refunding, extension, renewal or replacement;
provided
further ,
however ,
that in the case of any Liens to secure any refinancing,
refunding, extension or renewal of Indebtedness secured by a
Lien referred to in clause (f)(B), the principal amount of any
Indebtedness Incurred for such refinancing, refunding,
extension or renewal shall be deemed secured by a Lien under
clause (f)(B) and not this clause (z) for purposes of
determining the principal amount of Indebtedness outstanding
under clause (f)(B), for purposes of the definition of Secured
Bank Indebtedness;
(aa) Liens
on equipment of the Borrower or any Restricted Subsidiary
granted in the ordinary course of business to the
Borrower’s or such Restricted Subsidiary’s client
at which such equipment is located;
(bb) judgment
and attachment Liens not giving rise to an Event of Default
and notices of lis pendens and associated rights related to
litigation being contested in good faith by appropriate
proceedings and for which adequate reserves have been
made;
(cc) Liens
arising out of conditional sale, title retention, consignment
or similar arrangements for the sale of goods entered into in
the ordinary course of business;
(dd) Liens
incurred to secure cash management services in the ordinary
course of business;
(ee) other
Liens securing obligations incurred in the ordinary course of
business which obligations do not exceed $20.0 million at any
one time outstanding;
(ff) Liens
securing Indebtedness or other obligations permitted to be
Incurred in accordance with Section 6.01(b)(ii);
and
(gg) Liens
on the Collateral in favor of any collateral agent relating to
such collateral agent’s administrative expenses with
respect to the Collateral.
“
Person
” shall mean any individual, corporation, partnership,
limited liability company, joint venture, association,
joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or
any other entity.
“
Plan
” shall mean any employee pension benefit plan, as such
term is defined in Section 3(2) of ERISA, (other than a
Multiemployer Plan), (i) subject to the provisions of Title IV
of ERISA, (ii) sponsored or maintained (at the time of
determination or at any time within the five years prior
thereto) by the Borrower or any ERISA Affiliate, or (iii) in
respect of which the Borrower, any Subsidiary or any ERISA
Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an
“employer” as defined in Section 3(5) of
ERISA.
“
Platform
” shall have the meaning assigned to such term in
Section 9.17.
“
Pledged
Collateral ” shall have the meaning assigned to
such term in the Collateral Agreement.
“
Possessory
Collateral Agent ” shall have the meaning
assigned to such term in the Senior Lender Collateral
Agreement.
“
Preferred
Stock ” shall mean any Equity Interest with
preferential right of payment of dividends or upon
liquidation, dissolution, or winding up.
“
Pro
Forma Adjusted EBITDA ” shall have the meaning
assigned to such term in Section 3.05(a).
“
Pro
Forma Financial Statements ” shall have the
meaning assigned to such term in
Section 3.05(a).
“
Projections
” shall mean the projections of the Borrower and the
Subsidiaries and any other projections and any forward-looking
statements (including statements with respect to booked
business) of such entities furnished to the Lenders or the
Administrative Agent by or on behalf of the Borrower or any of
the Subsidiaries prior to the Closing Date.
“
Public
Lender ” shall have the meaning assigned to such
term in Section 9.17.
“
Purchase Money
Note ” shall mean a promissory note of a
Receivables Subsidiary evidencing a line of credit, which may
be irrevocable, from the Borrower or any Subsidiary of the
Borrower to a Receivables Subsidiary in connection with a
Qualified Receivables Financing, which note is intended to
finance that portion of the purchase price that is not paid by
cash or a contribution of equity.
“
Qualified CFC
Holding Company ” shall mean a Wholly Owned
Subsidiary of the Borrower that is a limited liability
company, the primary asset of which consists of Equity
Interests in either (i) a Foreign Subsidiary or
(ii) a limited liability company the primary asset of
which consists of Equity Interests in a Foreign
Subsidiary.
“
Qualified
Receivables Financing ” shall mean any
Receivables Financing of a Receivables Subsidiary that meets
the following conditions:
(a) the
Board of Directors of the Borrower shall have determined in
good faith that such Qualified Receivables Financing
(including financing terms, covenants, termination events and
other provisions) is in the aggregate economically fair and
reasonable to the Borrower and the Receivables
Subsidiary;
(b) all
sales of accounts receivable and related assets to the
Receivables Subsidiary are made at Fair Market Value (as
determined in good faith by the Borrower); and
(c) the
financing terms, covenants, termination events and other
provisions thereof shall be market terms (as determined in
good faith by the Borrower) and may include Standard
Securitization Undertakings.
The
grant of a security interest in any accounts receivable of the
Borrower or any of its Restricted Subsidiaries (other than a
Receivables Subsidiary) to secure Bank Indebtedness,
Indebtedness in respect of the Loans or any Refinancing
Indebtedness with respect to the Loans shall not be deemed a
Qualified Receivables Financing.
“
Rate
Cap ” shall mean, with respect to Eurocurrency
Loans, the Adjusted LIBO Rate in effect from time to time plus
5.25% per annum, and with respect to Base Rate Loans, ABR as
in effect from time to time plus 4.25% per annum.
“
Rating
Agency ” shall mean (1) each of Moody’s and
S&P and (2) if Moody’s or S&P ceases to rate the
Loans for reasons outside of the Borrower’s control, a
“nationally recognized statistical rating
organization” within the meaning of Rule
15cs-1(c)(2)(vi)(F) under the Exchange Act selected by the
Borrower or any direct or indirect parent of the Borrower as a
replacement agency for Moody’s or S&P, as the case
may be.
“
Real
Property ” shall mean, collectively, all right,
title and interest (including any leasehold estate) in and to
any and all parcels of or interests in real property owned in
fee or leased by any Loan Party, together with, in each case,
all easements, hereditaments and appurtenances relating
thereto, all improvements and appurtenant fixtures incidental
to the ownership or lease thereof.
“
Receivables
Fees ” shall mean distributions or payments made
directly or by means of discounts with respect to any
participation interests issued or sold in connection with, and
all other fees paid to a Person that is not a Restricted
Subsidiary in connection with, any Receivables
Financing.
“
Receivables
Financing ” shall mean any transaction or series
of transactions that may be entered into by the Borrower or
any of its Subsidiaries pursuant to which the Borrower or any
of its Subsidiaries may sell, convey or otherwise transfer to
(a) a Receivables Subsidiary (in the case of a transfer by the
Borrower or any of its Subsidiaries); and (b) any other Person
(in the case of a transfer by a Receivables Subsidiary), or
may grant a security interest in, any accounts receivable
(whether now existing or arising in the future) of the
Borrower or any of its Subsidiaries, and any assets related
thereto including, without limitation, all collateral securing
such accounts receivable, all contracts and all guarantees or
other obligations in respect of such accounts receivable,
proceeds of such accounts receivable and other assets which
are customarily transferred or in respect of which security
interests are customarily granted in connection with asset
securitization transactions involving accounts receivable and
any Hedging Obligations entered into by the Borrower or any
such Subsidiary in connection with such accounts
receivable.
“
Receivables
Repurchase Obligation ” shall mean any obligation
of a seller of receivables in a Qualified Receivables
Financing to repurchase receivables arising as a result of a
breach of a representation, warranty or covenant or otherwise,
including as a result of a receivable or portion thereof
becoming subject to any asserted defense, dispute, off-set or
counterclaim of any kind as a result of any action taken by,
any failure to take action by or any other event relating to
the seller.
“
Receivables
Subsidiary ” shall mean a Wholly Owned Restricted
Subsidiary of the Borrower (or another Person formed for the
purposes of engaging in Qualified Receivables Financing with
the Borrower in which the Borrower or any Subsidiary of the
Borrower makes an Investment and to which the Borrower or any
Subsidiary of the Borrower transfers accounts receivable and
related assets) which engages in no activities other than in
connection with the financing of accounts receivable of the
Borrower and its Subsidiaries, all proceeds thereof and all
rights (contractual or other), collateral and other assets
relating thereto, and any business or activities incidental or
related to such business, and which is designated by the Board
of Directors of the Borrower (as provided below) as a
Receivables Subsidiary and:
(a) no
portion of the Indebtedness or any other obligations
(contingent or otherwise) of which (i) is guaranteed by the
Borrower or any other Subsidiary of the Borrower (excluding
guarantees of obligations (other than the principal of and
interest on, Indebtedness) pursuant to Standard Securitization
Undertakings), (ii) is recourse to or obligates the Borrower
or any other Subsidiary of the Borrower in any way other than
pursuant to Standard Securitization Undertakings, or (iii)
subjects any property or asset of the Borrower or any other
Subsidiary of the Borrower, directly or indirectly,
contingently or otherwise, to the satisfaction thereof, other
than pursuant to Standard Securitization
Undertakings;
(b) with
which neither the Borrower nor any other Subsidiary of the
Borrower has any material contract, agreement, arrangement or
understanding other than on terms which the Borrower
reasonably believes to be no less favorable to the Borrower or
such Subsidiary than those that might be obtained at the time
from Persons that are not Affiliates of the Borrower;
and
(c) to
which neither the Borrower nor any other Subsidiary of the
Borrower has any obligation to maintain or preserve such
entity’s financial condition or cause such entity to
achieve certain levels of operating results.
Any
such designation by the Board of Directors of the Borrower
shall be evidenced to the Administrative Agent by filing with
the Administrative Agent a certified copy of the resolution of
the Board of Directors of the Borrower giving effect to such
designation and an Officers’ Certificate certifying that
such designation complied with the foregoing
conditions.
“
Reference
Period ” shall have the meaning assigned to such
term in the definition of “Cumulative Credit”
contained in Section 1.01.
“
Refinancing
Indebtedness ” shall have the meaning assigned to
such term in Section 6.01(b)(xiv).
“
Refunding
Capital Stock ” shall have the meaning assigned
to such term in Section 6.04(b)(ii).
“
Register
” shall have the meaning assigned to such term in
Section 9.04(b)(iv).
“
Registration
Rights Agreement ” shall mean the Registration
Rights Agreements substantially in the form of Exhibit G
(with such changes to cure ambiguity, omission, defect or
inconsistency as the Joint Lead Arrangers and the Borrower
shall approve), as may be amended, modified or supplemented in
accordance with the terms thereof.
“
Registration
Statement ” shall have the meaning assigned to
such term in Section 5.12(c).
“
Regulation
U ” shall mean Regulation U of the Board as from
time to time in effect and all official rulings and
interpretations thereunder or thereof.
“
Regulation
X ” shall mean Regulation X of the Board as from
time to time in effect and all official rulings and
interpretations thereunder or thereof.
“
Related
Fund ” shall mean, with respect to any Lender
that is a fund that invests in bank or commercial loans and
similar extensions of credit, any other fund that invests in
bank or commercial loans and similar extensions of credit and
is advised or managed by (a) such Lender, (b) an Affiliate of
such Lender or (c) an entity (or an Affiliate of such entity)
that administers, advises or manages such Lender.
“
Related
Parties ” shall mean, with respect to any
specified Person, such Person’s Affiliates and the
respective directors, trustees, officers, employees, agents
and advisors of such Person and such Person’s
Affiliates.
“
Release
” shall mean any spilling, leaking, seepage, pumping,
pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping, disposing, depositing, emanating or
migrating in, into, onto or through the
environment.
“
Reportable
Event ” shall mean any reportable event as
defined in Section 4043(c) of ERISA or the regulations
issued thereunder, other than those events as to which the
30-day notice period referred to in Section 4043(c) of
ERISA has been waived, with respect to a Plan (other than a
Plan maintained by an ERISA Affiliate that is considered an
ERISA Affiliate only pursuant to subsection (m) or (o) of
Section 414 of the Code).
“
Required
Lenders ” shall mean, at any time, Lenders having
Loans outstanding that represent more than 50% of all Loans
outstanding. The Loans of any Defaulting Lender
shall be disregarded in determining Required Lenders at any
time.
“
Responsible
Officer ” of any Person shall mean any executive
officer or Financial Officer of such Person and any other
officer or similar official thereof responsible for the
administration of the obligations of such Person in respect of
this Agreement.
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