Exhibit
10.1
Execution
Version
AMENDED
AND RESTATED CREDIT AGREEMENT
Dated
as of May 2, 2006
by
and among
THE
HAIN CELESTIAL GROUP, INC.
and
BANK
OF AMERICA, N.A.
as
Administrative Agent,
KEYBANK
NATIONAL ASSOCIATION and
CITIBANK,
N.A.
as
Co-Syndication Agents,
FIRST
PIONEER FARM CREDIT, ACA
and
HSBC
BANK USA, N.A.
as
Co-Documentation Agents,
NORTH
FORK BANK
as
Managing Agent
and
THE
LENDERS PARTY HERETO
BANC
OF AMERICA SECURITIES, LLC,
as
Sole Lead Arranger and Sole Bookrunner
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ARTICLE
I. DEFINITIONS AND ACCOUNTING TERMS
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1
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Section
1.01 Definitions.
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1
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Section
1.02 Terms Generally.
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19
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ARTICLE
II. LOANS
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19
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Section
2.01 Revolving Credit Facility.
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19
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Section
2.02 Revolving Credit Notes.
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19
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Section
2.03 Letters of Credit.
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20
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Section
2.04 Swingline Loans.
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24
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Section
2.05 Increase in Commitments.
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26
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ARTICLE
III. PROVISIONS RELATING TO ALL EXTENSIONS OF CREDIT;
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FEES
AND PAYMENTS
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28
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Section
3.01 Interest Rate; Continuation and Conversion of Loans.
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28
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Section
3.02 Use of Proceeds.
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30
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Section
3.03 Prepayments.
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30
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Section
3.04 Fees.
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31
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Section
3.05 Computation of Interest and Fees.
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32
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Section
3.06 Illegality.
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32
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Section
3.07 Increased Costs.
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32
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Section
3.08 Indemnity.
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34
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Section
3.09 Mitigation, Obligations; Replacement of Lenders.
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34
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Section
3.10 Taxes.
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35
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Section
3.11 Pro Rata Treatment and Payments.
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37
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Section
3.12 Funding and Disbursement of Loans.
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38
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ARTICLE
IV. REPRESENTATIONS AND WARRANTIES
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39
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Section
4.01 Organization, Powers.
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39
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Section
4.02 Authorization of Borrowing, Enforceable Obligations.
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39
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Section
4.03 Financial Condition.
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40
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Section
4.04 Taxes.
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40
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Section
4.05 Title to Properties.
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41
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Section
4.06 Litigation.
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41
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Section
4.07 Agreements.
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41
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Section
4.08 Compliance with ERISA.
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41
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Section
4.09 Federal Reserve Regulations; Use of Proceeds.
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42
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Section
4.10 Approvals.
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43
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Section
4.11 Subsidiaries and Affiliates.
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43
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Section
4.12 Hazardous Materials.
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43
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Section
4.13 Investment Company Act.
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43
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Section
4.14 No Default.
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43
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Section
4.15 Credit Arrangements.
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43
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Section
4.16 Permits and Licenses.
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44
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Section
4.17 Compliance with Law.
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44
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Section
4.18 Disclosure.
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44
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Section
4.19 Labor Disputes and Acts of God.
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44
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ARTICLE
V. CONDITIONS OF LENDING
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44
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Section
5.01 Conditions to Initial Extension of Credit.
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44
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Section
5.02 Conditions to Extensions of Credit.
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46
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ARTICLE
VI. AFFIRMATIVE COVENANTS
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47
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Section
6.01 Existence, Properties, Insurance.
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47
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Section
6.02 Payment of Indebtedness and Taxes.
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48
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Section
6.03 Financial Statements, Reports, etc.
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48
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Section
6.04 Books and Records; Access to Premises.
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49
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Section
6.05 Notice of Adverse Change.
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50
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Section
6.06 Notice of Default.
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50
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Section
6.07 Notice of Litigation.
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50
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Section
6.08 Notice of Default in Other Agreements.
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50
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Section
6.09 Notice of ERISA Event.
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50
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Section
6.10 Notice of Environmental Law Violations.
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51
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Section
6.11 Compliance with Applicable Laws.
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51
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Section
6.12 Additional Subsidiaries.
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51
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Section
6.13 Environmental Laws.
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52
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Section
6.14 Management Letters.
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52
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ARTICLE
VII. NEGATIVE COVENANTS
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52
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Section
7.01 Indebtedness.
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52
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Section
7.02 Liens.
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54
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Section
7.03 Guaranties.
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55
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Section
7.04 Sale of Assets.
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55
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Section
7.05 Sales of Receivables.
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56
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Section
7.06 Loans and Investments.
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56
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Section
7.07 Nature of Business.
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57
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Section
7.08 Reserved.
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57
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Section
7.09 Federal Reserve Regulations.
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57
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Section
7.10 Accounting Policies and Procedures.
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57
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Section
7.11 Hazardous Materials.
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57
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Section
7.12 Limitations on Fundamental Changes, Limitations on
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57
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Consideration.
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57
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Section
7.13 Financial Condition Covenants.
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58
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Section
7.14 Subordinated Debt.
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58
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Section
7.15 Dividends.
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58
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Section
7.16 Transactions with Affiliates.
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59
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Section
7.17 Negative Pledge.
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59
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ARTICLE
VIII. EVENTS OF DEFAULT
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59
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Section
8.01 Events of Default.
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59
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ARTICLE
IX. THE ADMINISTRATIVE AGENT
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62
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Section
9.01 Appointment, Powers and Immunities.
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62
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Section
9.02 Reliance by Administrative Agent.
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62
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Section
9.03 Events of Default.
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63
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Section
9.04 Rights as a Lender.
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63
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Section
9.05 Indemnification.
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63
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Section
9.06 Non-Reliance on Administrative Agent and Other
Lenders.
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64
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Section
9.07 Failure to Act.
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64
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Section
9.08 Resignation of an Agent.
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64
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Section
9.09 Pro Rata Sharing.
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65
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ARTICLE
X. MISCELLANEOUS
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65
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Section
10.01 Notices.
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65
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Section
10.02 Efectiveness; Survival.
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67
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Section
10.03 Expenses.
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67
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Section
10.04 Amendments and Waivers.
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68
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Section
10.05 Successors and Assigns; Participations.
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68
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Section
10.06 No Waiver; Cumulative Remedies.
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71
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Section
10.07 APPLICABLE LAW.
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71
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Section
10.08 SUBMISSION TO JURISDICTION; JURY WAIVER.
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71
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Section
10.09 Severability.
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72
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Section
10.10 Right of Setoff.
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73
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Section
10.11 Confidentiality.
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73
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Section
10.12 Provisions Regarding Co-Syndication Agents and Co-
Documentation
Agents.
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74
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Section
10.13 Headings.
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74
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Section
10.14 Construction.
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74
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Section
10.15 Counterparts.
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74
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Section
10.16 No Advisory or Fiduciary Responsibility
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74
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Section
10.17 USA Patriot Act Notice
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75
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SCHEDULES
Schedule
I
-
Subsidiaries
and Affiliates
Schedule
II
-
Existing
Liens
Schedule
III
-
Indebtedness
Schedule
IV
-
Existing
Guarantees
Schedule
V
-
Credit
Arrangements
Schedule
VI
-
Litigation
Schedule
VII
-
ERISA
Violations
Schedule
VIII
-
Written
Arrangements with Affiliates
EXHIBITS
Exhibit
A
-
Form
of
Revolving Credit Note
Exhibit
B
-
Form
of
Swingline Note
Exhibit
C
-
Form
of
Guaranty
Exhibit
D
-
Form
of
Reaffirmation of Guaranty
Exhibit
E
-
Form
of
Assignment and Acceptance Agreement
Exhibit
F
-
Form
of
Opinion of Counsel (Cahill Gordon & Reindel LLP)
Exhibit
G
-
Form
of
U.S. Tax Compliance Certificate
AMENDED
AND RESTATED CREDIT AGREEMENT
dated as
of May 2, 2006, by and among
THE
HAIN CELESTIAL GROUP, INC.
,
a
Delaware corporation (the “Company”), the
LENDERS
which
from time to time are parties to this Agreement (individually, a “Lender” and,
collectively, the “Lenders”),
BANK
OF AMERICA, N.A.
,
a
national banking association organized under the laws of the United States
of
America, as Administrative Agent (the “Administrative Agent),
KEYBANK
NATIONAL ASSOCIATION and CITIBANK, N.A.
,
as
Co-Syndication Agents (collectively, the “Co-Syndication Agents”),
FIRST
PIONEER FARM CREDIT, ACA
and
HSBC BANK USA, N.A.
,
as
Co-Documentation Agents (collectively, the “Co-Documentation Agents”) and
NORTH
FORK BANK,
as
Managing Agent (the “Managing Agent”).
RECITALS
WHEREAS,
the Company, the Administrative Agent and certain of the Lenders are party
to
the 2004 Credit Agreement (as defined below); and
WHEREAS,
the parties hereto desire to amend in various respects and restate the 2004
Credit Agreement in its entirety;
NOW,
THEREFORE, the parties hereto agree to amend and restate the 2004 Credit
Agreement to provide in its entirety as follows:
The
Company has requested the Lenders to extend credit from time to time and the
Lenders are willing to extend such credit to the Company, subject to the terms
and conditions hereinafter set forth.
Accordingly,
the parties hereto agree as follows:
ARTICLE
I.
DEFINITIONS
AND ACCOUNTING TERMS
Section
1.01
Definitions
.
As
used
herein, the following terms shall have the following meanings:
“2004
Credit Agreement” means that certain Credit Agreement, dated April 22, 2004, by
and among the Company, Fleet National Bank, as Administrative Agent, SunTrust
Bank and Keybank National Association, as co-syndication agents, HSBC Bank
USA
and First Pioneer Farm Credit, ACA as co-documentation agents, and the Lenders
party thereto (as such term is defined therein), as amended through the date
hereof.
“Acceptable
Acquisition” shall mean any acquisition (whether by merger or otherwise) by the
Company or any Subsidiary of the Company of more than 50% of the outstanding
capital stock, membership interests, partnership interests or other similar
ownership interests of a Person which is engaged in a line of business similar
to the business of the Company or such Subsidiary (or reasonable extensions
thereof, including, without limitation natural or organic health or
beauty
care businesses) or the purchase of all or substantially all of the assets
owned
by such Person or a line of business of such Person;
provided
that (a)
with respect to such Person which is the subject of an acquisition, such
acquisition has been (i) approved by the board of directors or other appropriate
governing body of such Person or (ii) recommended for approval by such board
of
directors or governing body to the shareholders, members, partners, or other
owners of such Person, as required under applicable law or by the certificate
of
incorporation and by-laws or other organizational documents of such Person
and
subsequently approved by the shareholders, members, partners, or other owners
of
such Person if such approval is required under applicable law or by the
certificate of incorporation and by-laws or other organizational documents
of
such Person or (iii) otherwise agreed by all shareholders, members, partners
or
other owners of such Person; and (b) no acquisition shall be an Acceptable
Acquisition if a Default or Event of Default shall have occurred and be
continuing or would result after giving effect to such acquisition. With respect
to any Acceptable Acquisition made by the Company that is structured as a
merger, the Company shall be the surviving entity.
“Acquisition
Debt” means any Debt incurred in connection with an Acceptable
Acquisition.
“Additional
Lender” shall mean any financial institution which becomes a Lender in
accordance with Section 2.05(a) hereof.
“Adjusted
Libor Loans” shall mean Loans at such time as they are made and/or being
maintained at a rate of interest based upon Reserve Adjusted Libor.
“Administrative
Agent” shall mean Bank of America, N.A. in its capacity as Administrative Agent
for the Lenders under this Agreement or its successor Administrative Agent
permitted pursuant to Section 9.08 hereof.
“Affiliate”
shall mean, with respect to a specified Person, another Person which, directly
or indirectly, controls or is controlled by or is under common control with
such
specified Person. For the purpose of this definition, “control” of a Person
shall mean the power, direct or indirect, to direct or cause the direction
of
the management or policies of such Person whether through the ownership of
voting securities, by contract or otherwise;
provided
that, in
any event, any Person who owns directly or indirectly 10% or more of the
securities having ordinary voting power for the election of directors or other
governing body of a corporation or 10% or more of the partnership or other
ownership interests of any Person (other than as a limited partner of such
other
Person) will be deemed to control such corporation or other Person.
“Agents”
shall mean, collectively, the Administrative Agent, the Co-Syndication Agents
and the Co-Documentation Agents, and each is individually an
“Agent.”
“Aggregate
Letters of Credit Outstandings” shall mean, on the date of determination, the
sum of (a) the aggregate maximum stated amount at such time which is available
or available in the future to be drawn under all outstanding Letters of Credit
and (b) the aggregate amount of all payments on account of drawings under
Letters of Credit made by the Issuing Lender on behalf of the Lenders under
any
Letter of Credit that has not been reimbursed by the Company.
“Aggregate
Outstandings” shall mean, on the date of determination, the sum of (a) the
Aggregate Letters of Credit Outstandings at such time, (b) the aggregate
outstanding principal
amount
of
all Revolving Credit Loans at such time and (c) the aggregate outstanding
principal amount of all Swingline Loans at such time.
“Agreement”
shall mean this Amended and Restated Credit Agreement dated as of the date
hereof, as it may hereafter be amended, restated, supplemented or otherwise
modified from time to time.
“Annual
SEC Report” shall mean each Annual Report on Form 10-K filed by the Company with
the SEC.
“Approved
Fund” shall mean any Fund that is administered or managed by (a) a Lender, (b)
an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.
“Assignment
and Acceptance Agreement” shall mean an Assignment and Acceptance Agreement
entered into by a Lender and an assignee and accepted by the Administrative
Agent and, so long as no Event of Default shall have occurred and be continuing,
the Company (such acceptance by the Company not to be unreasonably withheld
or
delayed), substantially in the form attached hereto as Exhibit E or any other
form approved by the Administrative Agent.
“Auditor”
shall have the meaning set forth in Section 6.03(a) hereof.
“Bank
of
America” shall mean Bank of America, N.A., a national banking association
organized under the laws of the United States.
“Base
Rate” shall mean, for any day, a fluctuating rate per annum equal to the higher
of: (a) 0.50% per annum plus the Federal Funds Rate and (b) the Prime Rate,
in
each case as then in effect.
“Base
Rate Loans” shall mean Loans at such time as they are being made and/or
maintained at a rate of interest based upon the Base Rate.
“BBA
LIBOR” means the British Bankers Association LIBOR Rate.
“Borrowing
Date” shall mean, with respect to any Loan, the date specified in any notice
given pursuant to Section 2.01 hereof on which such Loan is requested by the
Company.
“Business
Day” shall mean (a) any day not a Saturday, Sunday or other day on which
commercial banks in New York, New York are authorized or required by law to
close, and (b) as it relates to any payment, determination, funding or notice
to
be made or given in connection with any Adjusted Libor Loan, any day specified
in clause (a) on which trading is carried on by and between banks in Dollar
deposits in the London interbank eurodollar market.
“Capital
Lease” shall mean, with respect to any Person, as of the date of determination
any lease the obligations of which are required to be capitalized on the balance
sheet of such Person in accordance with Generally Accepted Accounting Principles
applied on a consistent basis.
“Cash
Collateral” shall mean a deposit by the Company made in immediately available
funds to a cash collateral account at the Administrative Agent and the taking
of
all action required to provide the Administrative Agent, for the ratable benefit
of the Lenders, a first priority perfected security interest in such
deposit.
“Celestial”
shall mean Celestial Seasonings, Inc., a Delaware corporation.
“Change
of Control” shall mean any event which results in (i) any Person, or two or more
Persons acting in concert, acquiring beneficial ownership (within the meaning
of
Rules 13d-3 and 13d-5 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended), directly or indirectly, of
securities of the Company (or other securities convertible into such securities)
representing 50% or more of the combined voting power of all securities of
the
Company entitled to vote in the election of directors; or (ii) the individuals
who, as of the date hereof, constitute the Board of Directors of the Company,
together with those who first become directors subsequent to such date,
provided
the
recommendation, election or nomination for election to the Board of Directors
of
such subsequent directors was approved by a vote of at least a majority of
the
directors then still in office who were either directors as of the date hereof
or whose recommendation, election or nomination for election was previously
so
approved, ceasing for any reason to constitute a majority of the members of
the
Board of Directors of the Company.
“Chief
Financial Officer” shall mean the Chief Financial Officer of the Company or, in
the event no such officership exists, the Vice President of Finance of the
Company.
“Closing
Date” shall mean May 2, 2006.
“Co-Documentation
Agents” shall mean First Pioneer Farm Credit, ACA and HSBC Bank USA, N.A., in
their respective capacities as Co-Documentation Agents for the Lenders under
this Agreement or any successor Co-Documentation Agent permitted pursuant to
Section 9.08 hereof.
“Co-Syndication
Agents” shall mean KeyBank National Association and Citibank, N.A., in their
respective capacities as Co-Syndication Agents for the Lenders under this
Agreement or any successor Co-Syndication Agent permitted pursuant to Section
9.08 hereof.
“Code”
shall mean the Internal Revenue Code of 1986, and the regulations promulgated
thereunder, each as amended from time to time.
“Commercial
Letter of Credit” shall mean any Sight Letter of Credit issued for the account
of a Person.
“Commitment
Proportion” shall mean, with respect to each Lender at the time of
determination, the ratio, expressed as a percentage, (a) which such Lender’s
Revolving Credit Commitment bears to the Total Commitment or (b) if the
Revolving Credit Commitments have expired or have been terminated, which such
Lender’s Loans bear to the principal balance of the Loans then outstanding, at
such time.
“Commitments”
shall mean, collectively, the Revolving Credit Commitments and the Swingline
Commitment.
“Company”
shall have the meaning set forth in the preamble hereto.
“Consolidated
Assets” shall mean, on the date of determination, total assets of the Company
and its Subsidiaries on a consolidated basis, as determined in accordance with
Generally Accepted Accounting Principles applied on a consistent
basis.
“Consolidated
EBITDA” shall mean, for the Company and its Subsidiaries, for any period,
Consolidated Net Income (Net Loss) for such period, plus, to the extent deducted
in computing such Consolidated Net Income and without duplication,
(a) depreciation, depletion, if any, and amortization expense for such
period, (b) Consolidated Interest Expense for such period, (c) income
tax expense for such period, (d) other non cash charges for such period,
(e) reasonable and customary acquisition or merger charges, restructuring
charges that are both non cash and non-recurring and impairment of assets
write-offs that are both non cash and non-recurring, (f) reasonable and
customary charges which arise from the existence and subsequent write-off of
duplicative facilities related directly an acquisition consummated by the
Company or any Subsidiaries, and (g) cumulative non cash change in
accounting effects or non cash extraordinary items, and minus the sum of
(y) all extraordinary or unusual gains, and (z) all interest income
all as determined in accordance with Generally Accepted Accounting Principles.
For purposes of calculating Consolidated EBITDA for any period of four
consecutive quarters, if during such period the Company or any Subsidiary shall
have acquired or disposed of any Person or acquired or disposed of all or
substantially all of the operating assets of any Person, Consolidated EBITDA
for
such period shall be calculated on a pro forma basis. For purposes of this
definition, “pro forma basis” shall mean, with respect to any determination for
any period, that such determination shall be made giving pro forma effect to
each acquisition or disposition consummated during such period (including any
incurrence, assumption, refinancing or repayment of Indebtedness), as if such
acquisition or disposition and related transactions had been consummated on
the
first day of such period, in each case based on historical results accounted
for
in accordance with Generally Accepted Accounting Principles.
“Consolidated
Interest Expense” shall mean, on the date of determination, the sum of all
interest expense on Indebtedness of the Company and its Subsidiaries on a
consolidated basis, determined in accordance with Generally Accepted Accounting
Principles applied on a consistent basis. Consolidated Interest Expense shall
be
calculated with respect to the Company and its Subsidiaries on a consolidated
basis and shall be calculated (without duplication) over the four fiscal
quarters immediately preceding the date of calculation thereof.
“Consolidated
Maintenance Capital Expenditures” shall mean, on the date of determination, the
sum of expenditures by the Company and its Subsidiaries, on a consolidated
basis, by the expenditure of cash or the incurrence of Indebtedness, with
respect to the replacement, repair, maintenance and upkeep of any fixed or
capital assets (to the extent capitalized on the financial statements of the
Company), in accordance with Generally Accepted Accounting Principles applied
on
a consistent basis. Consolidated Maintenance Capital Expenditures shall be
calculated (without duplication) over the four fiscal quarters immediately
preceding the date of calculation thereof.
“Consolidated
Net Income (Net Loss)” shall mean, for any period, the net income (or net loss)
of the Company and its Subsidiaries on a consolidated basis for such period
determined in accordance with Generally Accepted Accounting Principles applied
on a consistent basis;
provided
that
there shall be excluded therefrom the income (or deficit) of any Person (other
than a Subsidiary that would be included in the consolidated financial
statements of the Company and its Subsidiaries in accordance with Generally
Accepted Accounting Principles) in which the Company or any of its Subsidiaries
has an ownership interest (e.g. a joint venture), except to the extent that
any
such income has been actually received by the Company or any of its Subsidiaries
in the form of dividends or similar distributions.
“Consolidated
Net Worth” shall mean, on the date of determination, the consolidated
stockholder’s equity of the Company and its Subsidiaries, as determined in
accordance with Generally Accepted Accounting Principles applied on a consistent
basis.
“Consolidated
Total Funded Debt” shall mean, on the date of determination, the sum of all
Indebtedness of the Company and its Subsidiaries, on a consolidated basis,
for
borrowed money including the current portion thereof and including obligations
with respect to Capital Leases, determined in accordance with Generally Accepted
Accounting Principles applied on a consistent basis.
“Current
SEC Report” shall mean the most recently filed Annual SEC Report or Quarterly
SEC Report.
“Default”
shall mean any condition or event which upon notice, lapse of time or both
would
constitute an Event of Default.
“Dollar”
and the symbol “$” shall mean the lawful currency of the United States of
America.
“Domestic
Subsidiary” shall mean any Subsidiary of the Company organized under the laws of
any state of the United States of America.
“Eligible
Investments” shall mean (a) direct obligations of the United States or any
governmental agency thereof which are fully guaranteed by the United States,
provided
that
such obligations mature within one year from the date of acquisition thereof;
or
(b) Dollar denominated certificates of time deposit maturing within one year
issued by any bank organized and existing under the laws of the United States
or
any state thereof and having aggregate capital and surplus in excess of
$1,000,000,000; or (c) money market mutual funds having assets in excess of
$2,500,000,000; or (d) commercial paper rated not less than P-l or A-1 or their
equivalent by Moody’s Investors Service, Inc. or Standard & Poor’s Ratings
Group, respectively; or (e) tax exempt securities of a U.S. issuer rated A
or
better by Standard and Poor’s Ratings Group or rated A-2 or better by Moody’s
Investors Service, Inc.; or (f) common stock issued by any corporation organized
under the federal laws of the United States or any state thereof (other than
the
Company) which stock is traded on any U.S. national securities exchange or
quoted on NASDAQ,
provided
that,
(i) at the time of purchase such common stock has a minimum share price of
at
least $2.00 per share, (ii) if any Loans are outstanding at the time of
purchase, such corporation is engaged in a similar line of business as the
Company and its Subsidiaries, and (iii)
the
aggregate of all such purchases, determined in each instance at the time of
purchase, of the common stock held by the Company and its Subsidiaries shall
not
exceed $20,000,000.
“Environmental
Law” shall mean any applicable law, ordinance, rule or regulation of any
Governmental Authority relating to pollution or protection of the environment
including without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of Hazardous
Materials, including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Sections
9601, et seq,), the Hazardous Materials Transportation Act, as amended (49
U.S.C. Sections 1801, et seq.), the Resource Conservation and Recovery Act,
as
amended (42 U.S.C. Sections 6901, et seq.), and the rules and regulations
promulgated pursuant thereto.
“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as amended
from
time to time.
“ERISA
Affiliate” shall mean each person (as defined in Section 3(9) of ERISA) which
together with the Company or any Affiliate of the Company would be deemed to
be
a member of the same “controlled group” within the meaning of Section 414(b),
(c), (m) or (o) of the Code.
“Eurocurrency
Reserve Requirement” shall mean a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate (without duplication) of the rates (expressed as a
decimal) of reserve requirements in effect on such day (including, without
limitation, basic, supplemental, marginal and emergency reserves, under any
regulations of the Board of Governors of the Federal Reserve System or any
other
governmental authority having jurisdiction with respect thereto) as from time
to
time in effect, dealing with reserve requirements prescribed for eurocurrency
funding (currently referred to as “eurocurrency liabilities” in Regulation D)
maintained by any Lender.
“Event
of
Default” shall have the meaning set forth in Article VIII.
“Excluded
Subsidiary” shall mean any Subsidiary of the Company which as of the last day of
the then most recent fiscal quarter ended has total assets of less than $10,000
and total revenues for the then immediately preceding four fiscal quarters
of
less than $10,000.
“Federal
Funds Rate” shall mean, for any day, the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal fund brokers on such day, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York;
provided
that (a)
if such day is not a Business Day, the Federal Funds Rate for such day shall
be
such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for
such
day shall be the average rate (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.
“Fund”
shall mean any Person (other than a natural person) that is (or will be) engaged
in making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of business.
“Generally
Accepted Accounting Principles” shall mean those generally accepted accounting
principles in the United States, as in effect from time to time.
“Governmental
Authority” shall mean any nation or government, any state, province, city or
municipal entity or other political subdivision thereof, and any governmental,
executive, legislative, judicial, administrative or regulatory agency,
department, authority, instrumentality, commission, board or similar body,
whether federal, state, provincial, territorial, local or foreign.
“Guarantors”
shall mean, collectively, Celestial, Acirca, Inc. a Delaware corporation,
Arrowhead Mills, Inc., a Delaware corporation, Hain-Yves, Inc., a Delaware
corporation, Westbrae Natural, Inc., a Delaware corporation, Hain Pure Food
Co.,
Inc., a California corporation, Natural Nutrition Group, Inc., a Delaware
corporation, Little Bear Organic Foods, Inc., a California corporation, Health
Valley Company, a Delaware corporation, AMI Operating, Inc., a Texas
corporation, Dana Alexander, Inc., a New York corporation, Westbrae Natural
Foods, Inc., a California corporation, Deboles Nutritional Foods, Inc., a New
York corporation, Jason Natural Products, Inc., a California corporation, Zia
Cosmetics, Inc., a California corporation, Spectrum Organic Products, LLC,
a
California limited liability company, Queen Acquisition Corp., a Delaware
corporation, and each other Domestic Subsidiary which, from time to time
hereafter, is required to execute a Guaranty or a Reaffirmation of Guaranty
in
accordance with Section 6.12 hereof;
provided
that
such Domestic Subsidiary’s status as a Guarantor shall be effective as of the
date of such execution.
“Guaranty”
shall mean the Guaranty in the form attached hereto as Exhibit C to be executed
and delivered by any Domestic Subsidiaries required to deliver a Guaranty
pursuant to Section 6.12 hereof, as the same may hereafter be amended, restated,
supplemented or otherwise modified from time to time.
“Hazardous
Materials” shall mean any explosives, radioactive materials, or other materials,
wastes, substances, or chemicals regulated as toxic or hazardous or as a
pollutant, contaminant or waste under any applicable Environmental
Law.
“Hedging
Agreement” shall mean any interest rate swap, collar, cap, floor or forward rate
agreement or other agreement entered into by the Company and any Lender, in
accordance with this Agreement, in connection with the hedging of interest
rate
risk exposure of the Company and any confirming letter executed pursuant to
such
agreement, all as amended, supplemented, restated or otherwise modified from
time to time.
“Increased
Commitment Date” shall have the meaning set forth in Section 2.05
hereof.
“Increasing
Lender” shall mean any Lender which increases its Revolving Credit Commitment in
accordance with Section 2.05(a) hereof.
“Indebtedness”
shall mean, without duplication, as to any Person or Persons, (a) indebtedness
for borrowed money; (b) indebtedness for the deferred purchase price of property
or services; (c) indebtedness evidenced by bonds, debentures, notes or other
similar instruments; (d) obligations and liabilities secured by a Lien upon
property owned by such Person, whether or not owing by such Person and even
though such Person has not assumed or become liable for the payment thereof;
(e)
obligations or liabilities created or arising under any conditional sales
contract
or other title retention agreement with respect to property used and/or acquired
by such Person; (f) the capitalized portion of obligations of such Person as
lessee under Capital Leases; (g) net liabilities of such Person under Hedging
Agreements and foreign currency exchange agreements, as calculated in accordance
with accepted practice; (h) all obligations, contingent or otherwise, of such
Person as an account party or applicant in respect of letters of credit created
for the account or upon the application of such Person; (i) all obligations
of
such Person, contingent or otherwise, to purchase, redeem, retire or otherwise
acquire for value any equity interest in any Person; (j) obligations and
liabilities of the types described in clause (a) through (i) above, directly
or
indirectly, guaranteed by such Person; and (k) all liabilities which would
be
reflected on a balance sheet of such Person, prepared in accordance with
Generally Accepted Accounting Principles.
“Intellectual
Property” shall mean all of the trademarks (whether or not registered) and
trademark registrations and applications, patent and patent applications,
copyrights and copyright applications, service marks, service mark registrations
and applications, trade dress, and trade and product names owned or licensed
by
the Company and its Subsidiaries.
“Interest
Expense” shall mean, on the date of determination, the sum of all interest
expense on Indebtedness of any Person, determined in accordance with Generally
Accepted Accounting Principles applied on a consistent basis. Interest Expense
shall be calculated with respect to such Person (without duplication) over
the
four fiscal quarters immediately preceding the date of calculation
thereof.
“Interest
Payment Date” shall mean (a) as to any Base Rate Loan, the last day of each
calendar month during the term hereof; (b) as to any Adjusted Libor Loan, the
last day of the Interest Period applicable thereto,
provided
,
however
,
that if
any Interest Period for an Adjusted Libor Loan exceeds three months, the date
that falls three months after the beginning of such Interest Period shall also
be an Interest Payment Date; and (c) as to any Loan, on the date such Loan
is
paid in full or in part.
“Interest
Period” shall mean with respect to any Adjusted Libor Loan:
(a)
initially,
the period commencing on the date such Adjusted Libor Loan is made and ending
one, two, three or six months thereafter, as selected by the Company in its
notice of borrowing or in its notice of conversion from a Base Rate Loan, in
each case, in accordance with the terms of Articles II and III hereof;
and
(b)
thereafter,
each period commencing on the last day of the next preceding Interest Period
applicable to such Adjusted Libor Loan and ending one, two, three or six months
thereafter, as selected by the Company by irrevocable written notice to the
Administrative Agent not later than 11:00 a.m. New York, New York time three
(3)
Business Days prior to the last day of the then current Interest Period with
respect to such Adjusted Libor Loan and the Administrative Agent shall promptly
notify each of the Lenders of such notice;
provided
,
however
,
that
all of the foregoing provisions relating to Interest Periods are subject to
the
following:
|
(i)
|
if
any Interest Period would otherwise end on a day which is not a Business
Day, such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to carry
such
Interest Period into another calendar month in which event such Interest
Period shall end on the immediately preceding Business
Day;
|
|
(ii)
|
if
the Company shall fail to give notice as provided in clause (b) above,
the
Company shall be deemed to have requested conversion of the affected
Adjusted Libor Loan to a Base Rate Loan on the last day of the then
current Interest Period with respect thereto;
|
|
(iii)
|
any
Interest Period that begins on the last Business Day of a calendar
month
(or on a day for which there is no numerically corresponding day
in the
calendar month at the end of such Interest Period) shall end on the
last
Business Day of a calendar month;
|
|
(iv)
|
no
more than six (6) Interest Periods may exist at any one time;
and
|
|
(v)
|
the
Company shall select Interest Periods so as not to require a payment
or
prepayment of any Adjusted Libor Loan during an Interest Period for
such
Adjusted Libor Loan.
|
“Interest
Rate Margin” shall mean (a) with respect to each Adjusted Libor Loan, the
percentage set forth below under the heading “LIBOR Margin” opposite the
applicable ratio and (b) with respect to each Base Rate Loan, the percentage
set
forth below under the heading “Base Rate Margin” opposite the applicable
ratio.
|
Consolidated
Total Funded Debt to Consolidated EBITDA
|
LIBOR
Margin
(360
Day Basis)
|
Base
Rate Margin
|
|
|
|
|
|
Greater
than or equal to 3.00:1.00
|
1.25%
|
0.0%
|
|
Greater
than or equal to 2.50:1.00 and less than 3.00:1.00
|
1.00%
|
0.0%
|
|
Greater
than or equal to 2.00:1.00 and less than 2.50:1.00
|
0.875%
|
0.0%
|
|
Greater
than or equal to 1.50:1.00 and less than 2.00:1.00
|
0.75%
|
0.0%
|
|
Greater
than or equal to 1.00:1.00 and less than 1.50:1.00
|
0.625%
|
0.0%
|
|
Less
than 1.00:1.00
|
0.50%
|
0.0%
|
Notwithstanding
the foregoing, during the period commencing on the Closing Date and ending
on
the tenth (10
th
)
Business Day following the date of delivery of the financial statements to
the
Administrative Agent for the fiscal quarter ended March 31, 2006 (a) the
Interest Rate Margin with respect to each Adjusted Libor Loan shall be 0.75%
per
annum, and (b) the Interest Rate Margin with respect to each Base Rate Loan
shall be 0.0% per annum. The Interest Rate Margin will be set or reset quarterly
with respect to each Loan on the date which is ten (10) Business Days following
the date of receipt by the Administrative Agent of the financial statements
referred to in Section 6.03(a) or Section 6.03(b) hereof, as applicable,
together with a certificate of the Chief Financial Officer of the Company
certifying the ratio of Consolidated Total Funded Debt to Consolidated EBITDA
and setting forth the calculation thereof in detail;
provided
,
however
,
if any
such financial statement and certificate are not received by the Administrative
Agent within the time period required pursuant to Section 6.03(a) or Section
6.03(b) hereof, as the case may be, the Interest Rate Margin will be set or
reset, unless the rate of interest specified in Section 3.0l(c) hereof is in
effect solely due to the failure of the Company to comply with Section 6.03(a)
or 6.03(b) hereof, to a rate determined based on a ratio of Consolidated Total
Funded Debt to Consolidated EBITDA of greater than or equal to 3.00:1.00 from
the date such financial statement and certificate were due until the date which
is ten (10) Business Days
following
the receipt by the Administrative Agent of such financial statement and
certificate, and
provided
,
further, that the Lenders shall not in any way be deemed to have waived any
Default or Event of Default, including, without limitation, an Event of Default
resulting from the failure of the Company to comply with Section 7.13 of this
Agreement, or any rights or remedies hereunder or under any other Loan Document
in connection with the foregoing proviso. During the occurrence and continuance
of an Event of Default, no downward adjustment, and only upward adjustments,
shall be made to the Interest Rate Margin.
“Investor’s
Agreement” shall have the meaning ascribed thereto in the Securities Purchase
Agreement.
“IP
Subsidiary” shall mean any direct or indirect wholly-owned Non-Domestic
Subsidiary formed in accordance with Section 6.12 hereof for the purpose of
owning certain Intellectual Property.
“Issuing
Lender” shall mean the Administrative Agent, in its capacity as the issuer of
Letters of Credit hereunder or its successor Issuing Lender permitted pursuant
to Section 2.03(e) hereof.
“Lead
Arranger” shall mean Banc of America Securities LLC.
“Lenders”
shall have the meaning set forth in the preamble hereto and shall include the
Swingline Lender and the Issuing Lender.
“Lending
Office” shall mean, for each Lender, the office specified under such Lender’s
name on the signature pages hereof with respect to each Type of Loan, or such
other office as such Lender may designate in writing from time to time to the
Company and the Administrative Agent with respect to such Type of
Loan.
“Letter
of Credit” shall mean any letter of credit issued by the Issuing Lender for the
account of the Company pursuant to the terms of this Agreement.
“Lien”
shall mean any mortgage, pledge, security interest, hypothecation, assignment,
deposit arrangement, encumbrance, or preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, any Capital Lease and any financing lease having substantially the
same economic effect as any of the foregoing).
“Loans”
shall mean, collectively, the Revolving Credit Loans and the Swingline
Loans.
“Loan
Documents” shall mean, collectively, this Agreement, the Notes, the Guaranties,
the Reaffirmation of Guaranty, any Hedging Agreement (but only to the extent
that such Hedging Agreement relates to the Company’s hedging of interest rate
exposure under this Agreement) and each other agreement executed in connection
with the transactions contemplated hereby or thereby, as each of the same may
hereafter be amended, restated, supplemented or otherwise modified from time
to
time.
“Managing
Agent” shall mean North Fork Bank.
“Material
Adverse Effect” shall mean a material adverse effect upon (a) the business,
operations, property or condition (financial or otherwise) of the Company and
its Subsidiaries taken as a whole, or (b) the ability of the Company or any
Guarantor to perform any of its obligations under any Loan Document to which
it
is a party.
“Net
Direct Contributions” shall mean, with respect to each reporting unit, gross
revenues less direct cost of sales and direct advertising and promotional
costs.
“Net
Income (Net Loss)” shall mean, for any period, the net income (or net loss) of
any Person for such period determined in accordance with Generally Accepted
Accounting Principles applied on a consistent basis;
provided
that
there shall be excluded therefrom the income (or deficit) of any other Person
(other than a Subsidiary) in which such Person or any Subsidiary of such Person
has an ownership interest, except to the extent that any such income has been
actually received by such Person or such Subsidiary in the form of dividends
or
similar distributions.
“Non-Domestic
Subsidiary” shall mean any Subsidiary of the Company not organized under the
laws of any state of the United States of America.
“Non-Excluded
Taxes” shall have the meaning set forth in Section 3.10 hereof.
“Notes”
shall mean, collectively, the Revolving Credit Notes and the Swingline
Note.
“Obligations”
shall mean all obligations, liabilities and indebtedness of the Company and
any
of its Subsidiaries to the Lenders, the Issuing Lender and the Administrative
Agent, whether now existing or hereafter created, absolute or contingent, direct
or indirect, due or not, whether created directly or acquired by assignment
or
otherwise, arising under this Agreement, the Notes or any other Loan Document
including, without limitation, all obligations, liabilities and indebtedness
of
the Company with respect to the principal of and interest on the Loans
(including any interest that accrues after the filing of any petition in
bankruptcy or the commencement of any insolvency, reorganization or like
proceeding relating to the Company, whether or not a claim for post-filing
or
post-petition interest is allowed in such proceeding), reimbursement of Letters
of Credit, obligations under any Hedging Agreement, and all fees, costs,
expenses and indemnity obligations of the Company and any of its Subsidiaries
hereunder or under any other Loan Document (including all fees and expenses
of
the Administrative Agent and any Lender incurred pursuant to this Agreement
or
any other Loan Document).
“Participant”
shall have the meaning set forth in Section 10.05(b) hereof.
“Payment
Office” shall mean the Administrative Agent’s office located at 300 Broad Hollow
Road, Melville, New York 11747, or such other office as the Administrative
Agent
may designate from time to time in writing.
“PBGC”
shall mean the Pension Benefit Guaranty Corporation established pursuant to
Section 4002 of ERISA, or any successor thereto.
“Permitted
Liens” shall mean the Liens specified in clauses (a) through (k) of Section 7.02
hereof.
“Person”
shall mean any natural person, corporation, limited liability company, limited
liability partnership, business trust, joint venture, association, company,
partnership, unincorporated trade or business enterprise or Governmental
Authority.
“Plan”
shall mean any multi-employer or single-employer plan defined in Section 4001
of
ERISA, which covers, or at any time during the five calendar years preceding
the
date of this Agreement covered, employees of the Company, any Guarantor or
an
ERISA Affiliate on account of such employees’ employment by the Company, any
Guarantor or an ERISA Affiliate.
“Prime
Rate” shall mean the variable per annum rate of interest announced from time to
time by Bank of America as its “prime rate.” The “prime rate” is a rate set by
Bank of America based upon various factors including Bank of America’s costs and
desired return, general economic conditions and other factors, and is used
as a
reference point for pricing some loans, which may be priced at, above or below
such announced rate. 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.
“Private
Placement Notes” shall mean the senior notes due 2016 of the Company issued
pursuant to a Note Purchase Agreement dated as of May 2, 2006, by and among
the
Company and the purchasers party thereto, as amended supplemented or otherwise
modified, as such notes may be refinanced, renewed or extended,
provided
that the
principal amount of such notes and the interest rate thereon shall not be
increased.
“Purchasing
Lender” shall have the meaning set forth in Section 10.05(c)
hereof.
“Quarterly
SEC Report” shall mean each quarterly report on Form 10-Q filed by the Company
with the SEC.
“Reaffirmation
of Guaranty” shall mean, the Reaffirmation of Guaranty, dated as of the Closing
Date, executed by each person that executed a Guaranty or Reaffirmation of
Guaranty in connection with the 2004 Credit Agreement.
“Regulation
D” shall mean Regulation D of the Board of Governors of the Federal Reserve
System as the same may be amended or supplemented from time to
time.
“Reportable
Event” shall mean an event described in Section 4043(c) of ERISA with respect to
a Plan as to which the 30 day notice requirement has not been waived by the
PBGC.
“Required
Lenders” shall mean Lenders owed at least fifty-one percent (51%) of the sum of
the aggregate unpaid principal amount of the Revolving Credit Loans or, if
no
Revolving Credit Loans are outstanding, Lenders having, in the aggregate, at
least fifty-one percent (51%) of the Total Commitments.
“Reserve
Adjusted Libor” shall mean, with respect to the Interest Period pertaining to an
Adjusted Libor Loan, a rate per annum equal to the product of (a) the annual
rate of interest at which Dollar deposits of an amount equal to the amount
of
the portion of the Adjusted Libor Loan allocable to the entity which is the
Administrative Agent and for a period of time equal to the Interest Period
applicable thereto, as published by Reuters (or other commercially available
source
providing quotations of BBA LIBOR as selected by the Administratvie Agent from
time to time) at approximately 11:00 a.m. London time two (2) London Banking
Days prior to the commencement of such Interest Period, for Dollar deposits
(for
delivery on the first day of such Interest Period), as adjusted from time to
time in the Administrative Agent’s sole discretion for reserve requirements,
deposit insurance assessment rates and other regulatory costs, multiplied by
(b)
the Eurocurrency Reserve Requirement. If such rate is not available at such
time
for any reason, then the rate for that interest period will be determined by
such alternate method as reasonably selected by the Administrative Agent. A
"London Banking Day" is a day on which banks in London are open for business
and
dealing in offshore dollars.
“Revolving
Credit Commitment” shall mean, with respect to each Lender, the obligation of
such Lender to make Revolving Credit Loans to the Company and to acquire
participations in Letters of Credit in an aggregate amount not to exceed the
amount set forth opposite such Lender’s name on the signature pages hereof under
the caption Revolving Credit Commitment, as such amounts may be adjusted in
accordance with the terms of this Agreement.
“Revolving
Credit Commitment Period” shall mean the period from and including the Closing
Date to, but not including, the Revolving Credit Commitment Termination Date
or
such earlier date as the Revolving Credit Commitments shall terminate as
provided herein.
“Revolving
Credit Commitment Termination Date” shall mean May 2, 2011.
“Revolving
Credit Loans” shall have the meaning set forth in Section 2.01(a)
hereof.
“Revolving
Credit Notes” shall have the meaning set forth in Section 2.02
hereof.
“SEC”
shall mean the U.S. Securities and Exchange Commission.
“Securities
Purchase Agreement” shall mean the Securities Purchase Agreement, dated August
3, 2005, among the Company, YHS and YHSM.
“Sight
Letter of Credit” shall mean a Letter of Credit wherein a draft is drawn at
sight (i.e. drawn payable upon presentment).
“Solvent”
shall mean with respect to any Person as of the date of determination thereof
that (a) the amount of the “present fair saleable value” of the assets of such
Person will, as of such date, exceed the amount of all “liabilities of such
Person, contingent or otherwise,” as of such date, as such quoted terms are
determined in accordance with applicable federal and state laws governing
determinations of the insolvency of debtors, (b) the present fair saleable
value
of the assets of such Person will, as of such date, be greater than the amount
that will be required on its debts as such debts become absolute and matured,
(c) such Person will not have, as of such date, an unreasonably small amount
of
capital with which to conduct its business, and (d) such Person will be able
to
pay its debts as they mature in each case after giving effect to any right
of
indemnification and contribution of such Person from or to any
Affiliate.
“Standby
LC Disbursement” shall mean a payment made by the Issuing Lender pursuant to a
Standby Letter of Credit.
“Standby
LC Exposure” shall mean, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Standby Letters of Credit at such time, plus (b)
the
aggregate amount of all Standby LC Disbursements that have not yet been
reimbursed by or on behalf of the Company at such time.
“Standby
LC Fee” shall mean the percentage set forth below opposite the applicable
ratio:
|
Consolidated
Total Funded Debt to Consolidated EBITDA
|
Standby
LC Fee
(360
Day Basis)
|
|
|
|
|
Greater
than or equal to 3.00:1.00
|
1.25%
|
|
Greater
than or equal to 2.50:1.00 and less than 3.00:1.00
|
1.00%
|
|
Greater
than or equal to 2.00:1.00 and less than 2.50:1.00
|
0.875%
|
|
Greater
than or equal to 1.50:1.00 and less than 2.00:1.00
|
0.75%
|
|
Greater
than or equal to 1.00:1.00 and less than 1.50:1.00
|
0.625%
|
|
Less
than 1.00:1.00
|
0.50%
|
Notwithstanding
the foregoing, during the period commencing on the Closing Date and ending
on
the tenth (10
th
)
Business Day following the date of delivery of the financial statements to
the
Administrative Agent for the fiscal quarter ended March 31, 2006, the Standby
LC
Fee shall be 0.75% per annum. The Standby LC Fee will be set or reset quarterly
on the date which is ten (10) Business Days following the date of receipt by
the
Administrative Agent of the financial statements referred to in Section 6.03(a)
or Section 6.03(b) hereof, as applicable, together with a certificate of the
Chief Financial Officer of the Company certifying the ratio of Consolidated
Total Funded Debt to Consolidated EBITDA and setting forth the calculation
thereof in detail;
provided
,
however
,
if any
such financial statement and certificate are not received by the Administrative
Agent within the time period required pursuant to Section 6.03(a) or Section
6.03(b) hereof, as the case may be, the Standby LC Fee will be set or reset,
unless the rate of interest specified in Section 3.01(c) hereof is in effect
solely due to the failure of the Company to comply with Section 6.03(a) or
6.03(b) hereof, based on a ratio of Consolidated Total Funded Debt to
Consolidated EBITDA of greater than or equal to 3.00:1.00 from the date such
financial
statement
and certificate were due until the date which is ten (10) Business Days
following the receipt by the Administrative Agent of such financial statement
and certificate, and
provided
,
further, that the Lenders shall not in any way be deemed to have waived any
Default or Event of Default, including, without limitation, an Event of Default
resulting from the failure of the Company to comply with Section 7.13 of this
Agreement, or any rights or remedies hereunder or under any other Loan Document
in connection with the foregoing proviso. During the occurrence and continuance
of an Event of Default, no downward adjustment, and only upward adjustments,
shall be made to the Standby LC Fee.
“Standby
Letter of Credit” shall mean any letter of credit issued to support an
obligation of a Person and which may be drawn on only upon the failure of such
Person to perform such obligation or other contingency.
“Subordinated
Debt” or “Subordinated Indebtedness” shall mean all debt which is subordinated
in right of payment to the prior final payment in full of the obligations of
the
Company and/or of its Subsidiaries to the Lenders hereunder and under any other
Loan Document,
provided
that the
terms of such subordination are satisfactory to and approved in writing by
the
Required Lenders.
“Subsidiaries”
shall mean with respect to any Person, any corporation, association or other
business entity more than 50% of the voting stock or other ownership interests
(including, without limitation, membership interests in a limited liability
company) of which is, at the time, owned or controlled, directly or indirectly,
by such Person or one or more of its Subsidiaries or a combination
thereof.
“Swingline
Commitment” shall mean the obligation of the Swingline Lender to make Swingline
Loans to the Company in an amount not to exceed $10,000,000 at any time
outstanding.
“Swingline
Lender” shall mean the Administrative Agent, in its capacity as lender of
Swingline Loans.
“Swingline
Loan” shall have the meaning set forth in Section 2.04 hereof.
“Swingline
Note” shall have the meaning set forth in Section 2.04(e) hereof.
“Total
Commitment” shall mean, at any time, the aggregate of the Revolving Credit
Commitments in effect at such time which, initially, shall be $250,000,000,
subject to increase pursuant to Section 2.05 hereof.
“Transition
Period” means the period commencing on the date the Company or any Subsidiary of
the Company consummates an Acceptable Acquisition,
provided
that at
such time and after giving effect thereto the Company and its Subsidiaries
are
in compliance with Section 7.07, and ending on the last day of the fourth full
fiscal quarter following the date of the consummation of such Acceptable
Acquisition.
“Type”
shall mean as to any Loan its status as a Base Rate Loan or an Adjusted Libor
Loan.
“UCP”
shall mean the International Chamber of Commerce Uniform Customs and Practice
for Documentary Credits, 1993 Revision, ICC Publication No. 500 or any successor
publication thereof.
“Unfunded
Current Liability” of any Plan shall mean the amount, if any, by which the
present value of the accrued benefits under such Plan as of the close of its
most recent plan year exceeds the fair market value of the assets allocable
thereto, determined in accordance with Section 412 of the Code.
“United
States” or “U.S.” shall mean The United States of America.
“Unused
Fee Rate” shall mean the percentage set forth below opposite the applicable
ratio:
|
Consolidated
Total Funded Debt to Consolidated EBITDA
|
Unused
Fee Rate
(360
Day Basis)
|
|
|
|
|
Greater
than or equal to 3.00:1.00
|
0.250%
|
|
Greater
than or equal to 2.50:1.00 and less than 3.00:1.00
|
0.200%
|
|
Greater
than or equal to 2.00:1.00 and less than 2.50:1.00
|
0.175%
|
|
Greater
than or equal to 1.50:1.00 and less than 2.00:1.00
|
0.150%
|
|
Greater
than or equal to 1:00:1.00 and less than 1.50:1.00
|
0.125%
|
|
Less
than 1.00:1.00
|
0.100%
|
Notwithstanding
the foregoing, during the period commencing on the Closing Date and ending
on
the tenth (10
th
)
Business Day following the date of delivery of the financial statements to
the
Administrative Agent for the fiscal quarter ended March 31, 2006, the Unused
Fee
Rate shall be 0.15% per annum. The Unused Fee Rate will be set or reset
quarterly on the date which is ten (10) Business Days following the date of
receipt by the Administrative Agent of the financial statements referred to
in
Section 6.03(a) or Section 6.03(b) hereof, as applicable, together with a
certificate of the Chief Financial Officer of the Company certifying the ratio
of Consolidated Total Funded Debt to Consolidated EBITDA and setting forth
the
calculation thereof in detail;
provided
,
however
,
if any
such financial statement and certificate are not received by the Administrative
Agent within the time period required pursuant to Section 6.03(a) or Section
6.03(b) hereof, as the case may be, the Unused Fee Rate will be set or reset
to
a rate, unless the rate of interest specified in Section 3.01(c) hereof is
in
effect solely due to the failure of the Company to comply with Section 6.03(a)
or 6.03(b) hereof, determined based on a ratio of Consolidated Total Funded
Debt
to Consolidated EBITDA of greater than or equal to 3.00:1.00 from the date
such
financial statement and certificate were due until the date which is ten (10)
Business Days following the receipt by the Administrative Agent of such
financial statement and certificate, and
provided
,
further, that the Lenders shall not in any way be deemed to have waived any
Default or Event of Default, including, without limitation, an Event of Default
resulting from the failure of the Company to comply with Section 7.13 of this
Agreement, or any rights or remedies hereunder or under any other Loan Document
in connection with the foregoing proviso. During the occurrence and continuance
of an Event of Default, no downward adjustment, and only upward adjustments,
shall be made to the Unused Fee Rate.
“YHS”
shall mean Yeo Hiap Seng Limited, a corporation organized under the laws of
Singapore.
“YHSM”
shall mean Yeo Hiap Seng (Malaysia) Berhad, a corporation organized under the
laws of Malaysia.
Section
1.02
Terms
Generally.
The
definitions of terms herein shall apply equally to the singular and plural
forms
of the terms defined. Whenever the context may require, pronouns stated in
the
masculine, feminine or neuter gender shall include the masculine, feminine
and
the neuter. Except as otherwise herein specifically provided, each accounting
term used herein shall have the meaning given to it under Generally Accepted
Accounting Principles. The term “including” shall not be limited or exclusive,
unless specifically indicated to the contrary. The word “will” shall be
construed to have the same meaning in effect as the word “shall”. The words
“herein”, “hereof and “hereunder” and other words of similar import refer to
this Agreement as a whole, including the exhibits and schedules hereto and
any
amendments thereof, all of which are by this reference incorporated into this
Agreement.
ARTICLE
II.
LOANS
Section
2.01
Revolving
Credit Facility
.
(a)
Subject
to the terms and conditions, and relying upon the representations and
warranties, set forth herein, each Lender severally agrees to make loans
(individually a “Revolving Credit Loan” and, collectively, the “Revolving Credit
Loans”) to the Company from time to time during the Revolving Credit Commitment
Period up to, but not exceeding, at any one time outstanding the amount of
its
Revolving Credit Commitment;
provided
,
however
,
that no
Revolving Credit Loan shall be made if, after giving effect to such Revolving
Credit Loan, the aggregate outstanding principal amount of all Revolving Credit
Loans at such time would exceed the Total Commitment in effect at such time
or
if the Aggregate Outstandings would
(b)
exceed
the Total Commitment. During the Revolving Credit Commitment Period, the Company
may from time to time borrow, repay and reborrow Revolving Credit Loans on
or
after the date hereof and prior to the Revolving Credit Commitment Termination
Date, subject to the terms, provisions and limitations set forth herein. The
Revolving Credit Loans may be (i) Adjusted Libor Loans, (ii) Base Rate Loans
or
(iii) a combination thereof.
(c)
The
Company shall give the Administrative Agent irrevocable written notice (or
telephonic notice promptly confirmed in writing) not later than 11:00 a.m.
New
York, New York time, three (3) Business Days prior to the date of each proposed
Adjusted Libor Loan under this Section 2.01 or prior to 11:00 a.m. New York,
New
York time on the date of each proposed Base Rate Loan under this Section 2.01.
Such notice shall be irrevocable and shall specify (i) the amount and Type
of
the proposed borrowing, (ii) the initial Interest Period if an Adjusted Libor
Loan, and (iii) the proposed Borrowing Date. Upon receipt of such notice from
the Company, the Administrative Agent shall promptly notify each Lender thereof.
Except for borrowings which utilize the full remaining amount of the Total
Commitment, each borrowing of a Base Rate Loan (other than a Swingline Loan)
shall be in an amount not less than $1,000,000 or, if greater, whole multiples
of $100,000 in excess thereof. Each borrowing of an Adjusted Libor Loan shall
be
in an amount not less than $1,000,000 or whole multiples of $500,000 in excess
thereof. Funding of all Revolving Credit Loans shall be made in accordance
with
Section 3.12 of this Agreement.
(d)
The
Company shall have the right, upon not less than five (5) Business Days’ prior
written notice to the Administrative Agent, to terminate the Total Commitment
or
from time to time to permanently reduce the amount of the Total Commitment;
provided
,
however
,
that no
such termination or reduction shall be permitted if, after giving effect thereto
and to any payments of the Revolving Credit Loans and the Swingline Loans made
on the effective date thereof, the Aggregate Outstandings would exceed the
Total
Commitment as then reduced;
provided
,
further, that any such termination or reduction requiring prepayment of any
Adjusted Libor Loan shall be made only on the last day of the Interest Period
with respect thereto or on the date of payment in full of all amounts owing
pursuant to Section 3.08 hereof as a result of such termination or reduction.
The Administrative Agent shall promptly notify each Lender of each notice from
the Company to terminate or permanently reduce the amount of the Total
Commitment pursuant to this Section 2.01(c). Any such reduction shall be in
the
amount of at least $5,000,000 or whole multiples of $1,000,000 in excess
thereof, and shall reduce permanently the amount of the Total Commitment then
in
effect.
(e)
The
several agreements of the Lenders to make Revolving Credit Loans pursuant to
this Section 2.01 shall automatically terminate on the Revolving Credit
Commitment Termination Date. Upon such termination, the Company shall
immediately repay in full the principal amount of the Revolving Credit Loans
then outstanding, together with all accrued interest thereon and all other
amounts due and payable hereunder.
Section
2.02
Revolving
Credit Notes.
The
Revolving Credit Loans made by each Lender shall be evidenced by a promissory
note of the Company (individually, a “Revolving Credit Note” and, collectively,
the “Revolving Credit Notes”), substantially in the form attached hereto as
Exhibit A, each appropriately
completed,
duly executed and delivered on behalf of the Company and payable to the order
of
such Lender in a principal amount equal to the Revolving Credit Commitment
of
such Lender. Each Revolving Credit Note shall (a) be dated the Closing Date,
(b)
be stated to mature on the Revolving Credit Commitment Termination Date, and
(c)
bear interest from the date of the first Revolving Credit Loan until paid in
full on the unpaid principal amount thereof from time to time outstanding as
provided in Section 3.01 hereof. Each Lender is authorized to record the date,
Type and amount of each Revolving Credit Loan and the date and amount of each
payment or prepayment of principal of each Revolving Credit Loan in such
Lender’s records or on the grid schedule annexed to such Lender’s Revolving
Credit Note;
provided
,
however
,
that
the failure of a Lender to set forth each such Revolving Credit Loan, payment
and other information shall not in any manner affect the obligation of the
Company to repay each Revolving Credit Loan made by such Lender in accordance
with the terms of its Revolving Credit Note and this Agreement. The Revolving
Credit Note, the grid schedule and the books and records of each Lender shall
constitute presumptive evidence of the information so recorded absent
demonstrable error.
Section
2.03
Letters
of Credit.
(a)
Generally
.
Subject
to the terms and conditions set forth in this Agreement, upon the written
request of the Company in accordance herewith, the Issuing Lender shall issue
Letters of Credit at any time during the Revolving Credit Commitment Period
with
pro rata participation by all of the Lenders in accordance with their respective
Commitment Proportions. Notwithstanding the foregoing, at no time shall the
Aggregate Letters of Credit Outstandings exceed $25,000,000, and no Letter
of
Credit shall be issued if, after giving effect to the same, the Aggregate
Outstandings would exceed the Total Commitment in effect at such time. Each
request for issuance of a Letter of Credit shall be in writing and shall be
received by the Issuing Lender by no later than 12:00 noon, New York, New York
time, on the day which is at least two (2) Business Days prior to the proposed
date of issuance or creation. Such issuance or creation shall occur by no later
than 5:00 p.m. on the proposed date of issuance (assuming proper prior notice
as
aforesaid). Subject to the terms and conditions contained herein, the expiry
date, and the amount and beneficiary of the Letters of Credit will be as
designated by the Company. The Issuing Lender shall promptly notify the
Administrative Agent and the Lenders of the creation of any Letter of Credit
and
of the amounts of all Letters of Credit issued hereunder and of any extension,
reduction, termination or amendment of any Letter of Credit. Each Letter of
Credit issued by the Issuing Lender hereunder shall identify: (i) the dates
of
issuance and expiry of such Letter of Credit, (ii) the amount of such Letter
of
Credit (which shall be a sum certain), (iii) the beneficiary of such Letter
of
Credit, and (iv) the drafts and other documents necessary to be presented to
the
Issuing Lender upon drawing thereunder. In no event shall any Letter of Credit
expire (or by its terms be required to be renewed to a date) after the Revolving
Credit Commitment Termination Date. The Company agrees to execute and deliver
to
the Issuing Lender such further documents and instruments in connection with
any
Letter of Credit issued hereunder (including, without limitation, applications
therefor) as the Issuing Lender in accordance with its customary practices
may
reasonably request. The Issuing Lender will not be required to issue a Letter
of
Credit hereunder with an expiration date (i) more than three hundred sixty
(360)
days from the date of issuance of such Letter of Credit, or (ii) on or after
the
Revolving Credit Commitment Termination Date. Notwithstanding the foregoing,
Letters of Credit issued hereunder may include automatic extensions
provided
that the
extensions shall be
for
periods not to exceed three hundred sixty (360) days and
provided
further
that the expiration date of any such Letter of Credit shall not occur on or
after the Revolving Credit Commitment Termination Date.
(b)
Drawings
Under Letters of Credit
.
The
Company hereby absolutely and unconditionally promises to pay the Issuing Lender
not later than 12:00 noon (New York, New York time) the amount of each drawing
under a Letter of Credit if the Company receives notice of such drawing prior
to
10:00 a.m., New York, New York time, on the date of such drawing, or if such
notice has not been received by the Company prior to such time on such date,
then not later than 12:00 noon, New York, New York time, on the Business Day
immediately following the day that the Company receives such notice;
provided
,
however
,
(i) if
any drawing was in an amount not less than $1,000,000, the Company may, subject
to the conditions to borrowing set forth herein, request in accordance with
Section 2.01 hereof that such payment be financed with a Revolving Credit Loan
which is a Base Rate Loan in an equivalent amount, and, to the extent so
financed, the Company’s obligation to make such payment shall be discharged and
replaced by such a Base Rate Loan and (ii) if such drawing or payment was in
an
amount less than $1,000,000, the Company may, subject to the conditions to
borrowing set forth herein, request in accordance with Section 2.04 hereof
that
such payment be financed with a Swingline Loan in an equivalent amount and,
to
the extent so financed, the Company’s obligation to make such payment shall be
discharged and replaced by such Swingline Loan. Such request shall be made
by
the Company on the date of receipt of notice from the Issuing Lender of a
drawing under a Letter of Credit as applicable. The Issuing Lender shall notify
the Administrative Agent and each Lender of such request in accordance with
Section 2.01 hereof. If the Company fails to make such payment when due, the
Issuing Lender shall notify each Lender of the amount of the drawing under
the
applicable Letter of Credit. Each Lender agrees that on the first Business
Day
after receipt of such notice, it will immediately make available by no later
than 12:00 noon, New York, New York time, to the Issuing Lender at its office
located at the Payment Office, in immediately available funds, its Commitment
Proportion of such drawing
provided
(i) each
Lender’s obligation shall be reduced by its Commitment Proportion of any
reimbursement by the Company in respect of any such drawing pursuant to this
Section 2.03 and (ii) no Lender shall be required to make payments to the
Issuing Lender with respect to a drawing or payment which the Company reimbursed
with the proceeds of a Revolving Credit Loan, as contemplated above, if such
Lender fully funded its Commitment Proportion of such Revolving Credit Loan
in
accordance with Section 3.12 hereof. Any payment made by a Lender pursuant
to
this Section 2.03(b) to reimburse the Issuing Lender for any drawing under
a
Letter of Credit (other than a Base Rate Loan or a Swingline Loan as
contemplated above) shall not constitute a Revolving Credit Loan or a Swingline
Loan and shall not relieve the Company of its obligation to reimburse the
Issuing Lender for such drawing or payment. Each drawing under a Letter of
Credit which is not paid on the date such drawing is made shall accrue interest,
for each day from and including the date of such drawing to but excluding the
date that the Company reimburses the Issuing Lender in full for such drawing
at
the rate per annum then applicable to Revolving Credit Loans which are Base
Rate
Loans;
provided
,
however
,
that if
the Company fails to reimburse such drawing when due pursuant to this paragraph
(b), then the Company shall pay to the Issuing Lender interest on the amount
of
such drawing at the rate per annum set forth in Section 3.01(c) hereof. Interest
accruing pursuant to the preceding sentence shall be for the account of the
Issuing Lender, except that interest accrued on and after the date of payment
by
any Lender pursuant to this Section 2.03(b) to reimburse the Issuing Lender
shall be for the account of such
Lender
to
the extent of such payment. The Issuing Lender shall promptly notify the
Administrative Agent (which shall notify each Lender) of each drawing under
a
Letter of Credit.
(c)
Letter
of Credit Obligations Absolute
.
|
(i)
|
The
obligation of the Company to reimburse the Issuing Lender as provided
hereunder in respect of drawings under Letters of Credit shall rank
pari
passu with the obligation of the Company to repay the Revolving Credit
Loans hereunder, and shall be absolute and unconditional under any
and all
circumstances subject to subsection (ii) below. Without limiting
the
generality of the foregoing, the obligation of the Company to reimburse
the Issuing Lender in respect of drawings under Letters of Credit
shall
not be subject to any defense based on the non-application or
misapplication by the beneficiary of the proceeds of any such drawing
or
the legality, validity, regularity or enforceability of the Letters
of
Credit or any related document, even though such document shall in
fact
prove to be invalid, fraudulent or forged, or any dispute between
or among
the Company, the beneficiary of any Letter of Credit, or any financial
institution or other party to which any Letter of Credit may be
transferred. The Issuing Lender may accept or pay any draft presented
to
it under any Letter of Credit regardless of when drawn or made and
whether
or not negotiated, if such draft, accompanying certificate or documents
and any transmittal advice are presented or negotiated on or before
the
expiry date of such Letter of Credit or any renewal or extension
thereof
then in effect, and is in substantial compliance with the terms and
conditions of such Letter of Credit. Furthermore, neither the Issuing
Lender nor any of its correspondents nor any Lender shall be responsible,
as to any document presented under a Letter of Credit which appears
to be
regular on its face, and appears on its face to be in substantial
compliance with the terms of such Letter of Credit, for the validity
or
sufficiency of any signature or endorsement, for delay in giving
any
notice or failure of any instrument to bear adequate reference to
any
Letter of Credit, or for failure of any Person to note the amount
of any
draft on the reverse of any Letter of Credit. The Issuing Lender
shall
have the right, in its sole discretion, to decline to accept any
documents
and to decline to making payment under any Letter of Credit if the
documents presented are not in strict compliance with the terms of
such
Letter of Credit.
|
|
(ii)
|
Any
action, inaction or omission on the part of the Issuing Lender or
any of
its correspondents under or in connection with any Letter of Credit
or the
related instruments, documents or property, if in good faith and
in
conformity with such laws, regulations or customs as are applicable,
shall
be binding upon the Company and
|
shall
not
place the Issuing Lender or any of its correspondents or any Lender under any
liability to the Company in the absence of (x) gross negligence or willful
misconduct by the Issuing Lender or its correspondents or (y) the failure by
the
Issuing Lender to pay under a Letter of Credit after presentation of a draft
and
documents strictly complying with such Letter of Credit unless the Issuing
Lender is prohibited from making such payment pursuant to a court order. The
Issuing Lender’s rights, powers, privileges and immunities specified in or
arising under this Agreement are in addition to any heretofore or at any time
hereafter otherwise created or arising, whether by statute or rule of law or
contract. All Letters of Credit issued hereunder will, except to the extent
otherwise expressly provided hereunder, be governed by the UCP to the extent
applicable and not inconsistent with the laws of the State of New
York.
(d)
Obligations
of Lenders in Respect of Letters of Credit
.
Each
Lender acknowledges that each Letter of Credit issued by the Issuing Lender
pursuant to this Agreement is issued on behalf of and with the ratable
participation of all of the Lenders (i.e., in accordance with their respective
Commitment Proportions), and each Lender agrees to make the payments required
by
subsection (b) above and agrees to be responsible for its pro rata share of
all
liabilities incurred by the Issuing Lender with respect to each Letter of Credit
issued, established, opened or extended by the Issuing Lender pursuant to this
Agreement for the account of the Company hereunder. Each Lender agrees with
the
Issuing Lender and the other Lenders that its obligation to make the payments
required by subsection (b) above shall not be affected in any way by any
circumstances (other than the gross negligence or willful misconduct of the
Issuing Lender) occurring before or after the making of any payment by the
Issuing Lender pursuant to any Letter of Credit, including, without limitation:
(i) any modification or amendment of, or any consent, waiver, release or
forbearance with respect to, any of the terms of this Agreement or any other
instrument or document referred to herein; (ii) the existence of any Default
or
Event of Default; or (iii) any change of any kind whatsoever in the financial
position or credit worthiness of the Company.
(e)
Replacement
of the Issuing Lender
.
The
Issuing Lender may be replaced at any time by written agreement among the
Company, the Administrative Agent, the replaced Issuing Lender and the successor
Issuing Lender. The Administrative Agent shall notify the Lenders of any such
replacement of the Issuing Lender. At the time any such replacement shall become
effective, the Company shall pay all unpaid fees accrued for the account of
the
replaced Issuing Lender pursuant to Section 3.04 hereof. From and after the
effective date of any such replacement, (i) the successor Issuing Lender shall
have all the rights and obligations of the Issuing Lender under this Agreement
with respect to Letters of Credit to be issued thereafter, and (ii) references
herein to the term “Issuing Lender” shall be deemed to refer to such successor
or to any previous Issuing Lender, or to such successor and all previous Issuing
Lenders, as the context shall require. After the replacement of an Issuing
Lender hereunder, the replaced Issuing Lender shall remain a party hereto and
shall continue to have all the rights and obligations of an Issuing Lender
under
this Agreement with respect to Letters of Credit issued prior to such
replacement, but shall not be required to issue additional Letters of
Credit.
Section
2.04
Swingline
Loans
.
(a)
Subject
to the terms and conditions, and relying upon the representations and
warranties, set forth herein, the Swingline Lender agrees to make loans
(individually a “Swingline Loan” and, collectively, the “Swingline Loans”) to
the Company from time to time during the Revolving Credit Commitment Period
up
to, but not exceeding, at any one time outstanding the Swingline Commitment;
provided
,
however
,
that no
Swingline Loan shall be made if, after giving effect to such Swingline Loan,
the
Aggregate Outstandings would exceed the Total Commitment in effect at such
time;
and
provided
further
that the proceeds from Swingline Loans shall not be used to repay outstanding
Revolving Credit Loans. During the Revolving Credit Commitment Period, the
Company may from time to time borrow, repay and reborrow Swingline Loans on
or
after the date hereof and prior to the Revolving Credit Commitment Termination
Date, subject to the terms, provisions and limitations set forth herein. The
Swingline Loans shall be Base Rate Loans.
The
Company shall repay each Swingline Loan on the earlier to occur of (i) the
date
ten (10) Business Days after such Loan is made and (ii) the Revolving Credit
Commitment Termination Date.
(b)
The
Company shall give the Administrative Agent irrevocable written notice (or
telephonic notice promptly confirmed in writing) not later than 2:00 p.m. New
York, New York time on the date of each proposed Swingline Loan under this
Section 2.04. Such notice shall be irrevocable and shall specify (i) the amount
of the proposed borrowing, and (ii) the proposed Borrowing Date. Upon receipt
of
such notice from the Company, the Administrative Agent shall promptly notify
the
Swingline Lender and each Lender thereof. Each borrowing of a Swingline Loan
shall be in an amount not less than $100,000 or, if greater, whole multiples
of
$100,000 in excess thereof. The Swingline Lender shall make each Swingline
Loan
available to the Company by means of a credit to the operating account of the
Company with the Swingline Lender (or, in the case of a Swingline Loan made
to
finance or reimburse a Letter of Credit drawing in accordance with Section
2.03(b) hereof, by remittance to the Issuing Bank) by 4:00 p.m. New York, New
York time, on the requested date of such Swingline Loan.
(c)
So
long
as no Default or Event of Default has occurred and is continuing, the Company
may repay Swingline Loans with the proceeds of a Revolving Credit Loan. The
Swingline Lender may, at any time, require the Lenders to acquire participations
(in the form of Revolving Credit Loans, which shall initially be Base Rate
Loans) with respect to all or a portion of the Swingline Loans outstanding.
If
(i) the Company desires to repay such Swingline Loan with the proceeds of a
Revolving Credit Loan or (ii) the Swingline Lender desires to have the Lenders
acquire participations (in the form of Revolving Credit Loans, which shall
initially be Base Rate Loans), the Swingline Lender shall, by written notice
given to the Administrative Agent no later than 10:00 a.m. New York, New York
time on any Business Day, require the Lenders to acquire participations (in
the
form of Revolving Credit Loans, which shall initially be Base Rate Loans) on
such Business Day with respect to all or a portion of the Swingline Loans
outstanding. Such notice shall specify the aggregate amount of Swingline Loans
which will become such Revolving Credit Loans. Promptly upon receipt of such
notice, the Administrative Agent will give notice thereof to each Lender,
specifying in such notice such Lender’s Commitment Proportion of such Swingline
Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon
receipt of notice as provided above, to pay to the Administrative Agent, for
the
account of the Swingline Lender, such Lender’s Commitment Proportion of such
Swingline
Loan or Loans. Each Lender acknowledges and agrees that its obligation to
acquire a participation in Swingline Loans pursuant to this paragraph is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or Event
of
Default or reduction or termination of the Commitments, and that each such
payment shall be made without any offset, abatement, withholding or reduction
whatsoever. Each Lender shall comply with its obligation under this paragraph
by
wire transfer of immediately available funds, in the same manner as provided
in
Section 3.12 hereof with respect to Loans made by such Lender, and the
Administrative Agent shall promptly pay to the Swingline Lender the amounts
so
received by it from the Lenders. The Administrative Agent shall notify the
Company of any participation in any Swingline Loan acquired pursuant to this
paragraph, and thereafter payments in respect of such Swingline Loan shall
be
made to the Administrative Agent and not to the Swingline Lender. Any amounts
received by the Swingline Lender from the Company (or other party on behalf
of
the Company) in respect of a Swingline Loan after receipt by the Swingline
Lender of the proceeds of a sale of a participation therein shall be promptly
remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent
to
the Lenders that shall have made their payments pursuant to this paragraph
and
to the Swingline Lender, as their interests may appear. The purchase of a
participation in a Swingline Loan pursuant to this paragraph (c) shall not
relieve the Company of any default in the payment thereof.
(d)
The
agreement of the Swingline Lender to make Swingline Loans pursuant to this
Section 2.04 shall automatically terminate on the Revolving Credit Commitment
Termination Date. Upon such termination, the Company shall immediately repay
the
Swingline Lender or the Administrative Agent, as applicable, in full the
principal amount of the Swingline Loans then outstanding, together with all
accrued interest thereon and all other amounts due and payable
hereunder.
(e)
The
Swingline Loans made by the Swingline Lender shall be evidenced by a promissory
note of the Company (the “Swingline Note”), substantially in the form attached
hereto as Exhibit B, appropriately completed, duly executed and delivered on
behalf of the Company and payable to the order of the Swingline Lender in a
principal amount equal to the Swingline Commitment. The Swingline Note shall
(a)
be dated the Closing Date, (b) be stated to mature on the Revolving Credit
Commitment Termination Date, and (c) bear interest from the date thereof until
paid in full on the unpaid principal amount thereof from time to time
outstanding as provided in Section 3.01 hereof. The Swingline Lender is
authorized to record the date and amount of each Swingline Loan and the date
and
amount of each payment or prepayment of principal of each Swingline Loan in
the
Swingline Lender’s records or on the grid schedule annexed to the Swingline
Note;
provided
,
however
,
that
the failure of the Swingline Lender to set forth each such Swingline Loan,
payment and other information shall not in any manner affect the obligation
of
the Company to repay each Swingline Loan made by the Swingline Lender in
accordance with the terms of the Swingline Note and this Agreement. The
Swingline Note, the grid schedule and the books and records of the Swingline
Lender shall constitute presumptive evidence of the information so recorded
absent demonstrable error.
Section
2.05
Increase
in Commitments.
(a)
The
Company shall have the right at any time (
provided
,
that
such right may not be exercised by the Company more than twice after the Closing
Date, and each such exercised increase shall be in an amount not less than
$25,000,000) to increase the Total Commitment hereunder by an aggregate amount,
for all exercises pursuant to this Section 2.05, which is less than or equal
to
$100,000,000 by (i) requesting (which request may be agreed to or declined
by
such Lender in its sole discretion) that one or more Lenders increase its
respective Revolving Credit Commitment or (ii) adding to this Agreement one
or
more financial institutions as a Lender;
provided
,
however
,
that
each such financial institution shall be approved by the Company and the
Administrative Agent (which approval shall not be unreasonably withheld). For
the avoidance of doubt, if the Company’s request pursuant to clause (i) above is
declined by such Lender, such request shall not be considered an exercise of
the
Company’s right for purposes of the first proviso in the preceding sentence. An
increase in the Total Commitment shall be effectuated pursuant to an agreement
with an Increasing Lender or Additional Lender, as applicable, in form and
substance satisfactory to the Company and the Administrative Agent pursuant
to
which (x) in the case of an Additional Lender, such Additional Lender shall
undertake a Revolving Credit Commitment, which Revolving Credit Commitment
shall
be in an amount at least equal to $10,000,000 or an integral multiple of
$500,000 in excess thereof, (y) in the case of an Increasing Lender, such
Increasing Lender shall increase its Revolving Credit Commitment, which increase
in its Revolving Credit Commitment shall be at least equal to $1,000,000 or
an
integral multiple of $500,000 in excess thereof, and (z) in the case of any
Additional Lender, such Additional Lender shall agree to be bound as a Lender
under the terms and conditions of this Agreement and the other Loan Documents.
Upon the effectiveness of any such agreement and its acknowledgement by the
Company and the Administrative Agent (the date of any such effectiveness and
acknowledgement, an “Increased Commitment Date”), such Additional Lender shall
thereupon become a “Lender” for all purposes of this Agreement with a Revolving
Credit Commitment in the amount set forth in such agreement or, as applicable,
the Revolving Credit Commitment of such Increasing Lender shall be increased
in
the amount set forth in such agreement, and this Agreement (including the
signature page of such Increasing Lender) shall be deemed amended to the extent,
but only to the extent, necessary to reflect the addition of such Additional
Lender or the increased Revolving Credit Commitment of such Increasing Lender,
the resulting adjustment of the Revolving Credit Commitments arising therefrom
and the adjustments described in Section 2.05(d) hereof.
(b)
Any
increase in the Total Commitment pursuant to Section 2.05(a) hereof shall not
be
effective unless:
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(i)
|
the
Company shall have given the Administrative Agent notice (which notice
shall be promptly forwarded by the Administrative Agent to each Lender)
of
such desired increase at least fifteen (15) Business Days (or such
shorter
period as the Administrative Agent may agree to in the given instance)
prior to any such proposed Increased Commitment
Date;
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(ii)
|
no
Default or Event of Default shall have occurred and be continuing
as of
the date of the notice referred to in the foregoing clause (i) or
on the
Increased Commitment Date; and
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(iii)
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the
representations and warranties of the Company in Article IV hereof
shall
be true and correct in all material respects on and as of the date
of the
notice referred to in clause (i) and on and as of the applicable
Increased
Commitment Date with the same effect as if made on and as of such
notice
date or Increased Commitment Date (except to the extent such
representations and warranties expressly refer to an earlier date,
in
which case they shall be true and correct as of such earlier
date).
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Each
notice given by the Company pursuant to Section 2.05(b)(i) hereof shall
constitute a representation and warranty by the Company hereunder, as of the
date of each such notice and as of each Increased Commitment Date, and after
giving effect to the increase in the Total Commitment effective thereon, that
the conditions in this Section 2.05(b) are satisfied.
(c)
Effective
on each Increased Commitment Date, (i) the amount of each Lender’s risk
participation in all outstanding Letters of Credit shall be deemed to be
automatically increased or decreased, as applicable, to reflect any changes
in
such Lender’s Commitment Proportion after giving effect to the increase in the
Total Commitment effective thereon, and (ii) the amount of the Revolving Credit
Loans then outstanding and held by each Lender shall be adjusted to reflect
any
such changes in such Lender’s Commitment Proportion. Each Lender having
Revolving Credit Loans then outstanding and whose Commitment Proportion has
been
decreased as a result of the increase in the Total Commitment shall be deemed
to
have assigned, without recourse, such portion of such Revolving Credit Loans
as
shall be necessary to effectuate such adjustment to the Additional Lenders
and
Increasing Lenders (and each such assignment shall be deemed a prepayment for
purposes of Section 3.08 hereof). Each Additional Lender and Increasing Lender
shall (x) be deemed to have assumed such portion of such Revolving Credit Loans
and (y) fund on the Increased Commitment Date, such assumed amounts to the
Agent
for the account of the assigning Lender in accordance with the provisions
hereof.
(d)
The
Administrative Agent shall promptly notify the Lenders and the Company of any
increase in the Total Commitment under this Section 2.05 and of each Lender’s
Commitment Proportion after giving effect to any such increase.
(e)
Upon
the
effectiveness of any increase in the Total Commitment in accordance with this
Section 2.05, the Company agrees to execute Revolving Credit Notes in favor
of
each Additional Lender and each Increasing Lender upon the request of such
Lender to evidence such Lender’s Revolving Credit Commitment after giving effect
to such increase to the Total Commitment and to execute such other documents
as
the Administrative Agent shall deem necessary and appropriate to give effect
to
this Section 2.05;
provided
,
that
any Increasing Lender who has requested a new Revolving Credit Note in an amount
equal to its increased Revolving Credit Commitment shall have returned for
cancellation any other Revolving Credit Notes previously issued to it under
this
Agreement.
ARTICLE
III.
PROVISIONS
RELATING TO ALL EXTENSIONS OF CREDIT; FEES AND PAYMENTS
Section
3.01
Interest
Rate; Continuation and Conversion of Loans.
(a)
Each
Base
Rate Loan shall bear interest for the period from the date thereof on the unpaid
principal amount thereof at a fluctuating rate per annum equal to the Base
Rate
plus the applicable Interest Rate Margin.
(b)
Each
Adjusted Libor Loan shall bear interest for the Interest Period applicable
thereto on the unpaid principal amount thereof at a rate per annum equal to
the
Reserve Adjusted Libor determined for each Interest Period thereof in accordance
with the terms hereof plus the applicable Interest Rate Margin.
(c)
Upon
the
occurrence and during the continuance of a Default or an Event of Default,
at
the option of the Required Lenders, the rate of interest on all Loans and any
other amounts payable under the Loan Documents will be increased to a rate
equal
to (i) 2% per annum plus the rate of interest otherwise applicable to such
Loan,
in the case of payments of principal, and (ii) 2% per annum plus the rate that
would be applicable to Base Rate Loans from time to time, in the case of
payments of any other amount.
(d)
The
Company may elect from time to time to convert outstanding Revolving Credit
Loans from Adjusted Libor Loans to Base Rate Loans by giving the Administrative
Agent at least three (3) Business Days prior irrevocable written notice of
such
election,
provided
that any
such conversion of Adjusted Libor Loans shall only be made on the last day
of an
Interest Period with respect thereto or upon the date of payment in full of
any
amounts owing pursuant to Section 3.08 hereof as a result of such conversion.
Upon receipt of such notice, the Administrative Agent shall promptly notify
each
Lender thereof. The Company may elect from time to time to convert outstanding
Revolving Credit Loans from Base Rate Loans to Adjusted Libor Loans by giving
the Administrative Agent irrevocable written notice of such election not later
than 11:00 a.m. New York, New York time three (3) Business Days prior to the
date of the proposed conversion. Upon receipt of such notice the Administrative
Agent shall promptly notify each Lender thereof. All or any part of outstanding
Base Rate Loans (other than Swingline Loans) may be converted as provided
herein,
provided
that
each conversion shall be in the principal amount of $2,000,000 or whole
multiples of $1,000,000 in excess thereof, and further
provided
that no
Default or Event of Default shall have occurred and be continuing. Any
conversion to or from Adjusted Libor Loans hereunder shall be in such amounts
and be made pursuant to such elections so that, after giving effect thereto,
the
aggregate principal amount of all Adjusted Libor Loans having the same Interest
Period shall not be less than $2,000,000.
(e)
Any
Adjusted Libor Loan in a minimum principal amount of $2,000,000 may be continued
as such upon the expiration of an Interest Period with respect thereto by
compliance by the Company with the notice provisions contained in the definition
of Interest Period;
provided
that no
Adjusted Libor Loan may be continued as such when any Default or Event of
Default has occurred and is continuing, but shall be automatically converted
to
a Base
Rate
Loan
on the last day of the Interest Period in effect when the Administrative Agent
is notified, or otherwise has actual knowledge, of such Default or Event of
Default.
(f)
If
the
Company shall fail to select the duration of any Interest Period for any
Adjusted Libor Loan in accordance with the definition of “Interest Period” set
forth in Section 1.01 hereof, the Company shall be deemed to have selected
an
Interest Period of one month.
(g)
No
Revolving Credit Loan may be converted to or continued as an Adjusted Libor
Loan
with an Interest Period that extends beyond the Revolving Credit Commitment
Termination Date.
(h)
Anything
in this Agreement or in any Note to the contrary notwithstanding, the obligation
of the Company to make payments of interest shall be subject to the limitation
that payments of interest shall not be required to be paid to a Lender to the
extent that the charging or receipt thereof would not be permissible under
the
law or laws applicable to such Lender limiting the rates of interest that may
be
charged or collected by such Lender. In each such event payments of interest
required to be paid to such Lender shall be calculated at the highest rate
permitted by applicable law until such time as the rates of interest required
hereunder may lawfully be charged and collected by such Lender. If the
provisions of this Agreement or any Note would at any time otherwise require
payment by the Company to any Lender of any amount of interest in excess of
the
maximum amount then permitted by applicable law, the interest payments to such
Lender shall be reduced to the extent necessary so that such Lender shall not
receive interest in excess of such maximum amount.
(i)
Interest
on each Loan shall be payable in arrears on each Interest Payment Date and
shall
be payable for the actual days elapsed. Any rate of interest on the Loans or
other Obligations which is computed on the basis of the Base Rate shall change
when and as the Base Rate changes in accordance with the definition thereof.
Section
3.02
Use
of Proceeds.
The
proceeds of the Revolving Credit Loans shall be used to refinance Indebtedness
of the Company under the 2004 Credit Agreement, to finance Acceptable
Acquisitions and for general working capital and other corporate purposes.
The
Swingline Loans shall be used by the Company for general working capital and
other corporate purposes. Commercial Letters of Credit shall be issued by the
Issuing Lender hereunder for the account of the Company and shall be issued
for
the purpose of providing the primary payment mechanism in connection with the
purchase of any materials, goods or services by the Company or any Guarantors
in
the ordinary course of their respective businesses. Standby Letters of Credit
shall be issued by the Issuing Lender for the account of the Company and shall
be issued for purposes in connection with, and in the ordinary course of, the
business of the Company or the Guarantors consistent with historical purposes
of
standby letters of credit issued for the account of the Company prior to the
date hereof.
Section
3.03
Prepayments.
(a)
Voluntary
.
The
Company may, at any time and from time to time, prepay the then outstanding
Loans, in whole or in part, without premium or penalty, except as provided
in
Section 3.08 hereof, upon written notice to the Administrative Agent (or
telephonic notice promptly confirmed in writing) not later than 11:00 a.m.
New
York, New York time, three (3) Business Days before the date of prepayment
with
respect to prepayments of Adjusted Libor Loans, or 11:00 a.m. New York, New
York
time on the date of prepayment with respect to Base Rate Loans. Each notice
shall be irrevocable and shall specify the date and amount of prepayment and
whether such prepayment is of Adjusted Libor Loans or Base Rate Loans or a
combination thereof, and if a combination thereof, the amount of prepayment
allocable to each. Upon receipt of such notice, the Administrative Agent shall
promptly notify each Lender thereof. If such notice is given, the Company shall
make such prepayment, and the amount specified in such notice shall be due
and
payable, on the date specified therein. Each partial prepayment pursuant to
this
Section 3.03 hereof shall be in a principal amount of $1,000,000 or whole
multiples of $1,000,000 in excess thereof.
(b)
Mandatory
.
To the
extent that the Aggregate Outstandings exceed the Total Commitment, then the
Company shall immediately prepay the Revolving Credit Loans to the extent
necessary to cause compliance with each of the foregoing. To the extent that
such prepayments are insufficient to cause such compliance, the Company shall
pledge to the Administrative Agent, for the ratable benefit of the Lenders,
Cash
Collateral in an amount equal to the amount of such shortfall, which Cash
Collateral shall secure the reimbursement obligations of the Company to the
Issuing Lender with respect to Letters of Credit.
All
prepayments shall be applied, first, to Base Rate Loans outstanding and second,
to Adjusted Libor Loans outstanding, in such order as the Administrative Agent
shall determine in its sole and absolute discretion. All prepayments shall
be
accompanied by accrued interest on the principal amount being prepaid to the
date of prepayment.
Section
3.04
Fees.
(a)
The
Company agrees to pay to the Administrative Agent for the account of, and pro
rata distribution to, each Lender a commitment fee equal to the sum of the
actual daily unused portion of the Total Commitment (after giving effect to
any
Swingline Loans then outstanding) from the date of this Agreement until the
Revolving Credit Commitment Termination Date multiplied by the rate set forth
in
the definition of the term “Unused Fee Rate” as in effect on the date of
calculation, in each case, based on a year of 360 days. Such fees shall be
payable in arrears (i) on the last day of June, September, December and March
of
each year commencing June 30, 2006, (ii) on the Revolving Credit Commitment
Termination Date, and (iii) on each date the Revolving Credit Commitments are
permanently reduced in whole or in part.
(b)
The
Company shall pay to the Administrative Agent for the account of, and pro rata
distribution to, the Lenders a commission with respect to the Lenders’
participation in Standby Letters of Credit equal to the Standby LC Fee
multiplied by the average daily amount of the Standby LC Exposure during the
period from and including the Closing Date to but excluding the later of (a)
the
Revolving Credit Commitment Termination Date and (b) the date on which such
Lender ceases to have any Standby LC Exposure. Such commissions with respect
to
Standby Letters of Credit shall be payable in arrears on the last Business
Day
of June, September, December and March of each year, commencing June 30, 2006;
provided
that all
such fees shall be payable on the date on which the Total Commitment terminates
and any such fees accruing after the date on which the Total Commitment
terminates shall be payable on demand. All commissions with respect to Standby
Letters of Credit shall be computed on the basis of a year of three hundred
sixty (360) days and shall be payable for the actual number of days
elapsed.
(c)
The
Company shall pay to the Administrative Agent for the account of, and pro rata
distribution to each Lender, a payment fee equal to 0.125% of the amount paid
on
each Commercial Letter of Credit upon payment of such amount by the Issuing
Lender.
(d)
In
addition, the Company shall pay to the Issuing Lender for its own account,
upon
issuance of any Letter of Credit hereunder, a letter of credit fronting fee
equal to the greater of (i) 0.125% of the face amount of each Letter of Credit
issued hereunder, or (ii) $250, together with the customary fees charged by
the
Issuing Lender in its sole discretion with respect to the issuance, payment,
acceptance, processing and administration of Letters of Credit (including,
without limitation, amendments to Letters of Credit).
(e)
The
Company further agrees to pay to the Administrative Agent for the account of
each Lender an upfront fee in an aggregate amount previously agreed upon between
the Lead Arranger and the Company to be distributed to the Lenders in accordance
with their respective agreements with the Lead Arranger.
Section
3.05
Computation
of Interest and Fees
.
(a)
All
computations of interest for Base Rate Loans when the Base Rate is determined
by
the Prime Rate shall be made on the basis of a year of 365 or 366 days, as
the
case may be, and actual days elapsed. All other computations of fees and
interest shall be made on the basis of a 360-day year and actual days elapsed
(which results in more fees or interest, as applicable, being paid than if
computed on the basis of a 365-day year). Each determination by the
Administrative Agent of an interest rate or fee hereunder shall be conclusive
and binding for all purposes, absent manifest error.
(b)
In
the
event that the Administrative Agent shall have determined in good faith (which
determination shall be conclusive and binding upon the Company, absent
demonstrable error) that, by reason of circumstances affecting the London
interbank market, adequate and reasonable means do not exist for ascertaining
the Reserve Adjusted Libor applicable pursuant to Section 3.01(b) hereof for
any
requested Interest Period with respect to (a) the making of an Adjusted Libor
Loan, (b) an Adjusted Libor Loan that will result from the requested conversion
of a Base Rate Loan into an Adjusted Libor Loan, or (c) the continuation of
an
Adjusted Libor Loan beyond the expiration of the then current Interest Period
with respect thereto, the Administrative Agent shall forthwith give notice
by
telephone of such determination, promptly confirmed in writing, to the Company
and each Lender of such determination. Until the Administrative Agent notifies
the Company that the circumstances giving rise to the suspension described
herein no longer exist, the Company shall not have the right to request or
continue an Adjusted Libor Loan or to convert a Base Rate Loan to an Adjusted
Libor Loan.
Section
3.06
Illegality.
Notwithstanding
any other provisions herein, if any introduction of or change in any law,
regulation, treaty or directive or in the interpretation or application thereof
shall make it unlawful for any Lender to make or maintain Adjusted Libor Loans
as contemplated by this Agreement, such Lender shall forthwith give notice
by
telephone of such circumstances, promptly confirmed in writing, to the
Administrative Agent, which notice the Administrative Agent shall promptly
transmit to the Company and the other Lenders and (a) the commitment of such
Lender to make and to allow conversion to or continuations of Adjusted Libor
Loans shall forthwith be cancelled for the duration of such illegality and
(b)
the Revolving Credit Loans of the affected Lender then outstanding as Adjusted
Libor Loans, if any, shall be converted automatically to Base Rate Loans on
the
next succeeding last day of each Interest Period applicable to such Adjusted
Libor Loans or within such earlier period as may be required by law. The Company
shall pay to such Lender, upon demand, any additional amounts required to be
paid pursuant to Section 3.08 hereof.
Section
3.07
Increased
Costs.
(a)
In
the
event that any introduction of or change in, after the date hereof, any
applicable law, regulation, treaty, order or directive or in the interpretation
or application thereof (including, without limitation, any request, guideline
or
policy, whether or not having the force of law, of or from any central bank
or
other governmental authority, agency or
instrumentality
and including, without limitation, Regulation D), by any authority charged
with
the administration or interpretation thereof shall occur, which:
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(i)
|
shall
subject any Lender or the Issuing Lender to any tax of any kind whatsoever
with respect to this Agreement, any Note, any Loan or any Letter
of Credit
(or participations therein) or change the basis of taxation of payments
to
such Lender or the Issuing Lender of principal, interest, fees or
any
other amount payable hereunder (other than any tax that is measured
with
respect to the overall net income of such Lender or the Issuing Lender
or
any Lending Office of such Lender or the Issuing Lender and that
is
imposed by the United States of America, or any political subdivision
or
taxing authority thereof or therein, or by any jurisdiction in which
such
Lender’s Lending Office or the Issuing Lender’s lending office is located,
or by any jurisdiction in which such Lender is organized, has its
principal office or is managed and controlled);
or
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(ii)
|
shall
impose, modify or hold applicable any reserve, special deposit, compulsory
loan or similar requirement (whether or not having the force of law)
against assets held by, or deposits or other liabilities in or for
the
account of, advances or loans by, or other credit extended by, or
any
other acquisition of funds by, any office of any Lender or the Issuing
Lender; or
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(iii)
|
shall
impose on any Lender or the Issuing Lender any other condition, or
change
therein;
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and
the
result of any of the foregoing is to increase the cost to such Lender or the
Issuing Lender of making, renewing or maintaining or participating in advances
or extensions of credit hereunder or to reduce any amount receivable hereunder,
in each case by an amount which such Lender or the Issuing Lender deems
reasonably material, then, in any such case, subject to the provisions of
Section 3.09 hereof, the Company shall pay such Lender or the Issuing Lender,
upon written demand, such additional amount or amounts as such Lender or the
Issuing Lender shall have determined in good faith will compensate such Lender
for such increased costs or reduction.
(b)
If
any
Lender or the Issuing Lender shall have determined that the adoption of, or
any
change in, any applicable law, rule or regulation regarding capital adequacy,
or
any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation
or
administration thereof, or compliance by any Lender or the Issuing Lender (or
any lending office of any Lender or the Issuing Lender which funds Loans
hereunder) or any Lender’s or the Issuing Lender’s holding company, with any
request or directive regarding capital adequacy (whether or not having the
force
of the law) of any such authority, central bank or comparable agency, has or
would have the effect of reducing the rate of return on such Lender’s or the
Issuing Lender’s capital or on the capital of such Lender’s or the Issuing
Lender’s holding company as a consequence of its
obligations
hereunder to a level below that which such Lender or the Issuing Lender (or
such
holding company) could have achieved but for such adoption, change or compliance
(taking into consideration such Lender’s or the Issuing Lender’s policies and
the policies of such Lender’s or the Issuing Lender’s holding company with
respect to capital adequacy) by an amount deemed by such Lender or the Issuing
Lender to be material, then from time to time, the Company shall pay to such
Lender or the Issuing Lender the additional amount or amounts as such Lender
or
the Issuing Lender shall have determined will compensate such Lender or the
Issuing Lender or such Lender’s or the Issuing Lender’s holding company for such
reduction. Such Lender’s or the Issuing Lender’s determination of such amounts
shall be conclusive and binding on the Company absent demonstrable
error.
(c)
A
certificate of a Lender setting forth the amount or amounts payable pursuant
to
Sections 3.07(a) and 3.07(b) hereof shall be conclusive absent demonstrable
error. The Company shall pay such Lender or the Issuing Lender the amount shown
as due on any such certificate within 10 days after receipt
thereof.
(d)
In
the
event any Lender or the Issuing Lender shall be entitled to compensation
pursuant to Section 3.07(a) or Section 3.07(b) hereof, it shall promptly notify
the Administrative Agent and the Company of the event by reason of which it
has
become so entitled;
provided
,
however
,
no
failure on the part of any Lender or the Issuing Lender to demand compensation
under clause (a) or clause (b) above on one occasion shall constitute a waiver
of its right to demand compensation on any other occasion.
Section
3.08
Indemnity.
The
Company agrees to indemnify each Lender and to hold each Lender harmless from
any loss, cost or expense which such Lender may sustain or incur, including,
without limitation, interest or fees payable by such Lender to lenders of funds
obtained by it in order to maintain Adjusted Libor Loans hereunder, as a
consequence of (a) default by the Company in payment of the principal amount
of
or interest on any Adjusted Libor Loan, (b) default by the Company to accept
or
make a borrowing of an Adjusted Libor Loan or a conversion into or continuation
of an Adjusted Libor Loan after the Company has requested such borrowing,
conversion or continuation, (c) default by the Company in making any prepayment
of any Adjusted Libor Loan after the Company gives a notice in accordance with
Section 3.03 hereof and/or (d) the making of any payment or prepayment (whether
mandatory or optional) of an Adjusted Libor Loan (including as a result of
an
assignment pursuant to Section 2.05(c) hereof) or the making of any conversion
of an Adjusted Libor Loan to a Base Rate Loan on a day which is not the last
day
of the applicable Interest Period with respect thereto. A certificate of a
Lender setting forth such amounts shall be conclusive absent demonstrable error.
The Company shall pay such Lender the amount shown as due on any certificate
within ten (10) days after receipt thereof.
Section
3.09
Mitigation,
Obligations; Replacement of Lenders
.
(a)
Each
Lender agrees to use reasonable efforts to designate an alternate Lending Office
with respect to any Type of Loan affected by the events or circumstances
described in Section 3.05(b), 3.06, 3.07 or 3.10 hereof to avoid or minimize
the
Company’s liability thereunder;
provided
,
however
,
that
such efforts shall not cause the imposition on such
Lender
of
any additional cost or legal, regulatory or administrative burdens deemed by
such Lender, in its sole discretion, to be material.
(b)
If
any
Lender is affected by the events or circumstances described in Section 3.05(b),
3.06, 3.07 or 3.10 and requests additional compensation pursuant to the terms
of
this Agreement, or if any Lender defaults in its obligation to fund Loans
hereunder, then the Company may, at its sole expense and effort, upon notice
to
such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (and in accordance with the restrictions set forth
in
Section 10.05 hereof), all its interests, rights, and obligations under this
Agreement to an assignee that shall assume such obligations (which assignee
may
be another Lender, if such Lender accepts such assignment);
provided
,
that
(i) the Company shall have received the prior written consent of the
Administrative Agent (and if a Commitment is being assigned, the Issuing Bank
and the Swingline Lender), which consent shall not be unreasonably withheld
or
delayed, (ii) such Lender shall have received payment of an amount equal to
the
outstanding principal amount of its Loans and participation in Swingline Loans,
accrued interest thereon, accrued fees and other amounts payable to it hereunder
from the assignee (to the extent of the outstanding principal and accrued
interest and fees) or the Company (in the case of all other amounts) and (iii)
in the case of any such assignment resulting from a claim for compensation
pursuant to Section 3.05(b), 3.06 or 3.07 hereof or payments required to be
made
pursuant to Section 3.10 hereof, such assignment will result in a reduction
of
such compensation or payments. A Lender shall not be required to make any such
assignment or delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Company to require such
assignment and delegations cease to apply.
Section
3.10
Taxes.
(a)
Except
as
set forth in clause (d) below or as required by law, all payments made by the
Company under this Agreement shall be made free and clear of, and without
reduction for or on account of, any present or future taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority, excluding
(i) income and franchise taxes (imposed in lieu of income taxes) imposed on
the
Administrative Agent, the Issuing Lender or a Lender as a result of a present,
former or future connection between the jurisdiction of the government or the
taxing authority imposing such tax and the Administrative Agent, Issuing Lender
or Lender or the lending office of the Administrative Agent, Issuing Lender
or a
Lender (excluding a connection arising solely from the Administrative Agent,
Issuing Lender or a Lender having executed this Agreement, the Notes or the
other Loan Documents) or any political subdivision or taxing authority thereof
or therein, and (ii) taxes (including withholding taxes) imposed by reason
of
the failure of the Administrative Agent, Issuing Lender or a Lender, if
organized outside of the United States, to comply with Section 3.10(c) hereof
(or the inaccuracy at any time of the certificates, documents or other evidence
delivered thereunder) (such non-excluded taxes being called “Non-Excluded
Taxes”). If any Non-Excluded Taxes are required to be withheld from any amounts
payable to the Administrative Agent, the Issuing Lender or any Lender hereunder,
or under the Notes, the amount so payable to the Administrative Agent, the
Issuing Lender or such Lender shall be increased to the extent necessary to
yield to the Administrative Agent, the Issuing Lender or such Lender (after
payment of all Non-Excluded Taxes and free and clear of all liability in respect
of such Non-Excluded Taxes) interest or any such other amounts payable
hereunder
at the rates or in the amounts specified in this Agreement and the Notes
provided
,
however
,
that
the Company shall not be required to increase any such amounts payable to any
Lender with respect to any Non-Excluded Taxes (i) that are attributable to
such
Lender’s failure to comply with the requirements of Section 3.09 hereof, (ii)
that are United States withholding taxes imposed (or branch profits taxes
imposed in lieu thereof) on amounts payable to such Lender at the time such
Lender becomes a party to this Agreement, except to the extent that such
Lender’s assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the Company with respect to such Non-Excluded Taxes
pursuant to this Section 3.10(a), or (iii) that are imposed as a result of
any
event occurring after such Lender becomes a Lender other than a change in law
or
regulation or the introduction of any law or regulation or a change in
interpretation or administration of any law. Whenever any Non-Excluded Taxes
are
payable by the Company, as promptly as possible thereafter, the Company shall
send to the Administrative Agent for its own account or for the account of
the
Issuing Lender or such Lender, as the case may be, a certified copy of an
original official receipt showing payment thereof. If the Company fails to
pay
Non-Excluded Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent the required receipts or other required
documentary evidence, the Company shall indemnify the Administrative Agent,
the
Issuing Lender and the Lenders for any incremental taxes, interest or penalties
that may become payable by the Administrative Agent, the Issuing Lender or
such
Lender as a result of any such failure together with any expenses payable by
the
Administrative Agent, the Issuing Lender or such Lender in connection therewith;
provided
that the
Administrative Agent, Issuing Lender or such Lender has provided the Company
with notice thereof as required by Section 10.01 hereof, accompanied by a demand
for payment.
(b)
If
a
Lender or the Administrative Agent becomes aware that it is entitled to claim
a
refund from a governmental authority in respect of any Non-Excluded Taxes as
to
which it has been indemnified by the Company or with respect to which the
Company has paid additional amounts pursuant to this Section 3.10, it promptly
shall notify the Company in writing of the availability of such refund claim
and
shall make a timely claim to such taxation authority for such refund at the
Company’s expense. If a Lender or the Administrative Agent receives a refund
(including pursuant to a claim for refund made pursuant to the preceding
sentence) or a permanent net tax benefit in respect of any Non-Excluded Taxes
as
to which it has been indemnified by the Company or with respect to which the
Company has paid additional amounts pursuant to this Section 3.10, it shall
within thirty (30) days from the date of such receipt pay over the amount of
such refund or permanent net tax benefit to the Company, net of all reasonable
out-of-pocket expenses of such Lender or the Administrative Agent and without
interest (other than interest paid by the relevant taxation authority with
respect to such refund);
provided
that the
Company, upon the request of such Lender or the Administrative Agent, agrees
to
repay the amount paid over to the Company (plus penalties, interest or other
reasonable charges) to such Lender or the Administrative Agent in the event
such
Lender or the Administrative Agent is required to repay such refund to such
taxation authority or loses such net tax benefit.
(c)
On
or
before the date on which it becomes a party to this Agreement, each Lender
that
is not organized under the laws of the United States or a state thereof agrees
that it will deliver to the Company and the Administrative Agent (i) two duly
completed copies of United States Internal Revenue Service Form W-8BEN or W-8ECI
or successor applicable form,
as
the
case may be, certifying in each case that such Lender is entitled to receive
payments under this Agreement without deduction or withholding of any United
States federal income taxes, and (ii) if such Lender is not a “bank” within the
meaning of Section 881(c)(3)(A) of the Code, an Internal Revenue Service Form
W-8BEN or successor applicable form, and a statement in the form of Exhibit
G
hereto. Each Lender that delivers to the Company and the Administrative Agent
a
Form W-8BEN or W-8ECI pursuant to the preceding sentence further undertakes
to
deliver to the Administrative Agent two further copies of the said statement
and
Form W-8BEN or W-8ECI, or successor applicable forms, or other manner of
certification, as the case may be, on or before the date that any such statement
or form expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent statement or form previously delivered
by
it to the Administrative Agent, and such extensions or renewals thereof as
may
be requested by the Administrative Agent, certifying in the case of a Form
W-8BEN or W-8ECI that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal income
taxes. Each Lender shall promptly notify the Company and the Administrative
Agent at any time it determines that it is no longer in a position to provide
any previously delivered above-mentioned form or statement (or successor
thereto) to the Company and the Administrative Agent.
(d)
For
any
period with respect to which a Lender required to do so has failed to provide
the Company with the appropriate form described in Section 3.l0(c) above (other
than if such failure is due to a change in law occurring subsequent to the
date
on which a form originally was required to be provided, or if such form
otherwise is not required under Section 3.10(c) above), such Lender shall not
be
entitled to indemnification under this Section 3.10 with respect to Non-Excluded
Taxes imposed by reason of such failure;
provided
,
however
,
that
should a Lender become subject to Non-Excluded Taxes because of its failure
to
deliver a form required hereunder, the Company shall take such steps as such
Lender reasonably shall request to assist such Lender in recovering such
Non-Excluded Taxes.
Section
3.11
Pro
Rata Treatment and Payments
.
(a)
Each
borrowing by the Company from the Lenders, each conversion of a Revolving Credit
Loan pursuant to Section 3.01(d) hereof or continuation of a Revolving Credit
Loan pursuant to Section 3.01(e) hereof, each payment by the Company on account
of any fee (other than with respect to fees which are expressly payable to
the
Administrative Agent or the Issuing Lender for its own account), and any
reduction of the Commitments of the Lenders hereunder shall be made pro rata
according to the respective relevant Commitment Proportions of the Lenders.
Each
reimbursement by the Company to the Issuing Lender with respect to drawings
under Letters of Credit pursuant to Section 2.03 hereof shall be made pro rata
for the benefit of the Lenders to the extent such Lender has made available
its
Commitment Proportion of such drawing in accordance with Section 2.03(b) hereof.
Each payment (including each prepayment) by the Company on account of principal
of and interest on each Loan shall be made pro rata according to the respective
outstanding principal amounts of such Loans held by each Lender. Except as
otherwise provided in Section 2.04 hereof, all payments by the Company on
account of principal of and interest on any Swingline Loan shall be made to
the
Swingline Lender at its office specified on its signature page hereof in Dollars
in immediately available funds. All payments (including prepayments) to be
made
by the Company on account of principal, interest, fees and reimbursement
obligations shall be made without set-off or
counterclaim
and, with respect to payments of the Loans shall be made to the Administrative
Agent, for the account of the Lenders (except as specified above), at the
Payment Office in Dollars in immediately available funds. The Administrative
Agent shall distribute such payments with respect to Loans to the Lenders
promptly upon receipt in like funds by wire transfer of each Lender’s portion of
such payment to such Lender for the account of its Lending Office. The
Administrative Agent may, in its sole discretion, directly charge principal
and
interest payments due in respect of the Loans to the Company’s accounts at the
Payment Office or other office of the Administrative Agent. The Issuing Lender
may, in its sole discretion, directly charge reimbursement obligations with
respect to Letters of Credit to the Company’s accounts at any office of the
Issuing Lender. Except as otherwise provided in the definition of “Interest
Period”, if any payment hereunder becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next succeeding Business
Day, and, with respect to payments of principal, interest thereon shall be
payable at the then applicable rate during such extension.
Section
3.12
Funding
and Disbursement of Loans
.
(a)
Each
Lender shall make each Revolving Credit Loan to be made by it hereunder
available to the Administrative Agent at the Payment Office for the account
of
such office and the Administrative Agent by 1:00 p.m. New York, New York time
on
the Borrowing Date in Dollars in immediately available funds. Unless any
applicable condition specified in Article V has not been satisfied, the amount
so received by the Administrative Agent will be made available to the Company
at
the Payment Office by crediting the account of the Company with such amount
and
in like funds as received by the Administrative Agent;
provided
,
however
,
that if
the proceeds of any Revolving Credit Loan or Swingline Loan or any portion
thereof are to be used to prepay outstanding Revolving Credit Loans, Swingline
Loans or Letter of Credit obligations, then the Administrative Agent shall
apply
such proceeds for such purpose to the extent necessary and credit the balance,
if any, to the Company’s account.
(b)
Unless
the Administrative Agent shall have been notified in writing by any Lender
prior
to a proposed Borrowing Date that such Lender is affected by the events or
circumstances described in Section 3.05(b), 3.06, 3.07 or 3.10 hereof and that
such Lender will not make the amount which would constitute its Commitment
Proportion of the borrowing on such Borrowing Date available to the
Administrative Agent, the Administrative Agent may assume that such Lender
has
made such amount available to the Administrative Agent on such Borrowing Date,
and the Administrative Agent may, in reliance upon such assumption, make
available to the Company a corresponding amount. If such amount is not made
available to the Administrative Agent until a date after such Borrowing Date,
such Lender shall pay to the Administrative Agent on demand interest on such
Lender’s Commitment Proportion of such borrowing at a rate equal to the greater
of (i) the daily average Federal Funds Rate and (ii) a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation during such period, from and including such Borrowing Date to
the
date on which such Lender’s Commitment Proportion of such borrowing shall have
become immediately available to the Administrative Agent. A certificate of
the
Administrative Agent submitted to any Lender with respect to any amounts due
pursuant to this Section 3.12(b) shall be conclusive absent demonstrable error.
Nothing herein shall be deemed to relieve any Lender from its
obligations
to fulfill its commitment hereunder or to prejudice any right which the Company
may have against any Lender as a result of any default by such Lender
hereunder.
ARTICLE
IV.
REPRESENTATIONS
AND WARRANTIES
In
order
to induce the Lenders to enter into this Agreement and to make the Loans herein
provided for, the Company represents and warrants to the Administrative Agent
and each Lender that:
Section
4.01
Organization,
Powers
.
The
Company and each Guarantor (a) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its formation, (b)
has the corporate power and authority to own its properties and to carry on
its
business as being conducted, (c) is in good standing and is duly qualified
to do
business in every jurisdiction wherein the conduct of its business or the
ownership of its properties are such as to require such qualification except
those jurisdictions in which the failure to be so qualified could not reasonably
be expected to have a Material Adverse Effect, and (d) has the corporate power
to execute, deliver and perform each of the Loan Documents to which it is a
party, including, without limitation, the power to obtain extensions of credit
hereunder and to execute and deliver the Notes. Each Subsidiary of the Company
which is not a Guarantor, other than Excluded Subsidiaries, (a) is a
corporation, limited liability company, partnership or other legal entity (as
indicated on Schedule I hereto) duly organized or formed, as applicable, validly
existing and in good standing under the laws of the jurisdiction of its
formation, (b) has the corporate, limited partnership, limited liability company
or other legal power and authority to own or lease its properties and to carry
on its business as being conducted on the Closing Date and, (c) is duly
qualified to do business in every jurisdiction wherein the conduct of its
business or the ownership of its properties are such as to require such
qualification except in those jurisdictions where the failure to be so qualified
could not reasonably be expected to have a Material Adverse Effect.
Section
4.02
Authorization
of Borrowing, Enforceable Obligations.
The
execution, delivery and performance by the Company of this Agreement, and the
other Loan Documents to which it is a party, the borrowings and the other
extensions of credit to the Company hereunder, and the execution, delivery
and
performance by each Guarantor of the Loan Documents to which such Guarantor
is a
party, (a) have been duly authorized by all requisite corporate, limited
partnership or limited liability company action, (b) will not violate or require
any consent (other than consents as have been made or obtained and which are
in
full force and effect) under (i) any provision of law applicable to the Company
or any Guarantor, any applicable rule or regulation of any Governmental
Authority, or the Certificate of Incorporation or By-laws of the Company or
the
Certificate of Incorporation, By-Laws, or other organizational documents, as
applicable, of any Guarantor or (ii) any order of any court or other
Governmental Authority binding on the Company or any Guarantor or any indenture,
agreement or other instrument to which the Company or any Guarantor is a party,
or by which the Company or any Guarantor or any of its property is bound and
(c)
will not be in conflict with, result in a breach of or constitute (with due
notice and/or lapse of time) a default under any such indenture, agreement
or
other
instrument, which conflict, breach or default could reasonably be expected
to
have a Material Adverse Effect, or result in the creation or imposition of
any
Lien of any nature whatsoever upon any of the property or assets of the Company
or any Guarantor other than as contemplated by this Agreement or the other
Loan
Documents. This Agreement and each other Loan Document to which the Company
or
any Guarantor is a party constitutes a legal, valid and binding obligation
of
the Company and each such Guarantor, as the case may be, enforceable against
the
Company and each such Guarantor, as the case may be, in accordance with its
terms except to the extent that enforcement may be limited by applicable
bankruptcy, reorganization, moratorium, insolvency and similar laws affecting
creditors’ rights generally or by equitable principles of general application,
regardless of whether considered in a proceeding in equity or at
law.
Section
4.03
Financial
Condition.
(a)
The
Company has heretofore furnished to each Lender (i) the audited consolidated
balance sheet of the Company and its Subsidiaries and the related consolidated
statements of income, retained earnings and cash flow of the Company and its
Subsidiaries, audited by Ernst & Young LLP, independent auditors, for the
fiscal year ended June 30, 2005 and (ii) the unaudited consolidated balance
sheet of the Company and its Subsidiaries and the related consolidated
statements of income, retained earnings and cash flow of the Company and its
Subsidiaries for the six-month period ended December 31, 2005. The financial
statements for the year ended June 30, 2005, referred to in clause (i) above,
were prepared in conformity with Generally Accepted Accounting Principles,
and
the financial statements for the fiscal quarter and six-month period ended
December 31, 2005, referred to in clause (ii) above, were prepared in conformity
with Generally Accepted Accounting Principles, (subject to year-end adjustments
and except for the absence of notes thereto), and, in each case, such financial
statements fairly present the consolidated financial condition and consolidated
results of operations of the Company and its Subsidiaries as of the date of
such
financial statements and for the periods to which they relate and since December
31, 2005 no Material Adverse Effect has occurred. The Company shall deliver
to
the Administrative Agent, a certificate of the Chief Financial Officer of the
Company to that effect on the Closing Date. Since the later of (i) the date
of
the Current SEC Report or (ii) the date of the most recent pro forma financial
statements delivered pursuant to Section 7.06 hereof relating to a completed
acquisition, there are no obligations or liabilities, contingent or otherwise,
of the Company or any of its Subsidiaries which are not reflected or disclosed
on such audited statements, the Current SEC Report or such pro forma financial
statements, other than obligations of the Company and its Subsidiaries incurred
in the ordinary course of business.
(b)
The
Company and each of the Guarantors is Solvent.
Section
4.04
Taxes.
The
Company and each Subsidiary of the Company has filed or has caused to be filed
all tax returns (foreign, federal, state and local) required to be filed
(including, without limitation, with respect to payroll and sales taxes) and
the
Company and each Subsidiary of the Company has paid all taxes (including,
without limitation, all payroll and sales taxes), assessments and governmental
charges and levies shown thereon to be due, including interest and penalties
except
(a)
where
the failure to file such tax returns or pay such taxes, charges or levies could
not reasonably be expected to have a Material Adverse Effect and (b) taxes,
assessments and governmental charges and levies being contested in good faith
by
appropriate proceedings and with respect to which adequate reserves in
conformity with Generally Accepted Accounting Principles consistently applied
shall have been provided on the books of the Company and its
Subsidiaries.
Section
4.05
Title
to Properties.
The
Company and each Subsidiary of the Company has good title to its respective
properties and assets reflected on the financial statements referred to in
Section 4.03 hereof, except for such properties and assets as have been disposed
of since the date of such financial statements as no longer used or useful
in
the conduct of their respective businesses or as have been disposed of in the
ordinary course of business, and all such properties and assets are free and
clear of all Liens other than Permitted Liens.
Section
4.06
Litigation.
(a)
Except
as
set forth on Schedule VI, there are no actions, suits or proceedings (whether
or
not purportedly on behalf of the Company or any Subsidiary of the Company)
pending or, to the knowledge of the Company, threatened against or affecting
the
Company or any such Subsidiary at law or in equity or before or by any
Governmental Authority, which involve any of the transactions contemplated
herein or which could reasonably be expected to result in a Material Adverse
Effect; and
(b)
Neither
the Company nor any Subsidiary of the Company is in default with respect to
any
judgment, writ, injunction, decree, rule or regulation of any Governmental
Authority which could reasonably be expected to result in a Material Adverse
Effect.
Section
4.07
Agreements.
Neither
the Company nor any Subsidiary of the Company is in violation of or restricted
by its charter or bylaws or in breach or violation of any judgment, order,
writ,
injunction, decree or regulation which could reasonably be expected to have
a
Material Adverse Effect. Neither the Company nor any Subsidiary of the Company
is in default in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any agreement, indenture,
loan
or credit agreement or any lease or other agreement or instrument to which
it is
a party, which default could reasonably be expected to have a Material Adverse
Effect.
Section
4.08
Compliance
with ERISA.
Except
as
set forth on Schedule VII, each Plan is in compliance in all material respects
with ERISA; no Plan is insolvent or in reorganization (as defined in Section
4241 of ERISA), no Plan has an Unfunded Current Liability, and no Plan has
an
accumulated or waived funding deficiency within the meaning of Section 412
of
the Code; neither the Company, any Subsidiary of the Company nor any ERISA
Affiliate has incurred any material liability to or on account of a Plan
pursuant to Section 515, 4062, 4063, 4064, 4201 or 4204 of ERISA or reasonably
expects to incur any liability under any of the foregoing Sections on account
of
the prior termination of
participation
in or contributions to any such Plan; no proceedings have been instituted to
terminate any Plan; no condition exists which could reasonably be expected
to
present a risk to the Company, any Subsidiary of the Company or any ERISA
Affiliate of incurring a liability to or on account of a Plan pursuant to the
foregoing provisions of ERISA and the Code; and no lien imposed under the Code
or ERISA on the assets of the Company, any Subsidiary of the Company or any
of
its ERISA Affiliates exists or to the knowledge of the Company is likely to
arise on account of any Plan. The aggregate potential tax liabilities, fines
and
penalties related to the items included on Schedule VII would not have a
Material Adverse Effect.
Section
4.09
Federal
Reserve Regulations; Use of Proceeds
.
(a)
Neither
the Company nor any Subsidiary of the Company is engaged principally in, nor
has
as one of its important activities, the business of extending credit for the
purpose of purchasing or carrying any “margin stock” (within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System of the
United States, as amended from time to time).
(b)
No
part
of the proceeds of any Loan and no other extension of credit hereunder will
be
used, whether directly or indirectly, and whether immediately, incidentally
or
ultimately, (i) to purchase or to carry margin stock or to extend credit to
others for the purpose of purchasing or carrying margin stock, or to refund
indebtedness originally incurred for such purposes, or (ii) for any purpose
which violates or is inconsistent with the provisions of Regulation T, U, or
X
of the Board of Governors of the Federal Reserve System.
(c)
The
proceeds of each Loan, and each other extension of credit hereunder, shall
be
used solely for the purposes permitted under Section 3.02 hereof.
Section
4.10
Approvals.
No
registration with or consent or approval of, or other action by, any
Governmental Authority or any other Person is required in connection with the
execution, delivery and performance of this Agreement by the Company or any
Guarantor, or with the execution, delivery and performance of any other Loan
Documents to which it is a party or, with respect to the Company, the borrowings
and each other extension of credit hereunder other than registrations, consents
and approvals received prior to the date hereof and disclosed to the Lenders
and
which are in full force and effect or such registrations, consents and approvals
required pursuant to Section 5.01 hereof.
Section
4.11
Subsidiaries
and Affiliates
.
Attached
hereto as Schedule I is a correct and complete list of each of the Company’s
Subsidiaries and Affiliates (other than individuals) as of the Closing Date
showing as to each Subsidiary and Affiliate (other than individuals), its name,
the jurisdiction of its incorporation or formation, its shareholders or other
owners of an interest in each Subsidiary and Affiliate (other than individuals)
and the number of outstanding shares or other ownership interests owned by
each
shareholder or other owner of an interest.
Section
4.12
Hazardous
Materials
.
The
Company and each Subsidiary are in compliance in all material respects with
all
applicable Environmental Laws and neither the Company nor any Subsidiary has
used Hazardous Materials on, from, or affecting any property now owned or
occupied or hereafter owned or occupied by the Company or any such Subsidiary
in
any manner which violates any applicable Environmental Law. No prior owner
of
any such property or any tenant, subtenant, prior tenant or prior subtenant
have
used Hazardous Materials on, from, or affecting such property in any manner
which violates any applicable Environmental Law.
Section
4.13
Investment
Company Act
.
Neither
the Company nor any Subsidiary of the Company is an “investment company”, or a
company “controlled” by an “investment company”, within the meaning of the
Investment Company Act of 1940, as amended.
Section
4.14
No
Default
.
No
Default or Event of Default has occurred and is continuing.
Section
4.15
Credit
Arrangements
.
Schedule
V hereto is a complete and correct list of all material credit agreements,
indentures, guaranties, Capital Leases and other investments, agreements and
arrangements relating to borrowed money in effect on the Closing Date providing
for or relating to extensions of credit to the Company or any Subsidiaries of
the Company, or any of them (including agreements and arrangements for the
issuance of letters of credit or for acceptance financing) in respect of which
the Company or any Subsidiaries of the Company, or any of them, are in any
manner
directly or contingently obligated; and the maximum principal or face amounts
of
the credit in question, outstanding and which can be outstanding, are correctly
stated, and all Liens of any nature given or agreed to be given as security
therefor are correctly described or indicated in such Schedule.
Section
4.16
Permits
and Licenses
.
The
Company and each Subsidiary of the Company each has all permits, licenses,
certifications, authorizations and approvals required for it lawfully to own
and
operate their respective businesses except those the failure of which to have
could not reasonably be expected to have a Material Adverse Effect.
Section
4.17
Compliance
with Law
.
The
Company and each Subsidiary of the Company are each in compliance with all
laws,
rules, regulations, orders and decrees which are applicable to the Company
or
any such Subsidiary, or to any of their respective properties, which the failure
to comply with could, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
Section
4.18
Disclosure.
Neither
this Agreement, any other Loan Document, nor any other document, certificate
or
written statement furnished to the Administrative Agent, the Issuing Lender,
or
any Lender by or on behalf of the Company or any of its Subsidiaries for use
in
connection with the transactions contemplated by this Agreement contains any
untrue statement of material fact or omits to state a material fact necessary
in
order to make the statements contained herein or therein not misleading in
light
of the circumstances in which they were made.
Section
4.19
Labor
Disputes and Acts of God
.
Neither
the business nor the properties of the Company or any Subsidiary of the Company
is (i) engaged in any strike, lockout or other labor dispute or (ii) currently
affected by or subject to any fire, explosion, accident, drought, storm,
earthquake, embargo, act of God or other casualty (whether or not covered by
insurance), which could reasonably be expected to have a Material Adverse
Effect.
ARTICLE
V.
CONDITIONS
OF LENDING
Section
5.01
Conditions
to Initial Extension of Credit
.
The
obligation of each Lender to make its initial Loan hereunder, and the obligation
of the Issuing Lender to issue the initial Letter of Credit, are subject to
the
following conditions precedent:
(a)
Notes
.
On or
prior to the Closing Date, the Administrative Agent shall have received (i)
for
the account of each Lender, a Revolving Credit Note (and the
Administrative
Agent shall promptly provide such Notes to the Lenders) and (ii) for the account
of the Swingline Lender, a Swingline Note, each duly executed by the
Company.
(b)
Reaffirmation
of Guaranty
.
On or
prior to the Closing Date, the Administrative Agent shall have received, with
a
counterpart for each Lender, a Reaffirmation of Guaranty duly executed by each
Guarantor that has executed a Guaranty or Reaffirmation of Guaranty in
connection with the 2004 Credit Agreement or subsequent to the effective date
of
the 2004 Credit Agreement, as the case may be.
(c)
Opinion
of Counsel
.
On or
prior to the Closing Date, the Administrative Agent shall have received a
written opinion of Cahill Gordon & Reindel LLP, counsel for the Company and
the Guarantors, substantially in the form of Exhibit F attached
hereto.
(d)
Supporting
Documents
.
On or
prior to the Closing Date, the Administrative Agent shall have received (i)
a
certificate of good standing for the Company and each Guarantor from the
secretary of state of the states of their organizational jurisdiction dated
as
of a recent date; (ii) certified copies of the Certificate of Incorporation
and
By-laws or other organization documents, as applicable of the Company and each
Guarantor; and (iii) a certificate of the Secretary or an Assistant Secretary
of
the Company and each Guarantor dated the Closing Date and certifying: (x) that
neither the Certificates of Incorporation nor the By-laws of the Company or
of
any Guarantor has been amended since the date of their certification (or if
there has been any such amendment, attaching a certified copy thereof); (y)
that
attached thereto is a true and complete copy of resolutions adopted by the
Board
of Directors of the Company and by the board of directors or other governing
body or Persons of each Guarantor authorizing the execution, delivery and
performance of each Loan Document to which it is a party and, with respect
to
the Company, the borrowings and other extensions of credit hereunder; and (z)
the incumbency and specimen signature of each officer of the Company and of
each
officer or other authorized Person of each Guarantor executing each Loan
Document to which the Company or any Guarantor is a party and any certificates
or instruments furnished pursuant hereto or thereto, and a certification by
another officer of the Company and each Guarantor as to the incumbency and
signature of the Secretary or Assistant Secretary of the Company and each
Guarantor.
(e)
Insurance
.
On or
prior to the Closing Date, the Administrative Agent shall have received a
certificate or certificates of insurance from an independent insurance broker
or
brokers confirming the insurance required to be maintained pursuant to Section
6.01 hereof.
(f)
Fees
and Expenses
.
On or
prior to the Closing Date, the Lenders shall have received all fees that may
be
payable to them pursuant to this Agreement, including the upfront fee referred
to in Section 3.04(e) hereof, and reimbursement of expenses in accordance with
Section 10.03(b) hereof.
(g)
No
Litigation
.
Except
as set forth in Schedule VI hereto, there shall exist no action, suit,
investigation, litigation or proceeding affecting the Company or any of its
Subsidiaries pending or, to the knowledge of the Company, threatened before
any
court, governmental agency or arbiter that could reasonably be expected to
have,
individually or in the aggregate, a Material Adverse Effect.
(h)
Consents
and Approvals
.
Except
to the extent the failure to obtain any consents or approvals, individually
or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect, all governmental and third party consents and approvals necessary in
connection with the transactions contemplated by this Agreement and the other
Loan Documents shall have been obtained (without the imposition of any
conditions that are not reasonably acceptable to the Required Lenders) and
shall
remain in effect, and no law or regulation shall be applicable in the reasonable
judgment of the Required Lenders that imposes materially adverse conditions
upon
the transactions contemplated hereby.
(i)
No
Material Adverse Changes
.
There
shall not have occurred any material adverse change in the business, operations,
properties or condition (financial or otherwise) of the Company or any
Guarantor, since December 31, 2005.
(j)
Financial
Statements
.
The
Lenders shall have received the audited consolidated financial statements of
the
Company and its Subsidiaries for the fiscal year ended June 30, 2005; together
with the management prepared consolidated financial statements of the Company
and its Subsidiaries for the fiscal quarter and six-month period ended December
31, 2005.
(k)
Management
Letters
.
To the
extent any exist and have not been previously provided to the Administrative
Agent, the Administrative Agent shall have received a copy of the most recent
management letter prepared on behalf of the Company by the Auditor, a copy
of
which shall be forwarded by the Administrative Agent to each
Lender.
(l)
Other
Information, Documentation
.
The
Administrative Agent and the Lenders shall have received such other and further
information and documentation as any of them may reasonably require, including,
but not limited to, any information or documentation relating to compliance
by
the Company and each Subsidiary of the Company with the requirements of all
Environmental Laws.
(m)
Completion
of Proceedings
.
All
corporate and other proceedings, and all documents, instruments and other legal
matters in connection with the transactions contemplated by the Loan Documents,
shall be reasonably satisfactory in form and substance to the Administrative
Agent, the Lenders and their counsel.
Section
5.02
Conditions
to Extensions of Credit
.
The
obligation of each Lender to make each Loan hereunder and the obligation of
the
Issuing Lender to issue, amend, renew or extend any Letter of Credit, including,
without limitation, the initial Loan and initial Letter of Credit, are further
subject to the following conditions precedent:
(a)
Representations
and Warranties
.
The
representations and warranties by the Company and each Guarantor pursuant to
this Agreement and the other Loan Documents to which each is a party shall
be
true and correct in all material respects on and as of the Borrowing Date or
the
date of issuance, amendment, renewal or extension of such Letter of Credit,
as
applicable, with the same effect as though such representations and warranties
had been made on
and
as of
such date unless such representation is as of a specific date, in which case,
as
of such date.
(b)
No
Default
.
No
Default or Event of Default shall have occurred and be continuing on the
Borrowing Date or on the date of issuance, amendment, renewal or extension
of a
Letter of Credit or will result after giving effect to the Loan requested or
the
requested issuance, amendment, renewal or extension of a Letter of
Credit.
(c)
Letter
of Credit Documentation
.
With
respect to the issuance, amendment, renewal or extension of any Letter of
Credit, the Issuing Lender shall have received the documents and instruments
requested by the Issuing Lender in accordance with Section 2.03(a)
hereof.
Each
borrowing hereunder and each issuance, amendment, renewal or extension of a
Letter of Credit shall constitute a representation and warranty of the Company
that the statements contained in clauses (a), (b), and (c) of this Section
5.02
are true and correct on and as of the Borrowing Date or as of the date of
issuance, amendment, renewal or extension of a Letter of Credit, as applicable,
as though such representation and warranty had been made on and as of such
date.
ARTICLE
VI.
AFFIRMATIVE
COVENANTS
The
Company covenants and agrees with the Lenders that so long as the Commitments
remain in effect, or any of the principal of or interest on the Notes or any
other Obligations hereunder shall be unpaid it will, and will cause each of
its
Domestic and Non-Domestic Subsidiaries, to:
Section
6.01
Existence,
Properties, Insurance
.
Do
or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate, partnership or limited liability company, as applicable,
existence, rights and franchises and comply in all material respects with all
laws applicable to it; at all times maintain, preserve, protect or renew all
franchises, trade names, patents, trademarks and service marks and preserve
all
of its property, in each case, material to its business and keep the same in
good repair, working order and condition (normal wear and tear excepted) and
from time to time make, or cause to be made, all needful and proper repairs,
renewals, replacements, betterments and improvements thereto so that the
business carried on in connection therewith may be properly and advantageously
conducted in the ordinary course at all times in the manner and custom of
similar businesses; at all times, preserve and maintain in full force and effect
all governmental rights, privileges, qualifications, permits, licenses and
franchises necessary for the normal conduct of its business; and at all times
maintain insurance covering its assets and its businesses with financially
sound
and reputable insurance companies or associations in such amounts and against
such risks (including, without limitation, hazard, business interruption, public
liability and product liability) as are usually carried by companies engaged
in
the same or similar business. Notwithstanding the foregoing to the contrary,
Excluded Subsidiaries shall not be subject to the restrictions set forth in
this
Section 6.01 to the extent that the Company intends
to
dissolve, wind-up, liquidate or otherwise terminate the existence of such
Excluded Subsidiaries, which actions would otherwise be in violation of this
Section 6.01.
Section
6.02
Payment
of Indebtedness and Taxes
.
(a)
Pay
all
indebtedness and obligations, now existing or hereafter arising, as and when
due
and payable and (b) pay and discharge or cause to be paid and discharged
promptly all taxes, assessments and government charges or levies imposed upon
it
or upon its income and profits, or upon any of its property, real, personal
or
mixed, or upon any part thereof, as and when due and payable, as well as all
lawful claims for labor, materials and supplies or otherwise which, if unpaid,
might become a lien or charge upon such properties or any part thereof;
provided
,
however
,
that
neither the Company nor any Subsidiary of the Company shall be required to
pay
and discharge or cause to be paid and discharged any such tax, assessment,
charge, levy or claim so long as the validity thereof shall be contested in
good
faith by appropriate proceedings, and the Company or such Subsidiary, as the
case may be, shall have set aside on its books adequate reserves determined
in
accordance with Generally Accepted Accounting Principles with respect to any
such tax, assessment, charge, levy or claim so contested; further,
provided
that,
subject to the foregoing proviso, the Company and each Subsidiary of the Company
will pay or cause to be paid all such taxes, assessments, charges, levies or
claims upon the commencement of proceedings to foreclose any lien which has
attached as security therefor.
Section
6.03
Financial
Statements, Reports, etc
.
Furnish
to the Administrative Agent (with sufficient copies for each Lender, and the
Administrative Agent shall promptly furnish a copy thereof to each
Lender):
(a)
as
soon
as available and in any event within ninety (90) days of the end of the fiscal
year of the Company, the audited consolidated financial statements of the
Company and its Subsidiaries which shall include the consolidated balance sheet
of the Company and its Subsidiaries as of the end of such fiscal year, together
with the consolidated statement of income and statement of cash flows for the
Company and its Subsidiaries for such fiscal year and as of the end of and
for
the prior fiscal year, all prepared in accordance with Generally Accepted
Accounting Principles and accompanied by an opinion thereon of Ernst & Young
LLP or other nationally recognized independent certified public accountants
reasonably acceptable to the Lenders (the “Auditor”) which opinion shall not
include a going concern explanatory paragraph, a qualification as to Generally
Accepted Accounting Principles or like qualification or exception or a
qualification or exception as to the scope of the audit, together with a report
of the Chief Financial Officer of the Company setting forth with respect to
each
brand of the Company and its Subsidiaries, the gross revenue and Net Direct
Contributions, in form and substance satisfactory to the Lenders;
(b)
as
soon
as available and in any event within forty-five (45) days after the end of
each
of the first, second and third fiscal quarters of the Company, the unaudited
consolidated financial statements of the Company and its Subsidiaries, which
shall include the unaudited consolidated balance sheet of the Company and its
Subsidiaries as of the end of each such quarter, together with the consolidated
statement of income and statement of cash flows of
the
Company and its Subsidiaries for each such quarter and for the period commencing
at the end of the previous fiscal year and ending with the end of such quarter,
all in reasonable detail stating in comparative form the respective figures
for
the corresponding date and period in the previous fiscal year, all prepared
by
or under the supervision of the Chief Financial Officer of the Company in
accordance with Generally Accepted Accounting Principles (subject to year-end
adjustments and except for the absence of notes thereto), and, commencing with
the period ending June 30, 2006 and each quarter thereafter, a report of the
Chief Financial Officer of the Company setting forth with respect to each brand
of the Company and its Subsidiaries, the gross revenue and Net Direct
Contributions, in form and substance satisfactory to the Lenders;
(c)
a
certificate prepared and signed by the Auditor with each delivery required
by
clause (a) and a certificate prepared and signed by the Chief Financial Officer
with each delivery required by clause (a) and (b), stating whether the Auditor
or Chief Financial Officer, as the case may be, shall have obtained knowledge
of
any Default or Event of Default, together with a certificate of the Chief
Financial Officer of the Company demonstrating that as of the last day of the
relevant fiscal year or quarter, as applicable, the Company was in compliance
with the financial condition covenants set forth in Section 7.13
hereof;
(d)
at
all
times indicated in clause (a) above, copies of the Company’s annual financial
projections, on a quarterly basis with respect to the next succeeding fiscal
year, in reasonable detail and in form and substance reasonably satisfactory
to
the Required Lenders (it being recognized by the Administrative Agent and the
Lenders that future results included in such projections shall not be viewed
as
facts and that actual results may differ from projected results);
(e)
promptly
after filing thereof, copies of all financial statements and reports that the
Company sends to its shareholders, and copies of all regular, periodic and
special financial information, proxy materials, reports and other information
which the Company or any Guarantor shall file with the Securities and Exchange
Commission;
(f)
promptly
after submission to any government or regulatory agency, all documents and
information furnished to such government or regulatory agency other than such
documents and information prepared in the normal course of business and which
could not reasonably be expected to result in a Material Adverse Effect;
and
(g)
promptly,
from time to time, such other information regarding the operations, business
affairs and condition (financial or otherwise) of the Company or any Subsidiary
of the Company as any Lender may reasonably request.
Section
6.04
Books
and Records; Access to Premises
.
(a)
Maintain
adequate records and proper books of record and account in which full, true
and
correct entries will be made in a manner to enable the preparation of financial
statements in accordance with Generally Accepted Accounting Principles, and
which shall reflect all financial transactions of the Company and each of its
Subsidiaries and matters involving the assets and business of the Company and
such Subsidiaries.
(b)
At
any
time and from time to time during normal business hours (and
provided
that no
Default or Event of Default has occurred and is continuing upon reasonable
prior
notice) permit any Lender or any agents or representatives thereof to examine
and make abstracts from the books and records of such information which such
Lender deems is necessary or desirable (including, without limitation, the
financial records of the Company and its Subsidiaries, but excluding information
governed by a written confidentiality agreement which prohibits such access),
and to visit the properties of the Company or any of its Subsidiaries and to
discuss the affairs, finances and accounts of the Company or any of its
Subsidiaries with any of their respective executive officers or the Company’s
independent accountants.
Notice
of
Adverse Change.
Section
6.05
Notice
of Adverse Change.
Promptly
notify the Administrative Agent (and the Administrative Agent shall promptly
notify each Lender) in writing of (a) any change in the business or the
operations of the Company or its Subsidiaries which could reasonably be expected
to have a Material Adverse Effect, and (b) any information which indicates
that
any financial statements which are the subject of any representation contained
in this Agreement, or which are furnished to the Administrative Agent or the
Lenders pursuant to this Agreement, fail to present fairly, as of the date
thereof and for the period covered thereby, the financial condition and results
of operations purported to be presented therein, disclosing the nature
thereof.
Section
6.06
Notice
of Default.
Promptly
notify the Administrative Agent (and the Administrative Agent shall promptly
notify each Lender) of any Default or Event of Default which shall have occurred
or the occurrence or existence of any event or circumstance that in the
reasonable judgment of the Company is likely to become a Default or Event of
Default, which notice shall include a written statement as to such occurrence,
specifying the nature thereof and the action (if any) which is proposed to
be
taken with respect thereto.
Section
6.07
Notice
of Litigation.
Promptly
notify the Administrative Agent (and the Administrative Agent shall promptly
notify each Lender) of any action, suit or proceeding at law or in equity or
by
or before any governmental instrumentality or other agency which could
reasonably be expected to have a Material Adverse Effect.
Section
6.08
Notice
of Default in Other Agreements.
Promptly
notify the Administrative Agent (and the Administrative Agent shall promptly
notify each Lender) of any default in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in any agreement
or
instrument to which the Company or any Subsidiary of the Company is a party
which default could reasonably be expected to have a Material Adverse
Effect.
Section
6.09
Notice
of ERISA Event.
Promptly
after the Company or any Guarantor knows any of the following, deliver to the
Administrative Agent a certificate of the Chief Financial Officer of the Company
setting forth details as to the occurrence and the action, if any, which the
Company, such Guarantor or any ERISA Affiliate is required or proposes to take,
together with any notices required or proposed to be given to or filed with
or
by the Company, such Guarantor, such ERISA Affiliate, the PBGC, a Plan
participant or the Plan administrator, with respect thereto; that a Reportable
Event has occurred with respect to a Plan, that an accumulated funding
deficiency (as defined in Section 412 of the Code) has been incurred or an
application may be or has been made to the Secretary of the Treasury for a
waiver or modification of the minimum funding standard (including any required
installment payments) or an extension of any amortization period under Section
412 of the Code with respect to a Plan that is a Single Employer Plan (within
the
meaning
of Section 4001(a)(15) of ERISA), that a Plan has been terminated, reorganized,
partitioned or declared insolvent under Title IV of ERISA, that one or more
Plans that are Single Employer Plans (within the meaning of Section 400l(a)(15)
of ERISA) have an Unfunded Current Liability, that proceedings may be or have
been instituted to terminate a Plan, that a proceeding has been instituted
pursuant to Section 515 of ERISA to collect a delinquent contribution to a
Plan,
or that the Company, any Guarantor or any ERISA Affiliate will incur any
liability (including any contingent or secondary liability) to or on account
of
the termination of or withdrawal from a Plan under Section 4062, 4063, 4064,
4201 or 4204 of ERISA. Upon request of any Lender, the Company will deliver
to
each Lender a complete copy of the annual report (Form 5500) of each Plan that
is a Single Employer Plan (within the meaning of Section 4001(a)(15) of ERISA),
filed with the Internal Revenue Service. In addition to any certificates or
notices delivered to each Lender pursuant to the first sentence hereof, copies
of any other notices received by the Company or any Guarantor required to be
delivered to each Lender hereunder shall be delivered to each Lender no later
than ten days after the later of the date such report or notice has been filed
with the Internal Revenue Service or the PBGC, given to Plan participants or
received by the Company or any Guarantor.
Section
6.10
Notice
of Environmental Law Violations.
Promptly
notify the Administrative Agent of the receipt of any notice of an action,
suit,
or proceeding before any court or governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, pending against the
Company or any Subsidiary of the Company relating to any alleged violation
of
any Environmental Law which could reasonably be expected to have a Material
Adverse Effect.
Section
6.11
Compliance
with Applicable Laws.
Comply
with the requirements of all applicable laws, rules, regulations and orders
of
any Governmental Authority, the breach of which could reasonably be expected
to
have a Material Adverse Effect, including, without limitation, the rules and
regulations of the Board of Governors of the Federal Reserve System and the
Federal Deposit Insurance Corporation.
Section
6.12
Additional
Subsidiaries.
Give
the
Administrative Agent prompt written notice of the creation, establishment or
acquisition, in any manner, of any Subsidiary of the Company not existing on
the
Closing Date or of the fact that a Subsidiary has ceased to be an Excluded
Subsidiary. The Company or a Domestic Subsidiary, as appropriate shall cause
each Subsidiary of such Person which is a Domestic Subsidiary and which is
neither a Subsidiary that is not a Guarantor on the Closing Date nor an Excluded
Subsidiary to execute a Guaranty, in the form of Exhibit C hereto within fifteen
(15) Business Days after the creation, establishment or acquisition of such
Subsidiary or of the date such Subsidiary ceases to be an Excluded Subsidiary
and in connection therewith shall deliver or cause to be delivered such proof
of
corporate action, incumbency of officers, opinions of counsel and other
documents as are consistent with those delivered as to each Subsidiary pursuant
to Section 5.01 hereof on the Closing Date, or as the Administrative Agent
may
request, each in form and substance satisfactory to the Administrative
Agent.
Section
6.13
Environmental
Laws.
Comply
in
all material respects with the requirements of all applicable Environmental
Laws, provide to the Lenders all documentation in connection with such
compliance that any of the Lenders may reasonably request, and defend,
indemnify, and hold harmless the Administrative Agent and each Lender and their
respective employees, agents, officers, and directors, from and against any
claims, demands, penalties, fines, liabilities, settlements, damages, costs,
or
expenses of whatever kind or nature, known or unknown, contingent or otherwise,
arising out of, or in any way related to, (a) the presence, disposal, or release
of any Hazardous Materials on any property at any time owned or occupied by
the
Company or any Subsidiary of the Company, (b) any personal injury (including
wrongful death) or property damage (real or personal) arising out of or related
to such Hazardous Materials, (c) any lawsuit brought or threatened, settlement
reached, or government order relating to such Hazardous Materials, and/or (d)
any violation of applicable Environmental Laws, including, without limitation,
reasonable attorney and consultant fees, investigation and laboratory fees,
court costs, and litigation expenses.
Section
6.14
Management
Letters.
Deliver
to the Administrative Agent (and the Administrative Agent shall promptly deliver
a copy to each Lender), as soon as available, but in any event within seven
(7)
Business Days of any such letter being issued, a copy of the management letter
addressed to the Company by the Auditor.
ARTICLE
VII.
NEGATIVE
COVENANTS
The
Company covenants and agrees with the Lenders that so long as the Commitments
remain in effect or any of the principal of or interest on any Note or any
other
Obligations hereunder shall be unpaid, it will not, and will not cause or permit
any of its Domestic Subsidiaries or Non-Domestic Subsidiaries, directly or
indirectly, to:
Section
7.01
Indebtedness.
Incur,
create, assume or suffer to exist or otherwise become liable in respect of
any
Indebtedness, other than:
(a)
Indebtedness
incurred prior to the date hereof as described in Schedule III attached hereto
(which is not described in Section 7.01(b) through Section 7.01(k) hereof),
but
not including any renewals or extensions thereof, and the Private Placement
Notes;
(b)
Indebtedness
to the Lenders under this Agreement, the Notes or any other Loan
Document;
(c)
Indebtedness
for trade payables incurred in the ordinary course of business
provided
such
payables shall be paid or discharged in conformity with customary practice
in
the trade, consistent with past practice;
(d)
Indebtedness
consisting of guarantees permitted pursuant to Section 7.03 hereof;
(e)
subject
to Section 7.06 hereof, Subordinated Indebtedness incurred in connection with
Acceptable Acquisitions;
provided
,
however
,
that no
Default or Event of Default shall have occurred and be continuing at the time
of
incurrence thereof or would occur after giving effect to the incurrence of
such
Subordinated Indebtedness;
(f)
Indebtedness
secured by purchase money liens as permitted under Section 7.02(h) hereof or
by
mortgages on the real property of the Company or any of its Subsidiaries, and
Indebtedness arising under Capital Leases;
provided
,
that
the aggregate amount of such Indebtedness at no time shall exceed 10% of the
Company’s Consolidated Net Worth, determined as of the end of the most recently
completed fiscal quarter of the Company, in accordance with Generally Acceptable
Accounting Principles; and
provided
,
further, that no Default or Event of Default shall have occurred and be
continuing or would occur after giving effect to the incurrence of such
Indebtedness;
(g)
Indebtedness
with respect to Hedging Agreements entered into by the Company,
provided
that
such Hedging Agreements shall be entered into in the ordinary course of its
business with respect to its business needs and not for speculative
purposes;
(h)
Indebtedness
arising under or with respect to foreign exchange contracts entered into by
the
Company for the purchase or sale of foreign currency for the account of the
Company or the Guarantors,
provided
that
such foreign exchange contracts shall be entered into in the ordinary course
of
its business with respect to its business needs and not for speculative
purposes;
(i)
Indebtedness
for taxes, assessments or other governmental charges or levies not yet
delinquent or which are being contested in good faith by appropriate
proceedings;
provided
,
however
,
that
adequate reserves with respect thereto are maintained on the books of the
Company or any Subsidiary of the Company in accordance with Generally Accepted
Accounting Principles;
(j)
Indebtedness
owing by (i) the Company to any Subsidiary of the Company or (ii) any Subsidiary
of the Company to the Company or any other Subsidiary, to the extent that such
Indebtedness is otherwise permitted pursuant to the terms and conditions of
this
Agreement; and
(k)
Indebtedness
not otherwise provided for in Section 7.01(a) through 7.01(j) hereof in an
aggregate amount not to exceed 5% of the Company’s Consolidated Net Worth,
determined as of the end of the most recently completed fiscal quarter of the
Company in accordance with Generally Acceptable Accounting Principles, at any
time outstanding.
Section
7.02
Liens.
Incur,
create, make, assume or suffer to exist any Lien on any of their respective
assets now or hereafter owned, other than:
(a)
Liens
existing on the date hereof as set forth on Schedule II attached hereto (which
are not described in Section 7.02(b) through 7.02(k) hereof), but not including
any renewals or extensions thereof;
(b)
Liens
securing Indebtedness described in Section 7.01(i) hereof,
provided
that no
notice of lien has been filed or recorded under the Code;
(c)
carriers’,
warehousemen’s, mechanics’, suppliers’ or other like Liens arising in the
ordinary course of business and not overdue for a period of more than thirty
(30) days or which are being contested in good faith and by appropriate
proceedings, which proceedings have the effect of preventing the forfeiture
or
sale of the property subject thereto;
(d)
Liens
incurred or deposits to secure (i) the non-delinquent performance of tenders,
bids, trade contracts (other than for borrowed money), leases, statutory
obligations, (ii) contingent obligations on surety, performance and appeal
bonds, and (iii) other non-delinquent obligations of similar nature; in each
case, incurred in the ordinary course of business;
(e)
any
attachment, judgment or similar Lien arising in connection with any court or
governmental proceeding
provided
that the
execution or other enforcement of such Lien is effectively stayed within thirty
(30) days after the entry thereof;
(f)
easements,
rights of way, restrictions and other similar charges or encumbrances incurred
in the ordinary course of business which, in the aggregate, do not interfere
in
any material respect with the occupation, use and enjoyment by the Company
or
any Subsidiary of the Company of the property or assets encumbered thereby
in
the normal course of their respective business or materially impair the value
of
the property subject thereto;
(g)
deposits
or pledges required in the ordinary course of business in connection with
workmen’s compensation, unemployment insurance and other social security
laws;
(h)
purchase
money Liens for fixed or capital assets acquired or held by the Company or
its
Subsidiaries in the ordinary course of business, securing Indebtedness permitted
pursuant to Section 7.01(f) hereof;
provided
in each
case (i) no Default or Event of Default shall have occurred and be continuing
at
the time such Lien is created or shall occur after giving effect to such Lien,
(ii) such purchase money lien does not exceed 100% of the purchase price of,
and
encumbers only, the property acquired, and (iii) such purchase money Lien does
not secure any Indebtedness other than in respect of the purchase price of
the
asset acquired;
(i)
Liens
in
favor of banks or other depository institutions upon property or assets of
the
Company or any of its Subsidiaries arising under the common law or pursuant
to
contractual rights of set off;
(j)
Liens
on
real property of the Company or any of its Subsidiaries securing Indebtedness
permitted by Section 7.01(f) hereof,
provided
the Lien
is specifically limited to such real property; and
(k)
Liens
securing the Indebtedness permitted by Section 7.01(k) hereof,
provided
such
liens secure only such Indebtedness.
Section
7.03
Guaranties.
Guarantee,
endorse, become surety for, or otherwise in any way become or be responsible
for
the Indebtedness or obligations of any Person, whether by agreement to maintain
working capital or equity capital or otherwise maintain the net worth or
solvency of any Person or by agreement to purchase the Indebtedness of any
other
Person, or agreement for the furnishing of funds, directly or indirectly,
through the purchase of goods, supplies or services for the purpose of
discharging the Indebtedness of any other Person or otherwise, or enter into
or
be a party to any contract for the purchase of merchandise, materials, supplies
or other property if such contract provides that payment for such merchandise,
materials, supplies or other property shall be made regardless of whether
delivery of such merchandise, supplies or other property is ever made or
tendered except:
(a)
guaranties
executed prior to the date hereof as described on Schedule IV attached hereto
(which are not described in Sections 7.03(b) through 7.03(d) hereof), but not
including any renewals or extensions thereof;
(b)
endorsements
of negotiable instruments for collection or deposit in the ordinary course
of
business;
(c)
guaranties
of any Indebtedness under this Agreement or any other Loan Document;
and
(d)
guaranties
by the Company of any Indebtedness permitted pursuant to Section 7.01 hereof
of
any Subsidiary of the Company or guaranties by any Subsidiary of the Company
of
such Indebtedness of the Company or any other Subsidiary of the
Company
Section
7.04
Sale
of Assets.
Sell,
lease, assign, transfer or otherwise dispose of their now owned or hereafter
acquired respective properties and assets, whether or not pursuant to an order
of a federal agency or commission, except for (a) the sale of inventory disposed
of in the ordinary course of business, (b) the sale or other disposition of
properties or assets no longer used or useful in the conduct of their respective
businesses, (c) the transfer of Intellectual Property to an IP Subsidiary,
(d) a
transfer from the Company or any direct or indirect wholly-owned Guarantor
to
the Company or another direct or indirect wholly-owned Guarantor, (e) an
arrangement, directly or indirectly, with any Person whereby it shall sell
or
transfer any property, whether real or personal, used or useful in its business,
whether now owned or hereafter acquired, if at the time of such sale or
disposition it intends to lease or otherwise acquire the right to use or possess
(except by purchase) such property or like property for a substantially similar
purpose, or (f) the sale or disposition of assets in arms length transactions;
provided
that the
net book value of all assets
sold
or
otherwise disposed of in all such transactions after the Closing Date pursuant
to subsections (b) through (f) of this Section 7.04 shall not exceed at any
time
an aggregate amount equal to 25% of the Company’s Consolidated Assets,
determined as of the end of the most recently completed fiscal quarter of the
Company prior to such asset sale.
Section
7.05
Sales
of Receivables.
Sell,
transfer, discount or otherwise dispose of notes, accounts receivable or other
obligations owing to the Company or any Subsidiary of the Company, with or
without recourse, except for collection in the ordinary course of
business.
Section
7.06
Loans
and Investments.
Make
or
commit to make any advance, loan, extension of credit, or capital contribution
to, or purchase or hold beneficially any stock or other securities, or evidence
of Indebtedness of, purchase or acquire all or a substantial part of the assets
of, make or permit to exist any interest whatsoever in, any other Person except
for (a) the ownership of stock of any Subsidiary existing as of the Closing
Date
or acquired after the date hereof pursuant to an Acceptable Acquisition,
provided
that the
Company has complied with its obligations under Section 6.12 hereof; (b) loans
to directors and employees of the Company or of any of its Subsidiaries in
an
amount not to exceed $5,000,000 in the aggregate at any time outstanding; (c)
Eligible Investments; (d) loans and advances by the Company to any Subsidiary
of
the Company and loans and advances by any Subsidiary of the Company to the
Company or any other Subsidiary of the Company; (e) trade credit to customers,
provided
that
such credit is extended in the ordinary course of the business of the Company
or
such Subsidiary; (f) investments in joint ventures in an aggregate amount not
to
exceed 5% of the Company’s Consolidated Assets at any time during the term of
this Agreement, determined as of the end of the most recently completed fiscal
quarter of the Company (excluding any amounts that are the result of equity
growth resulting from the increased earnings or other increase in value of
the
joint venture or of the entity in which such investment was made),
provided
,
(A) the
documentation governing any such joint venture does not contain restrictions
on
distributions or dividends to the Company and (B) any such joint venture is
engaged in the same or a related line of business conducted by the Company
(or
the manufacturing of products used in such business); (g) Acceptable
Acquisitions and (h) the acquisition of 1,326,938 ordinary shares of YHS on
September 6, 2005, and the acquisition of additional shares of YHS for
consideration not to exceed $6 million, all pursuant to the terms of the
Subscription Agreement, dated August 3, 2005, between YHS and the Company,
and
any additional shares of YHS issued pursuant to any stock split, stock dividend,
recapitalization or other similar transaction.
Section
7.07
Nature
of Business.
Change
or
alter, in any material respect, the nature of its business from the nature
of
the business engaged in by it on the date hereof (or reasonable extension
thereof).
Section
7.08
Reserved
.
Section
7.09
Federal
Reserve Regulations.
Permit
any Loan or the proceeds of any Loan or any other extension of credit hereunder
to be used for any purpose which violates or is inconsistent with the provisions
of Regulation T, U or X of the Board of Governors of the Federal Reserve
System.
Section
7.10
Accounting
Policies and Procedures.
Permit
any change in the accounting policies and procedures of the Company or any
of
its Subsidiaries, including a change in fiscal year without the prior written
consent of the Administrative Agent, at its sole discretion;
provided
,
however
,
that
any policy or procedure required to be changed by the Financial Accounting
Standards Board (or other board or committee thereof) or the SEC in order to
comply with Generally Accepted Accounting Principles may be so
changed.
Section
7.11
Hazardous
Materials.
Cause
or
permit any of its properties or assets to be used to generate, manufacture,
refine, transport, treat, store, handle, dispose of, transfer, produce or
process Hazardous Materials, except in compliance with all applicable federal,
state and local laws or regulations, or cause or permit, as a result of any
intentional or negligent act or omission on the part of the Company or any
of
its Subsidiaries, a release of Hazardous Materials onto such property or asset
or onto any other property, except in compliance with such laws and
regulations.
Section
7.12
Limitations
on Fundamental Changes, Limitations on Consideration.
Except
for Acceptable Acquisitions, and except as permitted by Section 7.04 hereof,
merge or consolidate with, or sell, assign, lease or otherwise dispose of
(whether in one transaction or in a series of transactions) all or substantially
all of its assets (whether now or hereafter acquired) to, any Person, or, except
with respect to an Acceptable Acquisition, acquire all of the stock or all
or
substantially all of the assets or the business of any Person or liquidate,
wind
up or dissolve or suffer any liquidation or dissolution. Notwithstanding the
foregoing, (a) any Subsidiary of the Company may merge with and into the Company
or any Domestic Subsidiary, (b) any Non-Domestic Subsidiary may merge with
and
into another Non-Domestic Subsidiary, and (c) the Company may merge with and
into a Domestic Subsidiary in order to effect a change of the state of
incorporation of the Company,
provided
that in
each of the above (i) the Company shall notify the Administrative Agent not
less
than ten (10) Business Days prior to such event and (ii) the surviving entity
shall, if applicable, assume the obligations of the merged entity pursuant
to
this Agreement or any of the other Loan Documents and shall execute such
documents and agreements as may be reasonably required by the Administrative
Agent.
Section
7.13
Financial
Condition Covenants.
(a)
Consolidated
Total Funded Debt to Consolidated EBITDA
.
Permit
the ratio of Consolidated Total Funded Debt to Consolidated EBITDA to be greater
than 3.50:1.00, determined quarterly with respect to the most recently concluded
four fiscal quarters for which financial statements have been delivered in
accordance with Section 6.03 hereof,
provided
,
however
,
that
the
ratio of Consolidated Total Funded Debt to Consolidated EBITDA may exceed 3.5
to
1.00 at any time during a Transition Period if such ratio of Consolidated Total
Funded Debt to Consolidated EBITDA exceeded 3.5 to 1.00 as a direct result
of
the Company or any Subsidiary of the Company creating, assuming, incurring,
guaranteeing or otherwise becoming liable in respect of Acquisition Debt so
long
as the ratio of Consolidated Total Funded Debt to Consolidated EBITDA at all
times during such Transition Period shall not exceed 4.0 to 1.00.
(b)
Interest
Coverage Ratio
.
Permit
the ratio of Consolidated EBITDA minus (i) Consolidated Maintenance Capital
Expenditures and (ii) cash taxes paid to Consolidated Interest Expense to be
less than 4.00:1.00, determined quarterly with respect to the most recently
concluded four fiscal quarters for which financial statements have been
delivered in accordance with Section 6.03 hereof.
Section
7.14
Subordinated
Debt.
(a)
Directly or indirectly prepay, defease, purchase, redeem, or otherwise acquire
any Subordinated Debt or (b) amend, supplement or otherwise modify any of the
subordinated terms thereof in any way which would materially affect the
interests of the Lenders, without the prior written consent of the Required
Lenders.
Section
7.15
Dividends.
After
the
Closing Date, declare any dividend on, or make any payment on account of, or
set
apart assets for a sinking or other analogous fund for the purchase, redemption,
defeasance, retirement or other acquisition of, any shares of any class of
stock
of the Company whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether in
cash,
securities or property or in obligations of the Company or in any combination
thereof, except (a) dividends paid by a Guarantor to the Company, and (b) so
long as no Default or Event of Default has occurred or is continuing or would
result from the payment thereof, dividends or similar payments in respect of
any
shares of the Company’s capital stock, such that both before and after giving
effect thereto, the Company’s Consolidated Net Worth would exceed the sum of (i)
the Consolidated Net Worth of the Company as of December 31, 2005, minus (ii)
$50,000,000, plus (iii) 25% of aggregate cumulative Consolidated Net Income
(Net
Loss) for the period commencing on January 1, 2006 through the date of such
payment.
Notwithstanding
the foregoing, the Company shall not be deemed to be in default of its
obligations under this Section 7.15 if, as a result of suffering a net loss
in
any fiscal period, dividends paid prior to the incurring of such loss would
then
(as a result of such loss) exceed the amount permitted to be paid
hereunder.
Notwithstanding
anything to the contrary, so long as no Default or Event of Default has occurred
and is then continuing or would occur by reason of non-compliance with Section
7.13
hereof
as
a result thereof, the Company may repurchase, from time to time, those shares
of
stock of the Company sold by the Company to YHS and YHSM, including all shares
of stock of the Company sold in connection with the exercise by YHS and YHSM
of
the option for additional shares of stock of the Company, all as set forth
in
the Securities Purchase Agreement and the Investor’s Agreement (collectively,
the “Company Shares”). For purposes of calculating compliance with the first
sentence of this Section 7.15, such repurchase of Company Shares shall be
disregarded.
Section
7.16
Transactions
with Affiliates.
Enter
into any transaction, including, without limitation, the purchase, sale, or
exchange of property or the rendering of any service, with any Affiliate, except
(i) in the ordinary course of and pursuant to the reasonable requirements of
the
Company’s or any of its Subsidiaries’ business (including reasonable and
customary fees paid to officers and directors, employees or consultants of
the
Company or any Subsidiary or their respective affiliates for services rendered
thereto consistent with past practices) and upon fair and reasonable terms
no
less favorable to the Company or such Subsidiary than they would obtain in
a
comparable arms-length transaction with a Person not an Affiliate, (ii) under
written arrangements in existence as of the date of this Agreement and described
on Schedule VIII attached hereto or as otherwise described on such Schedule
VIII, (iii) transactions exclusively between or among the Company and any direct
or indirect wholly-owned Guarantor or exclusively between or among such direct
or indirect wholly-owned Guarantors (which shall include any transactions
between the Company or any Guarantor and Hain Pure Protein Corporation,
notwithstanding anything contained herein to the contrary),
provided
,
such
transactions are not otherwise prohibited by this Agreement, or (iv)
transactions pursuant to Section 7.04(c) and (d) hereof.
Section
7.17
Negative
Pledge.
Enter
into any agreement, arrangement or understanding with any Person (other than
the
Lenders pursuant to this Agreement or any of the other Loan Documents) which
prohibits or limits the ability of the Company or any of its Subsidiaries to
create, incur, assume or suffer to exist any Lien upon its property, assets
or
revenues, whether now owned or hereafter acquired (except insofar as the note
purchase agreement in respect of the Private Placement Notes contains such
prohibitions).
ARTICLE
VIII.
EVENTS
OF DEFAULT
Section
8.01
Events
of Default.
In
the
case of the happening of any of the following events (each an “Event of
Default”):
(a)
failure
to pay (i) the principal of any Loan as and when due and payable or (ii)
interest on any Loan, any reimbursement obligations with respect to a drawing
under any Letter of Credit, or any fees under this Agreement, as and when due
and payable and, in the case of this subclause (ii) only, such failure shall
continue unremedied for a period of three (3) Business Days;
(b)
any
representation or warranty made or deemed made in this Agreement or any other
Loan Document shall prove to be false or misleading in any material respect
when
made or given or when deemed made or given;
(c)
any
report, certificate, financial statement or other instrument furnished in
connection with this Agreement or any other Loan Document or the extensions
of
credit hereunder, shall prove to be false or misleading in any material respect
when made or given or when deemed made or given;
(d)
default
shall be made in the due observance or performance (beyond any applicable grace
periods, if any) of any covenant, condition or agreement of the Company or
any
Subsidiary of the Company to be performed (i) pursuant to Article 6 of this
Agreement (other than Section 6.03 and Section 6.04(b) thereof) and, in the
case
of this subclause (i) only, such default shall continue unremedied for a period
of thirty (30) consecutive days or (ii) pursuant to any other provision of
this
Agreement or any other Loan Document;
(e)
default
in the performance or compliance in respect of any agreement or condition
relating to any Indebtedness of the Company or any Guarantor in excess of
$7,000,000 individually or in the aggregate (other than the Notes), if the
effect of such default is to accelerate the maturity of such Indebtedness or
to
permit the holder or obligee thereof (or a trustee on behalf of such holder
or
obligee) to cause such Indebtedness to become due prior to the stated maturity
thereof, or, any such Indebtedness shall not be paid when due (beyond any
applicable grace period);
(f)
the
Company or any Subsidiary of the Company shall (i) voluntarily commence any
proceeding or file any petition seeking relief under Title 11 of the United
States Code or any other federal or state bankruptcy, insolvency or similar
law,
(ii) consent to the institution of, or fail to controvert in a timely and
appropriate manner, any such proceeding or the filing of any such petition,
(iii) apply for or consent to the employment of a receiver, trustee, custodian,
sequestrator or similar official for the Company or any Subsidiary of the
Company or for a substantial part of its property; (iv) file an answer admitting
the material allegations of a petition filed against it in such proceeding,
(v)
make a general assignment for the benefit of creditors, or (vi) take corporate
action for the purpose of effecting any of the foregoing; or the Company, or
any
Subsidiary of the Company, becomes unable or admits in writing its inability
or
fails generally to pay its debts as they become due;
(g)
an
involuntary proceeding shall be commenced or an involuntary petition shall
be
filed in a court of competent jurisdiction seeking (i) relief in respect of
the
Company or any Subsidiary of the Company or of a substantial part of their
respective property, under Title 11 of the United States Code or any other
federal or state bankruptcy, insolvency or similar law, (ii) the appointment
of
a receiver, trustee, custodian, sequestrator or similar official for the Company
or any Subsidiary of the Company or for a substantial part of their property,
or
(iii) the winding-up or liquidation of the Company or any Subsidiary of the
Company and such proceeding or petition shall continue undismissed for thirty
(30) days or an order or decree approving or ordering any of the foregoing
shall
continue unstayed and in effect for thirty (30) days;
(h)
one
or
more orders, judgments or decrees for the payment of money in excess of
$5,000,000 in the aggregate shall be rendered against the Company or any
Subsidiary of the Company which is not covered by insurance and the same shall
not have been paid in accordance with such judgment, order or decree or
settlement and either (i) an enforcement proceeding shall have been commenced
by
any creditor upon such judgment, order or decree, or (ii) there shall have
been
a period of sixty (60) days during which a stay of enforcement of such judgment,
order or decree, by reason of pending appeal or otherwise, was not in
effect;
(i)
any
Plan
shall fail to maintain the minimum funding standard required under Section
412
of the Code for any Plan year or part thereof or a waiver of such standard
or
extension of any amortization period is applied for or granted under Section
412
of the Code, any Plan is terminated by the Company, any Subsidiary of the
Company or any ERISA Affiliate or the subject of termination proceedings under
ERISA, any Plan shall have an Unfunded Current Liability, a Reportable Event
shall have occurred with respect to a Plan or the Company, any Subsidiary of
the
Company, or any ERISA Affiliate shall have incurred a liability to or on account
of a Plan under Section 515, 4062, 4063, 4201 or 4204 of ERISA, and there shall
result from any such event or events the imposition of a lien upon the assets
of
the Company or any Subsidiary of the Company, the granting of a security
interest on such assets, or a liability to the PBGC or a Plan or a trustee
appointed under ERISA or a penalty under Section 4971 of the Code;
(j)
any
material provision of any Loan Document shall for any reason cease to be in
full
force and effect in accordance with its terms or the Company or any Guarantor
shall so assert in writing;
(k)
any
Guarantor shall fail to perform or observe any term or provision of such
Guarantor’s Guaranty or any representation or warranty made by any Guarantor in
connection with such Guarantor’s Guaranty shall prove to have been incorrect in
any material respect when made or deemed made;
(l)
a
Change
of Control shall have occurred; or
(m)
a
default
shall occur with respect to the Private Placement Notes, if the effect of such
default is to accelerate the maturity of such Private Placement Notes or to
permit the holder or obligee thereof (or a trustee on behalf of such holder
or
obligee) to cause such Private Placement Notes to become due prior to the stated
maturity thereof, or, any payments with respect to such Private Placement Notes
shall not be paid when due (beyond any applicable grace period).
then,
at
any time thereafter during the continuance of any such event, the Administrative
Agent may, and, upon the request of the Required Lenders, shall, by written
or
telephonic notice to the Company, take either or both of the following actions,
at the same or different times, (a) terminate the Commitments and (b) declare
(i) the Notes, both as to principal and interest, (ii) an amount equal to the
Aggregate Letters of Credit Outstanding and (iii) all other Obligations, to
be
forthwith due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby expressly waived, anything contained herein
or in the Notes to the contrary notwithstanding;
provided
,
however
,
that if
an event specified in Section 8.01(f) and (g) hereof
shall
have occurred, the Commitments shall automatically terminate and interest,
principal and amounts referred to in the preceding clauses (i), (ii) and (iii)
shall be immediately due and payable without presentment, demand, protest,
or
other notice of any kind, all of which are expressly waived, anything contained
herein or in the Notes to the contrary notwithstanding. With respect to all
Letters of Credit that shall not have expired or presentment for honor shall
not
have occurred, the Company shall provide the Administrative Agent with Cash
Collateral in an amount equal to the aggregate undrawn amount of such Letters
of
Credit. Such Cash Collateral shall be applied by the Administrative Agent to
reimburse the Issuing Lender for drawings under Letters of Credit for which
the
Issuing Lender has not been reimbursed and, to the extent not so applied, shall
be held for the satisfaction of the reimbursement obligations of the Company
at
such time or, if the maturity of the Loans has been accelerated, be applied
to
satisfy other Obligations, with any amount remaining after such satisfactions
to
be returned to the Company or paid to such other party as may legally be
entitled to the same.
ARTICLE
IX.
THE
ADMINISTRATIVE AGENT
Section
9.01
Appointment,
Powers and Immunities.
Each
Lender hereby irrevocably appoints and authorizes the Administrative Agent
to
act as its agent hereunder and under the other Loan Documents with such powers
as are specifically delegated to the Administrative Agent by the terms of this
Agreement and the other Loan Documents together with such other powers as are
reasonably incidental thereto. The Administrative Agent shall have no duties
or
responsibilities except those expressly set forth in this Agreement and the
other Loan Documents and shall not be a trustee for any Lender, nor is the
Administrative Agent acting in a fiduciary capacity of any kind under this
Agreement or the other Loan Documents or in respect thereof or in respect of
any
Lender. The Administrative Agent shall not be responsible to the Lenders for
any
recitals, statements, representations or warranties contained in this Agreement
or the other Loan Documents, in any certificate or other document referred
to or
provided for in, or received by any of them under, this Agreement or the other
Loan Documents, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or the other Loan Documents
or
any other document referred to or provided for herein or therein or for the
collectibility of the Loans or for the validity or effectiveness of any
assignment, mortgage, pledge, security agreement, financing statement, document
or instrument, or for the filing, recording, re-filing, continuing or
re-recording of any thereof or for any failure by the Company or any Guarantor
to perform any of its obligations hereunder or under the other Loan Documents.
The Administrative Agent may take all actions by itself and/or it may employ
agents and attorneys-in-fact, and shall not be responsible to any Lender, except
as to money or the securities received by it or its authorized agents, for
the
negligence or misconduct of itself or its employees or of any such agents or
attorneys-in-fact, if such agents or attorneys-in-fact are selected by it with
reasonable care. Neither the Administrative Agent nor any of its directors,
officers, employees or agents shall be liable or responsible for any action
taken or omitted to be taken by it or them hereunder or under the other Loan
Documents or in connection herewith or therewith, except for its or their own
gross negligence or willful misconduct.
Section
9.02
Reliance
by Administrative Agent.
The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability to any Lender for relying upon, any certification, notice or other
communication (including any thereof by telephone, telecopy or telegram)
believed by it to be genuine and correct and to have been signed or sent by
or
on behalf of the proper Person or Persons, and upon advice and statements of
legal counsel, independent accountants and other experts selected by the
Administrative Agent. As to any matters not expressly provided for by this
Agreement or the other Loan Documents, the Administrative Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder
or
under the other Loan Documents in accordance with instructions signed by the
Required Lenders, or such other number of Lenders as is specified in Section
10.04 hereof, and such instructions of the Required Lenders or other number
of
Lenders as aforesaid and any action taken or failure to act pursuant thereto
shall be binding on all of the Lenders.
Section
9.03
Events
of Default.
The
Administrative Agent shall not be deemed to have knowledge of the occurrence
of
a Default or Event of Default (other than the non-payment of principal of or
interest on the Loans or of fees to the extent the same is required to be paid
to the Administrative Agent for the account of the Lenders) unless the
Administrative Agent has received notice from a Lender or the Company specifying
such Default or Event of Default and stating that such notice is a “Notice of
Default”. In the event that the Administrative Agent receives such a notice of
the occurrence of a Default or Event of Default, the Administrative Agent shall
give prompt notice thereof to the Lenders. The Administrative Agent shall
(subject to Section 9.07 hereof) take such action with respect to such Default
or Event of Default as shall be directed by the Required Lenders, except as
otherwise provided in Section 10.04 hereof;
provided
that
unless and until the Administrative Agent shall have received such directions,
the Administrative Agent may (but is not obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interest of the
Lenders.
Section
9.04
Rights
as a Lender.
With
respect to its Commitment and the Loans made by it, the entity which is the
Administrative Agent, in its capacity as a Lender hereunder, shall have the
same
rights and powers hereunder as any other Lender and may exercise the same as
though it were not acting as the Administrative Agent, and the term “Lender” or
“Lenders” shall, unless the context otherwise indicates, include each entity
which is the Administrative Agent in its individual capacity. The Administrative
Agent and its Affiliates may (without having to account therefor to any Lender)
accept deposits from, lend money to and generally engage in any kind of banking,
trust or other business with the Company or its Affiliates, as if it were not
acting as the Administrative Agent, and, except to the extent otherwise herein
specifically set forth, the Administrative Agent may accept fees and other
consideration from the Company or its Affiliates, for services in connection
with this Agreement or any of the other Loan Documents or otherwise without
having to account for the same to the Lenders.
Section
9.05
Indemnification.
The
Lenders shall indemnify the Administrative Agent (to the extent not reimbursed
by the Company under Section 10.03 hereof), ratably in accordance with the
aggregate outstanding principal amount of the Loans made by the Lenders (or,
if
no Loans are at the time outstanding, ratably in accordance with their
respective Commitments), for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Administrative Agent in its capacity as the Administrative
Agent in any way relating to or arising out of this Agreement or any of the
other Loan Documents or any other documents contemplated by or referred to
herein or therein or the transactions contemplated hereby and thereby
(including, without limitation, the costs and expenses which the Company is
obligated to pay under Section 10.03 hereof or under the applicable provisions
of any other Loan Document) or the enforcement of any of the terms hereof or
of
any other Loan Document,
provided
that no
Lender shall be liable for any of the foregoing to the extent they arise from
the gross negligence or willful misconduct of the Administrative
Agent.
Section
9.06
Non-Reliance
on Administrative Agent and Other Lenders.
Each
Lender agrees that it has, independently and without reliance on the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Company and decision to enter into this Agreement and that it will,
independently and without reliance upon the Administrative Agent or any other
Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own analysis and decisions in taking or not
taking action under this Agreement or under the other Loan Documents. The
Administrative Agent shall not be required to keep itself informed as to the
performance or observance by the Company of this Agreement or the other Loan
Documents or any other document referred to or provided for herein or therein
or
to inspect the properties or books of the Company. Except for notices, reports
and other documents and information expressly required to be furnished to the
Lenders by the Administrative Agent hereunder or under the other Loan Documents,
or furnished to the Administrative Agent with counterparts or copies for the
Lenders, the Administrative Agent shall not have any duty to provide any Lender
with any credit or other information concerning the affairs, financial condition
or business of the Company, which may come into the possession of the
Administrative Agent or any of its Affiliates.
Section
9.07
Failure
to Act.
Except
for action expressly required of the Administrative Agent hereunder or under
any
other Loan Documents, the Administrative Agent shall in all cases be fully
justified in failing or refusing to act hereunder or thereunder unless it shall
be indemnified to its satisfaction by the Lenders against any and all liability
(except gross negligence and willful misconduct) and expense which may be
incurred by it by reason of taking or continuing to take any such
action.
Section
9.08
Resignation
of an Agent.
Subject
to the appointment and acceptance of a successor Agent as provided in this
Section 9.08, the Co-Syndication Agents, the Co-Documentation Agents or the
Administrative Agent may resign at any time by notifying the Lenders and the
Company. Upon any such
resignation,
the Required Lenders shall have the right, with the approval of the Company
provided
no
Default or Event of Default shall have occurred and then be continuing, and
such
approval not to be unreasonably withheld, delayed or conditioned, to appoint
a
successor to such Agent. If no successor shall have been so appointed by the
Required Lenders (with the approval of the Company) and shall have accepted
such
appointment within thirty (30) days after the resigning Agent gives notice
of
its resignation, then the resigning Agent may, on behalf of the Lenders, appoint
a successor Agent which shall be a bank of similar standing with an office
in
New York, New York, or an Affiliate of any such bank. Upon the acceptance of
its
appointment as Agent hereunder by a successor, such successor shall succeed
to
and become vested with all the rights, powers, privileges and duties of the
resigning Agent, and the resigning Agent shall be discharged from its duties
and
obligations hereunder as of such date. The fees payable by the Company to a
successor Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Company and such successor. After an Agent’s
resignation hereunder, the provisions of this Article and Section 10.03 hereof
shall continue in effect for the benefit of such resigning Agent in respect
of
any actions taken or omitted to be taken by it while it was acting as an
Agent.
Section
9.09
Pro
Rata Sharing.
In
the
event that at any time any Lender shall obtain payment in respect of the
Obligations, including any payment received by Bank of America, N.A. in
connection with the enforcement of a Guaranty, or receive any collateral in
respect thereof, whether voluntarily or involuntarily, through the exercise
of a
right of banker’s lien, set-off or counterclaim against the Company or otherwise
(except pursuant to Section 3.09 or Section 10.05 hereof), which results in
it
receiving more than its pro rata share (based on such Lender’s Commitment
Proportion) of the aggregate payments with respect to all of the Obligations
(other than any payment expressly provided hereunder to be distributed on other
than a pro rata basis), then such Lender shall be deemed to have simultaneously
purchased from the other Lenders a share in their Obligations so that the amount
of the Obligations held by each of the Lenders shall be pro rata (based on
such
Lender’s Commitment Proportion);
provided
,
however
,
that if
all or any portion of such excess payment or benefits is thereafter recovered
from the Lender which received the proportionate over-payment, such purchase
shall be rescinded, and the purchase price and benefits returned, to the extent
of such recovery, but without interest. The Company agrees, to the extent it
may
do so under applicable law, that each Lender so purchasing a portion of another
Lender’s Loan or participation in any Letter of Credit may exercise all rights
of payment (including, without limitation, rights of set-off) with respect
to
such portion as fully as if such Lender were the direct holder of such
portion.
ARTICLE
X.
MISCELLANEOUS
Section
10.01
Notices.
All
notices, requests and demands to or upon the respective parties hereto to be
effective shall be in writing (including telecopy), and unless otherwise
expressly provided herein, shall be conclusively deemed to have been received
by
a party hereto and to be effective on the day on which delivered by hand to
such
party or one (1) Business Day after being sent by overnight mail
to
the
address set forth below, or, in the case of telecopy notice, when acknowledged
as received, or if sent by registered or certified mail, three (3) Business
Days
after the day on which mailed in the United States, addressed to such party
at
such address:
(a)
if to
the Administrative Agent, at:
Bank
of
America, N.A.
1185
Avenue of the Americas
New
York,
NY 10036
Attention:
SVP
Senior Credit Products Officer
Telecopy:
(212)
819-6166
With
a
copy (which shall not constitute notice) to:
Agency
Management
100
Federal Street
Mail
Stop
MA5 1001102
Boston,
MA 02110
and
to:
Goulston
& Storrs
400
Atlantic Avenue
Boston,
MA 02110
Attention:
Philip
A.
Herman, Esq.
Telecopy:
(617)
574-7592
(b)
if to
the Company, at:
The
Hain
Celestial Group, Inc.
58
South
Service Road
Melville,
NY 11747
Attention:
Ira J. Lamel
Telecopy:
(631) 730-2561
With
a
copy (which shall not constitute notice) to:
ilamel@hain-celestial.com
With
a
copy (which shall not constitute notice) to:
Cahill
Gordon & Reindel LLP
80
Pine
Street
New
York,
New York 10005
Attention:
Geoffrey E. Liebmann, Esq.
Telecopy:
(212)269-5420
(c)
if to
any Lender, to its address set forth in the signature page of this Agreement
and
to the person so designated;
-
and
-
(d)
as to
each party at such other address as such party shall have designated (i) if
such
party is a Lender, by written notice to the Administrative Agent and the
Company, (ii) if such party is the Company, by written notice to the
Administrative Agent and to each Lender, and (iii) if such party is the
Administrative Agent, by written notice to the Company and each Lender, in
each
case, delivered in accordance with the provisions of this Section
10.01.
Section
10.02
Effectiveness;
Survival.
This
Agreement shall become effective on the date on which all parties hereto shall
have signed a counterpart copy hereof and shall have delivered the same to
the
Administrative Agent. All representations and warranties made herein and in
the
other Loan Documents and in the certificates delivered pursuant hereto or
thereto shall survive the making by the Lenders of the Loans and the issuance
by
the Issuing Lender of Letters of Credit, in each case, as herein contemplated
and the execution and delivery to the Lenders of the Notes evidencing the Loans
and shall continue in full force and effect so long as the Obligations hereunder
are outstanding and unpaid and the Commitments are in effect. The obligations
of
the Company pursuant to Sections 3.07, 3.08, 3.10, 6.13 and 10.03 hereof shall,
notwithstanding anything herein to the contrary, survive termination of this
Agreement and payment of the Obligations.
Section
10.03
Expenses.
The
Company agrees (a) to indemnify, defend and hold harmless the Administrative
Agent, the Issuing Lender and each Lender and their respective officers,
directors, employees, and affiliates (each, an “indemnified person”) from and
against any and all losses, claims, damages, liabilities, obligations,
penalties, actions, judgments, suits, costs, expenses, or disbursements to
which
any such indemnified person may be subject and arising out of or in connection
with the Loan Documents, the financings contemplated hereby, the use of any
proceeds of such financings or any claim, litigation, investigation or
proceeding relating to any of the foregoing, whether or not any of such
indemnified persons is a party thereto, and to reimburse each of such
indemnified persons upon demand for any reasonable legal or other expenses
incurred in connection with the investigation or defending any of the foregoing;
provided
that the
foregoing indemnity will not, as to any indemnified person, apply to losses,
claims, damages, liabilities, judgments or related expenses to the extent
arising from the willful misconduct or gross negligence of such indemnified
person, (b) to pay or reimburse the Administrative Agent for all its
out-of-pocket costs and reasonable expenses incurred in connection with the
preparation and execution of and any amendment, supplement or modification
to
this Agreement, the Notes any other Loan Documents, and any other documents
prepared in connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, including without limitation,
the
reasonable fees and disbursements of Goulston & Storrs P.C., counsel to the
Administrative Agent, and (c) to pay or
reimburse
each Lender and the Administrative Agent for all their costs and expenses
incurred in connection with the enforcement and preservation of any rights
under
this Agreement, the Notes, the other Loan Documents, and any other documents
prepared in connection herewith or therewith, including, without limitation,
the
reasonable fees and disbursements of counsel (including, without limitation,
in-house counsel) to the Administrative Agent and to the several Lenders,
including all such out-of-pocket expenses incurred during any work-out,
restructuring or negotiations in respect of the Obligations.
Section
10.04
Amendments
and Waivers.
With
the
written consent of the Required Lenders, the Administrative Agent and the
Company may, from time to time, enter into written amendments, supplements
or
modifications hereto for the purpose of adding any provisions to this Agreement
or the Notes or any of the other Loan Documents or changing in any manner the
rights of the Lenders or of the Company hereunder or thereunder, and with the
written consent of the Required Lenders the Administrative Agent on behalf
of
the Lenders may execute and deliver to the Company a written instrument waiving,
on such terms and conditions as the Administrative Agent or the Required Lenders
may specify in such instrument, any of the requirements of this Agreement or
the
Notes or any of the other Loan Documents or any Default or Event of Default;
provided
,
however
,
that no
such waiver and no such amendment, or supplement or modification shall (a)
extend the maturity of any Note or any installment thereof; (b) reduce the
rate
or extend the time of payment of interest on any Note or any fees payable to
the
Lenders hereunder; (c) reduce the principal amount of any Note or the amount
of
any reimbursement due in respect of any Letter of Credit; (d) amend, modify
or
waive any provision of this Section 10.04; (e) reduce the percentage specified
in the definition of Required Lenders or amend or modify any other provision
hereof specifying the number or percentage of Lenders required to waive, amend
or modify any rights hereunder or make any determination granting consent
hereunder; (f) consent to the assignment or transfer by the Company of any
of
its rights or obligations under this Agreement; (g) except as expressly
permitted pursuant to this Agreement or any other Loan Document release any
collateral security granted to the Administrative Agent, if any; (h) release
any
Guarantor from its Guaranty, or limit any Guarantor’s liability with respect to
its Guaranty; (i) amend the definition of Acceptable Acquisition; (j) amend
the
terms of Section 3.11 hereof (solely as it pertains to the pro rata treatment
of
the Lenders), or (k) permit any Letter of Credit issued hereunder to expire
on
or after the Revolving Credit Commitment Termination Date, in each case
specified in clauses (a) through (k) above without the written consent of all
the Lenders; and
provided
,
further, that no such waiver and no such amendment, supplement or modification
shall (i) amend, modify, supplement or waive any provision of Article IX with
respect to the Administrative Agent without the written consent of the
Administrative Agent or (ii) increase the amount of any Lender’s Commitment
without the written consent of such Lender. Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the Lenders
and shall be binding upon the Company, the Lenders, the Administrative Agent
and
all future holders of the Notes.
Section
10.05
Successors
and Assigns; Participations.
(a)
This
Agreement shall be binding upon and inure to the benefit of the Company, the
Lenders, the Administrative Agent, all future holders of the Notes and their
respective
successors and assigns, except that the Company may not assign or transfer
any
of its rights or obligations under this Agreement or any other Loan Document
without the prior written consent of each Lender and any such assignment without
such consent shall be null and void.
(b)
Any
Lender may, in the ordinary course of its commercial banking business and in
accordance with applicable law, at any time sell to one or more banks or other
financial institutions (“Participants”) participating interests in any Loan
owing to such Lender, any Note held by such Lender, any Commitment of such
Lender or any other interest of such Lender hereunder. In the event of any
such
sale by a Lender of participating interests to a Participant, such Lender’s
obligations under this Agreement to the other parties under this Agreement
shall
remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Note for
all purposes under this Agreement, and the Company and the Administrative Agent
shall continue to deal solely and directly with such Lender in connection with
such Lender’s rights and obligations under this Agreement. The Company agrees
that each Participant shall be entitled to the benefits of Sections 3.07, 3.08
and 3.10 hereof with respect to its participation in the Commitments and in
the
Loans and Letters of Credit outstanding from time to time;
provided
,
however
,
that no
Participant shall be entitled to receive any greater amount pursuant to such
Sections than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor Lender
to such Participant had no such transfer occurred. No Participant shall have
the
right to consent to any amendment to, or waiver of, any provision of this
Agreement, except the transferor Lender may provide in its agreement with the
Participant that such Lender will not, without the consent of the Participant,
agree to any amendment or waiver described in clause (a) through clause (h)
of
Section 10.04 hereof.
(c)
Subject
to the last two sentences of this paragraph (c) any Lender may, in the ordinary
course of its commercial banking business and in accordance with applicable
law,
at any time sell to any Lender, any Affiliate of any Lender or any Approved
Fund, and, with the consent of the Administrative Agent, and, so long as no
Default or Event of Default shall have occurred and be continuing, the Company
(which in each case shall not be unreasonably withheld, delayed or conditioned),
to one or more additional banks or other financial institutions (“Purchasing
Lenders”) all or any part of its rights and obligations under this Agreement and
the Notes pursuant to an Assignment and Acceptance Agreement, executed by such
Purchasing Lender, such transferor Lender and the Administrative Agent (and,
in
the case of an Assignment and Acceptance Agreement relating to a Purchasing
Lender that is not then a Lender or a domestic banking affiliate thereof, also
executed by the Company), and delivered to the Administrative Agent for its
acceptance. Upon such execution, delivery and acceptance from and after the
effective date specified in such Assignment and Acceptance Agreement, (i) the
Purchasing Lender thereunder shall be a party hereto and, to the extent provided
in such Assignment and Acceptance Agreement, have the rights and obligations
of
a Lender hereunder with Commitments as set forth therein and (ii) the transferor
Lender thereunder shall, to the extent provided in such Assignment and
Acceptance Agreement, be released from its obligations under this Agreement
arising after such transfer (and, in the case of an Assignment and Acceptance
Agreement covering all or the remaining portion of a transferor Lender’s rights
and obligations under this Agreement, such transferor Lender shall cease to
be a
party hereto except as to Sections 3.07, 3.08, 3.10 and 10.03 hereof for the
period prior to the effective date). Such Assignment and Acceptance Agreement
shall be deemed to amend this Agreement to the extent,
and
only
to the extent, necessary to reflect the addition of such Purchasing Lender
and
the resulting adjustment of Commitment Proportions arising from the purchase
by
such Purchasing Lender of all or a portion of the rights and obligations of
such
transferor Lender under or in respect of this Agreement and the Notes. On or
prior to the effective date specified in such Assignment and Acceptance
Agreement, the Company, at its own expense, shall execute and deliver to the
Administrative Agent, in exchange for each surrendered Note, new Notes to the
order of such Purchasing Lender in an amount equal to the Commitments assumed
by
it pursuant to such Assignment and Acceptance Agreement and, if the transferor
Lender has retained any Commitment hereunder, a new Note to the order of the
transferor Lender in an amount equal to such Commitment retained by it
hereunder. Such new Notes shall be in a principal amount equal to the principal
amount of such surrendered Note, shall be dated the effective date specified
in
the Assignment and Acceptance Agreement and shall otherwise be in the form
of
the Notes replaced thereby. The Notes surrendered by the transferor Lender
shall
be returned by the Administrative Agent to the Company marked “cancelled”.
Anything in this Section 10.05 to the contrary notwithstanding, no transfer
to a
Purchasing Lender shall be made pursuant to this paragraph (c), if (x) such
transfer by any one transferor Lender to any one Purchasing Lender (other than
a
Purchasing Lender which is a Lender hereunder prior to such transfer) is in
respect of less than $5,000,000 of the Commitments of such transferor Lender
or
(y) after giving effect to such transfer the amount held by any transferor
Lender would be less than $5,000,000. Notwithstanding any of the foregoing
of
this paragraph (c) to the contrary, any assignment of any Swingline Commitment
by any Lender shall require the prior approval of the Administrative Agent
and
the Swingline Lender.
(d)
The
Administrative Agent shall maintain at its address referred to in Section 10.01
hereof a copy of each Assignment and Acceptance Agreement delivered to it and
a
register (the “Register”) for the recordation of the names and addresses of the
Lenders and the commitments of, and principal amount of the Loans owing to,
each
Lender from time to time. The entries in the Register shall be conclusive,
in
the absence of demonstrable error and the Company, the Administrative Agent
and
the Lenders may treat each Person whose name is recorded in the Register as
the
owner of the Loans recorded therein for all purposes of this Agreement. The
Register shall be available for inspection by the Company or any Lender at
any
reasonable time and from time to time upon reasonable prior notice.
(e)
Upon
its
receipt of an Assignment and Acceptance Agreement executed by a transferor
Lender and a Purchasing Lender (and, in the case of a Purchasing Lender that
is
not then a Lender or an Affiliate thereof, by the Company), the Administrative
Agent shall (i) accept such Assignment and Acceptance Agreement, (ii) record
the
information contained therein in the Register, and (iii) give prompt notice
of
such acceptance and recordation to the Lenders and the Company.
(f)
The
Company authorizes each Lender to disclose to any Participant or Purchasing
Lender (each, a “Transferee”) and any prospective Transferee any and all
financial information in such Lender’s possession concerning the Company and its
Affiliates which has been delivered to such Lender by or on behalf of the
Company pursuant to this Agreement or which has been delivered to such Lender
by
the Company in connection with such Lender’s credit evaluation of the Company
and its Subsidiaries prior to entering into this Agreement.
(g)
If,
pursuant to this Section 10.05, any interest in this Agreement, a participation
agreement, or any Note is transferred to any transferee which is organized
under
the laws of any jurisdiction other than the United States or any State thereof,
the transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, (i) to represent to the transferor Lender (for
the benefit of the transferor Lender, the Administrative Agent and the Company)
that under applicable law and treaties no taxes will be required to be withheld
by the Administrative Agent, the Company, or the transferor Lender with respect
to any payments to be made to such Transferee in respect of the Loans, (ii)
to
furnish to the Administrative Agent, the transferor Lender and the Company
either U.S. Internal Revenue Service Form W-8ECI or U.S. Internal Revenue
Service Form W-8BEN (wherein such Transferee claims entitlement to complete
exemption from U.S. federal withholding tax on all interest payments hereunder)
and (iii) to agree (for the benefit of the Administrative Agent, the transferor
Lender and the Company) to provide the Administrative Agent, the transferor
Lender and the Company a new Form W-8ECI or Form W-8BEN upon the expiration
or
obsolescence of any previously delivered form and comparable statements in
accordance with applicable U.S. laws and regulations and amendments duly
executed and completed by such Transferee, and to comply from time to time
with
all applicable U.S. laws and regulations with regard to such withholding tax
exemption.
(h)
Any
Lender may at any time pledge or assign or grant a security interest in all
or
any part of its rights under this Agreement and the other Loan Documents,
including any portion of its Notes, to any of the twelve (12) Federal Reserve
Banks organized under Section 4 of the Federal Reserve Act, 12 U.S.C. Section
341,
provided
that no
such assignment shall release the transferor Lender from its Commitments or
its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party to this Agreement.
Section
10.06
No
Waiver; Cumulative Remedies.
Neither
any failure nor any delay on the part of any Lender, the Issuing Lender or
the
Administrative Agent in exercising any right, power or privilege hereunder
or
under any Note or any other Loan Document shall operate as a waiver thereof,
nor
shall a single or partial exercise thereof preclude any other or further
exercise of any other right, power or privilege. The rights, remedies, powers
and privileges herein provided or provided in the other Loan Documents are
cumulative and not exclusive of any rights, remedies powers and privileges
provided by law.
Section
10.07
APPLICABLE
LAW.
THIS
AGREEMENT AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS
OR
CHOICE OF LAW, OTHER THAN GENERAL OBLIGATIONS LAW §§ 5-1401 AND
5-1402).
Section
10.08
SUBMISSION
TO JURISDICTION; JURY WAIVER.
THE
COMPANY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY FEDERAL OR STATE
COURT IN THE STATE OF NEW YORK, COUNTY OF NEW YORK, COUNTY OF NASSAU OR COUNTY
OF
SUFFOLK
IN ANY ACTION, SUIT OR PROCEEDING BROUGHT AGAINST IT AND RELATED TO OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, AND TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THE COMPANY HEREBY WAIVES AND AGREES NOT TO ASSERT BY WAY OF
MOTION, AS A DEFENSE OR OTHERWISE, IN ANY SUCH SUIT, ACTION OR PROCEEDING ANY
CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH FEDERAL
OR
STATE COURTS, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT
FORUM, THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER, OR THAT
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY OTHER DOCUMENT OR INSTRUMENT
REFERRED TO HEREIN OR THEREIN OR THE SUBJECT MATTER HEREOF OR THEREOF MAY NOT
BE
LITIGATED IN OR BY SUCH FEDERAL OR STATE COURTS. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THE COMPANY AGREES NOT TO (i) SEEK AND HEREBY WAIVES THE RIGHT
TO ANY REVIEW OF THE JUDGMENT OF ANY SUCH COURT BY ANY COURT OF ANY OTHER NATION
OR JURISDICTION WHICH MAY BE CALLED UPON TO GRANT AN ENFORCEMENT OF SUCH
JUDGMENT OR (ii) ASSERT ANY COUNTERCLAIM IN ANY SUCH SUIT, ACTION OR PROCEEDING
UNLESS SUCH COUNTERCLAIM IS A COMPULSORY OR MANDATORY COUNTERCLAIM UNDER
APPLICABLE LAWS GOVERNING CIVIL PROCEDURE. THE COMPANY AGREES THAT SERVICE
OF
PROCESS MAY BE MADE UPON IT BY CERTIFIED OR REGISTERED MAIL TO THE ADDRESS
FOR
NOTICES SET FORTH IN THIS AGREEMENT OR ANY METHOD AUTHORIZED BY THE LAWS OF
NEW
YORK. EACH PARTY HERETO KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE
RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT
OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE NOTES OR ANY OTHER LOAN DOCUMENT
CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH OR ANY COURSE OF CONDUCT,
COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY RELATING THERETO, AND AGREES THAT NO PARTY WILL SEEK TO CONSOLIDATE ANY
SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT
BEEN WAIVED. EXCEPT AS PROHIBITED BY LAW, THE COMPANY HEREBY WAIVES ANY RIGHT
IT
MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE
OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES. THE COMPANY CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
THE
ADMINISTRATIVE AGENT, THE ISSUING LENDER OR ANY LENDER HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THEY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO
ENFORCE THE FOREGOING WAIVER. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT
FOR
THE LENDERS TO ENTER INTO THIS AGREEMENT AND TO MAKE THE LOANS AND OTHER
EXTENSIONS OF CREDIT.
Section
10.09
Severability.
In
case
any one or more of the provisions contained in this Agreement, any Note or
any
other Loan Document should be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired
thereby.
Section
10.10
Right
of Setoff.
The
Company and the Guarantors hereby grant to the Administrative Agent, the Issuing
Lender, each-Lender and each Affiliate of each Lender, a continuing lien,
security interest and right of setoff as security for all liabilities and
obligations to the Administrative Agent, the Issuing Lender and each Lender,
whether now existing or hereafter arising, upon and against all deposits,
credits, collateral and property, now or hereafter in the possession, custody,
safekeeping or control of the Administrative Agent, the Issuing Lender, any
Lender, any Affiliate of such Lender or any entity under the control of Bank
of
America, N.A. and its successors or assigns or in transit to any of them. At
any
time, without demand or notice (any such notice being expressly waived by the
Company), the Administrative Agent, the Issuing Lender, each Lender and each
Affiliate of each Lender may set off the same or any part thereof and apply
the
same to any liability or obligation of the Company or any Guarantor even though
unmatured and regardless of the adequacy of any other collateral securing this
Agreement.
ANY
AND ALL RIGHTS TO REQUIRE THE ADMINISTRATIVE AGENT, THE ISSUING LENDER, EACH
LENDER OR ANY AFFILIATE OF EACH LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH
RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THIS AGREEMENT, PRIOR TO
EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER
PROPERTY OF THE COMPANY OR ANY GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY
AND
IRREVOCABLY WAIVED.
Section
10.11
Confidentiality.
The
Administrative Agent, each Lender and any Affiliates thereof agree to keep
confidential all non-public information, materials and documents furnished
by
the Company to the Administrative Agent and the Lenders pursuant to this
Agreement (the “Confidential Information”). Notwithstanding the foregoing, such
party shall be permitted to disclose Confidential Information (a) to such of
its
officers, directors, employees, agents, representatives and professional
advisors in any of the transactions contemplated by, or the administration
of,
this Agreement; (b) to the extent required by applicable laws and regulations
or
by any subpoena or similar legal process, or requested by any governmental
agency or authority; (c) to the extent such Confidential Information (i) becomes
publicly available other than as a result of a breach of this Section 10.11
by
the disclosing party, or (ii) becomes available to such party on a
non-confidential basis from a source other than the Company or its Subsidiaries
which to such party’s knowledge is not prohibited from disclosing such
Confidential Information to such party by a contractual or other legal
obligation; (d) to the extent the Company or any of its Subsidiaries shall
have
consented to such disclosure in writing; or (e) to any prospective transferee
or
participant in connection with any contemplated transfer of the Notes or any
interest therein
provided
such
transferee or participant agrees to treat the Confidential Information in a
manner consistent with this Section 10.11. Nothing herein shall prohibit the
disclosure of Confidential Information in connection with any litigation or
where such disclosure is pursuant to applicable
laws,
regulations, court order or similar legal process;
provided
,
however
,
in the
event that such party is requested or required by law to disclose any of the
Confidential Information, such party shall provide the Company with written
notice, unless notice is prohibited by law, of any such request or requirement
so that the Company may seek a protective order or other appropriate remedy;
provided
that no
such notification shall be required in respect of any disclosure to regulatory
authorities having jurisdiction over such party.
|
Section
10.12
|
Provisions
Regarding Co-Syndication Agents
,
Co-Documentation Agents, and Managing
Agent.
|
The
Co-Syndication Agents, the Co-Documentation Agents and the Managing Agent shall
have no duties or responsibilities hereunder.
Section
10.13
Headings.
Section
headings used herein are for convenience of reference only and are not to affect
the construction of or be taken into consideration in interpreting this
Agreement.
Section
10.14
Construction.
This
Agreement is the result of negotiations between, and has been reviewed by,
each
of the Company, the Administrative Agent, the Lenders and their respective
counsel. Accordingly, this Agreement shall be deemed to be the product of each
party hereto, and no ambiguity shall be construed in favor of or against either
the Company, the Administrative Agent, or any Lender.
Section
10.15
Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
constitute an original, but all of which, taken together, shall constitute
one
and the same instrument.
Section
10.16
No
Advisory or Fiduciary Responsibility
In
connection with all aspects of each transaction contemplated hereby, the Company
acknowledges and agrees that: (i) the credit extensions provided for hereunder
and any related arranging or other services in connection therewith (including
in connection with any amendment, waiver or other modification hereof or of
any
other Loan Document) are arm’s-length commercial transactions between the
Company and its Affiliates, on the one hand, and the Administrative Agent and
the Lead Arranger, on the other hand, and the Company is capable of evaluating
and understanding and understands and accepts the terms, risks and conditions
of
the transactions contemplated hereby and by the other Loan Documents (including
any amendment, waiver or other modification hereof or thereof); (ii) in
connection with the process leading to such transaction, the Administrative
Agent and the Lead Arranger
each
is
and has been acting solely as a principal and is not the financial advisor,
agent or fiduciary, for the Company or any of its Affiliates, stockholders,
creditors or employees or any other Person; (iii) neither the Administrative
Agent nor the Lead Arranger has assumed or will assume an advisory, agency
or
fiduciary responsibility in favor of the Company with respect to any of the
transactions contemplated hereby or the process leading thereto, including
with
respect to any amendment,
waiver
or
other modification hereof or of any other Loan Document (irrespective of whether
the Administrative Agent or the Lead Arranger has advised or is currently
advising the Company or any of its Affiliates on other matters) and neither
the
Administrative Agent nor the Lead Arranger has any obligation to the Company
or
any of its Affiliates with respect to the transactions contemplated hereby
except those obligations expressly set forth herein and in the other Loan
Documents; (iv) the Administrative Agent and the Lead Arranger and their
respective Affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Company and its Affiliates,
and
neither the Administrative Agent nor the Lead Arranger has any obligation to
disclose any of such interests by virtue of any advisory, agency or fiduciary
relationship; and (v) the Administrative Agent and the Lead Arranger have not
provided and will not provide any legal, accounting, regulatory or tax advice
with respect to any of the transactions contemplated hereby (including any
amendment, waiver or other modification hereof or of any other Loan Document)
and the Company has consulted its own legal, accounting, regulatory and tax
advisors to the extent it has deemed appropriate. The Company hereby waives
and
releases, to the fullest extent permitted by law, any claims that it may have
against the Administrative Agent and the Lead Arranger with respect to any
breach or alleged breach of agency or fiduciary duty in connection with the
transactions contemplated by this Agreement.
Section
10.17
USA
Patriot Act Notice
Each
Lender that is subject to the Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Company that pursuant to the requirements of the USA PATRIOT Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
“
Act
”),
it is
required to obtain, verify and record information that identifies the Company,
which information includes the name and address of the Company and other
information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Company in accordance with the Act.
[Remainder
of page intentionally left blank. Signature pages to
follow.]
IN
WITNESS WHEREOF, the Company, the Administrative Agent and the Lenders have
caused this Agreement to be duly executed by their duly authorized officers,
as
of the day and year first above written.
|
THE
HAIN CELESTIAL GROUP, INC.
By:
/s/
Ira J. Lamel
Name:
Ira J. Lamel
Title:
Executive Vice President, Chief
Financial
Officer, Treasurer and
Secretary
|
|
Bank
of America, N.A.
as
Administrative Agent
By:
/s/
Carol G. Alm
Name:
Carol G. Alm
Title:
Bank
of America, N.A.
Agency
Management
100
Federal Street
Mail
Stop MA5 1001102
Boston,
MA 02110
|
|
Revolving
Credit
|
|
|
Commitment:
$32,000,000
|
BANK
OF AMERICA, N.A.,
|
|
|
as
a Lender, as Swingline Lender
|
|
|
and
as an Issuing Lender
|
|
|
|
|
|
By:
/s/
Steven J. Melicharek
|
|
|
Name:
Steven J. Melicharek
|
|
|
Title:
SVP Senior Credit Products Officer
|
|
|
|
|
|
Lending
Office for Base Rate Loans
|
|
|
and
for Adjusted Libor Loans:
|
|
|
|
|
|
Bank
of America, N.A.
|
|
|
1185
Avenue of the Americas
|
|
|
New
York, NY 10036
|
|
|
Attention:
SVP Senior Credit
|
|
|
Products
Officer
|
|
|
Telephone:
(212) 819-6002
|
|
|
Telecopy:
(212) 819-6166
|
|
|
|
|
|
|
|
|
Address
for Notices:
|
|
|
|
|
|
Bank
of America, N.A.
|
|
|
1185
Avenue of the Americas
|
|
|
New
York, NY 10036
|
|
|
Attention:
SVP Senior Credit
|
|
|
Products
Officer
|
|
|
Telephone:
(212) 819-6002
|
|
|
Telecopy:
(212) 819-6166
|
|
|
|
|
|
|
|
Revolving
Credit
|
|
|
Commitment
:
$25,000,000
|
NORTH
FORK BANK,
|
|
|
as
a Lender and as Managing Agent
|
|
|
|
|
|
By:
/s/
Robert J. Milas
|
|
|
Name:
Robert J. Milas
|
|
|
Title:
Vice President
|
|
|
|
|
|
Lending
Office for Base Rate Loans
|
|
|
and
for Adjusted Libor Loans:
|
|
|
|
|
|
North
Fork Bank
|
|
|
275
Broad Hollow Road
|
|
|
Melville,
NY 11747
|
|
|
Attention:
Robert J. Milas
|
|
|
Vice
President
|
|
|
Telephone:
(631) 531-2394
|
|
|
Telecopy:
(631) 531-2797
|
|
|
|
|
|
|
|
|
Address
for Notices:
|
|
|
|
|
|
North
Fork Bank
|
|
|
275
Broad Hollow Road
|
|
|
Melville,
NY 11747
|
|
|
Attention:
Robert J. Milas
|
|
|
Vice
President
|
|
|
Telephone:
(631) 531-2394
|
|
|
Telecopy:
(631) 531-2797
|
|
Revolving
Credit
|
HSBC
BANK USA,
|
|
Commitment
:
$27,000,000
|
as
a Lender and as Co-
|
|
|
Documentation
Agent
|
|
|
|
|
|
By:
/s/
Christopher J. Mendelsohn
|
|
|
Name:
Christopher J. Mendelsohn
|
|
|
Title:
First Vice President
|
|
|
|
|
|
|
|
|
Lending
Office for Base Rate Loans
|
|
|
and
for Adjusted Libor Loans:
|
|
|
|
|
|
HSBC
Bank USA
|
|
|
534
Broad Hollow Road
|
|
|
Melville,
New York 11747
|
|
|
Attention:
Christopher J.
|
|
|
Mendelsohn,
First Vice President
|
|
|
Telephone:
(631) 752-4343
|
|
|
Telecopy:
(631) 752-4340
|
|
|
|
|
|
Address
for Notices:
|
|
|
|
|
|
HSBC
Bank USA
|
|
|
534
Broad Hollow Road
|
|
|
Melville,
New York 11747
|
|
|
Attention:
Christopher J.
|
|
|
Mendelsohn,
First Vice President
|
|
|
Telephone:
(631) 752-4343
|
|
|
Telecopy:
(631) 752-4340
|
|
|
|
|
|
|
|
Revolving
Credit
|
|
|
Commitment
;
$27,000,000
|
FIRST
PIONEER FARM
|
|
|
CREDIT,
ACA,
|
|
|
as
a Lender and as Co-
|
|
|
Documentation
Agent
|
|
|
|
|
|
By:
/s/
Carol L. Sobson
|
|
|
By:
Carol L. Sobson
|
|
|
Title:
Vice President
|
|
|
|
|
|
Lending
Office for Base Rate Loans
|
|
|
and
for Adjusted Libor Loans:
|
|
|
|
|
|
First
Pioneer Farm Credit, ACA
|
|
|
174
South Road
|
|
|
Enfield,
Connecticut 06082
|
|
|
Attention:
James D. Miller,
|
|
|
Senior
Vice President - Finance
|
|
|
Telephone:
(860)741-4380
|
|
|
Telecopy:
(860) 741-4389
|
|
|
|
|
|
Address
for Notices:
|
|
|
|
|
|
First
Pioneer Farm Credit, ACA
|
|
|
174
South Road
|
|
|
Enfield,
Connecticut 06082
|
|
|
Attention:
Carol L. Sobson, Vice President
|
|
|
Telephone:
(860) 741-4380
|
|
|
Telecopy:
(860) 741-4389
|
|
|
|
|
Revolving
Credit
|
|
|
Commitment
:
$10,000,000
|
THE
BANK OF NEW YORK,
|
|
|
as
a Lender
|
|
|
|
|
|
|
|
|
By:
/s/
Edward P. Nallan, Jr.
|
|
|
Name:
Edward P. Nallan, Jr.
|
|
|
Title:
Vice President
|
|
|
|
|
|
Lending
Office for Base Rate Loans
|
|
|
and
for Adjusted Libor Loans:
|
|
|
|
|
|
The
Bank of New York
|
|
|
1401
Franklin Avenue
|
|
|
Garden
City, New York 11530
|
|
|
Attention:
Edward P. Nallan
|
|
|
Telephone:
(516)294-2269
|
|
|
Telecopy:
(516) 294-2055
|
|
|
|
|
|
Address
for Notices:
|
|
|
|
|
|
The
Bank of New York
|
|
|
1401
Franklin Avenue
|
|
|
Garden
City, New York 11530
|
|
|
Attention:
Edward P. Nallan
|
|
|
Telephone:
(516) 294-2269
|
|
|
Telecopy:
(516) 294-2055
|
|
|
|
|
|
|
|
Revolving
Credit
|
|
|
Commitment
:
$27,000,000
|
KEYBANK
NATIONAL
|
|
|
ASSOCIATION,
|
|
|
as
a Lender and as Co-Syndication
|
|
|
Agent
|
|
|
|
|
|
|
|
|
By:
/s/
Jeffrey R. Dincher
|
|
|
Name:
Jeffrey R. Dincher
|
|
|
Title:
Assistant Vice President
|
|
|
|
|
|
Lending
Office for Base Rate Loans
|
|
|
and
for Adjusted Libor Loans:
|
|
|
|
|
|
KeyBank
National Association
|
|
|
127
Public Square
|
|
|
Cleveland,
Ohio 44144
|
|
|
Attention;
Melissa Pelham
|
|
|
Telephone:
(216) 689-0206
|
|
|
Telecopy:
(216) 689-5962
|
|
|
|
|
|
Address
for Notices:
|
|
|
|
|
|
KeyBank
National Association
|
|
|
127
Public Square
|
|
|
Cleveland,
Ohio 44144
|
|
|
Attention:
Jeff Dincher, Portfolio
|
|
|
Manager
|
|
|
Telephone:
(216) 689-5562
|
|
|
Telecopy:
(216)689-4981
|
|
|
|
|
|
|
|
Revolving
Credit
|
CITIBANK,
N.A.,
|
|
Commitment
:
$27,000,000
|
as
a Lender and as Co-Syndication
|
|
|
Agent
|
|
|
|
|
|
|
|
|
By:
/s/
William A. DeMilt, Jr.
|
|
|
Name:
William A. DeMilt, Jr.
|
|
|
Title:
Vice President
|
|
|
|
|
|
Lending
Office for Base Rate Loans
|
|
|
and
for Adjusted Libor Loans:
|
|
|
|
|
|
Citibank,
N.A.
|
|
|
1
Reckson Plaza
|
|
|
Uniondale,
New York 11556
|
|
|
Attention:
Joann Alter
|
|
|
Telephone:
(516) 296-6173
|
|
|
Telecopy:
(212) 296-5394
|
|
|
|
|
|
Address
for Notices:
|
|
|
|
|
|
Citibank,
N.A.
|
|
|
1
Reckson Plaza
|
|
|
Uniondale,
New York 11556
|
|
|
Attention:
Joann Alter
|
|
|
Telephone:
(516) 296-6173
|
|
|
Telecopy:
(212) 296-5394
|
|
|
|
|
|
|
|
Revolving
Credit
|
JPMorgan
Chase Bank, N.A.,
|
|
Commitment
:
$15,000,000
|
as
a Lender
|
|
|
|
|
|
|
|
|
|
|
|
By:
/s/
Jules Panno
|
|
|
Name:
Jules Panno
|
|
|
Title:
Vice President
|
|
|
|
|
|
Lending
Office for Base Rate Loans
|
|
|
and
for Adjusted Libor Loans:
|
|
|
|
|
|
JPMorgan
Chase Bank, N.A.
|
|
|
395
North Service Road - 3
rd
Floor
|
|
|
Melville,
NY 11747
|
|
|
Attention:
Jules Panno
|
|
|
Telecopy:
(631) 755-5184
|
|
|
|
|
|
Address
for Notices:
|
|
|
|
|
|
JPMorgan
Chase Bank, N.A.
|
|
|
395
North Service Road - 3
rd
Floor
|
|
|
Melville,
NY 11747
|
|
|
Attention:
John Budzynski
|
|
|
Telephone:
(631) 755-5179
|
|
|
Telecopy:
(631) 755-5184
|
|
|
|
|
Revolving
Credit
|
KBC
BANK N.V.,
|
|
Commitment
:
$15,000,000
|
as
a Lender
|
|
|
|
|
|
|
|
|
|
|
|
By:
/s/
Michael Curran
|
|
|
Name:
Michael Curran
|
|
|
Title:
First Vice President
|
|
|
|
|
|
By:
/s/
Robert M. Surdam
|
|
|
Name:
Robert M. Surdam
|
|
|
Title:
Vice President
|
|
|
|
|
|
Lending
Office for Base Rate Loans:
|
|
|
|
|
|
KBC
Bank N.V., New York Branch
|
|
|
125
West 55th Street
|
|
|
New
York, New York 10019
|
|
|
Attention:
Rose Pagan
|
|
|
Telephone:
(212)541-0657
|
|
|
Telecopy:
(212) 956-5581
|
|
|
|
|
|
Lending
Office for Adjusted Libor Loans:
|
|
|
|
|
|
KBC
Bank N.V., Grand Cayman Branch
|
|
|
125
West 55th Street
|
|
|
New
York, New York 10019
|
|
|
Attention:
Rose Pagan
|
|
|
Telephone:
(212) 541-0657
|
|
|
Telecopy:
(212)956-5581
|
|
|
|
|
|
Address
for Notices:
|
|
|
|
|
|
KBC
Bank N.V
|
|
|
125
West 55th Street
|
|
|
New
York, New York 10019
|
|
|
Attention:
Robert Surdam
|
|
|
Telephone:
(212) 541-0704
|
|
|
Telecopy:
(212) 541-0793
|
|
|
|
|
|
|
|
Revolving
Credit
|
|
|
Commitment:
$25,000,000
|
COBANK,
ACB, as a Lender
|
|
|
|
|
|
|
|
|
|
|
|
By:
/s/
Mary Beth Curry
|
|
|
Name:
Mary Beth Curry
|
|
|
Title:
Vice President
|
|
|
|
|
|
Lending
Office for Base Rate Loans
|
|
|
and
for Adjusted Libor Loans:
|
|
|
|
|
|
CoBank,
ACB
|
|
|
5500
S. Quebec Street
|
|
|
Greenwood
Village, Colorado 80111
|
|
|
Attention:
Deann Sullivan
|
|
|
Telephone:
(303) 740-4315
|
|
|
Telecopy:
(303) 740-4021
|
|
|
|
|
|
Address
for Notices:
|
|
|
|
|
|
CoBank,
ACB
|
|
|
5500
S. Quebec Street
|
|
|
Greenwood
Village, Colorado 80111
|
|
|
Attention:
Thomas N. Martin, Vice President
|
|
|
Telephone:
(303) 740-4312
|
|
|
Telecopy:
(303) 224-6119
|
|
|
|
|
Revolving
Credit
|
|
|
Commitment
:
$20,000,000
|
Cooperative
Centrale Raiffeisen-
|
|
|
Boerenleenbank
B.A. “Rabobank
|
|
|
International”,
New York Branch
|
|
|
as
a Lender
|
|
|
|
|
|
|
|
|
By:
/s/
Theodore Cox
|
|
|
Name:
Theodore Cox
|
|
|
Title:
Executive Director
|
|
|
|
|
|
By:
/s/
Rebecca Morrow
|
|
|
Name:
Rebecca Morrow
|
|
|
Title:
Executive Director
|
|
|
|
|
|
Lending
Office for Base Rate Loans
|
|
|
and
for Adjusted Libor Loans:
|
|
|
|
|
|
Rabobank
International
|
|
|
245
Park Ave
|
|
|
New
York, NY 10167
|
|
|
Attention:
Ann McDonough
|
|
|
Telephone:
201-499-5318
|
|
|
Telecopy:
201-499-5326
|
|
|
|
|
|
Address
for Notices:
|
|
|
|
|
|
Rabobank
International
|
|
|
245
Park Ave
|
|
|
New
York, NY 10167
|
|
|
Attention:
Theodore W. Cox
|
|
|
Telephone:
(404) 877-9109
|
|
|
Telecopy:
(404)877-9150
|
|
|
|
Exhibit
10.2
Execution
Version
The
Hain
Celestial Group, Inc.
$150,000,000
Senior Notes
due
May 2, 2016
________________
Note
Purchase Agreement
________________
Dated
as
of May 2, 2006
Table
of Contents
|
SECTION
|
HEADING
|
PAGE
|
|
|
|
|
|
SECTION 1.
|
AUTHORIZATION
OF NOTES
|
1
|
|
Section 1.1.
|
Description
of Notes
|
1
|
|
Section 1.2.
|
Interest
Rate
|
1
|
|
SECTION 2.
|
SALE
AND PURCHASE OF NOTES
|
2
|
|
Section 2.1.
|
Notes
|
2
|
|
Section
2.2.
|
Subsidiary
Guaranty
|
2
|
|
SECTION 3.
|
CLOSING
|
3
|
|
SECTION 4.
|
CONDITIONS
TO CLOSING
|
3
|
|
Section
4.1.
|
Representations
and Warranties
|
3
|
|
Section 4.2.
|
Performance;
No Default
|
3
|
|
Section 4.3.
|
Compliance
Certificates
|
4
|
|
Section 4.4.
|
Opinions
of Counsel
|
4
|
|
Section 4.5.
|
Purchase
Permitted by Applicable Law, Etc
|
4
|
|
Section 4.6.
|
Sale
of Other Notes
|
5
|
|
Section 4.7.
|
Payment
of Special Counsel Fees
|
5
|
|
Section 4.8.
|
Private
Placement Number
|
5
|
|
Section 4.9.
|
Changes
in Corporate Structure
|
5
|
|
Section
4.10.
|
Subsidiary
Guaranty
|
5
|
|
Section 4.11.
|
Funding
Instructions
|
5
|
|
Section 4.12.
|
Proceedings
and Documents
|
5
|
|
SECTION 5.
|
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
|
5
|
|
Section 5.1.
|
Organization;
Power and Authority
|
5
|
|
Section 5.2.
|
Authorization,
Etc
|
6
|
|
Section 5.3.
|
Disclosure
|
6
|
|
Section 5.4.
|
Organization
and Ownership of Shares of Subsidiaries; Affiliates
|
6
|
|
Section 5.5.
|
Financial
Statements; Material Liabilities
|
7
|
|
Section 5.6.
|
Compliance
with Laws, Other Instruments, Etc
|
7
|
|
Section 5.7.
|
Governmental
Authorizations, Etc
|
7
|
|
Section 5.8.
|
Litigation;
Observance of Agreements, Statutes and Orders
|
8
|
|
Section 5.9.
|
Taxes
|
8
|
|
Section 5.10.
|
Title
to Property; Leases
|
8
|
|
Section 5.11.
|
Licenses,
Permits, Etc
|
9
|
|
Section 5.12.
|
Compliance
with ERISA
|
9
|
|
Section 5.13.
|
Private
Offering by the Company
|
10
|
|
Section 5.14.
|
Use
of Proceeds; Margin Regulations
|
10
|
|
Section 5.15.
|
Existing
Debt; Future Liens
|
10
|
|
Section 5.16.
|
Foreign
Assets Control Regulations, Etc
|
11
|
|
Section 5.17.
|
Status
under Certain Statutes
|
11
|
|
Section 5.18.
|
Environmental
Matters
|
11
|
|
Section 5.19.
|
Notes
Rank Pari Passu
|
12
|
|
SECTION 6.
|
REPRESENTATIONS
OF THE PURCHASER
|
12
|
|
Section 6.1.
|
Purchase
for Investment
|
12
|
|
Section 6.2.
|
Accredited
Investor
|
12
|
|
Section 6.3.
|
Source
of Funds
|
12
|
|
SECTION 7.
|
INFORMATION
AS TO COMPANY
|
14
|
|
Section 7.1.
|
Financial
and Business Information
|
14
|
|
Section 7.2.
|
Officer’s
Certificate
|
17
|
|
Section 7.3.
|
Visitation
|
17
|
|
SECTION 8.
|
PAYMENT
OF THE NOTES
|
18
|
|
Section 8.1.
|
Required
Prepayments
|
18
|
|
Section 8.2.
|
Optional
Prepayments with Make-Whole Amount
|
18
|
|
Section 8.3.
|
Allocation
of Partial Prepayments
|
18
|
|
Section 8.4.
|
Rejectable
Offer of Prepayment Following Certain Asset Sales
|
18
|
|
Section 8.5.
|
Maturity;
Surrender, Etc.
|
19
|
|
Section 8.6.
|
Purchase
of Notes
|
19
|
|
Section 8.7.
|
Make-Whole
Amount for the Notes
|
19
|
|
SECTION 9.
|
AFFIRMATIVE
COVENANTS
|
20
|
|
Section 9.1.
|
Compliance
with Law
|
20
|
|
Section 9.2.
|
Insurance
|
21
|
|
Section 9.3.
|
Maintenance
of Properties
|
21
|
|
Section 9.4.
|
Payment
of Taxes and Claims
|
21
|
|
Section 9.5.
|
Corporate
Existence, Etc
|
21
|
|
Section
9.6.
|
Designation
of Subsidiaries
|
21
|
|
Section 9.7.
|
Notes
to Rank Pari Passu
|
22
|
|
Section 9.8.
|
Additional
Subsidiary Guarantors
|
22
|
|
Section 9.9.
|
Books
and Records
|
23
|
|
SECTION 10.
|
NEGATIVE
COVENANTS
|
23
|
|
Section 10.1.
|
Consolidated
Debt to Consolidated EBITDA
|
23
|
|
Section
10.2.
|
Priority
Debt
|
23
|
|
Section 10.3.
|
Limitation
on Liens
|
23
|
|
Section 10.4.
|
Sales
of Asset
|
25
|
|
Section 10.5.
|
Merger
and Consolidation
|
26
|
|
Section 10.6.
|
Transactions
with Affiliates
|
27
|
|
Section 10.7.
|
Terrorism
Sanctions Regulations
|
27
|
|
Section 10.8.
|
Line
of Business
|
27
|
|
SECTION 11.
|
EVENTS
OF DEFAULT
|
30
|
|
SECTION 12.
|
REMEDIES
ON DEFAULT, ETC
|
30
|
|
Section 12.1.
|
Acceleration
|
30
|
|
Section 12.2.
|
Other
Remedies
|
30
|
|
Section 12.3.
|
Rescission
|
31
|
|
Section 12.4.
|
No
Waivers or Election of Remedies, Expenses, Etc
|
31
|
|
SECTION 13.
|
REGISTRATION;
EXCHANGE; SUBSTITUTION OF NOTES
|
31
|
|
Section 13.1.
|
Registration
of Notes
|
31
|
|
Section 13.2.
|
Transfer
and Exchange of Notes
|
32
|
|
Section
13.3.
|
Transfer
Restrictions
|
32
|
|
Section 13.4.
|
Replacement
of Notes
|
32
|
|
SECTION 14.
|
PAYMENTS
ON NOTES
|
33
|
|
Section 14.1.
|
Place
of Payment
|
33
|
|
Section 14.2.
|
Home
Office Payment
|
33
|
|
SECTION 15.
|
EXPENSES,
ETC
|
33
|
|
Section 15.1.
|
Transaction
Expenses
|
33
|
|
Section 15.2.
|
Survival
|
34
|
|
SECTION 16.
|
SURVIVAL
OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT
|
34
|
|
SECTION 17.
|
AMENDMENT
AND WAIVER
|
34
|
|
Section 17.1.
|
Requirements
|
34
|
|
Section 17.2.
|
Solicitation
of Holders of Notes
|
34
|
|
Section 17.3.
|
Binding
Effect, Etc
|
35
|
|
Section 17.4.
|
Notes
Held by Company, Etc
|
35
|
|
SECTION 18.
|
NOTICES
|
35
|
|
SECTION 19.
|
REPRODUCTION
OF DOCUMENTS
|
36
|
|
SECTION 20.
|
CONFIDENTIAL
INFORMATION
|
37
|
|
SECTION 21.
|
SUBSTITUTION
OF PURCHASER
|
37
|
|
SECTION 22.
|
MISCELLANEOUS
|
37
|
|
Section 22.1.
|
Successors
and Assigns
|
37
|
|
Section 22.2.
|
Payments
Due on Non-Business Days
|
38
|
|
Section 22.3.
|
Accounting
Terms
|
38
|
|
Section 22.4.
|
Severability
|
38
|
|
Section 22.5.
|
Construction
|
38
|
|
Section 22.6.
|
Counterparts
|
38
|
|
Section 22.7.
|
Governing
Law
|
38
|
|
Section 22.8.
|
Jurisdiction
and Process; Waiver of Jury Trial
|
39
|
|
Schedule A
|
—
|
Information
Relating to Purchasers
|
|
|
|
|
|
Schedule B
|
—
|
Defined
Terms
|
|
|
|
|
|
Schedule 4.9
|
—
|
Changes
in Corporate Structure
|
|
|
|
|
|
Schedule 5.4
|
—
|
Subsidiaries
of the Company, Ownership of Subsidiary Stock,
Affiliates
|
|
|
|
|
|
Schedule 5.5
|
—
|
Financial
Statements
|
|
|
|
|
|
Schedule 5.11
|
—
|
Licenses,
Permits, Etc.
|
|
|
|
|
|
Schedule 5.15
|
—
|
Existing
Debt
|
|
|
|
|
|
Schedule 10.3
|
—
|
Existing
Liens
|
|
|
|
|
|
Exhibit 1
|
—
|
Form
of Senior Notes, due May 2, 2016
|
|
|
|
|
|
Exhibit 2.2
|
—
|
Form
of Subsidiary Guaranty
|
|
|
|
|
|
Exhibit 4.4(
a
)
|
—
|
Form
of Opinion of Associate General Counsel to the Company
|
|
|
|
|
|
Exhibit 4.4(
b
)
|
—
|
Form
of Opinion of Special Counsel to the Company
|
|
|
|
|
|
Exhibit 4.4(
c
)
|
—
|
Form
of Opinion of Special Counsel to the Purchasers
|
|
|
|
|
|
Exhibit 10.5
|
—
|
Form
of Assumption Agreement
|
|
|
|
|
The
Hain Celestial Group, Inc.
58
South Service Road
Melville,
NY 11747
$150,000,000
Senior Notes
due
May 2, 2016
Dated
as
of
May 2,
2006
To
the
Purchasers listed in
the
attached Schedule A:
Ladies
and Gentlemen:
The
Hain
Celestial Group, Inc.
,
a
Delaware corporation (the
“Company”
),
agrees
with the Purchasers listed in the attached Schedule A (the
“Purchasers”
)
to this
Note Purchase Agreement (this
“Agreement”
)
as
follows:
|
Section 1.
|
Authorization
of Notes
.
|
Section 1.1.
Description
of Notes
.
The
Company will authorize the issue and sale of the following Senior Notes:
|
Issue
|
Aggregate
Principal Amount
|
Interest
Rate
|
Maturity
Date
|
|
Senior
Notes
|
$150,000,000
|
5.98%
(6.23% in accordance with
Section 1.2(b))
|
May 2,
2016
|
The
Senior Notes described above are referred to as the
“Notes”
(such
term shall also include any such notes issued in substitution therefor pursuant
to Section 13 of this Agreement). The Notes shall be substantially in the form
set out in Exhibit 1, with such changes therefrom, if any, as may be approved
by
the Purchasers and the Company. Certain capitalized terms used in this Agreement
are defined in Schedule B; references to a “Schedule” or an “Exhibit” are,
unless otherwise specified, to a Schedule or an Exhibit attached to this
Agreement.
Section 1.2.
Interest
Rate.
(a) The
Notes
shall bear interest (computed on the basis of a 360-day year of twelve 30-day
months) on the unpaid principal thereof from the date of issuance at the
Applicable Interest Rate then in effect payable semi-annually in arrears on
the
2nd day of May and November and at maturity, commencing on November 2,
2006, until such principal
sum
shall
have become due and payable (whether at maturity, upon notice of prepayment
or
otherwise) and interest (so computed) on any overdue principal, interest or
Make-Whole Amount from the due date thereof (whether by acceleration or
otherwise) at the applicable Default Rate until paid.
(b)
If,
during a Transition Period, the Consolidated Debt to Consolidated EBITDA ratio
exceeds 3.5 to 1.00, as evidenced by an Officer’s Certificate delivered pursuant
to Section 7.2(a), the interest rate payable on the Notes shall be increased
by
0.25%, commencing on the first day of the first fiscal quarter following the
fiscal quarter in respect of which such Certificate was delivered and continuing
until the Company has provided an Officer’s Certificate pursuant to Section
7.2(a) demonstrating that, as of the end of the fiscal quarter in respect of
which such Certificate is delivered, the Consolidated Debt to Consolidated
EBITDA ratio is not more than 3.5 to 1.0. Following delivery of an
Officer’s Certificate demonstrating that the Consolidated Debt to Consolidated
EBITDA ratio did not exceed 3.5 to 1.0, the additional 0.25% interest shall
cease to accrue or be payable for any fiscal quarter subsequent to the fiscal
quarter in respect of which such Certificate is delivered.
|
Section 2.
|
Sale
and Purchase of Notes
.
|
Section 2.1.
Notes.
Subject
to the terms and conditions of this Agreement, the Company will issue and sell
to each Purchaser and each Purchaser will purchase from the Company, at the
Closing provided for in Section 3, the Notes in the principal amount
specified opposite such Purchaser’s name in Schedule A at the purchase price of
100% of the principal amount thereof. The obligations of each Purchaser
hereunder are several and not joint obligations and each Purchaser shall have
no
obligation and no liability to any Person for the performance or nonperformance
by any other Purchaser hereunder.
Section
2.2.
Subsidiary
Guaranty.
(a) The
payment by the Company of all amounts due with respect to the Notes and the
performance by the Company of its obligations under this Agreement will be
absolutely and unconditionally guaranteed by the Subsidiary Guarantors pursuant
to the Subsidiary Guaranty Agreement dated as of even date herewith, which
shall
be substantially in the form of Exhibit 2.2 attached hereto, and otherwise
in
accordance with the provisions of Section 9.6 hereof (the
“Subsidiary
Guaranty”
).
(b)
The
holders of the Notes agree to discharge and release any Subsidiary Guarantor
from the Subsidiary Guaranty upon the written request of the Company,
provided
that
(i) such Subsidiary Guarantor has been released and discharged (or will be
released and discharged concurrently with the release of such Subsidiary
Guarantor under the Subsidiary Guaranty) as an obligor and guarantor under
and
in respect of the Bank Credit Agreement and the Company so certifies to the
holders of the Notes in a certificate of a Responsible Officer, (ii) at the
time of such release and discharge, the Company shall deliver a certificate
of a
Responsible Officer to the holders of the Notes stating that no Default or
Event
of Default exists or will exist upon such release, and (iii) if any fee or
other form of consideration is given to any holder of Debt of the Company
expressly for the purpose of such release, holders of the Notes shall receive
equivalent consideration (a
“Collateral
Release”
).
The
sale
and purchase of the Notes to be purchased by each Purchaser shall occur at
the
offices of Chapman and Cutler LLP, 111 West Monroe Street, Chicago, Illinois
at
10:00 a.m. Central time, at a closing (the “
Closing
Date
”)
on
May 2, 2006 or on such other Business Day thereafter on or prior to
May 31, 2006 as may be agreed upon by the Company and the Purchasers. On
the Closing Date, the Company will deliver to each Purchaser the Notes to be
purchased by such Purchaser in the form of a single Note (or such greater number
of Notes in denominations of at least $100,000 as such Purchaser may request)
dated the date of the Closing Date and registered in such Purchaser’s name (or
in the name of such Purchaser’s nominee), against delivery by such Purchaser to
the Company or its order of immediately available funds in the amount of the
purchase price therefor by wire transfer of immediately available funds for
the
account of the Company to Account Number 9428438565, at Bank of America,
Melville, New York, ABA Number 0260-0959-3, in the Account Name of “The Hain
Celestial Group, Inc.” If, on the Closing Date, the Company shall fail to tender
such Notes to any Purchaser as provided above in this Section 3, or any of
the conditions specified in Section 4 shall not have been fulfilled to any
Purchaser’s satisfaction, such Purchaser shall, at such Purchaser’s election, be
relieved of all further obligations under this Agreement, without thereby
waiving any rights such Purchaser may have by reason of such failure or such
nonfulfillment.
|
Section 4.
|
Conditions
to Closing
.
|
Each
Purchaser’s obligation to purchase and pay for the Notes to be sold to such
Purchaser at the Closing is subject to the fulfillment to such Purchaser’s
satisfaction, prior to or at the Closing, of the following conditions applicable
to the Closing Date:
Section
4.1.
Representations
and Warranties
.
(a)
Representations
and Warranties of the Company.
The
representations and warranties of the Company in this Agreement shall be correct
when made and at the time of the Closing.
(b)
Representations
and Warranties of the Subsidiary Guarantors.
The
representations and warranties of the Subsidiary Guarantors in the Subsidiary
Guaranty shall be correct when made and at the time of the Closing.
Section 4.2.
Performance;
No Default
.
The
Company and each Subsidiary Guarantor shall have performed and complied with
all
agreements and conditions contained in this Agreement and the Subsidiary
Guaranty required to be performed or complied with by the Company and each
such
Subsidiary Guarantor prior to or at the Closing, and after giving effect to
the
issue and sale of the Notes (and the application of the proceeds thereof as
contemplated by Section 5.14), no Default or Event of Default shall have
occurred and be continuing. Neither the Company nor any Subsidiary shall have
entered into any transaction since the date of the Memorandum that would have
been prohibited by Section 10 hereof had such Sections applied since such
date.
Section 4.3.
Compliance
Certificates
.
(a)
Officer’s
Certificate of the Company.
The
Company shall have delivered to such Purchaser an Officer’s Certificate, dated
the Closing Date, certifying that the conditions specified in Sections 4.1,
4.2 and 4.9 have been fulfilled.
(b)
Secretary’s
Certificate of the Company.
The
Company shall have delivered to such Purchaser a certificate, dated the Closing
Date, certifying as to the resolutions attached thereto and other corporate
proceedings relating to the authorization, execution and delivery of the Notes
and this Agreement.
(c)
Officer’s
Certificate of the Subsidiary Guarantors.
Each
Subsidiary Guarantor shall have delivered to such Purchaser an Officer’s
Certificate, dated the Closing Date, certifying that the conditions specified
in
Sections 4.1(b), 4.2 and 4.9 have been fulfilled.
(d)
Secretary’s
Certificate of the Subsidiary Guarantors.
Each
Subsidiary Guarantor shall have delivered to such Purchaser a certificate,
dated
the Closing Date, certifying as to the resolutions attached thereto and other
corporate proceedings relating to the authorization, execution and delivery
of
the Subsidiary Guaranty.
Section 4.4.
Opinions
of Counsel
.
Such
Purchaser shall have received opinions in form and substance satisfactory to
such Purchaser, dated the Closing Date (a) from Denise M. Faltischek, Esq.,
Associate General Counsel of the Company, covering the matters set forth in
Exhibit 4.4(a) and covering such other matters incident to the transactions
contemplated hereby as such Purchaser or its counsel may reasonably request
(and
the Company hereby instructs its counsel to deliver such opinion to the
Purchasers), (b) from Cahill
Gordon
& Reindel LLP
,
special
counsel for the Company, covering the matters set forth in Exhibit 4.4(b)
and covering such other matters incident to the transactions contemplated hereby
as such Purchaser or its counsel may reasonably request (and the Company hereby
instructs its counsel to deliver such opinion to the Purchasers), and
(c) from Chapman and Cutler LLP, the Purchasers’ special counsel in
connection with such transactions, substantially in the form set forth in
Exhibit 4.4(c) and covering such other matters incident to such
transactions as such Purchaser may reasonably request.
Section 4.5.
Purchase
Permitted by Applicable Law, Etc
.
On
the
date of the Closing such Purchaser’s purchase of Notes shall (a) be
permitted by the laws and regulations of each jurisdiction to which such
Purchaser is subject, without recourse to provisions (such as
section 1405(a)(8) of the New York Insurance Law) permitting limited
investments by insurance companies without restriction as to the character
of
the particular investment, (b) not violate any applicable law or regulation
(including, without limitation, Regulation T, U or X of the Board of
Governors of the Federal Reserve System) and (c) not subject such Purchaser
to any tax, penalty or liability under or pursuant to any applicable law or
regulation, which law or regulation was not in effect on the date hereof. If
requested by such Purchaser, such Purchaser shall have received an Officer’s
Certificate certifying as to such matters of fact as such Purchaser may
reasonably specify to enable such Purchaser to determine whether such purchase
is so permitted.
Section 4.6.
Sale
of Other Notes
.
Contemporaneously with the Closing the Company shall sell to each other
Purchaser and each other Purchaser shall purchase the Notes to be purchased
by
it at the Closing as specified in Schedule A.
Section 4.7.
Payment
of Special Counsel Fees
.
Without
limiting the provisions of Section 15.1, the Company shall have paid on or
before the Closing Date, the reasonable fees, reasonable charges and reasonable
disbursements of the Purchasers’ special counsel referred to in Section 4.4
to the extent reflected in a statement of such counsel rendered to the Company
at least one Business Day prior to the Closing Date.
Section 4.8.
Private
Placement Number
.
A
Private
Placement Number issued by Standard & Poor’s CUSIP Service Bureau (in
cooperation with the Securities Valuation Office of the National Association
of
Insurance Commissioners) shall have been obtained for the Notes.
Section 4.9.
Changes
in Corporate Structure
.
Neither
the Company nor any Subsidiary Guarantor shall have changed its jurisdiction
of
organization or, except as reflected in Schedule 4.9, been a party to any merger
or consolidation, or shall have succeeded to all or any substantial part of
the
liabilities of any other entity, at any time following the date of the most
recent financial statements referred to in Schedule 5.5.
Section
4.10.
Subsidiary
Guaranty.
The
Subsidiary Guaranty shall have been duly authorized, executed and delivered
by
each Subsidiary Guarantor, shall constitute the legal, valid and binding
contract and agreement of each Subsidiary Guarantor and such Purchaser shall
have received a true, correct and complete copy thereof.
Section 4.11.
Funding
Instructions
.
At
least
three Business Days prior to the date of the Closing, each Purchaser shall
have
received written instructions signed by a Responsible Officer on letterhead
of
the Company confirming the information specified in Section 3 including
(i) the name and address of the transferee bank, (ii) such transferee
bank’s ABA number and (iii) the account name and number into which the
purchase price for the Notes is to be deposited.
Section 4.12.
Proceedings
and Documents
.
All
corporate and other organizational proceedings in connection with the
transactions contemplated by this Agreement and all documents and instruments
incident to such transactions shall be reasonably satisfactory to such Purchaser
and its special counsel, and such Purchaser and its special counsel shall have
received all such counterpart originals or certified or other copies of such
documents as such Purchaser or such special counsel may reasonably
request.
Section 5.
Representations
and Warranties of the Company
.
The
Company represents and warrants to each Purchaser that:
Section 5.1.
Organization;
Power and Authority
.
The
Company is a corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation, and is duly qualified
as a
foreign corporation and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to
which
the
failure to be so qualified or in good standing would not, individually or in
the
aggregate, reasonably be expected to have a Material Adverse Effect. The Company
has the corporate power and authority to own or hold under lease the properties
it purports to own or hold under lease, to transact the business it transacts
and proposes to transact, to execute and deliver this Agreement and the Notes
and to perform the provisions hereof and thereof.
Section 5.2.
Authorization,
Etc
.
This
Agreement and the Notes to be issued on the Closing Date have been duly
authorized by all necessary corporate action on the part of the Company, and
this Agreement constitutes, and upon execution and delivery thereof each such
Note will constitute, a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement
of
creditors’ rights generally and (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
Section 5.3.
Disclosure
.
The
Company, through its agent, Banc of America Securities LLC, has delivered to
you
and each Other Purchaser a copy of a Private Placement Memorandum, dated April,
2006 (the
“Memorandum”
),
relating to the transactions contemplated hereby. The Memorandum fairly
describes, in all material respects, the general nature of the business and
principal properties of the Company and its Restricted Subsidiaries. This
Agreement, the Memorandum, the documents, certificates or other writings
delivered to the Purchasers by or on behalf of the Company in connection with
the transactions contemplated hereby and listed on Schedule 5.3 hereto, and
the financial statements listed in Schedule 5.5, in each case, delivered to
the Purchasers prior to April 13, 2006 (this Agreement, the Memorandum and
such documents, certificates or other writings and such financial statements
being referred to, collectively, as the
“Disclosure
Documents”
),
taken
as a whole, do not contain any untrue statement of a material fact or omit
to
state any material fact necessary to make the statements therein not misleading
in the light of the circumstances under which they were made. Except as
disclosed in the Disclosure Documents, since June 30, 2005, there has been
no change in the financial condition, operations, business or properties of
the
Company or any of its Restricted Subsidiaries except changes that individually
or in the aggregate would not reasonably be expected to have a Material Adverse
Effect. There is no fact known to the Company that would reasonably be expected
to have a Material Adverse Effect that has not been set forth herein or in
the
Disclosure Documents.
Section 5.4.
Organization
and Ownership of Shares of Subsidiaries; Affiliates
.
(a) Schedule 5.4
contains (except as noted therein) complete and correct lists (i) of the
Company’s Restricted and Unrestricted Subsidiaries, showing, as to each
Subsidiary, the correct name thereof, the jurisdiction of its organization,
and
the percentage of shares of each class of its capital stock or similar equity
interests outstanding owned by the Company and each other Subsidiary, and all
other Investments of the Company and its Restricted Subsidiaries, (ii) of
the Company’s Affiliates, other than Subsidiaries and other than individuals
described in clause (iii) below, and (iii) of the Company’s directors and
senior officers.
(b)
All
of
the outstanding shares of capital stock or similar equity interests of each
Subsidiary shown in Schedule 5.4 as being owned by the Company and its
Subsidiaries have
been
validly issued, are fully paid and nonassessable and are owned by the Company
or
another Subsidiary free and clear of any Lien (except as otherwise disclosed
in
Schedule 5.4).
(c)
Each
Subsidiary identified in Schedule 5.4 is a corporation or other legal
entity duly organized, validly existing and in good standing under the laws
of
its jurisdiction of organization, and is duly qualified as a foreign corporation
or other legal entity and is in good standing in each jurisdiction in which
such
qualification is required by law, other than those jurisdictions as to which
the
failure to be so qualified or in good standing would not, individually or in
the
aggregate, reasonably be expected to have a Material Adverse Effect. Each such
Subsidiary has the corporate or other power and authority to own or hold under
lease the properties it purports to own or hold under lease and to transact
the
business it transacts and proposes to transact.
(d)
No
Subsidiary is a party to, or otherwise subject to, any legal restriction or
any
agreement (other than this Agreement, the agreements listed on Schedule 5.4
and customary limitations imposed by corporate law statutes) restricting the
ability of such Subsidiary to pay dividends out of profits or make any other
similar distributions of profits to the Company or any of its Subsidiaries
that
owns outstanding shares of capital stock or similar equity interests of such
Subsidiary.
Section 5.5.
Financial
Statements; Material Liabilities
.
The
Company has delivered to each Purchaser copies of the financial statements
of
the Company and its Subsidiaries listed on Schedule 5.5. All of said
financial statements (including in each case the related schedules and notes)
fairly present in all material respects the consolidated financial position
of
the Company and its Subsidiaries as of the respective dates specified in such
Schedule and the consolidated results of their operations and cash flows for
the
respective periods so specified and have been prepared in accordance with GAAP
consistently applied throughout the periods involved except as set forth in
the
notes thereto (subject, in the case of any interim financial statements, to
normal year-end adjustments). The Company and its Subsidiaries do not have
any
Material liabilities that are not disclosed on such financial statements or
otherwise disclosed in the Disclosure Documents.
Section 5.6.
Compliance
with Laws, Other Instruments, Etc
.
The
execution, delivery and performance by the Company of this Agreement and the
Notes will not (a) contravene, result in any breach of, or constitute a
default under, or result in the creation of any Lien in respect of any property
of the Company or any Subsidiary under, any indenture, mortgage, deed of trust,
loan, purchase or credit agreement, lease, corporate charter or by-laws, or
any
other agreement or instrument to which the Company or any Subsidiary is bound
or
by which the Company or any Subsidiary or any of their respective properties
may
be bound or affected, (b) conflict with or result in a breach of any of the
terms, conditions or provisions of any order, judgment, decree, or ruling of
any
court, arbitrator or Governmental Authority applicable to the Company or any
Subsidiary, or (c) violate any provision of any statute or other
rule or regulation of any Governmental Authority applicable to the Company
or any Subsidiary.
Section 5.7.
Governmental
Authorizations, Etc
.
No
consent, approval or authorization of, or registration, filing or declaration
with, any Governmental Authority is required in
connection
with the execution, delivery or performance by the Company of this Agreement
or
the Notes.
Section 5.8.
Litigation;
Observance of Agreements, Statutes and Orders
.
(a) There
are no actions, suits, investigations or proceedings pending or, to the
knowledge of the Company, threatened against or affecting the Company or any
Restricted Subsidiary or any property of the Company or any Restricted
Subsidiary in any court or before any arbitrator of any kind or before or by
any
Governmental Authority that, individually or in the aggregate, would reasonably
be expected to have a Material Adverse Effect.
(b)
Neither
the Company nor any Restricted Subsidiary is in default under any term of any
agreement or instrument to which it is a party or by which it is bound, or
any
order, judgment, decree or ruling of any court, arbitrator or Governmental
Authority or is in violation of any applicable law, ordinance, rule or
regulation (including without limitation Environmental Laws or the USA Patriot
Act) of any Governmental Authority, which default or violation, individually
or
in the aggregate, would reasonably be expected to have a Material Adverse
Effect.
Section 5.9.
Taxes
.
The
Company and its Subsidiaries have filed all tax returns that are required to
have been filed in any jurisdiction, and have paid all taxes shown to be due
and
payable on such returns and all other taxes and assessments levied upon them
or
their properties, assets, income or franchises, to the extent such taxes and
assessments have become due and payable and before they have become delinquent,
except for any taxes and assessments (a) the amount of which is not
individually or in the aggregate Material or (b) the amount, applicability
or validity of which is currently being contested in good faith by appropriate
proceedings and with respect to which the Company or a Subsidiary, as the case
may be, has established adequate reserves in accordance with GAAP. The Company
knows of no basis for any other tax or assessment that would reasonably be
expected to have a Material Adverse Effect. The charges, accruals and reserves
on the books of the Company and its Subsidiaries in respect of federal, state
or
other taxes for all fiscal periods are adequate. The federal income tax
liabilities of the Company and its Subsidiaries have been finally determined
(whether by reason of completed audits or the statute of limitations having
run)
for all fiscal years up to and including the fiscal year ended June 30,
2002.
Section 5.10.
Title
to Property; Leases
.
The
Company and its Restricted Subsidiaries have good and sufficient title to their
respective properties which the Company and its Restricted Subsidiaries own
or
purport to own that individually or in the aggregate are Material, including
all
such properties reflected in the most recent audited balance sheet referred
to
in Section 5.5 or purported to have been acquired by the Company or any
Restricted Subsidiary after said date (except as sold or otherwise disposed
of
in the ordinary course of business or no longer used or useful in the conduct
of
their respective businesses), in each case free and clear of Liens prohibited
by
this Agreement. All leases that individually or in the aggregate are Material
are valid and subsisting and are in full force and effect in all material
respects.
Section 5.11.
Licenses,
Permits, Etc
.
Except
as disclosed in Schedule 5.11,
(a)
the
Company and its Restricted Subsidiaries own or possess all licenses, permits,
franchises, authorizations, patents, copyrights, proprietary software, service
marks, trademarks and trade names, or rights thereto (collectively,
“Intellectual
Property”
),
that
individually or in the aggregate are Material, without known conflict with
the
rights of others;
(b)
to
the
best knowledge of the Company, no product of the Company or any of its
Restricted Subsidiaries infringes in any Material respect any Intellectual
Property owned by any other Person; and
(c)
to
the
best knowledge of the Company, there is no Material violation by any Person
of
any right of the Company or any of its Restricted Subsidiaries with respect
to
any Intellectual Property owned or used by the Company or any of its Restricted
Subsidiaries.
Section 5.12.
Compliance
with ERISA
.
(a) The
Company and, in the case of any ERISA controlled group penalties and
liabilities, each ERISA Affiliate have operated and administered each Plan
in
compliance with all applicable laws except for such instances of noncompliance
as have not resulted in and would not reasonably be expected to result in a
Material Adverse Effect. Neither the Company nor any ERISA Affiliate has
incurred any liability pursuant to Title I or IV of ERISA or the penalty or
excise tax provisions of the Code relating to Plans, and no event, transaction
or condition has occurred or exists that would reasonably be expected to result
in the incurrence of any such liability by the Company, in the case of any
ERISA
controlled group liabilities, or any ERISA Affiliate, or in the imposition
of
any Lien on any of the rights, properties or assets of the Company or any ERISA
Affiliate, in either case pursuant to Title I or IV of ERISA or to such
penalty or excise tax provisions or to section 401(a)(29) or 412 of the
Code or section 4068 of ERISA, other than such liabilities or Liens as would
not
be individually or in the aggregate Material.
(b)
The
present value of the aggregate benefit liabilities under each of the Plans
subject to Title IV of ERISA (other than Multiemployer Plans), determined
as of the end of such Plan’s most recently ended plan year on the basis of the
actuarial assumptions specified for funding purposes in such Plan’s most recent
actuarial valuation report, did not exceed the aggregate current value of the
assets of such Plan allocable to such benefit liabilities by more than
$10,000,000 in the aggregate for all Plans. The term
“benefit
liabilities”
has the
meaning specified in section 4001 of ERISA and the terms
“current
value”
and
“present
value”
have the
meaning specified in section 3 of ERISA.
(c)
The
Company and its ERISA Affiliates have not incurred any withdrawal liabilities
(and are not subject to contingent withdrawal liabilities) under
section 4201 or 4204 of ERISA in respect of Multiemployer Plans that
individually or in the aggregate are Material.
(d)
The
expected post-retirement benefit obligation (determined as of the last day
of
the Company’s most recently ended fiscal year in accordance with Financial
Accounting Standards
Board
Statement No. 106, without regard to liabilities attributable to
continuation coverage mandated by section 4980B of the Code) of the Company
and its Subsidiaries is not Material.
(e)
The
execution and delivery of this Agreement and the issuance and sale of the Notes
hereunder will not involve any transaction that is subject to the prohibitions
of Section 406(a) of ERISA or in connection with which a tax would be
imposed pursuant to Section 4975(c)(1)(A)-(D) of the Code. The
representation by the Company in the first sentence of this Section 5.12(e)
is made in reliance upon and subject to the accuracy of each Purchaser’s
representation in Section 6.3 as to the sources of the funds to be used to
pay the purchase price of the Notes to be purchased by such
Purchaser.
Section 5.13.
Private
Offering by the Company
.
Neither
the Company nor anyone acting on the Company’s behalf has offered the Notes or
any similar securities for sale to, or solicited any offer to buy any of the
same from, or otherwise approached or negotiated in respect thereof with, any
Person other than the Purchasers and not more than 50 other Institutional
Investors, each of which has been offered the Notes in connection with a private
sale for investment. Neither the Company nor anyone acting on its behalf has
taken, or will take, any action that would subject the issuance or sale of
the
Notes to the registration requirements of Section 5 of the Securities Act
or to the registration requirements of any securities or blue sky laws of any
applicable jurisdiction.
Section 5.14.
Use
of Proceeds; Margin Regulations
.
The
Company will apply the proceeds of the sale of the Notes to refinance existing
Debt and for general corporate purposes of the Company. No part of the proceeds
from the sale of the Notes hereunder will be used, directly or indirectly,
for
the purpose of buying or carrying any margin stock within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System
(12 CFR 221), or for the purpose of buying or carrying or trading in
any securities under such circumstances as to involve the Company in a violation
of Regulation X of said Board (12 CFR 224) or to involve any broker or
dealer in a violation of Regulation T of said Board (12 CFR 220).
Margin stock does not constitute more than 5% of the value of the consolidated
assets of the Company and its Subsidiaries and the Company does not have any
present intention that margin stock will constitute more than 5% of the value
of
such assets. As used in this Section, the terms
“margin
stock”
and
“purpose
of buying or carrying”
shall
have the meanings assigned to them in said Regulation U.
Section 5.15.
Existing
Debt; Future Liens
.
(a) Except as described therein, Schedule 5.15 sets forth a complete
and correct list of all outstanding Debt of the Company and its Restricted
Subsidiaries as of March 31, 2006, since which date there has been no
Material change in the amounts, interest rates, sinking funds, installment
payments or maturities of the Debt of the Company or its Restricted
Subsidiaries. Neither the Company nor any Restricted Subsidiary is in default
and no waiver of default is currently in effect, in the payment of any principal
or interest on any Debt of the Company or such Restricted Subsidiary, and no
event or condition exists with respect to any Debt of the Company or any
Restricted Subsidiary, that would permit (or that with notice or the lapse
of
time, or both, would permit) one or more Persons to cause such Debt to become
due and payable before its stated maturity or before its regularly scheduled
dates of payment.
(b)
Except
as
disclosed in Schedule 5.15, neither the Company nor any Restricted
Subsidiary has agreed or consented to cause or permit in the future (upon the
happening of a contingency or otherwise) any of its property, whether now owned
or hereafter acquired, to be subject to a Lien not permitted by
Section 10.3.
(c)
Neither
the Company nor any Subsidiary is a party to, or otherwise subject to any
provision contained in, any instrument evidencing Debt of the Company or such
Subsidiary, any agreement relating thereto or any other agreement (including,
but not limited to, its charter or other organizational document) which limits
the amount of, or otherwise imposes restrictions on the incurring of, Debt
of
the Company, except as specifically indicated in
Schedule 5.15.
Section 5.16.
Foreign
Assets Control Regulations, Etc
.
(a) Neither
the sale of the Notes by the Company hereunder nor its use of the proceeds
thereof will violate the Trading with the Enemy Act, as amended, or any of
the
foreign assets control regulations of the United States Treasury Department
(31
CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or
executive order relating thereto.
(b)
Neither
the Company nor any Subsidiary is a Person described or designated in the
Specially Designated Nationals and Blocked Persons List of the Office of Foreign
Assets Control or in Section 1 of the Anti-Terrorism Order or, to the
knowledge of the Company, engages in any dealings or transactions with any
such
Person. The Company and its Subsidiaries are in compliance, in all material
respects, with the USA Patriot Act.
(c)
No
part
of the proceeds from the sale of the Notes hereunder will be used, directly
or
indirectly, for any payments to any governmental official or employee, political
party, official of a political party, candidate for political office, or anyone
else acting in an official capacity, in order to obtain, retain or direct
business or obtain any improper advantage, in violation of the United States
Foreign Corrupt Practices Act of 1977, as amended, assuming in all cases that
such Act applies to the Company.
Section 5.17.
Status
under Certain Statute
s.
Neither
the Company nor any Restricted Subsidiary is an “investment company” registered
or required to be registered under the Investment Company Act of 1940, as
amended, or is subject to regulation under the ICC Termination Act of 1995,
as
amended, or the Federal Power Act, as amended.
Section 5.18.
Environmental
Matters
.
(a) Neither the Company nor any Restricted Subsidiary has knowledge of any
liability or has received any written notice of any liability under or violation
of any Environmental Law, and no proceeding has been instituted alleging any
liability under or violation of any Environmental Law against the Company or
any
of its Restricted Subsidiaries or any of their respective real properties now
or
formerly owned, leased or operated by any of them, or other assets, except,
in
each case, such as would not reasonably be expected to result in a Material
Adverse Effect.
(b)
Neither
the Company nor any Restricted Subsidiary has knowledge of any facts which
would
give rise to any liability under or violation of any Environmental Law related
to real properties or other assets now or formerly owned, leased or operated
by
any of them or
their
use, except, in each case, such as would not reasonably be expected to result
in
a Material Adverse Effect.
(c)
Neither
the Company nor any of its Restricted Subsidiaries has stored any Hazardous
Materials on real properties now or formerly owned, leased or operated by any
of
them or has disposed of any Hazardous Materials in each case in violation of
any
Environmental Laws in each case in any manner that would reasonably be expected
to result in a Material Adverse Effect.
(d)
All
buildings on all real properties now owned, leased or operated by the Company
or
any of its Restricted Subsidiaries are in compliance with applicable
Environmental Laws, except where failure to comply would not reasonably be
expected to result in a Material Adverse Effect.
Section 5.19.
Notes
Rank Pari Passu.
The
obligations of the Company under this Agreement and the Notes rank
pari
passu
in right
of payment with all other senior unsecured Debt (actual or contingent) of the
Company, including, without limitation, all senior unsecured Debt of the Company
described in Schedule 5.15 hereto.
|
Section 6.
|
Representations
of the Purchaser
.
|
Section 6.1.
Purchase
for Investment
.
Each
Purchaser severally represents that it is purchasing the Notes for its own
account or for one or more separate accounts maintained by it or for the account
of one or more pension or trust funds and not with a view to the distribution
thereof,
provided
that the
disposition of such Purchaser’s or such pension or trust funds’ property shall
at all times be within such Purchaser’s or such pension or trust funds’
control.
Section 6.2.
Accredited
Investor
.
Each
Purchaser represents that it is an “accredited investor” (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) acting
for
its own account (and not for the account of others) or as a fiduciary or agent
for others (which others are also “accredited investors”).
Each
Purchaser further represents that such Purchaser has had the opportunity to
ask
questions of the Company and received answers concerning the terms and
conditions of the sale of the Notes. Each Purchaser understands that the Notes
have not been registered under the Securities Act and may be resold only if
registered pursuant to the provisions of the Securities Act or if an exemption
from registration is available, except under circumstances where neither such
registration nor such an exemption is required by law, and that the Company
is
not required to register the Notes.
Section 6.3.
Source
of Funds
.
Each
Purchaser severally represents that at least one of the following statements
is
an accurate representation as to each source of funds (a
“Source”
)
to be
used by such Purchaser to pay the purchase price of the Notes to be purchased
by
such Purchaser hereunder:
(a)
the
Source is an “insurance company general account” (as the term is defined in the
United States Department of Labor’s Prohibited Transaction Exemption
(
“PTE”
)
95-60)
in respect of which the reserves and liabilities (as defined by the annual
statement
for life insurance companies approved by the National Association of Insurance
Commissioners (the
“NAIC
Annual Statement”
))
for
the general account contract(s) held by or on behalf of any employee benefit
plan together with the amount of the reserves and liabilities for the general
account contract(s) held by or on behalf of any other employee benefit plans
maintained by the same employer (or affiliate thereof as defined in PTE 95-60)
or by the same employee organization in the general account do not exceed 10%
of
the total reserves and liabilities of the general account (exclusive of separate
account liabilities) plus surplus as set forth in the NAIC Annual Statement
filed with such Purchaser’s state of domicile; or
(b)
the
Source is a separate account that is maintained solely in connection with such
Purchaser’s fixed contractual obligations under which the amounts payable, or
credited, to any employee benefit plan (or its related trust) that has any
interest in such separate account (or to any participant or beneficiary of
such
plan (including any annuitant)) are not affected in any manner by the investment
performance of the separate account; or
(c)
the
Source is either (i) an insurance company pooled separate account, within the
meaning of PTE 90-1 or (ii) a bank collective investment fund, within the
meaning of the PTE 91-38 and, except as disclosed by such Purchaser to the
Company in writing pursuant to this clause (c), no employee benefit plan or
group of plans maintained by the same employer or employee organization
beneficially owns more than 10% of all assets allocated to such pooled separate
account or collective investment fund; or
(d)
the
Source constitutes assets of an “investment fund” (within the meaning of Part V
of PTE 84-14 (the
“QPAM
Exemption”
))
managed by a “qualified professional asset manager” or “QPAM” (within the
meaning of Part V of the QPAM Exemption), no employee benefit plan’s assets that
are included in such investment fund, when combined with the assets of all
other
employee benefit plans established or maintained by the same employer or by
an
affiliate (within the meaning of Section V(c)(1) of the QPAM Exemption) of
such
employer or by the same employee organization and managed by such QPAM, exceed
20% of the total client assets managed by such QPAM, the conditions of Part
I(c)
and (g) of the QPAM Exemption are satisfied, neither the QPAM nor a person
controlling or controlled by the QPAM (applying the definition of “control” in
Section V(e) of the QPAM Exemption) owns a 5% or more interest in the Company
and (i) the identity of such QPAM and (ii) the names of all employee benefit
plans whose assets are included in such investment fund have been disclosed
to
the Company in writing pursuant to this clause (d); or
(e)
the
Source constitutes assets of a “plan(s)” (within the meaning of Section IV of
PTE 96-23 (the
“INHAM
Exemption”
))
managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV
of the INHAM exemption), the conditions of Part I(a), (g) and (h) of the INHAM
Exemption are satisfied, neither the INHAM nor a person controlling or
controlled by the INHAM (applying the definition of “control” in Section IV(d)
of the INHAM Exemption) owns a 5% or more interest in the Company and (i) the
identity of such INHAM and (ii) the name(s) of the employee benefit plan(s)
whose
assets constitute the Source have been disclosed to the Company in writing
pursuant to this clause (e); or
(f)
the
Source is a governmental plan; or
(g)
the
Source is one or more employee benefit plans, or a separate account or trust
fund comprised of one or more employee benefit plans, each of which has been
identified to the Company in writing pursuant to this clause (g);
or
(h)
the
Source does not include assets of any employee benefit plan, other than a plan
exempt from the coverage of ERISA.
As
used
in this Section 6.3, the terms
“employee
benefit plan,”
“governmental
plan,”
and
“separate
account”
shall
have the respective meanings assigned to such terms in section 3 of
ERISA.
|
Section 7.
|
Information
as to Company
.
|
Section 7.1.
Financial
and Business Information
.
The
Company shall deliver to each holder of Notes that is an Institutional
Investor:
(a)
Quarterly
Statements
—
within
60 days after the end of each quarterly fiscal period in each fiscal year of
the
Company (other than the last quarterly fiscal period of each such fiscal year),
(i)
a
consolidated balance sheet of the Company and its Subsidiaries as at the end
of
such quarter, and
(ii)
consolidated
statements of income, changes in shareholders’ equity and cash flows of the
Company and its Subsidiaries, for such quarter and (in the case of the second
and third quarters) for the portion of the fiscal year ending with such quarter,
setting
forth in each case in comparative form the figures for the corresponding periods
in the previous fiscal year, all in reasonable detail, prepared in accordance
with GAAP applicable to quarterly financial statements generally, and certified
by a Senior Financial Officer as fairly presenting, in all material respects,
the financial position of the companies being reported on and their results
of
operations and cash flows, subject to changes resulting from year-end
adjustments,
provided
that
filing with the Securities and Exchange Commission within the time period
specified above the Company’s Quarterly Report on Form 10-Q prepared in
compliance with the requirements therefor shall be deemed to satisfy the
requirements of this Section 7.1(a);
(b)
Annual
Statements
—
within
105 days after the end of each fiscal year of the Company,
(i)
a
consolidated balance sheet of the Company and its Subsidiaries, as at the end
of
such year, and
(ii)
consolidated
statements of income, changes in shareholders’ equity and cash flows of the
Company and its Subsidiaries, for such year,
setting
forth in each case in comparative form the figures for the previous fiscal
year,
all in reasonable detail, prepared in accordance with GAAP, and accompanied
by
an opinion thereon of independent certified public accountants of recognized
national standing, which opinion shall state that such financial statements
present fairly, in all material respects, the financial position of the
companies being reported upon and their results of operations and cash flows
and
have been prepared in conformity with GAAP, and that the examination of such
accountants in connection with such financial statements has been made in
accordance with generally accepted auditing standards, and that such audit
provides a reasonable basis for such opinion in the circumstances,
provided
that
filing with the Securities and Exchange Commission within the time period
specified above of the Company’s Annual Report on Form 10-K for such fiscal year
(together with the Company’s annual report to shareholders, if any, prepared
pursuant to Rule 14a-3 under the Exchange Act) prepared in accordance with
the requirements therefor shall be deemed to satisfy the requirements of this
Section 7.1(b);
(c)
Consolidated
Statements of Unrestricted Subsidiaries -
if
one or
more Unrestricted Subsidiaries shall either (i) own more than 10% of the total
consolidated assets of the Company and its Subsidiaries, or (ii) account for
more than 10% of the consolidated gross revenues of the Company and its
Subsidiaries, determined in each case in accordance with GAAP, then, within
the
respective periods provided in Section 7.1(a) and (b) above, the Company shall
deliver to each holder of Notes that is an Institutional Investor, unaudited
financial statements of the character and for the dates and periods as in said
Sections 7.1(a) and (b) covering such group of Unrestricted Subsidiaries (on
a
consolidated basis), together with a consolidating statement reflecting
eliminations or adjustments required to reconcile the financial statements
of
such group of Unrestricted Subsidiaries to the financial statements delivered
pursuant to Sections 7.1(a) and (b);
(d)
SEC
and Other Reports
—
except
for filings referred to in Section 7.1(a) and (b) above, promptly upon
their becoming available and, to the extent applicable, one copy of
(i) each financial statement, report, notice or proxy statement sent by the
Company or any Subsidiary to public securities holders generally, and
(ii) each regular or periodic report, each registration statement (without
exhibits except as expressly requested by such holder), and each prospectus
and
all amendments thereto filed by the Company or any Subsidiary with the
Securities and Exchange Commission and of all press releases and other
statements made available generally by the Company or any Subsidiary to the
public concerning developments that are Material;
provided,
that the
Company shall be deemed to have made such delivery of the items in clauses
(i)
and (ii) of this Section 7.1(d) if it shall have timely made such items
available on “EDGAR”;
(e)
Notice
of Default or Event of Default
—
promptly, and in any event within five Business Days after a Responsible Officer
becomes aware of the existence of any Default or Event of Default or the
occurrence or existence of any event or circumstance that in the reasonable
judgment of the Company is likely to become a Default or Event of Default,
a
written notice specifying the nature and period of existence thereof and what
action the Company is taking or proposes to take with respect
thereto;
(f)
ERISA
Matters
—
promptly, and in any event within five Business Days after a Responsible Officer
becomes aware of any of the following, a written notice setting forth the nature
thereof and the action, if any, that the Company or an ERISA Affiliate proposes
to take with respect thereto:
(i)
with
respect to any Plan, any reportable event, as defined in
Section 4043(c)
of ERISA and the regulations thereunder, for which notice thereof has not been
waived pursuant to such regulations as in effect on the date thereof and which
would reasonably be expected to result in a Material Adverse Effect;
or
(ii)
the
taking by the PBGC of steps to institute, or the threatening by the PBGC of
the
institution of, proceedings under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Plan, or the receipt
by
the Company or any ERISA Affiliate of a notice from a Multiemployer Plan that
such action has been taken by the PBGC with respect to such Multiemployer Plan;
or
(iii)
any
event, transaction or condition that would result in the incurrence of any
liability by the Company (or in the case of any ERISA controlled group
liabilities, any ERISA Affiliate) pursuant to Title I or IV of ERISA or the
imposition of a penalty or excise tax under the provisions of the Code relating
to employee benefit plans, or the imposition of any Lien on any of the rights,
properties or assets of the Company or any ERISA Affiliate pursuant to
Title I or IV of ERISA or such penalty or excise tax provisions, if such
liability or Lien, taken together with any other such liabilities or Liens
then
existing, would reasonably be expected to have a Material Adverse
Effect;
(g)
Notices
from Governmental Authority
—
promptly, and in any event within 30 days of receipt thereof, copies of any
notice to the Company or any Subsidiary from any federal or state Governmental
Authority relating to any order, ruling, statute or other law or regulation
that
would reasonably be expected to have a Material Adverse Effect; and
(h)
Requested
Information
—
with
reasonable promptness, such other data and information relating to the business,
operations, affairs, financial condition, assets or properties of the Company
or
any of its Subsidiaries or relating to the ability of the Company to perform
its
obligations hereunder and under the Notes as from time to time may be reasonably
requested by any such holder of Notes or such information regarding
the
Company required to satisfy the requirements of 17 C.F.R. §230.144A, as
amended from time to time, in connection with any contemplated transfer of
the
Notes.
Section 7.2.
Officer’s
Certificate
.
Each
set of financial statements delivered to a holder of Notes pursuant to
Section 7.1(a) or Section 7.1(b) hereof shall be accompanied by a
certificate of a Senior Financial Officer setting forth:
(a)
Covenant
Compliance
—
the
information required in order to establish whether the Company was in compliance
with the requirements of Section 10.1 through Section 10.5
hereof,
inclusive, during the quarterly or annual period covered by the statements
then
being furnished (including with respect to each such Section, where applicable,
the calculations of the maximum or minimum amount, ratio or percentage, as
the
case may be, permissible under the terms of such Sections, and the calculation
of the amount, ratio or percentage then in existence); and
(b)
Event
of Default
—
a
statement that such officer has reviewed the relevant terms hereof and such
review shall not have disclosed the existence during the quarterly or annual
period covered by the statements then being furnished of any condition or event
that constitutes a Default or an Event of Default or, if any such condition
or
event existed or exists, specifying the nature and period of existence thereof
and what action the Company shall have taken or proposes to take with respect
thereto.
Section 7.3.
Visitation
.
The
Company shall permit the representatives of each holder of Notes that is an
Institutional Investor:
(a)
No
Default
—
if
no
Default or Event of Default then exists, at the expense of such holder and
upon
reasonable prior notice to the Company, to visit the principal executive office
of the Company, to discuss the affairs, finances and accounts of the Company
and
its Subsidiaries with the Company’s officers, and (with the consent of the
Company, which consent will not be unreasonably withheld) its independent public
accountants, and (with the consent of the Company, which consent will not be
unreasonably withheld) to visit the other offices and properties of the Company
and each Restricted Subsidiary, all at such reasonable times during normal
business hours and as often as may be reasonably requested in writing;
and
(b)
Default
—
if
a
Default or Event of Default then exists, at the expense of the Company, to
visit
and inspect any of the offices or properties of the Company or any Restricted
Subsidiary, to examine (other than information governed by a written
confidentiality agreement which prohibits such access) all their respective
books of account, records, reports and other papers, to make copies and extracts
therefrom, and to discuss their respective affairs, finances and accounts with
their respective officers and independent public accountants (and by this
provision the Company authorizes said accountants to discuss the affairs,
finances and accounts of the Company and its Subsidiaries), all at such times
during normal business hours and as often as may be requested.
|
Section 8.
|
Payment
of the Notes
.
|
Section 8.1.
Required
Prepayments.
The
entire unpaid principal amount of the Notes shall become due and payable on
May 2, 2016.
Section 8.2.
Optional
Prepayments with Make-Whole Amoun
t.
The
Company may, at its option, upon notice as provided below, prepay at any time
all, or from time to time any part of the Notes, in an amount not less than
10%
of the original aggregate principal amount of the Notes to be prepaid in the
case of a partial prepayment, at 100% of the principal amount so prepaid,
together with accrued and unpaid interest thereon to the date of such
prepayment, plus the Make-Whole Amount determined for the prepayment date with
respect to such principal amount of each Note then outstanding. The Company
will
give each holder of Notes written notice of each optional prepayment under
this
Section 8.2 not less than 15 days and not more than 60 days prior to the
date fixed for such prepayment. Each such notice shall specify such date, the
aggregate principal amount of the Notes to be prepaid on such date, the
principal amount of each Note held by such holder to be prepaid (determined
in
accordance with Section 8.3), and the interest to be paid on the prepayment
date with respect to such principal amount being prepaid, and shall be
accompanied by a certificate of a Senior Financial Officer as to the estimated
respective Make-Whole Amount due in connection with such prepayment (calculated
as if the date of such notice were the date of the prepayment), setting forth
the details of such computation. Two Business Days prior to such prepayment,
the
Company shall deliver to each holder of Notes to be prepaid a certificate of
a
Senior Financial Officer specifying the calculation of each such Make-Whole
Amount as of the specified prepayment date.
Section 8.3.
Allocation
of Partial Prepayments
.
In the
case of each partial prepayment of the Notes pursuant to the provisions of
Section 8.2, the principal amount of the Notes shall be allocated among all
of the Notes at the time outstanding in proportion, as nearly as practicable,
to
the respective unpaid principal amounts thereof.
Section 8.4.
Rejectable
Offer of Prepayment Following Certain Asset Sales
.
If the
Company uses a portion of the net proceeds received from a sale of a
“substantial part” of its assets to prepay or retire Senior Debt of the Company
and/or its Restricted Subsidiaries in accordance with the terms of
Section 10.4(2) hereof, the Company shall offer to prepay each outstanding
Note in a principal amount that equals the Ratable Portion for such Note, and
(ii) any such prepayment of the Notes shall be made at par, together with
accrued interest thereon to the date of such prepayment, but without the payment
of the Make-Whole Amount. Any offer of prepayment of the Notes pursuant to
this
Section 8.4 shall be given to each holder of the Notes by written notice
delivered not less than fifteen (15) days and not more than sixty (60) days
prior to the proposed prepayment date. Each such notice shall state that it
is
given pursuant to this Section 8.4 and that the offer set forth in such
notice must be accepted by such holder in writing and shall also set forth
(i) the prepayment date, (ii) a description of the circumstances which
give rise to the proposed prepayment, and (iii) a calculation of the
Ratable Portion for such holder’s Notes. Each holder of the Notes which desires
to have its Notes prepaid shall notify the Company in writing delivered not
less
than three (3) Business Days prior to the proposed prepayment date of its
acceptance of such offer of prepayment. A failure by a holder of Notes to
respond
to an offer of prepayment made pursuant to this Section 8.4 shall be deemed
to
constitute a rejection of such offer by such holder.
Section 8.5.
Maturity;
Surrender, Etc.
In the
case of each prepayment of Notes pursuant to this Section 8, the principal
amount of each Note to be prepaid shall mature and become due and payable on
the
date fixed for such prepayment, together with interest on such principal amount
accrued to such date and the applicable Make-Whole Amount. From and after such
date, unless the Company shall fail to pay such principal amount when so due
and
payable, together with the interest and Make-Whole Amount as aforesaid, interest
on such principal amount shall cease to accrue. Any Note paid or prepaid in
full
shall be surrendered to the Company and cancelled and shall not be reissued,
and
no Note shall be issued in lieu of any prepaid principal amount of any
Note.
Section 8.6.
Purchase
of Notes
.
The
Company will not and will not permit any Affiliate to purchase, redeem, prepay
or otherwise acquire, directly or indirectly, any of the outstanding Notes
except (a) upon the payment or prepayment of the Notes in accordance with the
terms of this Agreement and the Notes or (b) pursuant to a written offer to
purchase any outstanding Notes made by the Company or an Affiliate pro rata
to
the holders of the Notes upon the same terms and conditions. The Company will
promptly cancel all Notes acquired by it or any Affiliate pursuant to any
payment, prepayment or purchase of Notes pursuant to any provision of this
Agreement and no Notes may be issued in substitution or exchange for any such
Notes.
Section 8.7.
Make-Whole
Amount for the Notes
.
The
term
“Make-Whole
Amount”
means
with respect to any Note an amount equal to the excess, if any, of the
Discounted Value of the Remaining Scheduled Payments with respect to the Called
Principal of such Note,
minus
the
amount of such Called Principal,
provided
that the
Make-Whole Amount may in no event be less than zero. For the purposes of
determining the Make-Whole Amount, the following terms have the following
meanings with respect to the Called Principal of such Note:
“Called
Principal”
means,
the principal of any Note that is to be prepaid pursuant to Section 8.2 or
has become or is declared to be immediately due and payable pursuant to
Section 12.1, as the context requires.
“Discounted
Value”
means,
the amount obtained by discounting all Remaining Scheduled Payments from their
respective scheduled due dates to the Settlement Date with respect to such
Called Principal, in accordance with accepted financial practice and at a
discount factor (applied on the same periodic basis as that on which interest
on
such Note is payable) equal to the Reinvestment Yield.
“Reinvestment
Yield”
means,
0.50% plus the yield to maturity calculated by using (i) the yields
reported, as of 10:00 A.M. (New York City time) on the second Business
Day preceding the Settlement Date on screen “PX-1” on the Bloomberg Financial
Market Service (or such other information service as may replace Bloomberg)
for
actively traded U.S. Treasury securities
having a
maturity equal to the Remaining Average Life of such Called Principal as of
such
Settlement Date
,
or
(ii) if such yields are not reported as of such time or the yields reported
as of such time are not ascertainable, the Treasury
Constant
Maturity Series Yields reported, for the latest day for which such yields have
been so reported as of the second Business Day preceding the Settlement Date,
in
Federal Reserve Statistical Release H.15 (519) (or any comparable successor
publication)
for
actively traded U.S. Treasury securities having a constant maturity equal to
the
Remaining Average Life of such Called Principal as of such Settlement Date.
In
either
case,
the
yield will be determined, if necessary, by (a) converting U.S. Treasury
bill quotations to bond-equivalent yields in accordance with accepted financial
practice and (b) interpolating linearly on a straight line basis between
(1) the actively traded U.S. Treasury security with the maturity closest to
and greater than the Remaining Average Life and (2) the actively traded
U.S. Treasury security with the maturity closest to and less than the Remaining
Average Life.
“Remaining
Average Life”
means,
the number of years (calculated to the nearest one-twelfth year) obtained by
dividing (i) such Called Principal into (ii) the sum of the products
obtained by multiplying (a) the principal component of each Remaining
Scheduled Payment by (b) the number of years (calculated to the nearest
one-twelfth year) that will elapse between the Settlement Date and the scheduled
due date of such Remaining Scheduled Payment.
“Remaining
Scheduled Payments”
means,
all payments of such Called Principal and interest thereon that would be due
after the Settlement Date if no payment of such Called Principal were made
prior
to its scheduled due date,
provided
that if
such Settlement Date is not a date on which interest payments are due to be
made
under the terms of such Note, then the amount of the next succeeding scheduled
interest payment will be reduced by the amount of interest accrued to such
Settlement Date and required to be paid on such Settlement Date pursuant to
Section 8.2 or 12.1.
“Settlement
Date”
means,
the date on which such Called Principal is to be prepaid pursuant to
Section 8.2 or has become or is declared to be immediately due and payable
pursuant to Section 12.1, as the context requires.
|
Section 9.
|
Affirmative
Covenants
.
|
The
Company covenants that so long as any of the Notes are outstanding:
Section 9.1.
Compliance
with Law
.
Without
limiting Section 10.7, the Company will, and will cause each of its
Subsidiaries to, comply with all laws, ordinances or governmental rules or
regulations to which each of them is subject, including, without limitation,
ERISA, the USA Patriot Act and Environmental Laws, and will obtain and maintain
in effect all licenses, certificates, permits, franchises and other governmental
authorizations necessary to the ownership of their respective properties or
to
the conduct of their respective businesses, in each case to the extent necessary
to ensure that non-compliance with such laws, ordinances or governmental rules
or regulations or failures to obtain or maintain in effect such licenses,
certificates, permits, franchises and other governmental authorizations would
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
Section 9.2.
Insurance
.
The
Company will, and will cause each of its Restricted Subsidiaries to, maintain,
with financially sound and reputable insurers, insurance with respect to their
respective properties and businesses against such casualties and contingencies,
of such types, on such terms and in such amounts (including deductibles,
co-insurance and self-insurance, if adequate reserves are maintained with
respect thereto) as is customary in the case of entities of established
reputations engaged in the same or a similar business and similarly situated
except for any non-maintenance that would not reasonably be expected to have
a
Material Adverse Effect.
Section 9.3.
Maintenance
of Properties
.
The
Company will, and will cause each of its Restricted Subsidiaries to, maintain
and keep, or cause to be maintained and kept, their respective properties in
good repair, working order and condition (other than ordinary wear and tear),
so
that the business carried on in connection therewith may be properly conducted
at all times,
provided
that
this Section shall not prevent the Company or any Restricted Subsidiary
from discontinuing the operation and the maintenance of any of its properties
if
such discontinuance is desirable in the conduct of its business and the Company
has concluded that such discontinuance would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
Section 9.4.
Payment
of Taxes and Claims
.
The
Company will, and will cause each of its Subsidiaries to, file all tax returns
required to be filed in any jurisdiction and to pay and discharge all taxes
shown to be due and payable on such returns and all other taxes, assessments,
governmental charges, or levies imposed on them or any of their properties,
assets, income or franchises, to the extent such taxes and assessments have
become due and payable and before they have become delinquent and all claims
for
which sums have become due and payable that have or might become a Lien on
properties or assets of the Company or any Subsidiary not permitted by
Section 10.3,
provided
that
neither the Company nor any Subsidiary need pay any such tax or assessment
or
claims if (i) the amount, applicability or validity thereof is contested by
the Company or such Subsidiary on a timely basis in good faith and in
appropriate proceedings, and the Company or a Subsidiary has established
adequate reserves therefor in accordance with GAAP on the books of the Company
or such Subsidiary or (ii) the non-filing or nonpayment, as the case may
be, of all such taxes and assessments in the aggregate would not reasonably
be
expected to have a Material Adverse Effect.
Section 9.5.
Corporate
Existence, Etc
.
Subject
to Sections
10.4
and
10.5, the Company will at all times preserve and keep in full force and effect
its corporate existence, and will at all times preserve and keep in full force
and effect the corporate existence of each of its Restricted Subsidiaries
(unless merged into the Company or a Restricted Subsidiary) and all rights
and
franchises of the Company and its Restricted Subsidiaries unless, in the good
faith judgment of the Company, the termination of or failure to preserve and
keep in full force and effect such corporate existence, right or franchise
would
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
Section
9.6.
Designation
of Subsidiaries.
The
Company may from time to time cause any Subsidiary (other than a Subsidiary
Guarantor) to be designated as an Unrestricted Subsidiary or any Unrestricted
Subsidiary to be designated a Restricted Subsidiary;
provided,
however,
that at
the time of such designation and immediately after giving effect thereto, (a)
no
Default or Event of Default exists or would exist under the terms of this
Agreement, (b) the Company and its Restricted Subsidiaries would be in
compliance with all of the covenants set forth in this Section 9 and Section
10
if tested on the date of such action and (c) in the case of a Restricted
Subsidiary being designated as an Unrestricted Subsidiary,
such
Restricted Subsidiary does not own, directly or indirectly, any Debt or capital
stock of the Company or any other Restricted Subsidiary
and
provided,
further,
that
once a Subsidiary has been designated an Unrestricted Subsidiary, it shall
not
thereafter be redesignated as a Restricted Subsidiary on more than one occasion
and once a Subsidiary has been designated a Restricted Subsidiary, it shall
not
thereafter be redesignated as an Unrestricted Subsidiary on more than one
occasion and
provided,
further
,
the
designation of a Restricted Subsidiary as an Unrestricted Subsidiary will be
considered as a sale of such Subsidiary for purposes of Section 10.4
.
Within
ten (10) days following any designation described above, the Company will
deliver to you a notice of such designation accompanied by a certificate signed
by a Senior Financial Officer of the Company certifying compliance with all
requirements of this Section 9.6 and setting forth all information required
in
order to establish such compliance.
Section 9.7.
Notes
to Rank Pari Passu.
The
Notes
and all other obligations of the Company under this Agreement are and at all
times shall remain direct and unsecured obligations of the Company ranking
pari
passu
as
against the assets of the Company with all other Notes from time to time issued
and outstanding hereunder without any preference among themselves and
pari
passu
with all
other present and future unsecured Debt (actual or contingent) of the Company
which is not expressed to be subordinate or junior in rank to any other
unsecured Debt of the Company.
Section 9.8.
Additional
Subsidiary Guarantors
.
The
Company will cause any Subsidiary which is required by the terms of the Bank
Credit Agreement (which requirement has not been waived by the lenders
thereunder) to become a party to, or otherwise guarantee, Debt in respect of
the
Bank Credit Agreement, to enter into the Subsidiary Guaranty and deliver to
each
of the holders of the Notes (concurrently with the incurrence of any such
obligation pursuant to the Bank Credit Agreement) the following
items:
(a)
a
joinder
agreement in respect of the Subsidiary Guaranty;
(b)
a
certificate signed by an authorized Responsible Officer of the Company making
representations and warranties to the effect of those contained in
Sections 5.4, 5.6 and 5.7, with respect to such Subsidiary and the
Subsidiary Guaranty, as applicable; and
(c)
an
opinion of counsel (who may be in-house counsel for the Company) addressed
to
each of the holders of the Notes satisfactory to the Required Holders, to the
effect that the Subsidiary Guaranty by such Person has been duly authorized,
executed and delivered and that the Subsidiary Guaranty constitutes the legal,
valid and binding contract and agreement of such Person enforceable in
accordance with its terms, except as an enforcement of such terms may be limited
by bankruptcy, insolvency, fraudulent conveyance and similar laws affecting
the
enforcement of creditors’ rights generally and by general equitable
principles.
Section 9.9.
Books
and Records.
The
Company will, and will cause each of its Restricted Subsidiaries to, maintain
proper books of record and account in conformity with GAAP and all applicable
requirements of any Governmental Authority having legal or regulatory
jurisdiction over the Company or such Restricted Subsidiary, as the case may
be.
|
Section 10.
|
Negative
Covenants
.
|
The
Company covenants that so long as any of the Notes are outstanding:
Section 10.1.
Consolidated
Debt to Consolidated EBITDA.
The
Company will not permit the ratio of Consolidated Debt to Consolidated EBITDA
(Consolidated EBITDA to be calculated as at the end of each fiscal quarter
for
the four consecutive fiscal quarters then ended) to exceed 3.5 to 1.00;
provided,
however,
that
the
ratio of Consolidated Debt to Consolidated EBITDA may exceed 3.5 to 1.00 at
any
time during the Transition Period if such ratio of Consolidated Debt to
Consolidated EBITDA exceeded 3.5 to 1.00 as a direct result of the Company
or
any Restricted Subsidiary creating, assuming, incurring, guaranteeing or
otherwise becoming liable in respect of Acquisition Debt so long as the ratio
of
Consolidated Debt to Consolidated EBITDA at all times during the Transition
Period shall not exceed 4.0 to 1.00.
Section
10.2.
Priority
Debt.
The
Company will not at any time permit the aggregate amount of all Priority Debt
to
exceed 20% of Consolidated Net Worth (Consolidated Net Worth to be determined
as
of the end of the then most recently ended fiscal quarter of the
Company).
Section 10.3.
Limitation
on Liens
.
The
Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly create, incur, assume or permit to exist (upon the
happening of a contingency or otherwise) any Lien on or with respect to any
property or asset (including, without limitation, any document or instrument
in
respect of goods or accounts receivable) of the Company or any such Restricted
Subsidiary, whether now owned or held or hereafter acquired, or any income
or
profits therefrom, or assign or otherwise convey any right to receive income
or
profits (unless it makes, or causes to be made, effective provision whereby
the
Notes will be equally and ratably secured with any and all other obligations
thereby secured, such security to be pursuant to an agreement reasonably
satisfactory to the Required Holders and, in any such case, the Notes shall
have
the benefit, to the fullest extent that, and with such priority as, the holders
of the Notes may be entitled under applicable law, of an equitable Lien on
such
property), except:
(a)
Liens
for
taxes, assessments or other governmental charges that are not yet due and
payable or the payment of which is not at the time required by
Section 9.4;
(b)
any
attachment or judgment Lien, unless the judgment it secures shall not, within
60
days after the entry thereof, have been discharged or execution thereof stayed
pending appeal, or shall not have been discharged within 60 days after the
expiration of any such stay;
(c)
Liens
incidental to the conduct of business or the ownership of properties and assets
(including landlords’, carriers’, warehousemen’s, mechanics’, materialmen’s
and
other
similar Liens for sums not yet due and payable) and Liens to secure the
performance of bids, tenders, leases, or trade contracts, or to secure statutory
obligations (including obligations under workers compensation, unemployment
insurance and other social security legislation), surety or appeal bonds or
other Liens incurred in the ordinary course of business and not in connection
with the borrowing of money;
(d)
leases
or
subleases granted to others, easements, rights-of-way, restrictions and other
similar charges or encumbrances, in each case incidental to the ownership of
property or assets or the ordinary conduct of the business of the Company or
any
of its Restricted Subsidiaries, or Liens incidental to minor survey exceptions
and the like,
provided
that
such Liens do not, in the aggregate, materially detract from the value of such
property;
(e)
Liens
securing Debt of a Restricted Subsidiary to the Company or to a Restricted
Subsidiary;
(f)
Liens
existing as of the date of Closing and reflected in
Schedule 10.3;
(g)
Liens
incurred after the date of Closing given to secure the payment of the purchase
price incurred in connection with the acquisition, construction or improvement
of property (other than accounts receivable or inventory) useful and intended
to
be used in carrying on the business of the Company or a Restricted Subsidiary,
including Liens existing on such property at the time of acquisition or
construction thereof or Liens incurred within 365 days of such acquisition
or
completion of such construction or improvement,
provided
that
(i) the Lien shall attach solely to the property acquired, purchased,
constructed or improved; (ii) at the time of acquisition, construction or
improvement of such property (or, in the case of any Lien incurred within three
hundred sixty-five (365) days of such acquisition or completion of such
construction or improvement, at the time of the incurrence of the Debt secured
by such Lien), the aggregate amount remaining unpaid on all Debt secured by
Liens on such property, whether or not assumed by the Company or a Restricted
Subsidiary, shall not exceed the lesser of (y) the cost of such
acquisition, construction or improvement or (z) the Fair Market Value of
such property (as determined in good faith by one or more officers of the
Company); and (iii) at the time of such incurrence and after giving effect
thereto, no Default or Event of Default would exist;
(h)
any
Lien
existing on property of a Person immediately prior to its being consolidated
with or merged into the Company or a Restricted Subsidiary or its becoming
a
Restricted Subsidiary, or any Lien existing on any property acquired by the
Company or any Restricted Subsidiary at the time such property is so acquired
(whether or not the Debt secured thereby shall have been assumed),
provided
that
(i) no such Lien shall have been created or assumed in contemplation of
such consolidation or merger or such Person’s becoming a Restricted Subsidiary
or such acquisition of property, (ii) each such Lien shall extend solely to
the item or items of property so acquired and, if required by the terms of
the
instrument originally creating such Lien, other property which is an improvement
to or is acquired for specific use in connection with such acquired property,
and
(iii) at the time of such incurrence and after giving effect thereto, no
Default or Event of Default would exist;
(i)
any
extensions, renewals or replacements of any Lien permitted by the preceding
subparagraphs (f), (g) and (h) of this Section 10.3,
provided
that
(i) no additional property shall be encumbered by such Liens, (ii) the
unpaid principal amount of the Debt or other obligations secured thereby shall
not be increased on or after the date of any extension, renewal or replacement,
and (iii) at such time and immediately after giving effect thereto, no
Default or Event of Default shall have occurred and be continuing;
(j)
Liens
on
accounts receivable of the Company and its Restricted Subsidiaries to the extent
such Liens arise solely by reason of a Permitted Securitization Transaction;
provided
that no
such Lien shall extend to or cover any property of the Company or any Restricted
Subsidiary other than such accounts receivable subject to such Permitted
Securitization Transaction; and
(k)
Liens
securing Priority Debt of the Company or any Restricted Subsidiary,
provided
that the
aggregate principal amount of any such Priority Debt shall be permitted by
Section 10.2.
Section 10.4.
Sales
of Assets.
The
Company will not, and will not permit any Restricted Subsidiary to, sell, lease
or otherwise dispose of any substantial part (as defined below) of the assets
of
the Company and its Restricted Subsidiaries;
provided,
however,
that the
Company or any Restricted Subsidiary may sell, lease or otherwise dispose of
assets constituting a substantial part of the assets of the Company and its
Restricted Subsidiaries if
such
assets
are sold in an arms length transaction and, at such time and after giving effect
thereto, no Default or Event of Default shall have occurred and be continuing
and an amount equal to the net proceeds received from such sale, lease or other
disposition (but only with respect to that portion of such assets that exceeds
the definition of “substantial part” set forth below) shall be used within 365
days of such sale, lease or disposition, in any combination:
(1)
to
acquire productive assets used or useful in carrying on the business of the
Company and its Restricted Subsidiaries and having a value at least equal to
the
value of such assets sold, leased or otherwise disposed of; and/or
(2)
to
prepay
or retire Senior Debt of the Company and/or its Restricted Subsidiaries,
provided
that the
Company shall offer to prepay a portion of the Notes on a pro rata basis in
accordance with Section 8.4 hereof.
As
used
in this Section 10.4, a sale, lease or other disposition of assets shall be
deemed to be a
“substantial
part”
of the
assets of the Company and its Restricted Subsidiaries if the book value of
such
assets, when added to the book value of all other assets sold, leased or
otherwise disposed of by the Company and its Restricted Subsidiaries during
the
period of 12 consecutive months ending on the date of such sale, lease or other
disposition, exceeds 10% of the book value of Consolidated Total Assets,
determined as of the end of the fiscal quarter immediately
preceding
such sale, lease or other disposition;
provided
that
there shall be excluded from any determination of a “substantial part” any
(i) sale or disposition of assets in the ordinary course of business of the
Company and its Restricted Subsidiaries, (ii) any transfer of assets from
the Company to any Restricted Subsidiary or from any Restricted Subsidiary
to
the Company or a Restricted Subsidiary and (iii) any sale or transfer of
property acquired by the Company or any Restricted Subsidiary after the date
of
this Agreement to any Person within 365 days following the acquisition or
construction of such property by the Company or any Restricted Subsidiary if
the
Company or a Restricted Subsidiary shall concurrently with such sale or
transfer, lease such property, as lessee. For purposes of clarification, the
sale by the Company or any Restricted Subsidiary of accounts receivable to
any
Person (other than the Company or any Restricted Subsidiary) pursuant to a
Permitted Securitization Transaction shall be included in the determination
of a
“substantial part.”
Section 10.5.
Merger
and Consolidation.
The
Company will not, and will not permit any of its Restricted Subsidiaries to,
consolidate with or merge with any other Person or convey, transfer or lease
substantially all of its assets in a single transaction or series of
transactions to any Person;
provided
that:
(1)
any
Restricted Subsidiary of the Company may (x) consolidate with or merge
with, or convey, transfer or lease substantially all of its assets in a single
transaction or series of transactions to, (i) the Company or a Restricted
Subsidiary so long as in any merger or consolidation involving the Company,
the
Company shall be the surviving or continuing corporation or (ii) any other
Person so long as the survivor is the Restricted Subsidiary, or (y) convey,
transfer or lease all of its assets in compliance with the provisions of
Section 10.4; and
(2)
the
foregoing restriction does not apply to the consolidation or merger of the
Company with, or the conveyance, transfer or lease of substantially all of
the
assets of the Company in a single transaction or series of transactions to,
any
Person so long as:
(a)
the
successor formed by such consolidation or the survivor of such merger or the
Person that acquires by conveyance, transfer or lease substantially all of
the
assets of the Company as an entirety, as the case may be (the
“Successor
Corporation”
),
shall
be a solvent entity organized and existing under the laws of the United States
of America, any State thereof or the District of Columbia;
(b)
if
the
Company is not the Successor Corporation, such Successor Corporation shall
have
executed and delivered to each holder of Notes its assumption of the due and
punctual performance and observance of each covenant and condition of this
Agreement and the Notes (pursuant to an assumption agreement substantially
in
the form attached hereto as Exhibit 10.5), and the Successor Corporation shall
have caused to be delivered to each holder of Notes (A) an opinion of
nationally recognized independent counsel, to the effect that all agreements
or
instruments effecting such assumption are enforceable in accordance with their
terms and (B) an acknowledgment from each Subsidiary Guarantor that the
Subsidiary Guaranty continues in full force and effect; and
(c)
immediately
after giving effect to such transaction no Default or Event of Default would
exist.
Section 10.6.
Transactions
with Affiliates
.
The
Company will not and will not permit any Restricted Subsidiary to enter into
directly or indirectly any Material transaction or Material group of related
transactions (including without limitation the purchase, lease, sale or exchange
of properties of any kind or the rendering of any service) with any Affiliate
(other than the Company or a Restricted Subsidiary), except in the ordinary
course and upon fair and reasonable terms that are not materially less favorable
to the Company or such Restricted Subsidiary, taken as a whole, than would
be
obtainable in a comparable arm’s-length transaction with a Person not an
Affiliate.
Section 10.7.
Terrorism
Sanctions
Regulations
.
The
Company will not and will not permit any Subsidiary to (a) become a Person
described or designated in the Specially Designated Nationals and Blocked
Persons List of the Office of Foreign Assets Control or in Section 1 of the
Anti-Terrorism Order or (b) knowingly engage in any dealings or
transactions with any such Person.
Section 10.8.
Line
of Business
.
The
Company will not and will not permit any Restricted Subsidiary to engage in
any
business if, as a result, the general nature of the business in which the
Company and its Restricted Subsidiaries, taken as a whole, would then be engaged
would be substantially changed from the general nature of the business in which
the Company and its Restricted Subsidiaries, taken as a whole, are engaged
on
the date of this Agreement.
|
Section 11.
|
Events
of Default
.
|
An
“Event
of Default”
shall
exist if any of the following conditions or events shall occur and be
continuing:
(a)
the
Company defaults in the payment of any principal or Make-Whole Amount, if any,
on any Note when the same becomes due and payable, whether at maturity or at
a
date fixed for prepayment or by declaration or otherwise; or
(b)
the
Company defaults in the payment of any interest on any Note for more than five
Business Days after the same becomes due and payable; or
(c)
the
Company defaults in the performance of or compliance with any term contained
in
Section 10 or any Subsidiary Guarantor defaults in the performance of or
compliance with any term of the Subsidiary Guaranty in each case beyond any
period of grace or cure period provided with respect thereto; or
(d)
the
Company defaults in the performance of or compliance with any term contained
herein (other than those referred to in paragraphs (a), (b) and (c) of this
Section 11) and such default is not remedied within 30 days after the
earlier of (i) a Responsible Officer obtaining actual knowledge of such
default or (ii) the Company receiving written notice of such default from
any holder of a Note (any such written
notice
to
be identified as a “notice of default” and to refer specifically to this
paragraph (d) of Section 11); or
(e)
any
Subsidiary Guaranty ceases to be a legally valid, binding and enforceable
obligation or contract of a Subsidiary Guarantor (other than upon a release
of
any Subsidiary Guarantor from a Subsidiary Guaranty in accordance with the
terms
of Section 2.2(b) hereof), or any Subsidiary Guarantor or any party by,
through or on account of any such Person, challenges the validity, binding
nature or enforceability of any such Subsidiary Guaranty; or
(f)
any
representation or warranty made in writing by or on behalf of the Company or
any
Subsidiary Guarantor in this Agreement or any Subsidiary Guaranty or by any
officer of the Company or any Subsidiary Guarantor in any writing furnished
in
connection with the transactions contemplated hereby or by any Subsidiary
Guaranty proves to have been false or incorrect in any material respect on
the
date as of which made; or
(g)
(i) the
Company or any Restricted Subsidiary is in default (as principal or as guarantor
or other surety) in the payment of any principal of or premium or make-whole
amount or interest (in the payment amount of at least $100,000) on any Debt
other than the Notes that is outstanding in an aggregate principal amount of
at
least $15,000,000 beyond any period of grace provided with respect thereto,
or
(ii) the Company or any Restricted Subsidiary is in default in the
performance of or compliance with any term of any instrument, mortgage,
indenture or other agreement relating to any Debt other than the Notes in an
aggregate principal amount of at least $15,000,000 or any other condition
exists, and as a consequence of such default or condition such Debt has become,
or has been declared, due and payable, or (iii) as a consequence of the
occurrence or continuation of any event or condition (other than the passage
of
time or the right of the holder of Debt to convert such Debt into equity
interests), the Company or any Restricted Subsidiary has become obligated to
purchase or repay Debt other than the Notes before its regular maturity or
before its regularly scheduled dates of payment in an aggregate outstanding
principal amount of at least $15,000,000;
provided
that
no
Default or Event of Default shall exist under this Section 11(g) if any Target
Company defaults in the payment of Due On Sale Debt on the date such Target
Company is acquired by the Company or any Restricted Subsidiary if such Due
On
Sale Debt is repaid in full within 1 Business Day of the date such Target
Company is acquired by the Company or any Restricted Subsidiary; or
(h)
the
Company, any Material Subsidiary or any Subsidiary Guarantor (i) is
generally not paying, or admits in writing its inability to pay, its debts
as
they become due, (ii) files, or consents by answer or otherwise to the
filing against it of, a petition for relief or reorganization or arrangement
or
any other petition in bankruptcy, for liquidation or to take advantage of any
bankruptcy, insolvency, reorganization, moratorium or other similar law of
any
jurisdiction, (iii) makes an assignment for the benefit of its creditors,
(iv) consents to the appointment of a custodian, receiver, trustee or other
officer with similar powers with respect to it or with respect to any
substantial part of its property,
(v) is
adjudicated as insolvent or to be liquidated, or (vi) takes corporate
action for the purpose of any of the foregoing; or
(i)
a
court
or governmental authority of competent jurisdiction enters an order appointing,
without consent by the Company, any of its Material Subsidiaries or any
Subsidiary Guarantor, a custodian, receiver, trustee or other officer with
similar powers with respect to it or with respect to any substantial part of
its
property, or constituting an order for relief or approving a petition for relief
or reorganization or any other petition in bankruptcy or for liquidation or
to
take advantage of any bankruptcy or insolvency law of any jurisdiction, or
ordering the dissolution, winding-up or liquidation of the Company, any of
its
Material Subsidiaries or any Subsidiary Guarantor, or any such petition shall
be
filed against the Company, any of its Material Subsidiaries or any Subsidiary
Guarantor and such petition shall not be dismissed within 60 days;
or
(j)
a
final
judgment or judgments at any one time outstanding for the payment of money
aggregating in excess of $15,000,000 are rendered against one or more of the
Company, its Restricted Subsidiaries or any Subsidiary Guarantor and which
judgments are not, within 60 days after entry thereof, bonded, discharged or
stayed pending appeal, or are not discharged within 60 days after the expiration
of such stay; or
(k)
if
(i) any Plan shall fail to satisfy the minimum funding standards of ERISA
or the Code for any plan year or part thereof or a waiver of such standards
or
extension of any amortization period is sought or granted under Section 412
of the Code, (ii) a notice of intent to terminate any Plan in an
involuntary or distress termination shall have been filed with the PBGC or
the
PBGC shall have instituted proceedings under Section 4042 of ERISA to
terminate or appoint a trustee to administer any Plan or the PBGC shall have
notified the Company or any ERISA Affiliate that a Plan may become a subject
of
any such proceedings, (iii) the aggregate “amount of unfunded benefit
liabilities” (within the meaning of Section 4001(a)(18) of ERISA) under all
Plans, determined in accordance with Title IV of ERISA, shall exceed
$15,000,000, (iv) the Company or in the case of any ERISA controlled group
liability, any ERISA Affiliate, shall have incurred any liability pursuant
to
Title I or IV of ERISA or the penalty or excise tax provisions of the Code
relating to employee benefit plans, (v) the Company or any ERISA Affiliate
withdraws from any Multiemployer Plan, or (vi) the Company or any
Subsidiary establishes or amends any employee welfare benefit plan that provides
post-employment welfare benefits in a manner that could increase the liability
of the Company or any Subsidiary thereunder; and any such event or events
described in clauses (i) through (vi) above, either individually or together
with any other such event or events, could reasonably be expected to have a
Material Adverse Effect.
As
used
in Section 11(k), the terms
“employee
benefit plan”
and
“employee
welfare benefit plan”
shall
have the respective meanings assigned to such terms in Section 3 of
ERISA.
|
Section 12.
|
Remedies
on Default, Etc
.
|
Section 12.1.
Acceleration
.
(a) If an Event of Default with respect to the Company described in
paragraph (h) or (i) of Section 11 (other than an Event of Default
described in clause (i) of paragraph (h) or described in clause (vi) of
paragraph (h) by virtue of the fact that such clause encompasses clause (i)
of
paragraph (h)) has occurred, all the Notes then outstanding shall automatically
become immediately due and payable.
(b)
If
any
other Event of Default has occurred and is continuing, any holder or holders
of
more than 50% in aggregate principal amount of the Notes at the time outstanding
may at any time at its or their option, by notice or notices to the Company,
declare all the Notes then outstanding to be immediately due and
payable.
(c)
If
any
Event of Default described in paragraph (a) or (b) of Section 11 has
occurred and is continuing with respect to any Notes, any holder or holders
of
Notes at the time outstanding affected by such Event of Default may at any
time,
at its or their option, by notice or notices to the Company, declare all the
Notes held by such holder or holders to be immediately due and
payable.
Upon
any
Note’s becoming due and payable under this Section 12.1, whether
automatically or by declaration, such Note will forthwith mature and the entire
unpaid principal amount of such Note, plus (i) all accrued and unpaid
interest thereon (including, but not limited to, interest accrued thereon at
the
Default Rate) and (ii) the Make-Whole Amount determined in respect of such
principal amount (to the full extent permitted by applicable law), shall all
be
immediately due and payable, in each and every case without presentment, demand,
protest or further notice, all of which are hereby waived. The Company
acknowledges, and the parties hereto agree, that each holder of a Note has
the
right to maintain its investment in the Notes free from repayment by the Company
(except as herein specifically provided for) and that the provision for payment
of a Make-Whole Amount by the Company in the event that the Notes are prepaid
or
are accelerated as a result of an Event of Default, is intended to provide
compensation for the deprivation of such right under such
circumstances.
Section 12.2.
Other
Remedies
.
If any
Default or Event of Default has occurred and is continuing, and irrespective
of
whether any Notes have become or have been declared immediately due and payable
under Section 12.1, the holder of any Note at the time outstanding may
proceed to protect and enforce the rights of such holder by an action at law,
suit in equity or other appropriate proceeding, whether for the specific
performance of any agreement contained herein or in any Note, or for an
injunction against a violation of any of the terms hereof or thereof, or in
aid
of the exercise of any power granted hereby or thereby or by law or
otherwise.
Section 12.3.
Rescission
.
At any
time after the Notes have been declared due and payable pursuant to
clause (b) or (c) of Section 12.1, the holders of more than 50% in
aggregate principal amount of the Notes then outstanding, by written notice
to
the Company, may rescind and annul any such declaration and its consequences
if
(a) the Company has paid all overdue interest on the Notes, all principal
of and Make-Whole Amount on any Notes that are due and payable and are unpaid
other than by reason of such declaration, and all interest on such overdue
principal and
Make-Whole
Amount and (to the extent permitted by applicable law) any overdue interest
in
respect of the Notes, at the Default Rate, (b) neither the Company nor any
other Person shall have paid any amounts which have become due solely by reason
of such declaration, (c) all Events of Default and Defaults, other than
non-payment of amounts that have become due solely by reason of such
declaration, have been cured or have been waived pursuant to Section 17,
and (d) no judgment or decree has been entered for the payment of any
monies due pursuant hereto or to any Notes. No rescission and annulment under
this Section 12.3 will extend to or affect any subsequent Event of Default
or Default or impair any right consequent thereon.
Section 12.4.
No
Waivers or Election of Remedies, Expenses, Etc
.
No
course of dealing and no delay on the part of any holder of any Note in
exercising any right, power or remedy shall operate as a waiver thereof or
otherwise prejudice such holder’s rights, powers or remedies. No right, power or
remedy conferred by this Agreement or by any Note upon any holder thereof shall
be exclusive of any other right, power or remedy referred to herein or therein
or now or hereafter available at law, in equity, by statute or otherwise.
Without limiting the obligations of the Company under Section 15, the
Company will pay to the holder of each Note on demand such further amount as
shall be sufficient to cover all costs and expenses of such holder incurred
in
any enforcement or collection under this Section 12, including, without
limitation, reasonable attorneys’ fees, expenses and disbursements.
Section 13.
Registration;
Exchange; Substitution of Notes
.
Section 13.1.
Registration
of Note
s.
The
Company shall keep at its principal executive office a register for the
registration and registration of transfers of Notes. The name and address of
each holder of one or more Notes, each transfer thereof and the name and address
of each transferee of one or more Notes shall be registered in such register.
Prior to due presentment for registration of transfer, the Person in whose
name
any Note shall be registered shall be deemed and treated as the owner and holder
thereof for all purposes hereof, and the Company shall not be affected by any
notice or knowledge to the contrary. The Company shall give to any holder of
a
Note that is an Institutional Investor promptly upon request therefor, a
complete and correct copy of the names and addresses of all registered holders
of Notes.
Section 13.2.
Transfer
and Exchange of Notes
.
Subject
to the limitation in Section 13.3, upon surrender of any Note to the
Company at the address and to the attention of the designated officer (all
as
specified in Section 18(iii)), for registration of transfer or exchange
(and in the case of a surrender for registration of transfer accompanied by
a
written instrument of transfer duly executed by the registered holder of such
Note or such holder’s attorney duly authorized in writing and accompanied by the
relevant name, address and other information for notices of each transferee
of
such Note or part thereof), within ten Business Days thereafter, the Company
shall execute and deliver, at the Company’s expense (except as provided below),
one or more new Notes (as requested by the holder thereof) in exchange therefor,
in an aggregate principal amount equal to the unpaid principal amount of the
surrendered Note. Each such new Note shall be payable to such Person as such
holder may request and shall be substantially in the form of the Note originally
issued hereunder. Each such new Note shall be dated and bear interest from
the
date to which interest shall have been paid on the surrendered Note or dated
the
date of the surrendered Note if no interest shall have been paid thereon. The
Company may require
payment
of a sum sufficient to cover any stamp tax or governmental charge imposed in
respect of any such transfer of Notes. Notes shall not be transferred in
denominations of less than $500,000,
provided
that if
necessary to enable the registration of transfer by a holder of its entire
holding of Notes, one Note may be in a denomination of less than $500,000.
Any
transferee, by its acceptance of a Note registered in its name (or the name
of
its nominee), shall be deemed to have (i) agreed to the confidentiality
provisions set forth in Section 20 hereof, (ii) made the representation set
forth in Sections 6.2 and 6.3,
provided
,
that in
lieu thereof such holder may (in reliance upon information provided by the
Company, which shall not be unreasonably withheld) make a representation to
the
effect that the purchase by any holder of any Note will not constitute a
non-exempt prohibited transaction under section 406(a) of ERISA and (iii)
submitted to jurisdiction and service of process as provided in
Section 22.8 hereof.
The
Notes
have not been registered under the Securities Act or under the securities laws
of any state and the holders agree that the Notes may not be transferred or
resold unless registered under the Securities Act and all applicable state
securities laws or unless an exemption from the requirement for such
registration is available.
Section
13.3.
Transfer
Restrictions.
Each
Purchaser agrees that so long as no Default or Event of Default exists, without
the prior written consent of the Company, such Purchaser (and each transferee
by
its acceptance of a Note shall be deemed to have agreed that it) will not
knowingly transfer or assign the Notes to any Person which is, or is known
by
such Purchaser to be controlled by, a Person who has a line of business that
involves consumer packaged food products or personal care products with sales
equal to or greater than $25,000,000 during the 12 months prior to such transfer
or assignment.
Section 13.4.
Replacement
of Notes
.
Upon
receipt by the Company at the address and to the attention of the designated
officer (all as specified in Section 18(iii)) of evidence reasonably
satisfactory to it of the ownership of and the loss, theft, destruction or
mutilation of any Note (which evidence shall be, in the case of an Institutional
Investor, notice from such Institutional Investor of such ownership and such
loss, theft, destruction or mutilation), and
(a)
in
the
case of loss, theft or destruction, of indemnity reasonably satisfactory to
it
(
provided
that if
the holder of such Note is, or is a nominee for, an original Purchaser or
another holder of a Note with a minimum net worth of at least $50,000,000 or
a
Qualified Institutional Buyer, such Person’s own unsecured agreement of
indemnity shall be deemed to be satisfactory), or
(b)
in
the
case of mutilation, upon surrender and cancellation thereof,
the
Company at its own expense shall execute and deliver not more than five Business
Days following satisfaction of such conditions, in lieu thereof, a new Note,
dated and bearing interest from the date to which interest shall have been
paid
on such lost, stolen, destroyed or mutilated Note or dated the date of such
lost, stolen, destroyed or mutilated Note if no interest shall have been paid
thereon.
|
Section 14.
|
Payments
on Notes
.
|
Section 14.1.
Place
of Payment
.
Subject
to Section 14.2, payments of principal, Make-Whole Amount and interest
becoming due and payable on the Notes shall be made in New York,
New York at the principal office of Bank of America, N.A. in such
jurisdiction. The Company may at any time, by notice to each holder of a Note,
change the place of payment of the Notes so long as such place of payment shall
be either the principal office of the Company in such jurisdiction or the
principal office of a bank or trust company in such jurisdiction.
Section 14.2.
Home
Office Payment
.
So long
as any Purchaser or such Purchaser’s nominee shall be the holder of any Note,
and notwithstanding anything contained in Section 14.1 or in such Note to
the contrary, the Company will pay all sums becoming due on such Note for
principal, Make-Whole Amount and interest by the method and at the address
specified for such purpose for such Purchaser on Schedule A hereto, or by
such other method or at such other address as such Purchaser shall have from
time to time specified to the Company in writing for such purpose, without
the
presentation or surrender of such Note or the making of any notation thereon,
except that upon written request of the Company made concurrently with or
reasonably promptly after payment or prepayment in full of any Note, such
Purchaser shall surrender such Note for cancellation, reasonably promptly after
any such request, to the Company at its principal executive office or at the
place of payment most recently designated by the Company pursuant to
Section 14.1. Prior to any sale or other disposition of any Note held by
any Purchaser or such Purchaser’s nominee, such Person will, at its election,
either endorse thereon the amount of principal paid thereon and the last date
to
which interest has been paid thereon or surrender such Note to the Company
in
exchange for a new Note or Notes pursuant to Section 13.2. The Company will
afford the benefits of this Section 14.2 to any Institutional Investor that
is the direct or indirect transferee of any Note.
|
Section 15.
|
Expenses,
Etc
.
|
Section 15.1.
Transaction
Expenses
.
Whether
or not the transactions contemplated hereby are consummated, the Company will
pay all reasonable costs and expenses (including reasonable attorneys’ fees of a
special counsel for the Purchasers and, if reasonably required by the Required
Holders, local or other counsel) incurred by each Purchaser and each other
holder of a Note in connection with such transactions and in connection with
any
amendments, waivers or consents under or in respect of this Agreement or the
Notes (whether or not such amendment, waiver or consent becomes effective),
including, without limitation the reasonable: (a) costs and expenses
incurred in enforcing or defending (or determining whether or how to enforce
or
defend) any rights under this Agreement or the Notes or in responding to any
subpoena or other legal process or informal investigative demand issued in
connection with this Agreement or the Notes, or by reason of being a holder
of
any Note, and (b) costs and expenses, including financial advisors’ fees,
incurred in connection with the insolvency or bankruptcy of the Company or
any
Subsidiary or in connection with any work-out or restructuring of the
transactions contemplated hereby and by the Notes. The Company will pay, and
will save each Purchaser and each other holder of a Note harmless from, all
claims in respect of any fees, costs or expenses if any, of brokers and finders
(other than those, if any, retained by a Purchaser or other holder in connection
with its purchase of the Notes).
Section 15.2.
Survival
.
The
obligations of the Company under this Section 15 will survive the payment
or transfer of any Note, the enforcement, amendment or waiver of any provision
of this Agreement or the Notes, and the termination of this
Agreement.
|
Section 16.
|
Survival
of Representations and Warranties; Entire Agreement
.
|
All
representations and warranties contained herein shall survive the execution
and
delivery of this Agreement and the Notes, the purchase or transfer by any
Purchaser of any such Note or portion thereof or interest therein and the
payment of any Note may be relied upon by any subsequent holder of any such
Note, regardless of any investigation made at any time by or on behalf of any
Purchaser or any other holder of any such Note. All statements contained in
any
certificate or other instrument delivered by or on behalf of the Company
pursuant to this Agreement shall be deemed representations and warranties of
the
Company under this Agreement. Subject to the preceding sentence, this Agreement
and the Notes embody the entire agreement and understanding between the
Purchasers and the Company and supersede all prior agreements and understandings
relating to the subject matter hereof.
|
Section 17.
|
Amendment
and Waiver
.
|
Section 17.1.
Requirements
.
(a)
This Agreement and the Notes may be amended, and the observance of any term
hereof or of the Notes may be waived (either retroactively or prospectively),
with (and only with) the written consent of the Company and the Required
Holders, except that (i) no amendment or waiver of any of the provisions of
Section 1, 2, 3, 4, 5, 6 or 21 hereof, or any defined term (as it is used
in any such Section), will be effective as to any holder of Notes unless
consented to by such holder of Notes in writing, and (ii) no such amendment
or waiver may, without the written consent of all of the holders of Notes at
the
time outstanding affected thereby, (A) subject to the provisions of
Section 12 relating to acceleration or rescission, change the amount or
time of any prepayment or payment of principal of, or reduce the rate or change
the time of payment or method of computation of interest (if such change results
in a decrease in the interest rate) or of the Make-Whole Amount on, the Notes,
(B) change the percentage of the principal amount of the Notes the holders
of which are required to consent to any such amendment or waiver, or
(C) amend any of Section 8, 11(a), 11(b), 12, 17 or 20.
Section 17.2.
Solicitation
of Holders of Notes
.
(a)
Solicitation.
The
Company will provide each holder of the Notes (irrespective of the amount of
Notes then owned by it) with sufficient information to enable such holder to
make an informed and considered decision with respect to any proposed amendment,
waiver or consent in respect of any of the provisions hereof or of the Notes.
The Company will deliver executed or true and correct copies of each amendment,
waiver or consent effected pursuant to the provisions of this Section 17 to
each holder of outstanding Notes promptly following the date on which it is
executed and delivered by, or receives the consent or approval of, the requisite
holders of Notes.
(b)
Payment.
The
Company will not directly or indirectly pay or cause to be paid any
remuneration, whether by way of supplemental or additional interest, fee or
otherwise, or grant any security or provide other credit support, to any holder
of Notes as consideration for or as an
inducement
to the entering into by any holder of Notes of any waiver or amendment of any
of
the terms and provisions hereof unless such remuneration is concurrently paid,
or security is concurrently granted or other credit support is concurrently
provided, on the same terms, ratably to each holder of Notes then outstanding
even if such holder did not consent to such waiver or amendment.
(c)
Consent
in Contemplation of Transfer
.
Any
consent made pursuant to this Section 17 by a holder of Notes that has
transferred or has agreed to transfer its Notes to the Company, any Subsidiary
or any Affiliate of the Company and has provided or has agreed to provide such
written consent as a condition to such transfer shall be void and of no force
or
effect except solely as to such holder, and any amendments effected or waivers
granted or to be effected or granted that would not have been or would not
be so
effected or granted but for such consent (and the consents of all other holders
of Notes that were acquired under the same or similar conditions) shall be
void
and of no force or effect except solely as to such holder.
Section 17.3.
Binding
Effect, Etc
.
Any
amendment or waiver consented to as provided in this Section 17 applies
equally to all holders of Notes and is binding upon them and upon each future
holder of any Note and upon the Company without regard to whether such Note
has
been marked to indicate such amendment or waiver. No such amendment or waiver
will extend to or affect any obligation, covenant, agreement, Default or Event
of Default not expressly amended or waived or impair any right consequent
thereon. No course of dealing between the Company and the holder of any Note
nor
any delay in exercising any rights hereunder or under any Note shall operate
as
a waiver of any rights of any holder of such Note. As used herein, the term
“this Agreement” and references thereto shall mean this Agreement as it may from
time to time be amended or supplemented.
Section 17.4.
Notes
Held by Company, Etc
.
Solely
for the purpose of determining whether the holders of the requisite percentage
of the aggregate principal amount of Notes then outstanding approved or
consented to any amendment, waiver or consent to be given under this Agreement
or the Notes, or have directed the taking of any action provided herein or
in
the Notes to be taken upon the direction of the holders of a specified
percentage of the aggregate principal amount of Notes then outstanding, Notes
directly or indirectly owned by the Company or any of its Affiliates shall
be
deemed not to be outstanding.
All
notices and communications provided for hereunder shall be in writing and shall
be effective (a) when delivered, (b) when transmitted by telecopy (or
other facsimile device) if the sender on the same day sends a confirming copy
of
such notice by a recognized overnight delivery service (charges prepaid),
(c) the day following the day on which the same has been delivered to a
recognized overnight delivery service (with charges prepaid) or (d) the third
Business Day following the day on which the same is sent by certified mail
or
registered mail (with charges prepaid). Any such notice must be
sent:
(i)
if
to a
Purchaser or such Purchaser’s nominee, to such Purchaser or such Purchaser’s
nominee at the address specified for such communications in Schedule A to
this
Agreement, or at such other address as such Purchaser or such Purchaser’s
nominee shall have specified to the Company in writing pursuant to this
Section 18;
(ii)
if
to any
other holder of any Note, to such holder at such address as such other holder
shall have specified to the Company in writing pursuant to this Section 18,
or
(iii)
if
to the
Company, to the Company at its address set forth at the beginning hereof to
the
attention of the Chief Financial Officer, with a copy to the General Counsel
and
a copy (which shall not constitute notice) to Cahill Gordon & Reindel LLP,
80 Pine St., New York, New York 10005, Attn: Geoffrey E. Liebmann (facsimile:
212-269-5420), or at such other address as the Company shall have specified
to
the holder of each Note in writing.
|
Section 19.
|
Reproduction
of Documents
.
|
This
Agreement and all documents relating thereto, including, without limitation,
(a) consents, waivers and modifications that may hereafter be executed,
(b) documents received by any Purchaser at the Closing (except the Notes
themselves), and (c) financial statements, certificates and other
information previously or hereafter furnished to any Purchaser, may be
reproduced by such Purchaser by any photographic, photostatic, electronic,
digital, or other similar process and such Purchaser may destroy any original
document so reproduced. The Company agrees and stipulates that, to the extent
permitted by applicable law, any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative proceeding
(whether or not the original is in existence and whether or not such
reproduction was made by such Purchaser in the regular course of business)
and
any enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence. This Section 19 shall not prohibit the
Company or any other holder of Notes from contesting any such reproduction
to
the same extent that it could contest the original, or from introducing evidence
to demonstrate the inaccuracy of any such reproduction.
|
Section 20.
|
Confidential
Information
.
|
For
the
purposes of this Section 20,
“Confidential
Information
”
means
information delivered to any Purchaser by or on behalf of the Company or any
Subsidiary in connection with the transactions contemplated by or otherwise
pursuant to this Agreement that is proprietary in nature and that was clearly
marked or labeled or otherwise adequately identified when received by such
Purchaser as being confidential information of the Company or such Subsidiary,
provided
that
such term does not include information that (a) was publicly known or
otherwise known to such Purchaser prior to the time of such disclosure,
(b) subsequently becomes publicly known through no act or omission by such
Purchaser or any Person acting on such Purchaser’s behalf, (c) otherwise
becomes known to such Purchaser other than through disclosure by the Company
or
any Subsidiary or (d) constitutes financial statements delivered to such
Purchaser under Section 7.1 that are otherwise publicly available. Each
Purchaser will maintain the confidentiality of such Confidential Information
in
accordance with procedures adopted by such Purchaser in good faith to protect
confidential information of third parties delivered to such
Purchaser,
provided
that
such Purchaser may deliver or disclose Confidential Information to (i) such
Purchaser’s directors, trustees, officers, employees, agents, attorneys and
affiliates (to the extent such disclosure reasonably relates to the
administration of the investment represented by such Purchaser’s Notes), such
Purchaser’s financial advisors and other professional advisors, in each case,
who agree to hold confidential the Confidential Information substantially in
accordance with the terms of this Section 20, (ii) any other holder of
any Note, (iii) any Institutional Investor to which such Purchaser sells or
offers to sell such Note or any part thereof or any participation therein (if
such Person has agreed in writing prior to its receipt of such Confidential
Information to be bound by the provisions of this Section 20),
(iv) any federal or state regulatory authority having jurisdiction over
such Purchaser, (v) the National Association of Insurance Commissioners or
any similar organization, or any nationally recognized rating agency that
requires access to information about such Purchaser’s investment portfolio, or
(vi) any other Person to which such delivery or disclosure may be necessary
or appropriate (w) to effect compliance with any law, rule, regulation or
order applicable to such Purchaser, (x) in response to any subpoena or
other legal process, (y) in connection with any litigation to which such
Purchaser is a party or (z) if an Event of Default has occurred and is
continuing, to the extent such Purchaser may reasonably determine such delivery
and disclosure to be necessary or appropriate in the enforcement or for the
protection of the rights and remedies under such Purchaser’s Notes, the
Subsidiary Guaranty and this Agreement. Each holder of a Note, by its acceptance
of a Note, will be deemed to have agreed to be bound by and to be entitled
to
the benefits of this Section 20 as though it were a party to this
Agreement. On reasonable request by the Company in connection with the delivery
to any holder of a Note of information required to be delivered to such holder
under this Agreement or requested by such holder (other than a holder that
is a
party to this Agreement or its nominee), such holder will enter into an
agreement with the Company embodying the provisions of this
Section 20.
|
Section 21.
|
Substitution
of Purchaser
.
|
Each
Purchaser shall have the right to substitute any one of its Affiliates as the
purchaser of the Notes that it has agreed to purchase hereunder, by written
notice to the Company, which notice shall be signed by both such Purchaser
and
such Affiliate, shall contain such Affiliate’s agreement to be bound by this
Agreement and shall contain a confirmation by such Affiliate of the accuracy
with respect to it of the representations set forth in Section 6. Upon receipt
of such notice, any reference to such Purchaser in this Agreement (other than
in
this Section 21), shall be deemed to refer to such Affiliate in lieu of such
original Purchaser. In the event that such Affiliate is so substituted as a
Purchaser hereunder and such Affiliate thereafter transfers to such original
Purchaser all of the Notes then held by such Affiliate, upon receipt by the
Company of notice of such transfer, any reference to such Affiliate as a
“Purchaser” in this Agreement (other than in this Section 21), shall no longer
be deemed to refer to such Affiliate, but shall refer to such original
Purchaser, and such original Purchaser shall again have all the rights of an
original holder of the Notes under this Agreement.
|
Section 22.
|
Miscellaneous
.
|
Section 22.1.
Successors
and Assigns
.
All
covenants and other agreements contained in this Agreement by or on behalf
of
any of the parties hereto bind and inure to the benefit of their
respective
successors and assigns (including, without limitation, any subsequent holder
of
a Note) whether so expressed or not.
Section 22.2.
Payments
Due on Non-Business Days
.
Anything in this Agreement or the Notes to the contrary notwithstanding (but
without limiting the requirement in Section 8.5 that the notice of any
optional prepayment specify a Business Day as the date fixed for such
prepayment), any payment of principal of or Make-Whole Amount or interest on
any
Note that is due on a date other than a Business Day shall be made on the next
succeeding Business Day without including the additional days elapsed in the
computation of the interest payable on such next succeeding Business Day;
provided that if the maturity date of any Note is a date other than a Business
Day, the payment otherwise due on such maturity date shall be made on the next
succeeding Business Day and shall include the additional days elapsed in the
computation of interest payable on such next succeeding Business
Day.
Section 22.3.
Accounting
Terms
.
All
accounting terms used herein which are not expressly defined in this Agreement
have the meanings respectively given to them in accordance with GAAP. Except
as
otherwise specifically provided herein, (i) all computations made pursuant
to this Agreement shall be made in accordance with GAAP, and (ii) all
financial statements shall be prepared in accordance with GAAP.
Section 22.4.
Severability
.
Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 22.5.
Construction
.
Each
covenant contained herein shall be construed (absent express provision to the
contrary) as being independent of each other covenant contained herein, so
that
compliance with any one covenant shall not (absent such an express contrary
provision) be deemed to excuse compliance with any other covenant. Where any
provision herein refers to action to be taken by any Person, or which such
Person is prohibited from taking, such provision shall be applicable whether
such action is taken directly or indirectly by such Person.
For
the
avoidance of doubt, all Schedules and Exhibits attached to this Agreement shall
be deemed to be a part hereof.
Section 22.6.
Counterparts
.
This
Agreement may be executed in any number of counterparts, each of which shall
be
an original but all of which together shall constitute one instrument. Each
counterpart may consist of a number of copies hereof, each signed by less than
all, but together signed by all, of the parties hereto.
Section 22.7.
Governing
Law
.
This
Agreement shall be construed and enforced in accordance with, and the rights
of
the parties shall be governed by, the law of the State of New York
excluding choice-of-law principles of the law of such State that would permit
the application of the laws of a jurisdiction other than such
State.
Section 22.8.
Jurisdiction
and Process; Waiver of Jury Trial
.
(a) The
Company and each Purchaser irrevocably submits to the non-exclusive jurisdiction
of any New York State or federal court sitting in the Borough of Manhattan,
The
City of New York, over any suit, action or proceeding arising out of or relating
to this Agreement or the Notes. To the fullest extent permitted by applicable
law, the Company irrevocably waives and agrees not to assert, by way of motion,
as a defense or otherwise, any claim that it is not subject to the jurisdiction
of any such court, any objection that it may now or hereafter have to the laying
of the venue of any such suit, action or proceeding brought in any such court
and any claim that any such suit, action or proceeding brought in any such
court
has been brought in an inconvenient forum.
(b)
The
Company and each Purchaser consent to process being served on it by the Company
or any Purchaser in any suit, action or proceeding of the nature referred to
in
Section 22.8(a) by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, return receipt
requested, to it at its address specified in Section 18 or at such other
address of which such Person shall then have been notified pursuant to said
Section. The Company and each Purchaser agree that such service upon receipt
(i) shall be deemed in every respect effective service of process upon it
in any such suit, action or proceeding and (ii) shall, to the fullest
extent permitted by applicable law, be taken and held to be valid personal
service upon and personal delivery to it. Notices hereunder shall be
conclusively presumed received as evidenced by a delivery receipt furnished
by
the United States Postal Service or any reputable commercial delivery
service.
(c)
Nothing
in this Section 22.8 shall affect the right of the Company or any holder of
a Note to serve process in any manner permitted by law, or limit any right
that
the holders of any of the Notes may have to bring proceedings against the
Company in the courts of any appropriate jurisdiction or to enforce in any
lawful manner a judgment obtained in one jurisdiction in any other
jurisdiction.
(d)
The
parties hereto hereby waive trial by jury in any action brought on or with
respect to this Agreement, the Notes or any other document executed in
connection herewith or therewith.
(e)
Each
holder of a Note, by its acceptance of a Note, will be deemed to be bound by
and
to be entitled to the benefits of this Section 22.8 as though it were a party
to
this Agreement.
*
* * *
*
The
execution hereof by the Purchasers shall constitute a contract among the Company
and the Purchasers for the uses and purposes hereinabove set forth. This
Agreement may be executed in any number of counterparts, each executed
counterpart constituting an original but all together only one
agreement.
Very
truly yours,
The
Hain
Celestial Group, Inc.
By
/s/
Ira J. Lamel
Name:
Ira
J.
Lamel
Title:
Executive
Vice President and Chief
Financial Officer
Accepted
as of the first date written above.
ING
Life
Insurance and Annuity Company
ING
USA
Annuity and Life Insurance Company
ReliaStar
Life Insurance Company
ReliaStar
Life Insurance Company of New York
By:
ING
Investment Management LLC, as Agent
By
/s/
James V. Wittich
Name:
James V. Wittich
Title:
Senior Vice President
Accepted
as of the first date written above.
The
Guardian Life Insurance Company of America
By
/s/
Brian Keating
Name: Brian Keating
Title:
Director, Fixed Income
Berkshire
Life Insurance Company of America
By
/s/
Brian Keating
Name: Brian Keating
Title:
Director, Fixed Income
Accepted
as of the first date written above.
United
of
Omaha Life Insurance Company
By
/s/
Curtis R. Caldwell
Name: Curtis R. Caldwell
Title: Vice President
Companion
Life Insurance Company
By
/s/
Curtis R. Caldwell
Name: Curtis R. Caldwell
Title: Authorized Signer
Accepted
as of the first date written above.
Modern
Woodmen of America
By
/s/
W.
Kenny Massey
Name: W. Kenny Massey
Title:
President & CEO
Accepted
as of the first date written above.
Life
Insurance Company of the Southwest
By
/s/
J.
Michael Mancini, Jr.
Name: J. Michael Mancini, Jr.
Title: Vice President
Accepted
as of the first date written above.
The
Travelers Indemnity Company
By
/s/
David D. Rowland
Name: David D. Rowland
Title: Senior Vice President
Accepted
as of the first date written above.
American
International Life Assurance Company of New York
First
SunAmerica Life Insurance Company
Merit
Life Insurance Co.
The
United States Life Insurance Company in the City of New York
The
Variable Annuity Life Insurance Company
By:
AIG
Global Investment Corp., investment adviser
By
/s/
Peter DeFazio
Name:
Peter DeFazio
Title:
Vice President
Accepted
as of the first date written above.
AgFirst
Farm Credit Bank
By
/s/
R.
Scott Higgins
Name:
R.
Scott
Higgins
Title:
Vice
President
Sentinel Asset Management
Defined
Terms
As
used
herein, the following terms have the respective meanings set forth below or
set
forth in the Section hereof following such term:
“Acquisition
Debt”
means
any Debt incurred in connection with the acquisition by the Company or any
Restricted Subsidiary of any Person or line of business,
provided
,
that,
at such time and after giving effect to such acquisition, the Company and its
Restricted Subsidiaries are in compliance with Section 10.8.
“Affiliate”
means,
at any time, and with respect to any Person, (a) any other Person that at
such time directly or indirectly through one or more intermediaries Controls,
or
is Controlled by, or is under common Control with, such first Person, and
(b) any Person beneficially owning or holding, directly or indirectly, 10%
or more of any class of voting or equity interests of the Company or any
Subsidiary or any Person of which the Company and its Subsidiaries beneficially
own or hold, in the aggregate, directly or indirectly, 10% or more of any class
of voting or equity interests. As used in this definition,
“Control”
means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise. Unless the context
otherwise clearly requires, any reference to an
“Affiliate”
is a
reference to an Affiliate of the Company.
“Anti-Terrorism
Order”
means
Executive Order No. 13,224 of September 24, 2001, Blocking Property and
Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support
Terrorism, 66 U.S. Fed. Reg. 49, 079 (2001), as amended.
“Applicable
Interest Rate”
means
either (a) 5.98% per annum, or (b) 6.23% per annum during the
applicable period in which the Consolidated Debt to Consolidated EBITDA ratio
exceeds 3.50 to 1.0 in accordance with the terms of Section 1.2(b).
“Bank
Credit Agreement”
means
the Amended and Restated Credit Agreement dated as of May 2, 2006 by and
among the Company, certain Subsidiaries of the Company named therein, Bank
of
America, N.A., as administrative agent, and the other financial institutions
party thereto, as amended, restated, joined, supplemented or otherwise modified
from time to time, and any renewals, extensions or replacements thereof, which
constitute the primary bank credit facility of the Company and its
Subsidiaries.
“Business
Day”
means
any day other than a Saturday, a Sunday or a day on which commercial banks
in
New York, New York are required or authorized to be closed.
“Capital
Lease”
means,
at any time, a lease with respect to which the lessee is required concurrently
to recognize the acquisition of an asset and the incurrence of a liability
in
accordance with GAAP.
“Capital
Lease Obligation”
means,
with respect to any Person and a Capital Lease, the amount of the obligation
of
such Person as the lessee under such Capital Lease which would, in accordance
with GAAP, appear as a liability on a balance sheet of such Person.
“Closing”
is
defined in Section 3.
“Code”
means
the Internal Revenue Code of 1986, as amended from time to time, and the rules
and regulations promulgated thereunder from time to time.
“Company”
means
The Hain Celestial Group, Inc., a Delaware corporation.
“Confidential
Information”
is
defined in Section 20.
“Consolidated
Debt”
means as
of any date of determination the total amount of all Debt of the Company and
its
Restricted Subsidiaries determined on a consolidated basis in accordance with
GAAP.
“Consolidated
EBITDA”
shall
mean, for any period, Consolidated Net Income for such period, plus, to the
extent deducted in computing such Consolidated Net Income and without
duplication, (a) depreciation, depletion, if any, and amortization expense
for such period, (b) Consolidated Interest Expense for such period,
(c) income tax expense for such period, (d) other non cash charges for
such period, (e) reasonable and customary acquisition or merger charges,
restructuring charges that are both non cash and non-recurring and impairment
of
assets write-offs that are both non cash and non-recurring, (f) reasonable
and customary charges which arise from the existence and subsequent write-off
of
duplicative facilities related directly an acquisition consummated by the
Company or any Restricted Subsidiaries, and (g) cumulative non cash change
in accounting effects or non cash extraordinary items, and minus the sum of
(y) all extraordinary or unusual gains, and (z) all interest income
all as determined in accordance with GAAP. For purposes of calculating
Consolidated EBITDA for any period of four consecutive quarters, if during
such
period the Company or any Restricted Subsidiary shall have acquired or disposed
of any Person or acquired or disposed of all or substantially all of the
operating assets of any Person, Consolidated EBITDA for such period shall be
calculated after giving pro forma effect thereto as if such transaction occurred
on the first day of such period.
“Consolidated
Interest Expense”
shall
mean, for any period, the gross interest expense of the Company and its
Restricted Subsidiaries deducted in the calculation of Consolidated Net Income
for such period, determined on a consolidated basis in accordance with
GAAP.
“Consolidated
Net Income”
shall
mean, for any period, the consolidated net income (or loss) of the Company
and
its Restricted Subsidiaries for such period, determined on a consolidated basis
in accordance with GAAP.
“Consolidated
Net Worth”
shall
mean the consolidated stockholder’s equity of the Company and its Restricted
Subsidiaries, as defined according to GAAP.
“Consolidated
Total Assets”
means,
as of any date of determination, the total amount of all assets of the Company
and its Restricted Subsidiaries, determined on a consolidated basis in
accordance with GAAP.
“Debt”
means,
with respect to any Person, without duplication,
(a)
its
liabilities for borrowed money;
(b)
its
liabilities for the deferred purchase price of property acquired by such Person
(excluding accounts payable and other accrued liabilities arising in the
ordinary course of business but including, without limitation, all liabilities
created or aris-ing under any conditional sale or other title retention
agreement with respect to any such property);
(c)
its
Capital Lease Obligations;
(d)
its
liabilities for borrowed money secured by any Lien with respect to any property
owned by such Person (whether or not it has assumed or otherwise become liable
for such liabilities); and
(e)
Guarantees
by such Person with respect to liabilities of a type described in any of clauses
(a) through (d) hereof.
Debt
of
any Person shall include all obligations of such Person of the character
described in clauses (a) through (e) to the extent such Person remains legally
liable in respect thereof notwithstanding that any such obligation is deemed
to
be extinguished under GAAP.
“Default”
means an
event or condition the occurrence or existence of which would, with the lapse
of
time or the giving of notice or both, become an Event of Default.
“Default
Rate”
means
with respect to the Notes that rate of interest that is 2% per annum above
the
Applicable Interest Rate.
“Due
On Sale Debt”
means
any Debt of a Person being acquired by the Company or a Restricted Subsidiary
that becomes due as a result of the consummation of such acquisition by the
Company or a Restricted Subsidiary.
“Environmental
Law”
shall
mean any applicable law, ordinance, rule, regulation, or policy having the
force
of law of any Governmental Authority relating to pollution or protection of
the
environment or to the use, handling, transportation, treatment, storage,
disposal, release or discharge of Hazardous Materials, including, without
limitation, the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (42 U.S.C. Section 9601, et seq.), the Hazardous
Materials Transportation Act, as amended (49 U.S.C. Sections 1801, et
seq.), the Resource Conservation and Recovery Act, as amended (42 U.S.C.
Sections 6901, et seq.), and the rules and regulations promulgated pursuant
thereto.
“ERISA”
means
the Employee Retirement Income Security Act of 1974, as amended from time to
time, and the rules and regulations promulgated thereunder from time to time
in
effect.
“ERISA
Affiliate”
means
any trade or business (whether or not incorporated) that is treated as a single
employer together with the Company under section 414 of the
Code.
“Event
of Default”
is
defined in Section 11.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
“Fair
Market Value”
means,
at
any time and with respect to any property, the sale value of such property
that
would be realized in an arm’s-length sale at such time between an informed and
willing buyer and an informed and willing seller (neither being under a
compulsion to buy or sell), as reasonably determined in the good faith opinion
of the Company’s board of directors.
“GAAP”
means
those generally accepted accounting principles as in effect from time to time
in
the United States of America; provided that, if the Company notifies the
Required Holders that the Company wishes to amend any negative covenants (or
any
definition hereof) to eliminate the effect of any change in generally accepted
accounting principles on the operation of such covenant or definition, then
the
Company's compliance with such covenant or the meaning of such definition shall
be determined on the basis of generally accepted accounting principles in effect
immediately before the relevant change in generally accepted accounting
principles became effective, until either such notice is withdrawn or such
covenant is amended in a manner satisfactory to the Company and the Required
Holders.
“Governmental
Authority”
means
(a)
the
government of
(i)
the
United States of America or any state or other political subdivision thereof,
or
(ii)
any
jurisdiction in which the Company or any Restricted Subsidiary conducts all
or
any part of its business, or which has jurisdiction over any properties of
the
Company or any Restricted Subsidiary, or
(b)
any
entity exercising executive, legislative, judicial, regulatory or administrative
functions of, or pertaining to, any such government.
“Government
Obligations”
shall
mean direct obligations of the United States of America or any agency or
instrumentality of the United States of America, the payment or guarantee of
which constitutes a full faith and credit obligation of the United States of
America.
“Guaranty”
means,
with respect to any Person, any obligation (except the endorsement in the
ordinary course of business of negotiable instruments for deposit or collection)
of such Person guaranteeing or in effect guaranteeing any Debt, dividend or
other obligation of any other Person in any manner, whether directly or
indirectly, including (without limitation) obligations incurred through an
agreement, contingent or otherwise, by such Person:
(a)
to
purchase such Debt or obligation or any property constituting security therefor
primarily for the purpose of assuring the owner of such Debt or obligation
of
the ability of any other Person to make payment of the Debt or
obligation;
(b)
to
advance or supply funds (i) for the purchase or payment of such Debt or
obligation, or (ii) to maintain any working capital or other balance sheet
condition or any income statement condition of any other Person or otherwise
to
advance or make available funds for the purchase or payment of such Debt or
obligation;
(c)
to
lease
properties or to purchase properties or services primarily for the purpose
of
assuring the owner of such Debt or obligation of the ability of any other Person
to make payment of the Debt or obligation; or
(d)
otherwise
to assure the owner of such Debt or obligation against loss in respect
thereof.
In
any
computation of the Debt or other liabilities of the obligor under any Guaranty,
the Debt or other obligations that are the subject of such Guaranty shall be
assumed to be direct obligations of such obligor,
provided
that the
amount of such Debt outstanding for purposes of this Agreement shall not exceed
the maximum amount of Debt that is the subject of such Guaranty.
“Hazardous
Materials”
shall
mean any explosives, radioactive materials, or other materials, wastes,
substances, or chemicals regulated as toxic or hazardous or as a pollutant,
contaminant or waste under any applicable Environmental Law.
“holder”
means,
with respect to any Note, the Person in whose name such Note is registered
in
the register maintained by the Company pursuant to
Section 13.1.
“Institutional
Investor”
means
(a) any original purchaser of a Note, (b) any holder of more than
$2,000,000 of the aggregate principal amount of the Notes then outstanding,
and
(c) any bank, trust company, savings and loan association or other
financial institution, any pension plan, any investment company, any insurance
company, any broker or dealer, or any other similar financial institution or
entity, regardless of legal form.
“Intellectual
Property”
is
defined in Section 5.11.
“Investments”
shall
mean all investments, in cash or by delivery of property made, directly or
indirectly in any Person, whether by acquisition of shares of capital stock,
Debt or other obligations or securities or by loan, advance, capital
contribution or otherwise.
ÒLienÓ
means
any
mortgage, pledge, security interest, hypothecation, assignment, deposit
arrangement, encumbrance, or preference, priority or other security agreement
or
preferential arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement, any Capital
Lease and any financing lease having substantially the same economic effect
as
any of the foregoing).
“Make-Whole
Amount”
shall
have the meaning set forth in Section 8.7 with respect to any
Note.
“Material”
means
material in relation to the business, operations, affairs, financial condition,
assets or properties of the Company and its Restricted Subsidiaries taken as
a
whole.
“Material
Adverse Effect”
means a
material adverse effect on (a) the business, operations, financial
condition, assets or properties of the Company and its Restricted Subsidiaries
taken as a whole, or (b) the ability of the Company to perform its
obligations under this Agreement and the Notes, (c) the ability of any
Subsidiary Guarantor to perform its obligations under the Subsidiary Guaranty
or
(d) the validity or enforceability of this Agreement, the Notes or the
Subsidiary Guaranty.
“Material
Subsidiary”
means,
at
any time, any Restricted Subsidiary of the Company which, together with all
other Restricted Subsidiaries of such Restricted Subsidiary, accounts for more
than (i) 5% of the consolidated assets of the Company and its Restricted
Subsidiaries or (ii) 5% of consolidated revenue of the Company and its
Restricted Subsidiaries.
“Memorandum”
is
defined in Section 5.3.
“Moody’s”
shall
mean Moody Investors Service, Inc.
“Multiemployer
Plan”
means
any Plan that is a “multiemployer plan” (as such term is defined in
Section 4001(a)(3) of ERISA).
“Notes”
is
defined in Section 1 of this Agreement.
“Officer’s
Certificate”
means a
certificate of a Senior Financial Officer or of any other officer of the Company
whose responsibilities extend to the subject matter of such
certificate.
“PBGC”
means
the Pension Benefit Guaranty Corporation referred to and defined in ERISA or
any
successor thereto.
“Permitted
Securitization Transaction”
means
any transaction or group of transactions typically referred to as a
securitization in which the Company or any Restricted Subsidiary sells, directly
or indirectly through another Person, its accounts receivable on a limited
recourse basis (
i.e.,
other
than for recourse relating to,
e.g.,
certain
bad acts or breaches of representations or warranties)
provided
that
(i) each such transaction is treated as a legal true sale to a special
purpose bankruptcy remote entity that obtains debt financing to finance the
purchase price, and (ii) each such transaction qualifies as a sale under
GAAP.
“Person”
means an
individual, partnership, corporation, limited liability company, association,
trust, unincorporated organization, or a government or agency or political
subdivision thereof.
“Plan”
means an
“employee benefit plan” (as defined in Section 3(3) of ERISA) that is or,
within the preceding five years, has been established or maintained, or to
which
contributions are or, within the preceding five years, have been made or
required to be made, by the Company or any ERISA Affiliate or with respect
to
which the Company or any ERISA Affiliate may have any liability.
“Priority
Debt”
means
(without duplication), as of the date of any determination thereof, the sum
of
(i) all unsecured Debt of Restricted Subsidiaries (including all Guaranties
of Debt of the Company but excluding (x) Debt owing to the Company or any
Restricted Subsidiary, (y) Debt outstanding at the time such Person became
a Restricted Subsidiary (other than an Unrestricted Subsidiary which is
designated as a Restricted Subsidiary pursuant to Section 9.6 hereof),
provided that such Debt shall have not been incurred in contemplation of such
person becoming a Restricted Subsidiary, and (z) all Guaranties of Debt of
the Company by any Restricted Subsidiary which has also guaranteed the Notes
and
(ii) all Debt of the Company and its Restricted Subsidiaries secured by
Liens other than Debt secured by Liens permitted by subparagraphs (a)
through (k), inclusive, of Section 10.3.
“property”
or
“properties”
means,
unless otherwise specifically limited, real or personal property of any kind,
tangible or intangible, choate or inchoate.
“Purchasers”
means
the purchasers of the Notes named in Schedule A hereto.
“QPAM
Exemption”
means
Prohibited Transaction Class Exemption 84-14 issued by the United States
Department of Labor.
“Qualified
Institutional Buyer”
means
any
Person who is a qualified institutional buyer within the meaning of such term
as
set forth in Rule 144(a)(1) under the Securities Act.
“Ratable
Portion”
means,
with respect to any Note, an amount equal to the product of (x) the amount
equal
to the net proceeds being so applied to the prepayment of Senior Debt in
accordance with Section 10.4(2), multiplied by (y) a fraction the numerator
of which is the outstanding principal amount of such Note and the denominator
of
which is the aggregate principal amount of Senior Debt of the Company and its
Restricted Subsidiaries being prepaid pursuant to Sections 8.4
and 10.4(2).
“Required
Holders”
means,
at any time, the holders of more than 50% in principal amount of the Notes
at
the time outstanding (exclusive of Notes then owned by the Company or any of
its
Affiliates and any Notes held by parties who are contractually required to
abstain from voting with respect to matters affecting the holders of the
Notes).
“Responsible
Officer”
means
any Senior Financial Officer and any other officer of the Company with
responsibility for the administration of the relevant portion of this
Agreement.
“Restricted
Subsidiary”
means
any Subsidiary in which: (i) at least a majority of the voting securities are
owned by the Company and/or one or more Restricted Subsidiaries and
(ii) the Company has not designated an Unrestricted Subsidiary by notice in
writing given to the holders of the Notes.
“S&P”
means
Standard & Poor’s Ratings Group, a division of The McGraw-Hill Companies,
Inc.
“Securities
Act”
means
the Securities Act of 1933, as amended from time to time.
“Senior
Debt”
means,
as of the date of any determination thereof, all Consolidated Debt, other than
Subordinated Debt.
“Senior
Financial Officer”
means
the chief financial officer, principal accounting officer, treasurer or
comptroller of the Company.
“Subordinated
Debt”
means
all unsecured Debt of the Company which shall contain or have applicable thereto
subordination provisions providing for the subordination thereof to other Debt
of the Company (including, without limitation, the obligations of the Company
under this Agreement).
“Subsidiary”
means,
as to any Person, any corporation, association or other business entity in
which
such Person or one or more of its Subsidiaries or such Person and one or more
of
its Subsidiaries owns sufficient equity or voting interests to enable it or
them
(as a group) ordinarily, in the absence of contingencies, to elect a majority
of
the directors (or Persons performing similar functions) of such entity, and
any
partnership or joint venture if more than a 50% interest in the profits or
capital thereof is owned by such Person or one or more of its Subsidiaries
or
such Person and one or more of its Subsidiaries (unless such partnership can
and
does ordinarily take major business actions without the prior approval of such
Person or one or more of its Subsidiaries). Unless the context otherwise clearly
requires, any reference to a “Subsidiary” is a reference to a Subsidiary of the
Company.
“Subsidiary
Guarantor”
means
each Subsidiary which is party to the Subsidiary Guaranty.
“Subsidiary
Guaranty”
is
defined in Section 2.2 of this Agreement.
“Target
Company”
means
any Person that (i) is acquired by the Company or any Restricted Subsidiary
and
is designated as a Restricted Subsidiary on the date such Target Company is
so
acquired, and (ii) is an obligor of any Due On Sale Debt.
“Transition
Period”
means
the period commencing on the date the Company or any Restricted Subsidiary
acquires any Person or line of business,
provided
that at
such time and after giving effect thereto the Company and its Restricted
Subsidiaries are in compliance with Section 10.8, and ending on the last day
of
the fourth full fiscal quarter following the date of the consummation of such
acquisition.
“Unrestricted
Subsidiary”
means
any
Subsidiary so designated by the Company.
“USA
Patriot Act”
means
United States Public Law 107-56, Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT
ACT)
Act of 2001, as amended from time to time, and the rules and regulations
promulgated thereunder from time to time in effect.
